Allahabad High Court
Pradeep Kumar vs State Of U.P. on 21 December, 2012
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
CRIMINAL APPEAL NO. 101 of 2003
Pradeep Kumar son of Banarsi Das resident of Panch Kheda, P.S. Katghar, District Moradabad.
...Appellant
versus
State of Uttar Pradesh.
...Respondent
Counsel for the appellant :- Dr. S.K. Yadav, Amicus Curiae
Counsel for the respondent:-Sri G.S. Hajela, Sri K.D. Tripathi,
Sri R.Y. Pandey,AGA assisted by
Sri Rajeev Ojha, brief holder
connected with:-
CRIMINAL APPEAL NO. 5317 of 2002
Devendra Kumar son Ram Gopal Halwai resident of village Narauli, P.S. Baniyather, District Moradabad.
...Appellant
versus
State of Uttar Pradesh.
...Respondent
Counsel for the appellant :- Sri Mohit Singh, Advocate
Counsel for the respondent:-Sri G.S. Hajela, Sri K.D. Tripathi,
Sri R.Y. Pandey,AGA assisted by
Sri Rajeev Ojha,brief holder
CRIMINAL APPEAL NO. 5477 of 2002
Vijay Pal son of Medhai Lal resident of Pagamberpur, Post, Babura, P.S. Shahjad nagar, District Rampur.
...Appellant
versus
State of Uttar Pradesh.
...Respondent
Counsel for the appellant :- Sri A.K. Sachan, Advocate
Counsel for the respondent:-Sri G.S. Hajela, Sri K.D. Tripathi,
Sri R.Y. Pandey,AGA assisted by
Sri Rajeev Ojha,brief holder
CRIMINAL APPEAL NO. 580 of 2004
Devendra Kumar alias Babloo son of Ram Bharose Lal resident of Mahbullaganj, Durgamandir Ke Pas, P.S. Katghar, District Moradabad
...Appellant
versus
State of Uttar Pradesh.
...Respondent
Counsel for the appellant :- Sri A.K.S. Solonki and
Sri S.N. Triphathi, Amicus Curiae
Counsel for the respondent:-Sri G.S. Hajela, Sri K.D. Tripathi,
Sri R.Y. Pandey,AGA assisted by
Sri Rajeev Ojha,brief holder
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
( Delivered by Hon'ble Rakesh Tiwari, J.)
Heard Dr. S.K. Yadav, Amicus Curiae, in criminal appeal no. 101 of 2003, Sri A.K. Sachan, Advocate in connected criminal appeal no. 5477 of 2002, Sri Mohit Singh in criminal appeal no. 5317 of 2002, Sri A.K.S. Solanki and by Sri S.N. Tripathi, Amicus Curiae, in criminal appeal no.580 of 2004, Sri G.S. Hajela and Sri K.D. Tripathi, Advocates for the complainant and Sri R.Y. Pandey, learned A.G.A. assisted by Sri Rajeev Ojha, brief holder for the State and perused the record.
Criminal Appeal No. 101 of 2003, Pradeep Kumar son of Banarsi Das versus State of U.P. and connected Criminal Appeal No. 580 of 2004, Devendra Kumar alias Babloo son of Ram Bharose have been preferred challenging the validity and correctness of the judgment and order dated 5.12.2002 passed by the Additional Sessions Judge/Fast Track Court no.5, Moradabad convicting and sentencing the appellants Pradeep Kumar and Devendra Kumar alias Babloo under Section 394 IPC to undergo 10 years RI with a fine of Rs.10,000/- each and under Section 302 IPC read with Section 34 IPC to undergo life imprisonment and fine of Rs.20,000/-. The impugned order further provides that in default of payment of fine of Rs.10,000/- under Section 394 IPC, the accused-appellants to undergo a further period of imprisonment of two years and in default of payment of fine of Rs. 20,000/- under Section 302 read with Section 34 IPC to undergo a further period of imprisonment of 4 years. The Court below further convicted and sentenced the appellants under Section 411 IPC to undergo 2 years RI.
Criminal Appeal No.5317 of 2002 and Criminal Appeal No. 5477 of 2002 have also been preferred by appellants Devendra Kumar son of Ram Gopal and Vijay Pal son of Medhai Lal respectively challenging the validity and correctness of the judgment and order dated 5.12.2002 passed by the Additional Sessions Judge/Fast Track Court no.5, Moradabad convicting and sentencing the aforesaid appellants under Section 411 IPC to undergo 2 years RI with a fine of Rs.5,000/- and in default of payment of fine to further undergo imprisonment for a period of 6 months. All the sentences were ordered to run concurrently.
The appellants in Criminal Appeal Nos. 101 of 2002, 580 of 2004 and 5317 of 2002 have challenged the judgment and order on the ground that the conviction of the appellants is against the weight of evidence on record; that the conviction of the appellants is bad in law and the sentence is too severe; and the trial Court has not correctly assessed the evidence on record. Appellant Vijay Pal in Criminal Appeal No. 5477 of 2002 has also challenged the impugned judgment and order on similar grounds except that the alleged recovery of Rs.50,000/- shown from him is false and fabricated as there is no evidence in this regard.
The prosecution case is that Girish Kumar son of late Radhey Shyam Agarwal resident of Mohalla Bajigran, P.S. Mugalpura, District Moradabad submitted a written report (Ex.Ka-1) on 8.2.2000 alleging that some unknown persons after killing his uncle Deoki Nandan Agarwal some time in the night of 7.2.2000 have committed theft from his Alimarh. On the basis of written report entry was made at sl. no. 17 of 2000 and case crime no. 80 of 2000, under Sections 302 and 460 IPC was registered against unknown miscreants. The averments made in the written report were that Deoki Nandan Agarwal, the uncle of the first informant was doing his business under the name and style of ''Devyan Company'' situated in Mohalla Bajigran. His uncle was sleeping alone in the firm. In the night of 7.2.2000 some persons had entered in the firm and murdered him. In the morning when Vinod Kumar Bhatnagar came on work he saw the main door open. He gave a call but there was no answer from inside the firm, therefore, he reported the matter to Sri Girish Kumar, nephew of Deoki Nandan Agarwal. When the complainant went inside the building he saw the body of his uncle lying on the floor. Both his hands and legs were tied by a piece of jute rope and Alimrah was lying open. In the written report he also averred that articles/goods have been stolen from the Alimarh would be informed after ascertaining the same and prayed that legal action may be taken in the matter. CC-684, Dhoop Singh, P.S. Mugalpura, District Moradabad prepared the chick report and SHO R.P. Gupta took up the investigation of the case.
Recovery memo dated 8.2.2000 was prepared by the Investigating Officer in presence of witnesses Rupendra Bhatnagar son of Madan Lal Bhatnagar resident of Mohalla Kanungoyan Hathi wala Mandir P.S.Mugalpura, Ram Prakash Gupta son of Vasudeo Gupta resident of Mohalla Gujrati Gali, P.S. Mugalpura,District Moradabad showing recovery of one plastic torch of two cells (Eveready), a woollen cap and a pair of teeth, blood stained concrete and plain concrete, a bed-sheet and blanket, an old pair of chappals and a piece of jute rope by which the hands and legs of the deceased were tied, from the place of occurrence. The recovered articles/goods were sealed and registered as case property in case crime no. 80 of 2000 by the police.
Another written report ( Ex.Ka-3) was submitted on 10.2.2000 by Raj Kamal Agarwal son of Deoki Nandan Agarwal (since deceased) stating that he also looks after the work of firm along with his father and had gone to Great Britain on 2.2.2000 for some business purpose. He was informed by telephone on 8.2.2000 regarding murder of his father by some unknown persons in the previous night. On checking the Almirah on his return he found that about Rs. 2,15,000/- cash i.e. about Rs. 1 lac in denomination of Rs.100/- and in denomination of Rs.50/-, which were bearing stamp of State Bank of India, Civil Lines, Moradabad were missing. An Atlas cycle no. 1410229 of the firm was also not found. He sent the information and requested for appropriate action.
On 14.2.2000, SHO Rajendra Prasad Gupta along with SSI Dinesh Kumar Singh, SI Akhtyar Ahmad Ansari, Constable 402 Vimal Kumar, Constable 1195, Satish Chandra and Constable driver Yunus Ali went with accused-appellant Devendra Kumar alias Babloo son of Ram Bharose Lal resident of Mohalla Mahboobullahganj recovered a sum of Rs.50,000/- cash which he had hidden in his one room house and a piece of jute rope about 6 meters long by which the hands and legs of the deceased had been tied from his house saying that this money was part of loot by him after murdering his employer Deoki Nandan Agarwal.
On 15.2.2000 accused Devendra Kumar alias Babloo son of Ram Bharose resident of Mohalla Mahboobullahganj went to the house of Devendra Kumar son of Ram Gopal Halwai, his sister's husband (Bahnoi) along with the police party and got recovered from him a sum of Rs.45,000/- in cash saying that he had given this money to him for safe keeping after telling him everything. The case property was sealed in a white cloth by the police.
The police on 15.2.2000 also got recovered Rs.40,000/- cash on the pointing of Smt. Manju wife of Pradeep Kumar, brother-in-law of accused Devendra alias Babloo. She was informed to be in her father's house in Daswaghat, P.S. Nagfani. On enquiry by the police about the money she stated that a sum of Rs. 40,000/- was given by her for safe custody but due to fear she had concealed the same in the floor of the Kothari built by her father in agricultural fields across Ramganga. The police party took her to the spot from where she got recovered the amount of Rs.40,000/-wrapped in a plastic from its hiding place in presence of her father Jagat Singh.
Another amount of Rs.50,000/- from the part of the loot of Rs. 2,15,000/- was recovered from two accused persons namely, Vijay Pal son of Midhai Lal Gangwar resident of Mohalla Pagambarpur, P.S. Shahjanagar, Rampur and Pradeep Kumar Saini son of Banarsi Das resident of Mohalla Saraigate Ghosiyan, P.S.Kotwali Rampur at present living in Mohalla Panch Kheda near Durga Mandir Katghar, Moradabad. The door of his house was got opened and on search a token with numerical '50' written on it was found from the person at search Pradeep Kumar Saini. He informed that in the night of 7/8.2.2000, he with Devendra Kumar son of Ram Bharose Lal, driver of Deoki Nandan Agarwal had looted the cash of the firm and the cycle which he had kept at the cycle stand at the Bus Station and that after informing Vijay Pal aforesaid had given him a sum of Rs.50,000/- which was part of the loot for safe keeping for the time being. Accused Vijay Pal gave the aforesaid amount of Rs. 50,000/- which was part of the loot from his Alimarh along with the bag of the company. The stolen Atlas cycle of the firm was recovered on the pointing out of accused Pradeep Kumar from Roadways Bus Stand, Moradabad in presence of witnesses Charan Das son of Ram Swarup resident of mohalla Narangi Tola Mukha Kali Kothi, P.S. Sikhilalas, Moradabad and Pawan son of Surendra Singh resident of Nishad Khas P.S. Mayanpur, Moradabad.
After inquest the body of Deoki Nandan Agarwal (since deceased) son of Kishan Lal resident of Gudia Bazi Garan, P.S. Mughalpura, District Moradabad was sent for post mortem by the Investigating Officer, P.S. Mughalpura in a sealed cloth, which was brought and identified by C.P. No. 930, Ram Singh, C.P. No. 523, Pratap Singh and Bhan Singh, P.S. Mughalpura, Moradabad in District Hospital, Moradabad. Dr. D.S. Ahlawat Artho Surgeon, conducted the post mortem examination on the dead body of Deoki Nandan Agarwal and found that the deceased was more than 76 years/male, who had died about a day earlier. The external examination showed that eyes and mouth were closed, clotted blood was present near right angle of mouth, Rigor mortis was absent in neck and was passing in upper limbs but present in lower limbs. P.M. staining present on the back. The internal examination of head and neck showed fracture of the frontal bone. Haematoma in S/c tissue present at the side of injury & on both side of frontal region. Membranes were lacerated. Brain was lacerated haematoma present. Spinal Cord was not opened. The abdomen contained greenish fluid 100 ml., present. Small and large intestines contained gases and faecal matter.
In the opinion of the Doctor the cause of death was as a result of ante mortem head injury which were reported by the doctor in his post mortem report thus:-
1.Lacerated wound 2 cm. x 1.0 cm. x scalp deep on the right side of top of head. 10 cm. above (R) ear.
2.Lacerated wound 1.0 cm. x 0.5 cm. x scalp deep on the top of (R) side of head. 1.5 cm. away in front of injury no.1.
3.Lacerated wound 0.5 cm. x 0.5 cm. x scalp deep on the top of head in (L) side. 10.0 cm. above left ear.
4.Three lacerated wound in an area of 3 cm. x 0.5 cm. x all muscle deep on the ( R) side of forehead. 3.0 cm. above (R) eye-brow.
5.Lacerated wound 0.5 cm. x 0.25 cm. x muscle deep on the left side of forehead. 4.0 cm. above (L) eyebrow.
6.Contusion 1 cm. x 0.25 cm. on the (L) side face. 3.5 cm. in front of left ear.
7.Contusion 1 cm. x 0.5 cm. on the (R) side of face near nose.
8.Contusion 1.5 cm. x 0.5 cm. behind the palm of (R) hand. 2.0 cm. below the index finger.
9.Contusion 1.5 cm. x 1.0 cm. on (R) side behind the little finger.
The Doctor also handed over the following items to the police along with papers after the post mortem for scientific investigation in the lab.
1.One sealed envelope containing one PMR with fourteen police papers (14) sent to S.S.P. Moradabad through C.P. No. 930 Ram Singh, P.S. Mughalpura, Moradabad.
2.One sealed envelope containing one PMR with sealed bundle of cloth containing one pant, one shirt, two sweaters,one Jarsi, one coat, one Pajami, one under wear, one pair shoe black leather, one pair shocks, one inner upper, one baniyan shandow, one dori sent to S.O. P.S.Mughalpura, Moradabad through concerned constable.
3.One sealed envelope containing one PMR sent to C.M.O. Moradabad.
It appears from the report of the Forensic Science Laboratory, Agra dated 5.7.2000 that following items were investigated/examined in the lab.
1.Piece of rope
2.Coat,
3.Pant along with Gelis
4.Shirt Dharidar
5.Green Jarsi,
6.Sleti Sweater half,
7.Sweater Half Jamuni,
8.Half Sweater,
9.Baniyan full size,
10.Baniyan shandow
11.Gown Woollen
12.Pajami,
13.One pair shock,
14.One pair shoe,
15.Blood stained and plain earth, and
16.Piece of rope by which the hands and legs of the deceased were tied.
The report stated that on item nos. 2 to 4, 8 to 10, 12 & 15 large spots of blood stains were found, which were examined through spectrometer. This report further stated that item nos.1 and 16 are the same in its pattern. Human blood was found on item nos. 2 to 4, 8 to 10, 12 & 15. Blood group 'B' was found on item nos. 3,4 to 8, 9 &15 but no definite result could be given on item nos. 2,10 and 12 and that quantity of blood on item no. 15 being too less could not be examined.
The finger prints from the place of occurrence were also lifted by the Finger Print Expert on tapes which were sent through Special Messenger on 26.2.2000 along with covering letter for examination. These finger prints from the place of occurrence were tallied with the finger prints of accused Devendra Kumar Saini and Pradeep Kumar by the Finger Research Department U.P. Lucknow.
After investigation charge sheet was submitted in the Court of Chief Judicial Magistrate, Moradabad who vide his order dated 21.6.2000 committed the case to the Court of Session. Charges under Sections 394, 302 read with Section 34 IPC and 411 IPC were framed by the trial Court against accused-appellants Devendra son of Ram Bharose and Pradeep Kumar son of Banarasi and also charge under Section 411 IPC was framed against accused Vijay Pal, Devendra son of Ram Gopal and Smt. Manju. They pleaded not guilty to the aforesaid charges and claimed to be tried.
The prosecution in order to prove its examined Girish Kumar, P.W.1, Raj Kamal Agarwal, P.W.2, Vinod Kumar, P.W.3, Rupendra Bhatnagar, P.W.4, Satish Chandra Gupta, P.W.5, Dr. D.S. Ahalawat, P.W.6, Kayam Singh, Assistant Scientist, P.W.7, S.H.O.R.P. Gupta, P.W.8, and Dinesh Kumar Singh, P.W.9. whereas the accused-appellants were examined under Section 313 Cr.P.C. and stated that they have been falsely implicated in this case due to enmity.
The trial Court after appreciating the evidence and upon hearing learned counsel for the parties by the impugned judgment and order dated 5.12.2002 convicted and sentenced the accused-appellants in the manner as stated above.
Sri I.M. Khan, learned counsel for the appellant was continuously not appearing in this case as such Dr. S.K. Yadav, Advocate was appointed as Amicus Curiae. He has placed recovery memo dated 14.2.2000 of Rs. 50,000/- cash from accused Pradeep Kumar and submits that this recovery memo was not proved by any person to the recovery, rather it has been proved by P.W.9, Dinesh Kumar Singh, S.O., who was not present on the spot. In this regard he has placed reliance upon following passage of the examination and cross-examination of P.W.9 .
^^esjs lkeus lkbZfdy dk Vksdu vkt ugh gSA lkbZfdy cjkenh dk LFkku] jksMost ds cjkcj esa gSA eq>s /;ku ugh gS fd bl lkbZfdy LVsUM ij ykbV dk O;kid izcU/k gSA eqyfte us Lo;a lkbZfdy LVsUM ij tkdj fu'kkuansgh dh FkhA uke /;ku ugh gS ysfdu ge yksxks esa ls gh dksbZ vkneh lkbZfdy ckgj fudky dj yk;k FkkA eq>s ;kn ugh gS fd cjkenxh ds le; lkbZfdy LVsUM okyk vkneh ekSds ij ekStwn Fkk ;k ughA QnZ cjkenh ij lkbZfdy LVsUM okys ds gLrk{kj ugh djk;sA lkbZfdy LVsUM okys dk ukSdj pjunkl o iou ekSds ij FksA muds nLr[kr eSus QnZ ij djk;s FksA bl le; lkbZfdy ij 50 uEcj dk tks dkxt fpid jgk Fkk og ugh gSA^^
Sri S.N. Tripathi, Amicus Curiae in Criminal Appeal No. 580 of 2004 has argued that in fact the murder was got committed by the son of the deceased who in a preplanned manner had sent away the members of the family and had himself gone to Britain so that the needle of suspect does not point at him. In this regard he has placed reliance upon cross-examination of P.W.2, Raj Kamal, which reads thus:-
^^ bl QeZ esa esjs firk o eSa Hkh jgrk FkkA firk th vdsys ugh jgrs FksA esjs ekrk th ds vykok esjh cgu iRuh o cPps gSA esjs nks cPps gSA ;g dguk xyr gS fd ?kVuk ds dkQh fnu igys ls esa lifjokj jke xaxk fogkj dkyksuh ,e-Mh-,- dkyksuh eqjknkckn esa jgrk FkkA vLrqr dgk fd eSa nksuks txg jgrk gWwA eSa ?kVuk ds ,d] lok eghuk igys ,e-Mh-,- dkyksuh esa f'kQV Fkk esjh ekrk th 30 tuojh 2000 dks xkft;kckn xbZ Fkh esjh cgu Hkh esjh eka ds lkFk xkft;kckn pyh xbZ Fkh esjh eka vka[kksa dk bykt djkus xbZ Fkh esjs chch cPps ,e-Mh-,- dkyksuh jgrs FksA vkSj esjs firkth ds ikl Hkh jgrs FksA esjh iRuh ,e-,l-lh- gSA ?kVuk ds oDr esjh iRuh ekSds ij vk xbZ FkhA esjh iRuh us eq>s ?kVuk ds ckjs esa crk;k FkkA eSus viuh iRuh ls ugh iwaNk Fkk fd mlus jiV D;ksa ugh fy[kkbZ efgyk gksus ds dkj.k fjiksVZ ugh fy[kkbZ gksxhA -------------------------------------
1- eq>s VsyhQksu }kjk lwpuk esjs ppsjs HkkbZ Vhuw us nh FkhA Vhuw ch-,- ikl gksxkA ;s mlh dEikmUM esa jgrk gSA fcfYMax gekjh o mldh vyx&2 gSA eSa lwpuk lqudj eSa o esjk HkkbZ gDds cDds jg x;s vkSj geus dgk ge rqjUr vk jgs gSA eSa fons'k ls vius HkkbZ Mk0 uhydey ds lkFk vk;k FkkA
2- nsosUnz mQZ cCyw 2 rkjh[k dks gokbZ vM~Ms ij fnYyh ges NksM+us x;k Fkk ;s ckr njksxk th dks ugh crkbZ FkhA
3- gokbZ tgkt dk [email protected] Qjojh dh jkr tkus dk fVdV okil vkus ds ckn njksxk th dks ugh fn[kk;k FkkA "
He has also relied upon paragraph nos. 11 to 14 of the aforesaid statement which reads thus:-
^^ 11- eSa ?kVuk ds 2 ekg iwoZ ls ,e-Mh-,- dkyksuh esa ugh jg jgk Fkk cfYd 1 eghus iwoZ esa ,e-Mh-,- dkyksuh esa jg jgk Fkk ijUrq esjk vkuk tkuk o dkjksckj dapu'kkyk fcfYMax esa Fkk o gSA vc eSaus ,e-Mh-,- okyk edku fdjk;s ij ns fn;k gSA eSa dapu'kkyk vkdj ogkW ls fnYyh fQj ;w-ds- x;k FkkA
12- eSus firk ds lkeus :i;k jD[kk Fkk rFkk mUgs crk;k Fkk fd 1 yk[k 15 gtkj dh xM~Mh rFkk 7&[email protected] gtkj ywt uksV jD[ks gSA mDr :i;k Hkh eSus cSad ls fudkyk gS bldk lcwr i=koyh ij gS ;k ugh irk ughA
13- gesa nsosUnz mQZ cCyw ij 'kd ugh FkkA eq>s ;kn ugh gS fd eSus njksxk th dks dgk gks fd eq>s nsosUnz mQZ ccyw ij 'kd gS og ugh fey jgk gS mlls iwaNrkaN dj yhft,A
14-nsosUnz mQZ cCyw QeZ dk MªkbZoj gS mlus 5000 :0 ,MokUl fy;s Fks ;s ckr njksxk th dks ugh crkbZ Fkh u gh mUgksus iwWNk D;ksafd ml oDr flQZ gR;k o ywV dh ckr FksA"
He submits that it is apparent from the aforesaid fact that it is the accused who was the most weak person being an employee of the Company who could be framed by P.W.2.
Sri Ajit Singh Solanki, Advocate, who was also appearing for the appellant before Amicus Curiae was appointed in Criminal Appeal No.580 of 2004, has also been heard in the interest of justice. He has submitted that appellant Devendra Kumar alias Babloo was the driver of the deceased and he does not dispute his employment. Sri Solanki argues that the appellant had met P.W.2, Raj Kamal on 10.2.2000 when he reached Moradabad. The reason for the accused-appellant not going to Delhi was that his driving licence had been kept by his employer Deoki Nandan Agarwal (since deceased) as he was of the view that Devendra Kumar forgets his licence whenever he goes out of State and as the deceased was also going along with him, therefore, he had kept the driving licence of his driver with him. He did not want to take any chance in this regard. He has placed reliance upon statement of P.W.2, Raj Kumar which reads thus:-
^^ nsosUnz mQZ cCyw MªkbZoj dk Mh-,y- cuk gqvk Fkk ftls esjs firk th us viuh vknr ds vuqlkj 7-2-2000 dks ys fy;k Fkk D;ksafd esjs firk dks nsosUnz mQZ cCyw MªkbZoj ds lkFk fnYyh tkuk Fkk vkSj esjs firk th dks 'kadk Fkh fd ,slk uk gks 8-2-2000 dks ,slk uk gks fd psafdax ds le; nsosUnz mQZ cCyw MªkbZoj ds ikl Mh-,y- uk gksA^^
He has also raised question as to whether the lock of the Almirah was found open or broken has not come in the evidence and there is no recovery of the key of the Almirah, which has neither been found at the place of occurrence nor has been recovered from any of the accused. According to him, accused Devendra alias Babloo has been framed as he may have been asked to open the Alimarh and then his finger prints were tallied to show him as accused. Therefore, he has supported the contention of Sri S.N. Tripathi, Amicus Curiae that accused Devendra Kumar alias Babloo has been framed in this case, who had also met P.W.2 on his return on 10.2.2000 and had he been guilty, he would not have met P.W.2 when he reached Moradabad.
Sri A.K. Sachan, learned counsel for appellant Vijay Pal, who has been charged under Section 411 IPC submits that the accused was arrested on 14.2.2000 and stated that it is not in dispute that Pradeep Kumar Saini son of Banarsi Das and Vijay Pal are friends, therefore,he is shown to have been arrested from the house of Vijay Pal on 14.2.2000. He has also reiterated that from perusal of recovery memo dated 14.2.2000 regarding recovery of Rs.50,000/- cash it appears that the said recovery was made by Sri Naresh Pal Singh, S.O. and others but they were not examined. P.W.9 Dinesh Kumar Singh stated that he had prepared the recovery memo which is signed by him yet his name is not amongst the officers with those whose name is on the said recovery memo. According to him, money is said to have been kept in a bag of the company entrusted to accused Vijay Pal for putting it in the Almirah for the night as both were staying together in the house of Vijay Pal, the co-accused. The bag of money containing Rs. 50,000/- was recovered by the police from the house of Pradeep Kumar as such Vijay Kumar was falsely implicated being friend of Pradeep Kumar. The cycle of the firm which was missing was also recovered on the pointing out of accused Pradeep Kumar. Placing reliance upon under Section 411 IPC he lastly submits that no case under Section 411 IPC is made out against either of the accused as they had no knowledge about the money in the bag of the firm.
Per contra, learned AGA submits that no adverse inference can be drawn from the statement of the witnesses and there are no discrepancies therein. The prosecution case, according to AGA, is that the appellant had not met P.W.2 at Delhi when he was returning from foreign country on 8.2.2000. This establishes that the appellant was avoiding P.W.2 due to his guilty conscious otherwise, there was no reason for him to go to Delhi to bring P.W.2 Raj Kamal son of the deceased by car. The offence committed by the accused-appellants has been found proved by the trial Court. There is no illegality or infirmity in the judgment and order impugned and that accused-appellants have rightly been convicted and sentenced according to law. The judgment and order of the Court below does not require any interference by this Court in appeal and the same is liable to be up held in appeal by this Court.
After hearing learned counsel for the parties and on perusal of the record it appears that the arguments raised before us are the same which had been raised by the appellants before the trial Court and have been considered by the court below and we have to ascertain as to whether the Court of Session has rightly arrived at the conclusions or not ?
It is argued that the accused persons Devendra alias Babloo son of Ram Bharose and Pradeep Kumar son of Banarsi Das cannot be held accountable for the murder of Deoki Nandan Agarwal or for guilty of doing away with him with the iron rod merely because on the basis of recovery of iron rod, lock and key of the main door or a part of jute rope.
The main thrust of arguments by the learned counsel for the appellants on record is that monies alleged to have been recovered from the appellants was not in accordance with the provisions of Section 27 of the Evidence Act; that there is no independent witness to the alleged recoveries of cash said to be part of the loot, iron rod, lock chain key of the main gate and cycle. The argument as to whereabouts of the key of the Almiarh by which it was opened is an important link missing from the chain of circumstances in the prosecution story. The key of the Almirah has not been found either at the place of occurrence or has been recovered from any of the accused and the witnesses to the recovery of items at the place of recovery namely, Naresh Pal and others have also not been examined.
Devendra alias Babloo son of Ram Bharose and Pradeep Kumar have denied their participation in the crime stating them to have been falsely implicated in the case. According to the counsel , since recovery has not been made according to the provisions of Section 27 of the Evidence Act and recovery shown to have been made from Vijay Pal and Devendra son of Ram Gopal, Smt. Manju is also illegal, hence the same can not be relied upon.
The appellants counsel have tried to explain the finger prints of accused Devendra alias Babloo and Pradeep Kumar which had been lifted by the Finger Print Experts from the place of occurrence stating them to have been prepared at the police station.
In the argument learned counsel for the appellants has laid much emphasis upon the fact that Devendra Kumar alias Babloo was not employed as driver in the firm of Deoki Nandan Agarwal and that the prosecution has failed to establish any case against the accused-appellants.
From the evidence on record it appears that Deoki Nandan Agarwal was done away with in the night of 7/8.2.2000. The crime was discovered by Vinod Kumar, an employee of the Devyan company, who had found the main gate open. The post mortem report of late D.N. Agarwal shows that 9 ante-mortem injuries were found on his body as given earlier in the judgment.
The argument by the counsel for the accused Pradeep Kumar that Devendra alias Babloo had left the employment of Sri Agarwal, as a driver in the 'Devyan Company' some time back and that he has been falsely implicated in the case because he was a friend of Devendra Kumar alias Babloo, does not repose confidence for the reason that there is no explanation whatsoever by these two accused Devendra alias Babloo and Pradeep Kumar as to how their finger prints were found on the Almirah and on the telephone receiver particularly when appellant Devendra alias Babloo had come out with the case that he was not in the employment of Deoki Nandan Agarwal since a long time and Pradeep Kumar had never ever been in the employment of the firm.
As regards the explanation of the accused Devendra alias Babloo regarding his employment in the firm of Deoki Nandan Agarwal is concerned, suffice it to mention here that the account book of the firm showed that he was employed as a driver even immediately before the said incident and that accused he was the driver of the firm of Deoki Nandan Agarwal, who had taken advance from him. His signatures appeared on the vouchers wherein it is mentioned that the advance may be deducted from his salary. If he was not a employee of the firm of Deoki Nandan Agarwal, there could not have been the question of deduction from his salary because he was an employee of Deoki Nandan Agarwal.This explanation how the finger prints of accused Devendra alias Babloo could have been found on the Almirah and its handle he after committing the murder of his employer he opened the Almirah as he had access into the firm as well as to the residential part in which Deoki Nandan Agarwal slept, being his driver. It might be that during the incident some telephone calls had come and Pradeep Kumar may have cut the calls by lifting the receiver of the instrument having his finger prints on it.
The finger prints lifted from the door of the Almirah and its handle as well as from the telephone receiver were examined by the Finger Print Expert. The finger prints on the Almirah and its handle matched with the finger prints of accused Devendra alias Babloo whereas finger prints on telephone receiver tallied with the finger prints of accused Pradeep Kumar son of Banarsi Das. After the arrest of the accused persons two iron rods ( Sariya), lock and key were got recovered on the pointing out of accused Devendra from the Nali near the shop of barber in Mohalla Bajigran. A part of the jute rope which was used for tying the hands and legs of Deoki Nandan Agarwal, who was later on killed by the accused persons was also recovered from the house of accused Devendra.Accused Devendra alias Babloo, driver of the deceased had not only taken Raj Kamal, the younger son of the deceased to Delhi on 2.2.2000 but had also confessed to the crime, therefore his statement that he was not in employment is incorrect.
It also appears from the record that at the time of arrest of accused Pradeep Kumar a token no. 50 for keeping a cycle in the Bus stand was recovered from him. He had stated that after committing the murder of Deoki Nandan Agarwal they had taken the 'Atlas Cycle' of the company which can be identified by the word of Deoyan Company written on its mud-guard and was recovered on his pointing out at the Bus stand. No explanation whatsoever has come forward, as stated above regarding recovery of these items from the possession of the accused, hence it is clearly established from the attending circumstances and their statements on record that these two accused had in fact done away with Deoki Nandan Agarwal (since deceased).
As regards accused Vijay Pal and Devendra son of Ram Gopal are concerned, they have been charged only for an offence under Section 411 IPC. Accused Devendra son of Ram Gopal is the brother-in-law of main accused Devendra alias Babloo. Manju, sister of accused Devendra alias Babloo is married to him and Pradeep Kumar is friend. Four money recoveries i.e. Rs. 50,000/-, Rs.45,000/-, Rs.40,000/- and Rs.50,000/-, total amounting to Rs. 1,85,000/- have been made from these accused persons. These recoveries have been made by the police stating that these amounts of loot was kept by these accused Vijay Pal, Pradeep Kumar son of Banarsi Das, Smt. Manju and Devendra son of Ram Bharose after telling them about the incident. The bank notes were in a sealed bundle having seal of the bank having been withdrawn from the Bank. The accused persons could not explain as to how these bundle of notes came into their possession. It is also evident from the statements of P.W.1 and P.W.9 that the aforesaid sum of Rs. 1,85,000/- along with the part of jute rope, which was used in the commission of crime and Sariya etc. were recovered on the pointing out of the accused-appellants which clearly establish that these persons had committed the murder of Deoki Nandan Agarwal for the purpose of looting of a sum of Rs. 2,15,000/-, which was kept in the Almirah.
Learned counsel for appellant Vijay Pal has relied upon the case of Pancho versus State of Haryana, 2011-LAWS (SC)-10-49 wherein the Apex Court has held that where there is belated discovery of article at the instance of co-accused, who had made a confession, cannot be used or treated to be a substantive evidence against the other co-accused. In these circumstances, the Court allowed the appeal acquitting the accused in that case on the ground that there was no credible evidence in this regard.
One of the contentions raised by Sri S.N. Tripathi, Amicus Curiae in connected Criminal Appeal No.580 of 2004 that the murder of Deoki Nandan Agarwal has got been committed by his younger son Raj Kamal may also now be considered. From the record it is apparent that Deoki Nandan Agarwal had two sons namely, Neel Kamal, elder son, who had settled in a foreign country whereas the younger son Raj Kamal was doing business with his father in India. Raj Kamal was admittedly not in India at the time of incident. In this regard he had also filed ticket of the flight by which he had gone to foreign country and came back to India on 10.2.2000 after receiving the information of murder of his father. It also appears that the relations of Deoki Nandan Agarwal with his own wife and daughter-in-law were strained and they were living separately. Raj Kamal was the only person who was running business with his father and, therefore, there was no circumstance or occasion for him to done away Deoki Nandan Agarwal, his father, who was already aged about 76 years for a paltry sum of Rs. 2,15,000/-. In our view, he was running the business of the company for all practical purposes and had no reason at all to do away with his father at advance age of his father.
The irregularities pointed out by the learned counsel for the accused-appellants said to have been done in the investigation by the I.O. are not such which would be fatal to the case of the prosecution. As stated above, all the links in the chain of circumstantial evidence only point out that the accused persons have committed the crime.
We also find that the recovery memo was not prepared by the police in presence of any independent witness, hence, the trial Court has erred in convicting and sentencing accused Vijay Pal and Devendra son of Ram Gopal under Section 411 IPC. They are therefore, are acquitted of the charge under Section 411 IPC.
For the reasons stated above, Criminal Appeal No. 101 of 2003, Pradeep Kumar versus State of U.P. and Criminal Appeal No. 580 of 2004, Devendra Kumar alias Babloo versus State of U.P. are dismissed. The conviction and sentence of the aforesaid appellants namely, Pradeep Kumar and Devendra Kumar alias Babloo is maintained.
Criminal Appeal No. 5317 of 2002, Devendra Kumar son of Ram Gopal versus State of U.P. and Criminal Appeal No. 5477 of 2002, Vijay Pal versus State of U.P. are allowed. Appellants Devendra Kumar son of Ram Gopal and Vijay Pal are acquitted of the charge under Section 411 IPC.
Dr. S.K. Yadav, Amicus Curiae in Criminal Appeal No. 101 of 2003 and Sri S.N. Tripathi, Amicus Curiae in connected Criminal Appeal No. 580 of 2004 will be paid Rs. 2100/- each as fee from the State Government within a period of one month from today.
Let a certified copy of this judgment be sent to the court below for its immediate compliance which should be reported to this Court within two months.
Dated 21.12.2012
CPP/-
