Ran Veer vs State Of U.P.
2011 Latest Caselaw 671 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
RESERVED
 

 

 
1.

CRIMINAL APPEAL NO 2538 OF 2009

Ranbir ............V...........State of UP

2. CRIMINAL APPEAL NO 3112 OF 2009

Rajnish Kumar....V...........State of UP

3. CRIMINAL APPEAL NO. 2067 OF 2009

Dharmendra.......V..........State of UP

HON F.I.REBELLO. CJ

HON IMTIYAZ MURTAZA J

(Delivered by Hon Imtiyaz Murtaza, J)

These three appeals have their genesis in the judgment and order dated 2.4.2009 passed in Sessions Trial No 508 of 2007 and 609 of 2007 by Addl Sessions Judge (FTC) Gautambudh Nagar whereby the learned Sessions Judge recorded verdict of conviction against the appellants under section 302/34 and 201 IPC and each of them were sentenced to undergo imprisonment for life studded with sentence of fine of Rs 5000/- each with default stipulation to undergo imprisonment for six months followed by sentence under section 201 IPC to undergo three years RI attended with fine of Rs 3000/- again with default stipulation to under go 3 months imprisonment. The appellant Rajnish was further convicted under section 25/4 Arms Act in ST No 609 of 2007 and was sentenced to undergo six months R.I studded with sentence of fine of Rs 250/- with default stipulation to undergo 15 days RI.

Since challenge in the aforesaid appeals is to a composite judgment and order dated 2.4.2009, they are amenable to common disposal.

The informant in the instant case is Mehandi Hasan alias Bablu Khan son of Karim Uddin, a native of village Ghodi Bachhera P.S Dadri District Gautambudh Nagar, who gave a written report at police station Dadri on 26.7.2007 alleging therein that there was an uproar in the village in the morning on 26.7.2007 that a dead body of a male was lying supine in the field of Raj Singh son of Murari Singh, which was adjacent to a passing canal. Upon coming to the field, it is further alleged, the dead body was of unknown identity and it was lying flat with discernible injuries on the neck in the belly ostensibly caused by sharp edged weapon and it appeared that after committing murder elsewhere, the body had been dumped here. It is also alleged that the body seemed to be of some Muslim youth. It is also alleged that knots of people had collected at the spot.

The prosecution case further is that the same day, an application was given at the police station by Shamshad resident of Ahangran town P.S Jahangirabad District Bulandshahr mentioning that the body recovered from the field of Raj Singh was one of Firoz, who was having a shop at Railway Road selling iron bowl (frying pan) situated adjacent to the shop of one Dr K.K.Sharma. The body was identified by Bablu son of Allajaan and Doctor Usman son of Rahamat Ullah resident of Nai Abadi PS Dadri on the basis of cloths and Chappals, which the deceased was wearing and also by his physiognomy. It was further mentioned therein that the deceased had left on 25.7.2007 at about 2 pm riding his Hero Honda CD Don of red colour bearing registration No. UP 13 H 8015. It was prayed therein that the post mortem of the body, whose inquest was carried as body of unknown person, be conducted accordingly.

It would appear that on the basis of written report of the informant Mehandi Hasan, the case was initially registered under section 302/201 IPC at case crime No 651 of 2007.

The investigation of the case was taken over by PW 10 Girvar Singh, who was then posted as SSI at Police Station Dadri. After the case had been registered at the police station, the investigating officer arrived at the scene and prepared recovery memos of spectacles, Chappals, cap, blood stained and simple earth. He also recorded the statements of informant and other persons and the same day, he recorded the statements of the brother, and the brother in law of the deceased, who had identified the dead body as of deceased Firoz. He also recorded the statements of the wife and the mother of the deceased. On 28.7.2007, the statements of sister and father of the deceased were recorded. Thereafter, call details of Mobile 0350776319 were collected. On 5.8.2007 statements of Nawab Saifi and Mohd Anis, who were village brothers of the deceased were recorded and they disclosed that on 25.7.2007, when he was on way to Dadri by a bus, the accused persons were seen by him conversing with the deceased near outpost Akbarpur and thereafter, the accused persons and deceased proceeded riding two motor cycles in the direction of village Ghodi Bachhera. Thereafter, statement of Aftab Ahmad was also recorded who too supported the version that the deceased and accused were seen talking and thereafter they left towards village Ghodi Bachhera. On 6.8.2007, again statements of witnesses were recorded and out of them, the statement of Pappu son of Islamuddin was to the effect that the deceased had talked to Ranbir accused on mobile No 9871341806 and they were heard talking about some settlement in respect of property situated in Ghodi Bachhera. On the basis of statements aforesaid, the accused were arrested on 9.8.2007. On the pointing out of the accused persons, the investigating officer recovered motor cycle. Sharp edged weapon (Katar) was recovered on the pointing out of accused Rajnish. After recovery the weapon (Katar) was sent to the Laboratory at Agra for examination. On 30.8.2007, the information about call details from Reliance Info. was received. According to the information received, calls were made by the accused persons from Mobile No. 9471437885 which belonged to Vimal Kumar upon which investigating officer recorded the statement of Vimal Kumar who stated that on 25.7.2007, the accused persons had used his mobile for making call to the deceased.

For offenses under section 25/4 of the Arms Act, the prosecution case is that on 10.8.2007, SSI Girvar Singh Chandresh alongwith police force and accused persons left the police station at about 5 pm on 10.8.2007 for recovery of motor cycle, and for recovery of weapon used in the commission of offence etc. The police arrived at a place near culvert of canal which was at some distance from village Ghodi Bachhera and after leaving police Jeep and the Driver of the Jeep at the culvert, the accused followed by the police proceeded towards south where on the pointing out of the accused persons, the motor cycle was recovered from a pit. At a distance of 50 meters from the said pit, the accused Rajnish took out Kirpan of the shape of Katar (sharp edged weapon) from the nearby shrubs telling that it was the same weapon which was used in the commission of the offence. At the time of recovery, it is mentioned, the weapon had taint of blood and seemed rusted. Thereafter, proceeding commenced for registration of the case under section 4/225 Arms Act. It is stated that the passers-by were requested to be witness of recovery but none of them agreed to be witness of recovery. After completing investigation, charge sheet was submitted in court.

The case of defence was one of denial stating that they have been falsely nominated in the case they being on inimical terms with certain people in the village. They claimed to be innocent and demanded to be tried.

On behalf of prosecution, in all 12 witnesses were examined namely, PW 1 Dr Lokesh Kumar, PW 2 informant Mehandi Hasan, PW 3 Shamshad, PW 5 Mohd Usman, PW5 Kanchi, PW 6 Raj Singh, PW 7 Mantasha, PW8 Zainuddin, PW 9 Nawab Saifi, PW 10 Girvar Singh Chandresh PW 11 Ambrish Kumar Sharma and PW 12 SI Mohd Shakeel Khan.

The Sessions Judge relying upon the prosecution evidence which included circumstantial evidence, recorded verdict of conviction against the appellants.

We have heard Sri Rajul Bhargava at prolix length who appeared in the case for the appellants and Sri D.R Chaudhary learned Government Advocate who was assisted by a bevy of Addl Government Advocates.

The learned counsel for the appellants launched a polemic against the prosecution case contending that the evidence produced in the case was not adequate and convincing to warrant the conviction. He also criticized the finding recorded by the trial court submitting that the prosecution has miserably failed to prove its case attended with the submission that recovery of the motor cycle cannot be said to be fully proved and further that the mobile from which the accused are alleged to have held talk with the deceased, belonged to a person other than accused persons and also that the prosecution has also miserably failed to prove the factum that deceased Firoz Saifi was seen with the accused persons at 2 pm near police outpost Akbarpur by the witness Nawab Saifi. Attention was also drawn to discrepancies in the statements of the witnesses on several aspects. It was also submitted that nothing is alleged to have been recovered on the pointing out of accused Dharmendra.

Per contra, learned AGA has canvassed for the correctness of the view taken by the trial Judge attended with the submission that sufficient evidence was adduced by the prosecution and that the Sessions Judge rightly convicted the appellants relying on the prosecution evidence. It is also contended that the approach of the court below is wholly tenable in not discarding the best evidence on strength of some trivial reasons.

In order to appreciate the aforesaid rival contentions of learned counsel for the parties, we have to independently scrutinize the oral and documentary evidence brought on record by the prosecution.

PW 1 is Doctor Lokesh Kumar who conducted post mortem on the dead body on 27.7.2007. He deposed that on post mortem examination, he found the following injuries on the person of the deceased.

1. Incised wound of 10x2 cm muscle and trachea deep present over right side of neck horizontal in direction and 8 cm below the right ear, just below the thyroid bone right carolid vessels and trachea bifurcated.

2. Multiple stab wound of 3 x 1.5 cm x cavity deep present over front aspect of chest total 7 in number, 4 on left side and 3 on right side.

3. Multiple stabs wound of 3 x 1.5 cm x muscle to cavity deep. Present over whole of abdomen total 3 in number.

4. Multiple stab wound of 3 x 1.5 cm x muscle to cavity deep. Present over back of abdomen, total 3 in number.

5. Contusion of 3 x 2.5 cm present over back of head about 5 cm behind the right ear.

From internal examination, he found fracture of ribs 5th and 6th on left side and it was opined that it got fractured due to injuries. The causative factor of death, it was opined, was shock and haemorrhage. The witness was cross examined only on certain insignificant points and there was no material point could be elicited from the cross examination.

PW 2 is Mehandi Hasan. His deposition substantially is that on the day of occurrence, there was an uproar in the village about a dead body lying near the canal in the field of Raj Singh upon which he reached there and found the dead body lying there with injuries on neck and abdomen. He also deposed that the body appeared to be of some Muslim youth. He gave written information about the dead body at police station Dadri.

In the cross examination, he reiterated the version as stated in examination in chief. He denied the suggestion that he was deposing falsely.

PW 3 is Shamshad who is brother of the deceased. The substance of what he deposed is that in the evening of 26th July 2007, he got the news that his brother had been murdered and on this information he rushed to the house of his brother where the wife of deceased informed that the deceased had left in the afternoon on 25th July 2007 on his motor cycle and that he had not returned as yet. Thereafter, he further deposed, he gave a written report at PS Dadri. He also deposed that after autopsy, the body was handed over for performing last rites.

In cross examination, the substance of what he stated is that he got information about Firoz having been murdered from Aslam resident of Jahangirabad on 26th July 2007 at 5 pm. He had four brothers and all resided in joint family. After the information was received on phone, he initially visited the house of the deceased and from there he went to police station Dadri alongwith landlord of Firoz, Doctor Bablu and some persons of Jahangirabad. He handed over the written report at the police station. The dead body was not present at the police station.

Upon further cross examination by the advocate of accused Dharmender, he stated that he received the dead body from mortuary on 27th day of July 2007. The body was buried in Jahangirabad the same day. He also gave details about other relatives and their places of residence.. He also disclosed distance from one place to another. He also stated that by the time, the deceased was laid to rest, he was not aware of who murdered him.

PW 4 is Dr Mohd Usman. He is related to the deceased as his brother. He deposed that he got information from a boy that a dead body had been recovered lying in village Ghora Bacheda and that the body appeared to be of Firoz. Thereafter, he also deposed, he rushed to the police station Dadri where he found slippers, hat and the cloths to be ones belonging to the deceased and therefore, he immediately rushed to mortuary where he identified the body. He also deposed that it was informed by the wife of deceased that the deceased had left in the afternoon of 25.7.2007 after taking food and eversince his whereabouts were not known. He also deposed that the deceased had left after receiving call from somebody whose name the witness deposed was told by the wife of the deceased and he is unable to recall the name.

This witness was declared as having been gained over and therefore, ADGC cross examined him at length. The substance of his cross examination is that he had not told the name of any person to the investigating officer. When the witness was confronted with his statement recorded under section 161 Cr,PC, he denied to have given this statement to the investigating officer. He however admitted that the deceased besides running his shop, was also dabbling in property dealing with certain persons for sometime. He also conceded that wife of deceased had also told names of certain persons who were engaged with the deceased in property dealing. He denied the suggestion that he was not deliberately divulging the names of the persons and that he was deposing falsely.

On being cross examined by the counsel appearing for Ranbir, he stated that a boy named Raju Malik had broken the news of dead body having been recovered and he and that boy left for village Ghodi Bacheda. The body was not found there and therefore, he went to nearby police outpost where he was shown cloths and slippers of the deceased which he identified that of the deceased. Thereafter, he and others left for mortuary and by the time they arrived at mortuary, the family members of the deceased had not reached there.

PW 5 is Kanchi son of Dharampal. He stated that he along Raj Singh was present at the place where the dead body was found lying. He also deposed that inquest was prepared in his presence by the police. He was a witness of inquest and recovery memos of slippers, hat etc. He also deposed that he was also a witness to recovery memo of blood stained and simple earth collected by the police.

In cross examination by the counsel appearing for Ranbir, he stated that he got information about the dead body lying in the field and therefore, he left for the place. The body was found at a place which was at a short distance from his field. The body was lying in a drain. The police had arrived there at 12 noon. He also deposed that he had seen the hat and slippers lying near the dead body. He could not tell whether memo of sealing of the body was prepared first or sealing of the body was done first.. He denied the suggestion that inquest and memo proceedings were not conducted in his presence. On being further cross examined by the lawyer appearing for Rajnish, he stated that he could not recollect the type of cloths which the deceased was wearing and also about its condition. He also could not tell the direction in which the dead body was lying. On being cross examined by the lawyer appearing for accused Dharmender, he stated that he had not read the memo prepared by the police; that the dead body was lying in the drain. The drain was dry but its surface was still wet. He could not tell whether the police had taken photograph of the body. He also denied knowledge as to the number of injuries on the body.

PW 6 is Raj Singh whose field lies in the place from where the body was recovered. He deposed that he had gone to collect fodder from his field where he saw gathering of certain people. Upon reaching there, he saw dead body lying. He deposed that shortly thereafter the police had arrived. He also deposed that his signatures were taken as inquest witness.

In the cross examination, the quintessence of what he stated is that he had not gone to his field for the last 4-5 days. On 26.7.2007, he heard the news of a dead body lying at the place and upon the news he also went to the field where he saw the dead body. He could not tell the direction in which the body was lying. He also could not tell about the type of cloths on the body of the deceased. He stated that the police had arrived before his arrival at the place. He also stated that he had signed certain papers prepared by the police.

PW 7 is Mantsha wife of the deceased. She deposed that her husband was also dealing in property alongwith accused persons and used to get commission besides running the shop on Railway road. The accused also used to come to her house and whenever they visited they were offered tea etc. She also deposed that on 25.7.2007, accused Ranbir had made a call to her husband at 2 pm and at that time, her husband was at the house and was taking food. Before leaving, she asked her husband where he was going upon which he replied that Ranbir had called him in connection with dealing of some property and Dharmendra and Rajnish were also present there. She also deposed that her husband left on motor cycle. She also stated that upon receiving information, she left for village Ghodi Bacheda and when no dead body was found, she went to police station where the police showed cloths cap and slippers of the deceased which she identified. The body it was informed had been sent to mortuary. When she reached mortuary alongwith her in-laws the post mortem was being conducted. The dead body was identified by her upon which the police recorded her statement there.

In cross examination, she stated that she alongwith her husband was residing in Dadri for the last two years. She gave details about the shop of her husband. She denied the suggestion that her husband had no shop of selling iron bowls (frying pan) and that she was deposing falsely. She also stated that her husband used to leave for shop at 8 or 9 am and used to come during lunch hours for taking food. On 25.2.2007, her husband came as usual during lunch at about 2 pm. She also stated that the phone call came before her husband had commenced taking food. She also stated that her husband gave the caller name and thereafter left on motor cycle. She denied the suggestion that her husband had no mobile and that he had not received any call on the mobile. She also stated that she was accompanied on way to Mortuary by her father in law, elder brother of her husband, husband's sister's husband alongwith many other persons. She denied knowledge whether her husband was registered for dealing in property or not. She denied the suggestion that her husband was not dealing in property alongwith accused persons.

On cross examination by the lawyer appearing of Dharmendra accused, she stated that she came to know about the death of her husband on 27.7.2007 at about 2.30 pm and thereafter, she reiterated the version as stated supra. She stated that her parental house was situated in Anoop Shahr. She also gave details about Anis, Nawab Saifi and Aftab Ahmad. She stated that all the aforesaid persons were well wishers of the family and used to be present on all occasions sharing the weal and woes with them. She also stated that the aforesaid persons had come to her house at Dadri. However, she could not recollect whether the aforesaid persons had gone to Mortuary but she categorically stated that the aforesaid persons had participated in the last rites (burial) of the deceased. She reiterated that her husband had told her about the caller of the phone call. She reiterated that she was told only to the effect that he was going to see the land. She also stated that she was not told about any dispute with any of the accused persons.

In the cross examination done by lawyer appearing for accused Rajnish, She stated that she did not know the motor cycle number on which her husband had gone to village Ghodi Bachchera. she reiterated her denial with regard to suggestion that her husband was not engaged in property business with the accused persons.

PW 8 is Jainuddin who is brother of Mantasha wife of the deceased. He deposed that on 25.7.2007, he had a talk with his sister upon which after exchanging well being of each other, she informed him that Firoz had gone to village Ghodi Bacheda with his friends namely accused in the case in connection with dealing of a property. Next day, it is deposed, when he visited the house of his sister, he was informed that Firoz had been murdered. He also deposed that his sister had told her that the deceased had gone with the accused after receiving a phone call. Thereafter, he went to the police station where he recognised the articles belonging to the deceased.

In cross examination, he stated that he lived in joint family settled in Anoopshahr. He also stated that he had a mobile and on 25.7.2008, he had a call from his sister. He denied the suggestion that he had no mobile and that he had not received any call from his sister on 25.7.2007. He also stated that next day when he arrived at Dadri, he came to know of the murder of Firoz. He also stated that he, his brothers namely, Rajuddin, Tajuddin and his mother immediately rushed to Dadri. He also stated that he had not gone to mortuary and he had stayed back at Dadri. He also stated that the deceased was laid to rest in Jahangirabad cemetery. He denied the suggestion that he was deposing falsely.

In the cross examination made by the lawyer appearing for Rajnish appellant, he stated that he was engaged in the vocation of wood work. He also stated that he was also called by his nickname "Pappu". He denied that there was any other person of the name of Pappu in his family. He also stated that he often visited his sister's house and knew most of the friends of Firoz. However, he clarified that he did not know all the friends of Firoz.

The next witness is PW 9 Nawab Saifi. The witness is the real brother of the deceased. He deposed that on 25.7.2007, when he alongwith his cousin brother Mohd Anis was on way from Jahangirabad to Dadri on a bus, he saw Firoz in front of Meel Akbar Pur Chowki where he was seen talking with accused persons and thereafter all of them were seen proceeding on two motor cycles towards village Ghodi Bacheda. He further deposed that there after he went to the house of Firoz at Dadri and there he enquired about Firoz from his sister who told that he had gone to Jungle of village Ghodi Bacheda alongwith accused persons in connection with dealing of a land there. He also deposed that Firoz was called on phone. Thereafter, he returned to Jahangirabad. He also deposed that after 2-3 days he got information that Firoz had been murdered. He also deposed that Firoz, he has reason to believe, was murdered by the accused persons and that the murder had been committed over distribution of commission or money.

The witness was cross examined initially by the counsel appearing for appellant Ranbir. In cross examination, he gave details about his family. He reiterated his version in cross examination as was deposed by him in examination in chief. In cross examination, he gave minutes details of journey performed by him on 25.7.2007 and on 26.7.2007. He also stated that he had given ticket of journey performed by him from Sikandrabad to Dadri by bus to the investigating officer. He also could not tell the distance between Sikandrabad to Meel Akbarpur Chowki. He could tell that if one goes from Sikandrabad to Dadri, Meel Akbarour Chowki would fall on left side He also sta5ted that when he got the information about the death of his brother, he was at Jahangirabad and he immediately left for Dadri and he was accompanied by lot of people of the locality. He also stated that at the time of burial of his brother, all were present including his Bhabi Mantasha cousin Anis, neighbour Aftab alogwith other brothers and people of the locality. He also stated that after the burial, they had left and had again come to Dadri to give statement. He also stated that he had disclosed the entire details to the police and thereafter, he was not called by the police. He denied the suggestion that he had not visited his sister's house on 25.7.2007 alongwith Anis. He also denied the suggestion that he had not seen his brother talking with the accused persons on 25.7.2007 at the place as deposed by him.

In the cross examination, which was done by the counsel appearing for appellant Rajnish, he stated that he did not remember when his statement was recorded by the investigating officer.

In the cross examination done by counsel appearing for accused Dharmender, he stated that his village was not Samadhipur; that he did not know the names of the father of the accused' that accused Rajnish was resident of Foofanda, Meerut and the remaining accused persons were native of village Samadhipur. He also stated that he did not remember of the registrati0n number of Hero Honda Motor cycle owned by the deceased. When confronted with his statement before the Investigating officer, he stated that he did not tell the number of motor cycle or the names of the father of the accused persons. He explained that at the time when he saw deceased and accused, Dharmender accused was riding pillion on the motor cycle of Firoz. He also told about the side where the deceased and accused were seen standing and talking. He also stated that he had told the police about 10-12 days after the occurrence that he had seen the deceased with the accused persons near Meel Akbarpur Chowki. He also stated that he knew the accused from before but he had never gone to the houses of any of them. He also stated that when his statement was recorded, Anis, Shamshad, his sister and his Bhabi and other persons of locality were present. He also gave details of his journey from Dadri to the site where the dead body was found. He also stated that the dead body was brought in DCM Truck. He also stated that when the dead body was being transported the investigating officer was present. He denied the suggestion that he had not seen Firoz with accused persons on 25.7.2007 at the place and time as indicated. He also denied the suggestion that he did not give any statement before the police. He also denied the suggestion that he did not know accused persons from before and he was deposing falsely to prop up the prosecution case.

PW 10 is Girwar Singh who was then posted as SSI at PS Dadri. It was he who investigated the case. He deposed that after entrustment of investigation, he recorded statements and recovery memos were prepared accordingly. Mention of all details of his deposition would only swell the bulk of this judgment besides being not so relevant as to necessitate its mention in minute details.

In the cross examination, done by counsel appearing for accused Ranbir, he stated that the case was registered at the police station in his presence on the basis of written report of Mehandi Hasan on 26.7.2007. He also stated that immediately after registration of the case, he left for the spot at 1.40 pm. He denied the suggestion that the complainant did not arrive at the police station at 1 pm. He also denied the suggestion that he did not arrive at the place at 1.40 pm. He also denied the suggestion that after he had completed inquest proceeding, complainant gave the written report at the place where the body was recovered and that the case was not registered at the police station by that time. He also denied the suggestion that the memos of recovery of cap etc were not prepared on the spot. He also denied the suggestion that he was not told by witnesses Nawab Saifi and Anis that they had seen the deceased standing with the accused or their proceeding towards village Ghodi Bacheda; that accused Rajnish and Ranbir were not arrested on 9.8.2007 that Bike and Kirpan were not recovered on the pointing out of the accused; that Firoz Saifi did not possess Mobile No 09350776319 or that accused Ranbir did not own Phone No 9871341806 or that Vimal Kumar Dutta had Mobile No 9471427885 or that the accused had talk with the deceased as alleged.

On being cross examined by the counsel appearing for accused Rajnish, he denied the suggestion that he did not conduct a fair investigation and that he filed charge sheet against Rajnish by concocting allegations against him.

On being cross examined by the counsel appearing for Dharmendra he stated that the case was registered in his presence. He also reiterated all other details in his cross examination as stated in his deposition. He also admitted the relationship of the witnesses to the deceased. He also stated that he had seen the place where the deceased was last seen with accused persons and that there is a Dhaba (Transport Care) near that place. He stated that he had not prepared the site plan of that place. He conceded that on 28.7.2007 witnesses Wali Mohd, Sanjida and Jainuddin had not stated in their statements that the deceased was seen with the accused by Anis, and Pappu.. He also stated that he was not informed during investigation that the deceased had taken money or given money on interest but he conceded the fact that the deceased was involving in property dealing business.

The next witness is PW 11, S I Amrish Kumar Sharma who was then posted as SI at PS Dadri. He deposed that on receiving information, he left for the spot where in found SSI Girivar Singh present with force. He attested to the fact that inquest report was prepared of the dead body as unknown person at 1.40 p.m. He attested to the other details as narrated and deposed by PW 10.. He deposed that on 10.8.2007 he alongwith SSI Girivar Singh recovered motor cycle on the pointing out of accused Rajnish and Ranbir. He also testified to the other details about recovery of Kirpan. He also identified the Exhibits in Court. He also deposed that the property recovered on the pointing out of the accused were taken to police station where case under section 25/4 of the Arms act was registered against Rajnish.

In the cross examination he reiterated all such details as correct as stated in his deposition by the witness. He denied the suggestion that by the time the inquest was prepared by him, the case had not been registered at the Police Station. He also denied the suggestion that the complainant had handed over written report at the spot. He also denied the suggestion that the Kirpan and bike were not recovered on the pointing out of the accused. He also denied the suggestion that he was deposing falsely. He could not tell the length and width of Kirpan. He denied the suggestion that Kirpan was not recovered in his presence. On being cross examined by the counsel for accused Dharmender he stated that he had seen the dead body lying in the field and the field was muddy. He also stated that the blood was found on the spot and that the cloths of the deceased smeared with mud.. He stated that nothing was recovered on the pointing out of the accused Dharmendra.

PW 12 is SI Mohd Shakil Khan. He was then posted as S.I Incharge of PP Azaibpur of PS Dadri. He stated that Case under section 25/4 Arms Act was registered on 10.8.2007 by SI Netrapal Singh. He clarified that on that day he was not present at the PS and was away elsewhere for some official work. He however stated that he remained associated with investigation being conducted by Girvar Singh Chandresh. The site plan was prepared by him on the instructions of investigating officer. He testified to other details. He deposed that first sheet was prepared by Netrapal Singh and thereafter, he joined hands in the investigation.

In cross examination he denied the suggestion that he did not set out for the spot from the police station or that he was not associated with investigation. On a query posed to him as to under what section any weapon like knife dagger and Kripan is illegal to be kept in possession he stated that it is under section 25/4 Arms Act. He could not tell the length and width of Kirpan. He denied the suggestion that he did not conduct any investigation and filed a false charge sheet. He also denied the suggestion that he filed charge sheet on the basis of instructions from his Seniors.

As stated supra, the case of defence is one of denial and false implication. The entire case hinges on circumstantial evidence and whatever evidence is on record it is of last seen. To make short of a long story, the accused and deceased were involved in property dealing business and the upshot of investigation as set out by the prosecution is that the murder was committed by the accused as a sequel to a dispute over commission accruing from property dealing.

It brooks no dispute that there is no direct evidence as to who committed the offence. The Sessions Judge has slapped the finding of conviction at the accused persons on the basis of recovery of weapons on the pointing out of the accused persons and also on the basis of evidence of last seen.

The case being based on circumstantial evidence, the settled proposition of law is that such evidence must pass muster on the anvil of following tests.

(1) The circumstances from which the inference of guilt is sought to be drawn, must be cogently and firmly established.

(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.

(3) The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probabilities, the crime was committed by the accused and none else and;

(4) the circumstances evidence in order to sustain conviction must be complete and incapable of explanation of another hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

The Sessions Judge, while recording verdict of conviction against the appellant set great store by the following incriminating circumstances.

(a) the circumstances of "last seen" and telephonic calls made by accused Rajnish to the deceased calling him in connection with property dealing.

(b) recovery of weapon on the pointing out of the appellant Rajnish, and;

(c) recovery of motor cycle on the pointing out of the accused Rajnish and Ranbir.

In connection with the 'last seen' circumstance, PW 7 Smt Mantasha and PW 9, Nawab Saifi were examined to prop up the incriminating circumstances.

The deposition of PW 7 Smt Mantasha wife of deceased quintessentially is that on 25.7.2007, her husband had received a telephonic call at about 2 pm from accused Ranbirwhen at the time when her husband had returned to the house for Lunch and was taking lunch. After the call, when she enquired from her husband, she was told that the call was from Ranbir and he had been called (ostensibly) for finalizing property deal and further that accused Dharmendra and Rajnish were also present there,

The next witness is PW 9 Nawab Saifi, who is brother of the deceased. The substance of his evidence is that on 25.7.2007 he alongwith his cousin Mohd Anis was on way to Dadri from Jahangirabad on a bus and at about 2 pm, when the Bus was passing near Neem Akbarpur outpost, he saw Firoz Saifi alongwith his motor cycle and he was engaged in talking with Ranbir, Dharmender and Rajnish and thereafter, they were seen proceeding towards Ghodi Bacheda on two motorcycles.

To begin with, we would scan the testimony of PW 9 whether his evidence passes the muster on the anvil of the settled proposition of law. The witness is concededly a native of Jahangirabad district Bulandshahr and he is stated to have noticed the deceased with the accused persons on way from Jahangirabad to Dadri and thereafter also noticed him proceeding with the accused on two motor cycles. Admittedly, he happened to be travelling on bus from Jahangirabad to Dadri. By all reckoning, he is to be treated as a chance witness.

The defence has assailed his presence on the ground that he had no occasion to be present at the said time. The explanation that has come forth from him is that he was on way to meet his brother at Dadri and thereafter, he went back. It is significant to note here that the deceased had disappeared on 25.7.2007 after 2 pm and the dead body was recovered on 26.7.2007 and the first report of incident was lodged on 26.7.2007. The statement of this witness was recorded on 5.8.2007. It would thus appear that his statement was recorded after efflux of about 10 to 12 days. It would transpire from his testimony that he had reached the house of his brother immediately upon getting information about the death of Firoz from there he went straight to Police station and therefrom, he went to mortuary. He admitted that he had received the information of death on 26.7.2007. Another significant aspect worthy of notice is that the second report was lodged by PW 3 Shamshad, another brother of deceased at Police station on 26.7.2007 but there is no mention of the deceased being last seen with the accused persons or the deceased having received a telephonic call from Ranbir or about any conversation between the deceased and the accused persons. The "last seen" theory came into play ostensibly on 5.8.2007 when statement of PW 9 was recorded by the investigating officer. The interregnum between the instances when the deceased was last seen alive with the accused persons and when his dead body was recovered is so short that possibility of any person other than accused being author of the crime becomes impossible. Yet another aspect worthy of notice is that in the instant case, the post mortem was conducted on 27.7.2007 at 3.30 pm and in the opinion of the doctor, the duration of death was about 2-3 days. By this reckoning, it cannot be said with certainty that there was no possibility of any other person meeting or approaching the deceased at the place of incident or before commission of the crime.

In the light of discussion of evidence of PW 9 allied with other circumstances, we converge to the irresistible conclusion that the evidence of PW 9 is not inspiring at all for the reasons that he has been set up by the prosecution to prop up its case. His presence at the place where the deceased was last seen alive with the accused, is highly improbable. It is indeed astonishing that he did not disclose for about 10 to 12 days to any other person that he had seen the deceased alive alongwith accused persons when he was on way from Jahangirabad to Dadri on a Bus. Again, this fact does not find mention in the report lodged at the police station after inquest and post mortem report. This witness has admitted his presence at the time of burial but he is not said to have disclosed this important piece of information to any of the persons. In our considered opinion, the Sessions Judge has erroneously placed credence on the testimony of this witness.

Now we come to deal with the evidence of PW7 Smt Mantasha on this aspect. The quintessence of her deposition is that the deceased had told her that he had received a telephonic call from Rajnish who had asked him to come over in connection with a property dealing in Ghodi Bacheda. Her evidence is indeed crucial. It has to be seen whether her evidence is worth acceptance or it falls short of acceptability.

It is worthy of notice here that after the recovery of the dead body, a written report Ex ka 3 was handed out to Station Officer P.S Dadri by Shamshad PW 3, who is a real brother of the deceased. This report was given on 26.7.2007 after the identification of the dead body. In his deposition, he stated that he had given the report after enquiry from the wife of deceased. From a perusal of the Ex ka 3 and deposition of PW 3, it would crystallize that PW 7 Smt Mantasha did not mention about any telephonic conversation between deceased and accused. PW 3 also admitted that uptil the burial of the deceased on 27th he had no knowledge about the assailants. PW 7 has admitted her meeting with PW 3 but she did not mention about the telephonic call made by accused to the deceased.

In connection with the statement of PW 7, we revert to the deposition of PW 8 for what he stated. PW 8 Zainuddin deposed that on 25.7.2007 at 5 pm, he had received a call from his sister Mantasha (PW 7) that Firoz Saifi deceased had gone to Ghodi Bachcheda to sew up a property deal alongwith their friends Rajnish, Ranbir and Dharmendra. What is noteworthy is that in his deposition too, there is no mention about the telephonic conversation between accused and deceased.

From a deeper and close scrutiny of the testimonies of PW 3 Shamshad and PW 9 Zainuddin in juxtaposition of the testimony of PW 7 Mantasha, it clearly transpires that PW 7 did not divulge the factum of telephonic conversation between the deceased and the accused to any of her close relatives. P.W 10 Girvar Singh Investigating officer of the case collected the information from Reliance info. and it was intimated that the call was made from Mobile No 9471437885 which belonged to Vimal Kumar. Vimal Kumar disclosed that the calls were made from his mobile by the accused persons but surprisingly Vimal Kumar is not examined in the case and information furnished by him is inadmissible. In the totality of circumstances, we feel called to say that the fact of deceased having received a call and on a query from his wife, he having told her that the call was from their friends, was nothing but an improvement at a later stage by the witnesses to add cogency to the evidence of "last seen". We also feel called to say here that the learned Sessions Judge did not delve deeper into the circumstances and did not espy on discernible and material infirmities and therefore, it would not be too much to say that the learned Sessions Judge erred in placing credence on this circumstance.

Another circumstance which falls consideration is of recovery of Kirpan at the instance of accused Rajnish. According to the prosecution case, Kirpan/Katar was recovered on 10.8.2007 at the pointing out of the accused Rajnish. The extenuating aspect on this score is that no independent witness was examined by the prosecution to lend support to the alleged recovery of weapon. What aggravates the suspicion is that no serologist report is forthcoming on record to buttress the fact that human blood was found on Katar. Here we would advert to the testimony of Girvar Singh Investigating officer who is arrayed as PW 10. We have searched his testimony and we are afraid to say that there is no mention at any place about any disclosure statement of Rajnish.

In connection with the above, we feel called to refer to the decision of the Apex Court in Bahadul v State of Orissa AIR 1979 SC 1262. Para 4 of the said decision being relevant is excerpted below.

"4. In these circumstances, therefore, we are not in a position to rely on the judicial confession. As regards the production of the tangia by the accused before the police, the High Court seems to have relied on it as admissible under Section 8 of the Evidence Act. As there is nothing to show that the appellant had made any statement under S. 27 of the Evidence Act relating to the recovery of this weapon hence the factum or recovery thereof cannot be admissible under Section 27 of the Evidence Act. Moreover, what the accused had done was merely to take out the axe from beneath his cot. There is nothing to show that the accused had concealed it at a place which was known to him alone and no one else other than the accused had knowledge of it. In these circumstances the mere production of the tangia would not be sufficient to convict the appellant. For the reasons given above we are satisfied that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. The appeal is accordingly allowed, the conviction and sentence imposed on the appellant are set aside and he is acquitted of the charges framed against him. The appellant is directed to be released forthwith."

We would also advert to the statement of Rajnish recorded under section 313 Cr.PC during trial. To our dismay, no question was put to the accused about recovery of Katar on his pointing out. In connection with this aspect, we feel called to refer to the decision of the Apex Court in State of Punjab v Swaran Singh 2005 SCC (Cri.) 1359. Para 10 being relevant is quoted below.

"10. The questioning of the accused is done to enable him to give an opportunity to explain any circumstances which have come out in the evidence against him. It may be noticed that the entire evidence is recorded in his presence and he is given full opportunity to cross-examine each and every witness examined on the prosecution side. He is given copies of all documents which are sought to be relied on by the prosecution. Apart from all these, as part of fair trial the accused is given opportunity to give his explanation regarding the evidence adduced by the prosecution. However, it is not necessary that the entire prosecution evidence need be put to him and answers elicited from the accused. If there were circumstances in the evidence which are adverse to the accused and his explanation would help the Court evaluating the evidence properly, the Court should bring the same to the notice of the accused to enable him to give any explanation or answers for such adverse circumstance in the evidence. Generally, composite questions shall not be asked to accused bundling so many facts together. Questions must be such that any reasonable person in the position of the accused may be in a position to give rational explanation to the questions as had been asked. There shall not be failure of justice on account of an unfair trial."

Now we come to deal with third incriminating circumstance which relates to recovery of motor cycle on the pointing out of accused Rajnish and Ranbir. In connection with this circumstance, we feel compelled to say that there is no disclosure statement about the recovery of motor cycle. All that the investigating officer has mentioned is that both the accused had pointed out the hide-out where the motor cycle was lying concealed. Referring to the statement of accused persons aforesaid recorded under section 313 Cr.PC, during trial, we again feel called to say that no question was put to any of the accused relating to this incriminating circumstance nor any explanation was called for. The only question put to the accused was about recovery of motor cycle The only question put to the accused about recovery of motor cycle is question no 10 which is to the effect "Abhiyukta Se Fard Baramadgi Ukta Shakshi Pra. Ka. 8 Ke Rup Me Sabit Kiya." As stated supra, no direct question was posed to any of the accused persons about recovery of motor cycle on the joint pointing out of the accused.

As a result of foregoing discussion, we are of the view that the conviction recorded by the trial court is not sustainable.

In the result, the appeals are allowed and the conviction and sentences recorded by the trial court vide judgment and order dated 2.4.2009 passed in S.T No 508 of 2007 and 609 of 2007 are set aside. The appellants are acquitted of the charges. The appellants except Dharmendra are in jail. They shall be released forthwith if not wanted in any other case. In so far as Dharmendra appellant is concerned, his bail bonds shall stand discharged.

The certified copy of this judgment shall be communicated to the court below for compliance.

MH

March 31, 2011