JUDGMENT : 1. This appeal has been filed against the judgement and order dated 24.03.2017 passed by the Additional Sessions Judge, Court No.3, Kushi Nagar at Padrauna in Sessions Trial No. 323 of 2014 (State of U.P. vs. Bholu @ Sunil Gond) arising out of Crime No. 299 of 2014, under Sections 304, 352 I.P.C., Police Station Ramkola, District Kushi Nagar, convicting and sentencing the appellant under Section 304 Part I I.P.C. for 10 years rigorous imprisonment & fine of Rs. 5000/-and in default of payment of fine to further undergo 06 months additional simple imprisonment. The appellant has been extended the benefit of Section 428 Cr.P.C. He is in jail since 28.04.2014. 2. The present appeal was admitted vide order dated 27.04.2017 passed by a co-ordinate Bench of this Court. The lower court records were summoned which as per the office report dated 19.09.2017 have been received in the concerned section of this Court. Although prayer for bail of the appellant is pending disposal in the matter but learned counsel for the appellant states that since the matter is being argued finally, the same be dismissed as not pressed. The prayer for bail is thus dismissed as not pressed. 3. A written report dated 26.04.2014 was given by Kishundhari Chaudhary at Police Station Ramkola, District Kushi Nagar which was scribed by Rana Pratap Rao stating therein that he is a permanent resident of village and post Parivar Par, Police Station Ramkola, District Kushi Nagar. On 26.04.2014 in the night at about 12.15 am his son Rakesh Chaudhary aged about 23 years came to him in his room while shouting papa-papa and was also making noise on which he woke up and saw his son Rakesh drenched in blood. On seeing the condition of Rakesh, he asked him as to what has happened and how he received injury on which Rakesh told him that Kumari Sanju sister of Bholu Gond had made a telephonic call to him, called him to her house, where Sanju was talking to him and then suddenly Bholu and Chhotey Lal the brother-in-law of Bholu saw both of them talking who became angry and then Bholu assaulted him with a knife on his chest and Chottey Lal armed with lathi ran to assault him but he somehow ran away from there. He after telling the same fell down on the floor and lot of blood has come out. Khajanchi his brother and Dilip Kumar and many people of the village and house reached the place and saw him. Seeing the precarious condition of Rakesh, he in the tempo of Sunil Chaudhary took Rakesh to Ramkola Government Hospital where the doctor declared him dead. He then brought back the dead body to the house which is lying at his door. He has thus come to give information. His report be lodged. The said application is Exb:Ka.1 to the records. 4. On the basis of the said application of Kishundahri, a first information report was lodged on 26.04.2014 at 7.45 am as Case Crime No. 299 of 2014, under Sections 304, 352 I.P.C., Police Station Ramkola, District Kushi Nagar against Bholu Gond and Chhotey Lal. The distance between place of occurrence and the police station is 11 kms. The chik and the first information report is Exb:Ka. 2 to the records. The police recovered a torn blood stained old petticoat which was told by the first informant as the cloth which was used to stop the blood from the injury. The recovery memo was prepared by S.I. Janeshwar Singh on 26.04.2014. The same is Exb:Ka.6 to the records. The recovery memo of blood stained mud & plain earth recovered on 26.04.2014 was prepared which is Exb:Ka.7 to the records. The police further recovered a pant which was said to be as that of the deceased Rakesh Chaudhary identified by his father Kishundhari which was lying on the tin shade at the house of the accused Bholu. A Samsung mobile phone was recovered from the right pocket of the said pant which was stated by Kishundhari as that of the deceased. Both the said articles were recovered for which a recovery memo was prepared on 26.04.2014 by Janeshwar Singh, S.I. The same is marked as Exb:Ka.8 to the records. A knife is alleged to have been recovered on 27.04.2014 at about 16.45 hours on the pointing out of the accused Bholu from the roof of the house of one Mahendra which was wrapped in a plastic. 5. The inquest on the body of the deceased was conducted on 26.04.2014 by S.H.O., Police Station Ramkola, District Kushi Nagar. The same is Exb:Ka.5 to the records. 6. 5. The inquest on the body of the deceased was conducted on 26.04.2014 by S.H.O., Police Station Ramkola, District Kushi Nagar. The same is Exb:Ka.5 to the records. 6. The postmortem of the deceased Rakesh Chaudhary was conducted on 26.04.2014 at 2.45 pm by Dr. Vijendra Prasad P.W.-5. The doctor found the following injuries on his body:- (i) Lacerated wound 1.0x 0.5 cm over bridge of nose. (ii) Stab wound 1.5 x 0.5 cm x cavity deep over left side about 3cm below and medial to the left nipple. (iii) Contusion with swelling 4.0 x 3.0 cm over right side parietal region of the head 4cm above and behind to the right ear. The doctor found fracture of the right parietal bone and occipital bone of the right side. Membranes were found to be lacerated and congested. The pleura was lacerated at left side. The left lung was lacerated and congested. The pericardium was lacerated. The cause of death was opined as shock and haemorrhage due to antemortem injury. The postmortem report is Exb:Ka.4 to the records. 7. The articles being mud which was blood stained and plain, petticoat, knife, half T-shirt, underwear, a thread (raksha) and chain were sent to chemical analyst for examination. The letter for sending the same are marked as Exb:Ka.12 & 13 to the records. The report of the chemical examiner is dated 20.06.2014 which states that in the chain, the serum analysis was in conclusive, in the other articles blood was found. In both the muds and thread (raksha) the blood stains were disintegrated and as such their origin could not be deciphered. 8. The investigation concluded and charge-sheet No. 123 of 2014 dated 23.05.2014 was submitted against the appellant under Section 304, 352 I.P.C. The same is marked as Exb:Ka.16 to the records. 9. Vide order dated 21.08.2014, the Sessions Judge, Kushi Nagar at Padrauna framed charges against the appellant under Section 304 I.P.C. and 352 I.P.C. The accused was read over the same who denied it and claimed to be trite. 10. 9. Vide order dated 21.08.2014, the Sessions Judge, Kushi Nagar at Padrauna framed charges against the appellant under Section 304 I.P.C. and 352 I.P.C. The accused was read over the same who denied it and claimed to be trite. 10. The prosecution in support of its case examined Kushidhari, the father of the deceased Rakesh Chaudhary who is also the informant as P.W.-1, Khajanchi the brother of Kishundhari who took Rakesh Chaudhary in an injured condition along with Kishundahri to the hospital was examined as P.W.-2, Head Constable Ram Awadh who transcribed the first information report was examined as P.W.-3, Dr. Prabhunath Singh who conducted the postmortem examination of Kumari Sanju aged about 18 years on 29.04.2014 was examined as P.W.-4, Dr. Vijendra Prasad who conducted the postmortem examination of Rakesh Chaudhary the deceased was examined as P.W.-5, Bhim Yadav who was the then S.H.O. who conducted the inquest on the body of the deceased was examined as P.W.-6 and Vijay ShanKar Pandey, the Investigating Officer of the case was examined as P.W.-7. 11. The accused in his statement recorded under Section 313 Cr.P.C. stated that he has been implicated due to enmity and he is innocent. No defence evidence was lead. 12. The trial court vide the impugned judgement and order came to a conclusion that the prosecution has proved its case beyond reasonable doubt. The accused is liable to be convicted and thus sentenced him under Section 304 Part I I.P.C. 13. Heard Sri Krishna Datta Tiwari, learned counsel for the appellant and Sri Raj Kumar Gupta, learned counsel for the State and perused the material on record. 14. Learned counsel for the appellant argued as follows:- (i) The appellant has been falsely implicated. (ii) There is no eye-witness of the incident. (iii) P.W.-1 Kishundhari is not an eye-witness of the incident. (iv) P.W.-2 Khajanchi is also not any eye-witness of the incident and is an interested witness as being the family member of the deceased and P.W.-1. (v) There is no independent witness to support the prosecution case. (vi) The recovery of knife as alleged by the prosecution is a fabricated and planted recovery which is not proved by any cogent evidence. The said recovery is not supported by any independent witness. 15. Per contra, learned counsel for the State argued that the appellant is named in the first information report which has been lodged promptly. (vi) The recovery of knife as alleged by the prosecution is a fabricated and planted recovery which is not proved by any cogent evidence. The said recovery is not supported by any independent witness. 15. Per contra, learned counsel for the State argued that the appellant is named in the first information report which has been lodged promptly. The story as narrated in the first information report is a true and a natural story. The deceased was assaulted by the appellant in his house with a knife. There is recovery of a knife which is beyond any doubt. The deceased gave his oral dying declaration to his father Kishundhari-P.W.1 which has been narrated in the first information report and also later on by him. The report of the forensic expert also states of human blood being present in the knife. There is no reason for false implication of the appellant. In the present case Kumari Sanju has also died for which a first information report has been lodged. Her postmortem examination was conducted by Dr. Prabhunath Singh-P.W.-4. The deceased was called by Kumari Sanju and he had gone to her house on her call where he was assaulted. It is argued that the present appeal is liable to be dismissed. 16. P.W.1-Kishundhari is the first informant and father of the deceased. He has stated that in the night of 25/26.04.2014 he was sleeping in his house where at about 12.15 pm his son Rakesh Chaudhary came calling him. He found him to be drenched with blood on which he asked him as to how he received the injuries, whereupon, he stated that Kumari Sanju the sister of Bholu called him to her house by making a phone call. He went there and was talking to her wherein Bholu and his brother-in-law Chhotey Lal saw them and in a state of anger, Bholu gave him a knife blow on his chest after which Chhotey Lal chased him with lathi to assault him but he got saved. He then fell down on the floor. Till then, lot of blood had flowed out. On seeing his precarious condition, Rakesh was taken in the tempo of Sunil Chaudhary to the Goverment Hospital Ramkola where the doctors declared him dead. His dead body was brought back home and then an application was transcribed and then given for lodging of the first information report. Till then, lot of blood had flowed out. On seeing his precarious condition, Rakesh was taken in the tempo of Sunil Chaudhary to the Goverment Hospital Ramkola where the doctors declared him dead. His dead body was brought back home and then an application was transcribed and then given for lodging of the first information report. He proves the said application. He further proves the recovery of pant and mobile phone from the tin shade of the house of the appellant. He states he is an eyewitness in the inquest and proves his signature on the same. In his cross-examination, he states that he is not an eye-witness of the assault on his son. He did not see anyone assaulting his son. His brothers Khajanchi and Dilip also did not see any assault. The injury of knife was not sustained by Rakesh in his house. He states that he was told of the assault by Rakesh to have been done by Bholu. Rakesh is unmarried. He does the work of labour in Amritsar in Punjab. There was no enmity between Rakesh and Bholu. There was no enmity of his family with Bholu. 17. P.W.2-Khajanchi states that he woke up in the night at about 12 on the noise in the house and found Rakesh Chaudhary drenched in blood. He had a knife injury on his chest. His condition was precarious after which Kishundhari and he himself took Rakesh Chaudhary on a tempo to the hospital where the doctors declared him dead. He was later on told that Rakesh Chaudhary was talking to the sister of Bholu which was seen by Bholu on which he assaulted him with a knife. He states in his cross-examination that he is brother of Kishundhari. He lives in a different house. When Rakesh reached the house he was not there. He reached there on hearing the noise. He did not see anyone assaulting Rakesh. 18. P.W.3-Ram Awadh is the Head Constable who had transcribed the chik first information report on the basis of an application given to him by Kishundhari. He proves the same. 19. P.W.4-Dr. Prabhunath Singh was the doctor who conducted the postmortem examination of Kumari Sanju aged about 18 years daughter of Jaddu on 29.04.2014. 18. P.W.3-Ram Awadh is the Head Constable who had transcribed the chik first information report on the basis of an application given to him by Kishundhari. He proves the same. 19. P.W.4-Dr. Prabhunath Singh was the doctor who conducted the postmortem examination of Kumari Sanju aged about 18 years daughter of Jaddu on 29.04.2014. He found many injuries on her body being a contusion on the left side of head, a contusion on the left side of chest on the front, an abrasion on the left front of abdomen, a contusion on the left shoulder and arm, an abrasion on the back side of right hand and a dislocation of index finger of right hand. The body was found in a state of putrefaction and also maggots were found. 20. P.W.5-Dr. Vijendra Prasad was examined who had conducted the postmortem of the deceased Rakesh Chaudhary. The injuries, the internal damages and the cause of death have already been stated above. 21. P.W.6-Bhim Yadav was the S.H.O. of the police station who conducted the inquest on the body of the deceased. 22. P.W.7-Vijay Shan Kar Pandey was the Investigating Officer of the case who took up the investigation from its inception and concluded it by filing charge-sheet. 23. P.W.-1 was given a suggestion that in the murder of Sanju, Kishundhari and Khajanchi were the accused and just in order to save themselves they have lodged the present case to which, he denies. Further to a suggestion that on the saying of Ram Pratap Rao the case was lodged against Bholu is also denied. 24. P.W.-2 Khajanchi was given a suggestion that under the pressure of family members he has given a false statement which has been denied by him. 25. In the present case, the deceased in an injured condition came running to his house drenched in blood and told about the incident to Kishundahri P.W.-1 who was his father. He was then being tried to be taken to the hospital but he reached there dead. The version given by the deceased Rakesh Chaudhary to Kishundhari P.W.-1 corroborates with the medical evidence. Khajanchi P.W.-2 is only a witness to the fact of taking Rakesh Chaudhary the deceased to the hospital along with Kishundahri P.W.-1 in a tempo. The case right from the very inception was that there is no eye-witness to the incident. The version given by the deceased Rakesh Chaudhary to Kishundhari P.W.-1 corroborates with the medical evidence. Khajanchi P.W.-2 is only a witness to the fact of taking Rakesh Chaudhary the deceased to the hospital along with Kishundahri P.W.-1 in a tempo. The case right from the very inception was that there is no eye-witness to the incident. The case rests on the oral dying declaration of the deceased Rakesh Chaudhary to Kishundahri P.W.-1. A knife has been recovered on the pointing out of the accused-appellant. The same was sent to the ballistic expert which was item no.3 before him and in his report dated 20.06.2014 he has stated the same to be having human blood on it. The pant of the deceased along with his mobile phone was recovered from the tin shade of the house of the accused-appellant. The same was recovered in the presence of Kishundahri Chaudhary P.W.-1 and Rana Pratap Rao. The same has not been under challenge by the accused. The description given by the deceased Rakesh Chaudhary to his father Kishundahri P.W.-1 is a statement under Section 32 (1) of the Indian Evidence Act. Rakesh Chaudhary died soon after narrating the incident to his father. The recovery of knife is on the pointing out of the appellant. 26. The present case appears to be a case of honor killing as even Kumari Sanju the sister of the accused-appellant was murdered. Her postmortem examination was conducted by Dr. Prabhunath Singh P.W.-4. The accused could not point out any glaring feature in the case which would dislodge the prosecution story as a whole. 27. This Court, thus comes to a conclusion that there is no error in the trial court judgement. The present appeal is thus dismissed. The appellant-Bholu Alias Sunil Gond is in jail. He shall remain in jail to serve out the sentence as awarded to him by the trial court. 28. Let a copy of this judgement be communicated to the trial court concerned within two weeks. The trial court records be also returned back with it.