JUDGMENT Per: U.C. Dhyani, J. One Arjun Das wrote a complaint (Ext. Ka-2) to S.O., PS Jaspur on 30.09.2002 enumerating the facts contained therein, that Baldevraj Arora had a photoshop in Jaspur. On 29.09.2002, at 5:30 p.m., a person claiming himself to be a photographer of Bajpur, came to Baldevraj Arora and requested him to record videography of a party to be held in village Dulhepur. Baldevraj Arora went to record the videography in his scooter no. UP-6593. Baldevraj Arora also took video camera, still camera, battery etc. along with him. On 30.09.2002, the informant came to know that a dead body was lying on a road leading to Surjanpur. When the informant reached there along with his brother, he found the dead body of his son Baldevraj. Scooter, video camera, still camera etc. were also missing. It appeared to him that his (informant’s) son was looted and thereafter he was killed. When Baldevraj Arora left his shop, informant’s brother Chaudhari Ram and servant Deepak were present, who could recognize the man, who called Baldevraj Arora and took him (Baldevraj) along with him. Chik FIR was registered on the basis of said complaint. 2. On the basis of said first information report, which was registered as case crime no. 479/2002, under Sections 302, 394, 411/34 IPC in PS Jaspur, District Udham Singh Nagar, the investigation began. 3. On 02.10.2002, on the information received from the police informer, the police party went to the trisection of Daduwala Sanyasi, whereupon accused Ram Gopal was arrested. Video camera, video light, batteries and videocassettes were recovered from his possession. Arjun Das, Chaudhary Ram, Deepak Kumar and Mukesh identified the articles of Baldevraj Arora. They also recognized Ram Gopal and said that he (Ram Gopal) called Baldevraj Arora from his shop. Ram Gopal confessed his guilt and said that Bobby killed Baldevraj Arora by strangulation. Ram Gopal also said that he along with Nirmal Singh (co-accused) helped Bobby in killing Baldevraj Arora, who was beaten up first and then was strangulated with the belt of his (victim’s) pant. The arrest of accused Somveer Singh alias Bobby was affected on 10.10.2002. Scooter of the victim was recovered from his possession. Necessary papers were prepared in this regard. Accused-appellant Nirmal Singh was arrested by the police on 13.10.2002 at 6:10 a.m. near Daduwala (PS Jaspur). The arrest of accused Somveer Singh alias Bobby was affected on 10.10.2002. Scooter of the victim was recovered from his possession. Necessary papers were prepared in this regard. Accused-appellant Nirmal Singh was arrested by the police on 13.10.2002 at 6:10 a.m. near Daduwala (PS Jaspur). Nirmal Singh confessed his guilt saying that, on the instigation of Ram Gopal, his relative, he along with Somveer (Bobby) and Ram Gopal killed a photographer by strangulating him and threw his dead body in a rice field. A still camera along with flashlight was recovered from Nirmal Singh’s possession. Informant Arjun Das identified the camera and said that the same belonged to his son Baldevraj. Nirmal Singh confessed that camera and flashlight were the looted property. PW 8 Inspector I.D.Joshi, investigated into the case, prepared recovery memos, site plans (Ext. Ka-22, Ext. Ka-23 and Ext. Ka-24) and took the statements of the witnesses. After completion of investigation and on being satisfied with the fact that the caucused-persons committed the offences punishable under Sections 302, 394, 411/34 IPC, Investigating Officer submitted charge-sheet (Ext. Ka-25) against the accused-appellants Somveer Singh alias Bobby alias Mota, Ram Gopal and Nirmal Singh in the Court of Magistrate having jurisdiction. Thereafter the case was committed to the Court of Sessions. 4. When the trial began and prosecution opened it’s case, charge for the offences punishable under Sections 302/34 IPC and Sections 394, 411 IPC were framed against the accused Somveer, Ram Gopal and Nirmal Singh, to which they pleaded not guilty and claimed trial. Eight prosecution witnesses, namely, PW 1 Arjun Das, PW 2 Chaudhary Ram, PW 3 Dr. Madan Mohan, PW 4 SI Rajveer Singh, PW 5 Dori Singh, PW 6 Const. Sudesh Kumar Taneja, PW 7 Head Const. Revti Nandan and PW 8 Inspector I.D.Joshi were examined on behalf of prosecution. Incriminating evidence was put to the accused under Section 313 Cr.P.C., in which they denied the allegations and said that they were falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned trial court convicted accused-appellants Somveer, Ram Gopal and Nirmal Singh for the offences punishable under Section 302 IPC read with Section 34 IPC, Section 394 IPC and Section 411 IPC. They were sentenced to undergo imprisonment for life and a fine of Rs. No evidence was given in defence. After considering the evidence on record, learned trial court convicted accused-appellants Somveer, Ram Gopal and Nirmal Singh for the offences punishable under Section 302 IPC read with Section 34 IPC, Section 394 IPC and Section 411 IPC. They were sentenced to undergo imprisonment for life and a fine of Rs. 5,000/- in connection with the offence punishable under Section 302 read with Section 34 IPC. They were sentenced to undergo rigorous imprisonment for seven years in connection with offence punishable under Section 394 IPC and to undergo rigorous imprisonment for a period of two years in relation to the offence punishable under Section 411 IPC. Aggrieved against the order of conviction and sentence, present criminal appeals were preferred, which are being decided by this common Judgment and Order. 5. PW 1 Arjun Das said that his son Baldevraj Arora had a shop of photography/videography in the name of Naroola Photo Studio in Jaspur. In the evening of 29.09.2002, a person came to him and invited him for videography. At that time, PW 1’s brother Chaudhary Ram (PW 2) and servant Deepak Chauhan (not examined) were present. That person said that a photo film of a party was to be taken in village Dulhepur. On this, Baldevraj Arora, proceeded on scooter no. UP 20-6953 with his video camera and batteries etc. to village Dulherpur. Baldevraj did not return by the next morning. On 30.09.2002, PW 1 came to know that a dead body was lying in the field of rice adjoining the road which leads to Surjan Nagar. PW 1 went to identify the dead body in the field of rice and was shocked to know that the dead body was of his son. Video camera, still camera, batteries etc. were missing. It appeared to him (PW 1) that his son was looted and thereafter he was killed. PW 1 was also a signatory to the inquest report. PW 1 wrote complaint (Ext. Ka-2) and submitted the same in the PS concerned. When a search for the assailant(s) was made, PW 1 also accompanied the police party. Accused Ram Gopal was apprehended. Video camera, videocassettes, video light and two batteries were recovered from the possession of accused Ram Gopal. The articles belonged to the deceased Baldevraj Arora. PW 1 wrote complaint (Ext. Ka-2) and submitted the same in the PS concerned. When a search for the assailant(s) was made, PW 1 also accompanied the police party. Accused Ram Gopal was apprehended. Video camera, videocassettes, video light and two batteries were recovered from the possession of accused Ram Gopal. The articles belonged to the deceased Baldevraj Arora. Ram Gopal confessed his guilt and said that Somveer alias Bobby alias Mota took away the scooter, he (Ram Gopal) took video camera, video light, video cassette and the remaining articles like still camera etc. were with Nirmal Singh. Memo (Ext. Ka-3) was prepared. These articles were exhibited before the trial court. PW 1 also witnessed the arrest of accused Nirmal Singh and recovery of looted articles from his possession on 13.10.2002, at 6:10 a.m., at Daduwala, within the jurisdiction of PS Jaspur. 6. PW 2 Chaudhary Ram supported the statement of PW 1. PW 2 said that his nephew Baldevraj Arora ran a photo shop in the name of Naroola Photo Studio in Jaspur. On 29.09.2002, at 5:30 p.m., when PW 2 was sitting in the shop of Baldevraj Arora, a person who claimed himself to be a photographer of Bajpur, invited Baldevraj Arora to make a photo film (videography) in village Dulhepur. The victim took his scooter and carried video camera, still camera etc. along with him and proceeded towards village Dulherpur. Baldevraj Arora did not return. On 30.09.2002, PW 2 came to know through someone that a dead body was lying on Surjan Nagar road in the rice field of Jaswant Singh. It was also indicated that the victim appeared to be a photographer. On hearing the same, PW 1 and PW 2 went to the place where the dead body of the victim was lying and identified the dead body of Baldevraj Arora. PW 2 also witnessed the confessional statement and arrest of accused Ram Gopal, who said that Nirmal Singh, and Somveer also participated in the crime. 7. PW 3 Dr. Madan Mohan conducted psotmortem on the dead body of the victim on 30.09.2002, at 5:00 p.m. and found 04 contusions and multiple ruptured blisters over pectoral region. The contusions were found in and around neck, over forehead, at nose etc. The cause of death, according to Dr. Madan Mohan, was asphyxia as a result of strangulation. 8. PW 3 Dr. Madan Mohan conducted psotmortem on the dead body of the victim on 30.09.2002, at 5:00 p.m. and found 04 contusions and multiple ruptured blisters over pectoral region. The contusions were found in and around neck, over forehead, at nose etc. The cause of death, according to Dr. Madan Mohan, was asphyxia as a result of strangulation. 8. PW 4 SI Rajveer Singh was posted as Sub-Inspector in PS concerned on 30.09.2002. PW 4 along with PW 6 Constable Sudesh Kumar, on having received information that the dead body of a person was lying, proceeded towards Surjan Nagar Road. Arjun Das and his brother also came there. Arjun Das identified the dead body of his son. Arjun Das gave complaint (Ext. Ka-2). PW 4 prepared site plan (Ext. Ka-12), collected blood stained earth and simple earth, took the statements of witnesses, and thereafter transferred the investigation to PW 8 Inspector I.D.Joshi. PW 4 was also a witness to the recovery of some looted property from the possession of accused Ram Gopal, who confessed that he along with Somveer and Nirmal Singh strangulated Baldevraj Arora and committed his murder. PW 4 was also a witness to the recovery of part of looted property from the possession of Somveer, consequent upon his confession. PW 4 was also a witness to the confession which led to the recovery of some of the incriminating articles from the possession of third accused i.e. Nirmal Singh. Recovery memos were signed by PW 4. 9. PW 5 Dori Singh took the photographs of the dead body of victim. As has been said earlier, PW 8 Inspector I.D.Joshi took over investigation from SI Rajeev Singh and submitted charge-sheet (Ext. Ka-25) against the accused-persons. 10. The only chain that was available to the prosecution witnesses was through Ram Gopal, who was known to them (PW 1 and PW 2). Ram Gopal confessed his participation in the crime which led to the recovery of some of the looted articles from his possession. The said articles were specific to the victim. They were uncommon, in as much as, only a professional photographer can keep such articles. After arrest of Ram Gopal, other looted property was recovered from the possession of other accused, viz., Somveer and Nirmal Singh, who also confessed their guilt. The said articles were specific to the victim. They were uncommon, in as much as, only a professional photographer can keep such articles. After arrest of Ram Gopal, other looted property was recovered from the possession of other accused, viz., Somveer and Nirmal Singh, who also confessed their guilt. It may be pointed out that the looted property was recovered in piecemeal on different dates from the possession of the accused persons. 11. Accused Ram Gopal hailed from Bajpur (U.S.Nagar), whereas Nirmal Singh and Somveer hailed from Moradabad. PW 1 and PW 2 were the residents of Jaspur. PW 1 and PW 2 had no enmity with the accused-appellants. Prosecution led the evidence through witnesses (PW 1 & PW 2) by saying that on the fateful day, accused Ram Gopal invited victim for recording videography of a function. Victim proceeded from his shop along with accused Ram Gopal. The next day, the victim was found dead. Scooter, video camera, etc. were not found with the dead body of victim. Subsequently, the accused-appellants were arrested one by one. The chain started with the confessional statement of Ram Gopal along with recovery of some of the looted articles from him (Ram Gopal), who was known to the prosecution witnesses (PW 1 and PW 2). Later on, some other looted articles were recovered from the possession of Nirmal Singh on 13.10.2002, at 6:10 a.m., near Daduwala. Before that, stolen scooter was found from the possession of Somveer on 10.10.2002, at 5:30 a.m., near Jaspur-Thakurdwara Road, at Talampur trisection. The chain of circumstances was thus complete. While prosecution story was believable in respect of accused Ram Gopal and Nirmal, there was some doubt regarding the involvement of Somveer Singh in the crime. The reasons were not far to seek. In the recovery memo (Ext. Ka-13), which although contained the signatures of Somveer Singh, it was mentioned that Bajaj Chetak No. U.P.20 – 6593 was recovered from him (Somveer). A look at the complaint (Ext. Ka-2) will reveal that although scooter number was written in the complaint, but the make of the same was not mentioned therein. In the examination-in-chief, PW 1 Arjun Das also did not mention the make of the scooter, although the number of the same was mentioned. A look at the complaint (Ext. Ka-2) will reveal that although scooter number was written in the complaint, but the make of the same was not mentioned therein. In the examination-in-chief, PW 1 Arjun Das also did not mention the make of the scooter, although the number of the same was mentioned. Most important piece of evidence in favour of accused Somveer Singh was supplied by PW 8 I.D.Joshi, Investigating Officer, who said that on 10.10.2002, on receiving the information from the police informer, Somveer Singh was arrested on the selfsame day at 5:30 a.m. along with looted scooter. PW 8 also said that no public witness was available. While we believe the statements of prosecution witnesses in respect of accused-appellants Ram Gopal and Nirmal Singh, it was difficult for us to believe that a thief or a robber or a murderer will roam around freely with the looted property in such a way, as accused Somveer Singh was alleged to have been wandering. The incident took place on 29.09.2002/30.09.2002 and the accused-appellant Somveer Singh was allegedly driving the looted scooter on 10.10.2002. Hardly had the blood of deceased dried, the accused Somveer was riding over the (looted) scooter of the deceased. Was it believable? After all Somveer was, allegedly, a thief, a robber and a murderer. Why Somveer would ride so freely on looted scooter within a short span of time? Case of Nirmal Singh and Ram Gopal was different, in as much as, Ram Gopal was a known person to PW 1 and PW 2, recovery of video camera etc., was made from him and recovery of still camera of victim was made from Nirmal Singh. The video camera, batteries, still camera were specific to the victim, who was a professional photographer. Complete description of scooter, which was allegedly recovered from the possession of Somveer, was not given in the complaint and even in the statement of PW 1. 12. Thus we hold that, whereas, the prosecution was able to prove case against accused-appellants Ram Gopal and Nirmal Singh beyond reasonable doubt, the prosecution was not able to prove the case against accused-appellant Somveer Singh alias Somveer Jat alias Bobby alias Mota to the hilt. 12. Thus we hold that, whereas, the prosecution was able to prove case against accused-appellants Ram Gopal and Nirmal Singh beyond reasonable doubt, the prosecution was not able to prove the case against accused-appellant Somveer Singh alias Somveer Jat alias Bobby alias Mota to the hilt. There was no infirmity in the impugned order, so far as the same relates to accused-appellants Ram Gopal and Nirmal Singh, but there is certainly scope of interference in the impugned order in respect of accused-appellant Somveer alias Bobby alias Mota. 13. The appeals preferred by appellants Ram Gopal alias Gopal and Nirmal Singh are accordingly dismissed. The judgment and order passed by learned trial court is accordingly affirmed, as also the conviction and sentence awarded to them vide order dated 08.01.2007. Appellants Ram Gopal alias Gopal and Nirmal Singh are in jail. Registry is directed to send the lower court record back to the trial court to make the convict-appellants Ram Gopal and Nirmal Singh serve out the remaining part of sentence awarded by the court below and thus affirmed by this Court. 14. Appeal preferred on behalf of the appellant Somveer alias Bobby alias Mota is allowed. The judgment and order dated 08.01.2007 passed by learned trial court, so far as it relates to conviction and sentence of appellant Somveer alias Bobby alias Mota is set aside. The conviction recorded in respect thereof and sentence thus awarded to appellant Somveer alias Bobby alias Mota is also set aside. Appellant Somveer alias Bobby alias Mota in jail. He be set at liberty forthwith, if not required to be detained in any other case. An information to this effect be sent to the Superintendent of Jail where appellant Somveer alias Bobby alias Mota is currently serving out the sentence. Let a copy of the Judgment be sent to the court concerned for compliance as above. Lower court record be also sent back.