MAHAVIR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The above named appellants have preferred this appeal against their conviction and sentence under S.364, I.P.C. to eight years' R.I. passed by Sri V.M. Kher, IV Addl. Sessions Judge, Etah by his judgement and order dated 5-2-1979.

(2.) The prosecution case, in brief, as given in the first information report (Ex. Ka-2) lodged by Nathoo Singh on 5-9-1978 at 7 p.m. is that Data Ram, deceased, was his uncle; that Sri Brijendra Pratap son of Raja Saheb Sarnam was murdered and in that case appellants Mahabir and Rustam were accused and his uncle Data Ram deceased was a prosecution witness; that deceased Data Ram enjoyed the company of these appellants and they used to during together. That on 4-9-1976 at about 8 p.m. appellants Mahabir and Rustam along with another accused Itwari came at the Gher of Data Ram and had taken him to the engine of Roop Ram for drinks and enjoying a chicken. Data Ram, however, did not return till the following morning, hence he became suspicious and searched for Data Ram. At the engine of Roop Ram, Khan Sahai son of Roop Ram told him that the appellants along with Data Ram had come at the engine and remained there till 9 p.m. that they had enjoyed the drinks but thereafter they had left toward, he river. The informant then went toward the river and there he found moustaches of Dataram at the river side and also some drops of blood. They tried to search the dead body but only a torn Kurta of Dataram was found (sic) the dead body was not found. As the river was overflowing the dead body could not be recovered. He lodged the first information report at the police station Marhara as stated above in the evening at 7 p.m. on 5-9-1976, also stating therein that he had suspicion against all the three accused namely, Mahabir, Rushtam and Itwari, who had taken the deceased from the Gher.

(3.) On the basis of the first information report a case was registered and investigation of the case was entrusted to S.I.S.K. Tyagi, who reached the village in the night end on the following day on 6-9-1976 he inspected the site where moustaches and blood stains of Data Ram were found. He put the moustaches as well as sample of blood stained earth in separate sealed bundles and prepared the recovery memos. He also seized the Kurta alleged to be of the deceased. He made every effort to find out the dead body but could not succeed. However on 7-9-1976 he came to know that the dead body had been found within the circle of police station Baghwala.