Rishi Dev @ Rinku & Another vs State Of U.P.
2012 Latest Caselaw 4767 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 53.
 
Criminal Appeal No. 5170 of 2009.
 
Rishi Dev & another                                        ... Appellants.
 
Versus
 
State of U.P.                                                      ... Opposite Party.
 
Hon'ble Arun Tandon, J.

Hon'ble Ramesh Sinha, J.

Heard Sri Sushil Dubey, learned counsel for the appellants, Sri Brij Raj Singh, learned counsel for the complainant and Sri Mahendra Singh Yadav, learned A.G.A. for the State.

This criminal appeal is directed against the judgment and order dated 12.8.2009 passed by Sessions Judge, Mainpuri in Session Trial No. 116 of 2008 (State Vs. Rishi Dev @ Rinku and others) arising out of Case Crime No. 702 of 2007 under Sections 364, 302, 34, 201 I.P.C., police station Bichhawan, District Mainpuri.

Under the judgment impugned, the appellants, who are two in number, have been held guilty of an offence under Sections 364, 302 I.P.C. read with Section 34 I.P.C. and 201 I.P.C. For the offence under Section 364 I.P.C. both have them have been sentenced to undergo rigorous imprisonment of ten years and a fine of Rs. 10,000/- each, in default they have to undergo additional one year R.I. For the offence under Section 302 read with Section 34 I.P.C. they have been sentenced with life imprisonment and fine of Rs. 10,000/-each. For the offence under Section 201 I.P.C. they have to undergo seven years rigorous imprisonment and to pay fine of Rs. 5,000/- each, in default thereof additional imprisonment of one year R.I. All the sentences have been directed to run concurrently.

The prosecution story as reflected from the records is as follows:-

On 15th December, 2007 at around 1:15 a.m., the informant Munnu Singh lodged a First Information Report at police station Bichhawan, district Mainpuri. It was disclosed that on 14th December, 2007 when he was sitting in front of his house along with Dinesh Singh and Ajit Kumar, who are residents of the same village, the accused Rishi Dev @ Rinku and Pintu @ Pradeep came on a motorcycle bearing registration No. UP 76D 3692 and asked for Monu Singh @ Bhupendra Singh (Deceased). The informant, who is the grand father of the deceased called his grand son from inside the house. The two visitors had some talk with Monu Singh. After some time Monu Singh informed his grandfather that the two boys were Rishi Dev S/o-Sobaran Singh Yadav and Pintu @ Pradeep S/o-Durbin Singh residents of village Habiliya, police Station Bichhawan, District Mainpuri. They were known to him since before, they required Monu Singh to come with his Armada Jeep bearing registration No. HR 51A 7591 for two hours. Monu agreed and went with the visitors on his Armada Jeep which was being used as a Taxi. When Monu Singh did not return till the evening, the complainant and his family members made a search for him. They went to village Habiliya and asked the family members of Rishi Dev @ Rinku about the whereabout of Monu Singh as well as two visitors but no satisfactory answer was given. After search, they developed a strong apprehension that Monu Singh has been kidnapped and murdered by the two visitors.

The F.I.R. was registered as Case Crime No. 702 of 2007 at police station Bichhowan on 15.12.2007 at 1:15 a.m. Chik F.I.R. was prepared and relevant entries were made in the G.D. of police station. The investigation was started by the police on 15th December, 2007 itself. Search for Monu Singh was made. For the said purpose, the police reached the house of Rishi Dev @ Rinku and Pintu @ Pradeep and made enquires when the police did not receive any satisfactory answer, information was sought about the village where the in laws of accused Rishi Dev reside. The police was informed by the father of Rishi Dev that he was married with the daughter of one Deshraj in village Dalpatpur. The police visited the house of Deshraj at village Dalpatpur in search of both the accused. Armada jeep was also found parked inside the house of Deshraj. Both the accused were present inside the house of Deshraj and on being called they came out. Armada jeep was also found parked inside the house of Deshraj. Rishi Dev as well as Pintu were arrested by the police. A recovery memo of the Jeep and memo of arrest of accused was prepared. Both the accused confessed their guilt before the police and had stated that Monu Singh had been strangulated to death by them with the help of a cloth "Gamcha". His dead body has been hidden in the Ghoora, i.e. heap of dry straw, lying on the roadside of village Dharenda. Both of these accused were taken to village Dharenda by the police and on their pointing out dead body of the deceased Monu was recovered from under the heap of straw with a Gamcha tied around the neck and a Mufler tied on both of his legs. The informant and other witnesses had accompanied the police at the time of search of the two accused as well as at the time of arrest and recovery of dead body of Monu Singh. Inquest was prepared. Dead body was sealed and similarly Gamcha and Mufler were also sealed. The dead body was dispatched to District Hospital Mainpuri for post mortem. The post mortem on the dead body of the deceased was performed by Dr. A.K. Gupta. The doctor found the following ante mortem injuries on the dead body of the deceased:-

"1. Ligature mark around the neck, no gap, horizontal 40 cm x 7 cm width, 7 cm below chin and 7 cm below ear both side base red, congested, margin abrased and echymoised, subcutaneous tissue echymoised, hyoid bone fractured.

2. Abrased contusion left side chest 11 cm x 17 cm below nipple.

3. Abrased contusion left side adbomen 10 cm x cm.

4. Contusion 4 cm x 2 cm over ant. Superior iliac spine left."

The post mortem specifically recorded the cause of death as Asphyxia due to strangulation.

The informant Munnu Singh was examined as P.W.-1. Ajit Kumar Singh as well as Dinesh Singh, who were present at the time when Monu Singh was taken away by both the accused persons were examined as P.Ws. 2 and 3 respectively. Dr. A.K. Gupta, who had performed the postmortem was examined as P.W.4. Constable Hawaldar Singh, who recorded the F.I.R. on the basis of the written report as Crime No. 702 of 2007 was examined as P.W.5. S.I. Surendra Kumar Singh, who was the Investigating Officer of the case was examined as P.W.6.

Following documents were produced and marked as exhibit by the prosecution.

1. Written Report-Exhibit- Ka-1.

2. Post Mortem Report- Exhibit-Ka-2.

3. Chik F.I.R.-Exhibit-Ka-3.

4. Copy of G.D.-Exhibit-Ka-4.

5. Memo of arrest-Exhibit-Ka-5.

6. Inquest Report-Exhibit-Ka-6.

7. Photo Nash-Exhibit-Ka-7.

8. Letter to C.M.O.-Exhibit-Ka-8.

9. Challan Nash-Exhibit Ka-9.

10. Site Plan of the place from where Monu was taken away-Exhibit-Ka-10

11. Site Plan of the place from where the dead body of Monu was recovered-Exhibit-Ka-11.

12. Charge-Sheet-Exhibit Ka-12.

After conclusion of the prosecution evidence, the accused were examined under Section 313 I.P.C. In their statement, both the accused denied their involvement in the case and stated that they have been falsely implicated due to enmity. They produced three witnesses in their defence. Jagat Singh, who is a resident of village Dalpatpur (matrimonial place of accused Rishi Dev) was examined as D.W.1. Prati Pal Singh, who is a resident of village Dharenda from where the dead body of Monu is said to have been recovered by the police was examined as D.W.2. Mahesh Chandra, who was the Revenue Inspector of Tehsil Bhongaon was examined as D.W.3. He deposed about the geographical position of villages situated in the area of his jurisdiction, including villages Habiliya, Bichhawan, Suranpur and Aurandh. No documentary evidence was led by the accused.

The trial Court considered the case of the prosecution, and of the defence and examined the evidence and submissions made. The trial court specifically noticed that the informant Munnu Singh was the grand father of the deceased, was an eye witness of last seen. He had stated on oath the facts which had taken place on 24th December, 2007 and as were recorded in the F.I.R. He specifically stated that Rishi Dev sat on the vehicle while the other accused, i.e., Pintoo @ Pradeep went away on the motorcycle. He had also specifically deposed that when Monu did not return a search was made in the evening on 14th December, 2007. He did not know the accused earlier and it was only on the information given by Monu that he came to know the names of accused, parentage and address. He also went to house of Rishi Dev in search of Monu but no satisfactory answer was been given by the family members of Rishi Dev. Hence he got the F.I.R. registered on 15.12.2007 at 1:15 a.m. He also deposed that the accused persons were arrested from the house of one Deshraj Yadav, who happens to be the father-in-law of accused Rishi Dev, at village Dalpatpur and on their pointing out the dead body was recovered from the village Dharenda. P.W. 2 and 3, who were also the witness of last seen and were present at the time when the two accused had asked Monu to come with his Armada jeep also corroborate what had been stated by P.W.-1. The postmortem report specifically records that the death had been caused by Asphyxia due to strangulation.

After considering all these aspects of the matter, the trial court came to the conclusion that the two accused were guilty of offence under Section 364, 302 read with Section 34 I.P.C. and 201 I.P.C. and sentenced them for the aforesaid offences as noticed above.

Challenging the order so passed by the trial court, learned counsel for the appellants contended before us that absolutely no motive has been pointed out and, therefore, in absence of any motive having been established, the conviction of the appellants cannot be sustained. It is also contended that from the entire evidence which has been brought on record, only Rishi Dev is stated to have accompanied Monu on the jeep, there is no evidence of last seen as against accused Pintoo. It is also contended that no independent witness of the arrest of the accused from the village Dalpatpur was noticed in the arrest memo and similarly in the search memo of Armada jeep there is no independent witness. It is also contended that the recovery memo of the dead body and in the inquest report no independent witness has been shown. It is further submitted that the prosecution has failed to establish the complete chain in the facts of the case which could lead to only one conclusion that is the accused had committed the murder of the deceased and, therefore, the accused are liable to be acquitted. It is also submitted that the F.I.R. was ante time, inasmuch as, the details of the F.I.R. were not forwarded to the Magistrate as well as the S.S.P. within the time required.

The learned A.G.A. has argued that there is sufficient evidence of last seen of P.W.1, P.W. 2 and P.W. 3 against the accused persons. He further submitted that the accused were arrested from the house of in-laws of accused Rishi Deo in village Dalpatpur. The Armada jeep of the deceased was also recovered from the house of Desh Raj in village Dalpatpur, who was the father-in-law of the accused Rishi Deo. It was on the pointing out of the accused that the dead body of the deceased Monu Singh was recovered from village Dharendha, hidden in a heap of dry straw. The chain of circumstance is complete and the trial court has rightly convicted and sentenced the accused.

Sri Brij Raj Singh, learned counsel for the complainant has adopted the argument of the learned A.G.A. and submitted that conviction of the accused appellants by the trial court is absolutely just and legal.

We have heard learned counsel for the parties and gone through the record of the present appeal. We may first deal with the basic contention of the learned counsel for the appellants that in the absence of motive, the prosecution story cannot be accepted. The contention so raised may not detain the court so long. Reliance has been placed by the learned counsel for the appellants on the judgment passed in the case of Anil @ Teetu versus State of U.P. reported in 2002 (44) ACC 862.

The issue with regard to the relevance of the motive has been dealt with by the Apex Court in the case of Dharnidhar v. State of U.P. reported in 2010 (71) ACC 321. Paragraph 10 of the aforesaid judgment is reproduced hereinbelow:-

"However, in cases which are entirely or mainly based upon and rest on circumstantial evidence, motive can have greater relevancy or significance (Babu Lodhi and Prem Kumar's case (Supra). But it is equally true that when positive evidence against the accused is clear in relation to the offence, motive is not of much importance. Mere absence of motive, even if assumed, will not per se entitle the accused to acquittal, if otherwise, the commission of the crime is proved by cogent and reliable evidence State of Punjab v. Kuljit Singh. Significanceof relevancy of motive would primarily depend upon the facts and circumstances of a given case. "

The law so laid down by the Apex Court leads us to conclude that mere absence of motive would necessarily result in the acquittal of the accused the facts and circumstances of the case have to be examined. This Court has to satisfy itself as to whether the evidence on record establishes in clear and categorical terms that the offence has been committed by the accused.

In the aforesaid legal background, we find that the grandfather of the deceased P.W.1 as well as the eye witnesses P.W. 2 and 3 were present at the place of last seen together on 14th December, 2012 when the accused had driven away with the deceased in his Armada jeep. From their statements it was also established that the accused had asked the deceased to go with them along with his Armada jeep for two hours and when the deceased did not return, a search was made by P.W.1 in the evening. He went to the village of accused Rishi Deo but when no satisfactory answer was given by their family members. The F.I.R. under Section 364 I.P.C. was lodged. The police started investigation and made a search and on receiving the information about the presence of two accused persons at village Dalpatpur, recovered the Armada Jeep the police party raided the house of Deshraj Yadav at village Dalpatpur and arrested the accused persons. Thereafter on their pointing out recovered the dead body of the deceased in presence of P.W.1. It was also established from the postmortem report that Monu had been done to death by strangulation.

Learned counsel for the appellants could not point out any material discrepancy in the testimony of the prosecution witness which may lead us to take a different view in the matter.

In the facts and circumstance of the case, we are satisfied that the F.I.R. was prompt the statement of P.Ws. 1, 2 and 3 as well as the recovery of the vehicle from the father-in-law's house of the accused Rishi Dev and recovery of the dead body on the pointing out of the two accused is fully corroborated and is in consonance with the case of the prosecution.

The Apex Court in the case of Suresh Chandra versus State of Bihar, reported in AIR 1994 SC 2420, has held that when during investigation the accused makes disclosure statement to police while being in custody of the police and in pursuance of the discovery in which the articles belonging to murdered victim are discovered the disclosure statement should be regarded as true and worthy.

In another land mark case, State of U.P. versus Deoman, AIR 1960 SC 1125, it has been held by the Hon'ble Supreme Court that if a weapon or dead body is kept concealed in a bush by the side of the road, i.e., a place which is not accessible to by all and sundry, so long as the concealment was known only to the accused, if uncorroborated version of the I.O. is found to be unblemished, it will certainly be acceptable under Section 27 of the Evidence Act.

There is no occasion for this Court to doubt the version of the prosecution. We are fully satisfied that the chain of circumstance is complete and leads to only one conclusion in the facts of the case that the deceased had been done to death by the two accused. The trial court has rightly held accused guilty of the offence under Section 364, 302 I.P.C. read with Section 34 and 201 I.P.C. No interference is called for against the judgment and order passed by the trial court.

Both the appellants are already confined in jail. They shall serve out the sentence as awarded by the trial court.

The appeal fails and is accordingly dismissed.

Dated 4.10.2012

Shiraz