Manoj @ Manoj Gurjar vs State Of U.P.
2013 Latest Caselaw 5594 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 46
 

 
Case :- CAPITAL CASES No. - 2472 of 2010
 

 
Appellant :- Manoj @ Manoj Gurjar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Shiv Nath Singh,Ajai Kumar,Satyam Singh
 
Counsel for Respondent :- Govt. Advocate,Shachindra Mishra
 
ALONG WITH
 
1. Crl.Appeal No. 2316 of 2010
 
Devendra Jat Vs. State.
 
2. Crl. Appeal No. 2462 of 2010
 
Rakesh @ Titu Vs. State.
 
3. Crl. Appeal No. 2615 of 2010
 
Kushum and another vs. State and others.
 
4. Crl. Appeal No. 3696 of 2010
 
Amit Jaat Vs. State of U.P
 
5. Government Appeal No. 5218 of 2010
 
State of U.P Vs. Amit Jaat and others
 
AND
 
6. Reference No. 6 of 2010.
 

 
Hon'ble Amar Saran,J.

Hon'ble Bachchoo Lal,J.

(Delivered by Hon'ble Amar Saran, J )

Sri S.N. Singh, Sri Satya Singh and Sri Ajay Kumar Advocates, appear for the appellant Manoj alias Manoj Gujjar in Capital Appeal No. 2472 of 2010 who has been convicted by the judgment and order dated 7.4.2010 passed by the Additional District and Sessions Judge, Court No. 9, Bulandshahr and awarded a sentence of death under sections 302 read with 149 I.P.C. for the murders of the deceased Ranvir and Prakash. There is also a Reference No. 6 of 2010 sent by the Trial Judge under section 366(1) Cr. P. C. for confirmation of the death sentence awarded to Manoj alias Manoj Gujjar.

Sri G.S. Chaturvedi, Senior Advocate assisted by Sri Alok Ranjan Misra has appeared for the appellant Amit Jaat, who has preferred Criminal Appeal No. 3696 of 2010 and Devendra Jat, who has preferred Criminal Appeal No. 2316 of 2010.

Sri Gaurav Kakkar appears for the appellant Rakesh alias Titu, who has preferred Criminal Appeal No. 2462 of 2010.

The appellants Devendra Jat, Amit Jaat and Rakesh alias Titu have been convicted and sentenced to imprisonment for life under section 302 read with section 149 I.P.C. with a fine of Rs. 2 lacs each for the murders of the deceased Ranvir and Prakash. All the four appellants have been convicted and sentenced to 10 years' R.I. and fines of Rs. 50,000/- each under sections 364 read with 149 I.P.C. and to three years' R.I. and fines of Rs. 20,000/- each under section 201 I.P.C. and to two years' R.I. and fines of Rs. 3,000/- each under section 147 I.P.C.

Out of the fines realized from the appellants, 2 lakhs each were to be paid as compensation under section 357 Cr.P.C to the widows of the decased Ranbir and Prakash. The balance amount of fine was to be paid to the State. After the said balance amount had been deposited with the State, by way of compensation Rs. 2 lakhs was to be paid to the widow of Buddh Prakash, for the failure of the State to procure evidence regarding his murder.

One Ranjit Singh was charged under section 120 B I.P.C., but he was acquitted.

There was another accused Anil Jaat, who absconded and was killed in a police encounter during trial.

A connected Criminal Appeal No. 2615 of 2010 under section 372 Cr. P. C. has been preferred by Kusum, wife of the deceased Budh Prakash and Manoj Kumar, against the acquittal of the accused Satish Pradhan and against the acquittal of [email protected] Pappu Pradhan, Manoj, Amit Jat, Devendra Jat, Rakesh @ Titu for the murder of Budh Prakash. The said complainant-appellants are represented by Sri Shachindra Mishra.

A connected Government Appeal No. 5218 of 2010 has also been preferred by the State of U.P. under section 378 Cr. P. C. against the acquittal of the accused Amit, Devendra Jaat, Rakesh alias Titu, Satish alias Pappu Pradhan, Manoj and Ranjeet Singh for the murder of Budh Prakash. Sri Akhilesh Singh, Government Advocate assisted by Sri Anand Tiwari, learned A.G.A. appeared for the State of U.P.

On 9.7.2017 at 7.10 a.m. one Guddu resident of village Neemchana gave a telephonic information to P.S. Agauta that there was a fire in the "bitaura" in the jungle of his village, and it appeared that a dead body was burning in the fire.

This information was received by P.W. 7 H.M. P.S. Agauta Sri Brahma Pal Singh, who made a G.D. Entry No. 9 (Ext. Ka-7) of this fact. On this information, S.O. P.S. Agauta, Sri Mukut Singh, P.W. 12, the investigating officer along with PW 11 SI Sri P.A. Rawela and other police personnel reached the village Neemchana.

On their arrival there Smt. Ramvati, C.W. 3, wife of the deceased Prakash and her son Mukesh. C.W. 2 approached the police personnel and informed them that this incident concerned her family members and escorted the police to the place of occurrence.

After the police got the fire extinguished, it was found that there was not one, but two burnt corpses on the bitaura. According to Ramvati, the corpses were those of her husband Prakash and her son Rakesh alias Titu.

Ramvati got a report scribed by Satendra, PW 6, which was handed over to the police at the spot. In his evidence PW 6 Satendra has affirmed scribing this report, to which Ramwati had appended her thumb impression. The report was forwarded to the police station, where a case was registered by PW 7 HM, P.S. Agauta, Brahmpal Singh (Ext. Ka-6) at Crime No. 128 of 2007 under sections 364, 302, 201 I.P.C. on 9.7.2007 at 8.50 a.m. against Anil Jaat and five others.

This report alleged that on the previous night Ramvati's husband Prakash, aged 58 years, her son Rakesh alias Titu aged 21 years, her devar by relation Budh Prakash aged 40 years had gone to sleep at their gher. Her middle son Mukesh also left to sleep at the gher. Some time after mid night, her son Mukesh had come running to the house and woken up his mother informing her that her husband Prakash, son Rakesh and devar Budh Prakash had been forcibly abducted by Anil Jaat, Devendra Singh, Amit, Manoj Gujjar and Satish alias Pappu after threats were held out to them. Out of fear, she could not inform the police earlier, but after the arrival of the police in the village, she had gone to the gher along with the police and co-villagers, where she saw the burning bitaura and bhoosa and found the corpses purportedly of her husband Prakash and her son Rakesh, which were still burning. All the persons helped to extinguish the fire. Thereafter the half burnt corpses of her husband and her son were taken out of the bitaura. Blood stained daratis and danda were lying near the cots. Also empty liquor bottles and glass were lying there. The aforesaid miscreants had been recognised by her son with the aid of torch light. Her son Mukesh had escaped from the clutches of the miscreants with great difficulty. There was no information regarding her devar Budh Prakash, but she felt that he may also have been murdered. There was terror in the village after the incident.

The Investigating officer (I.O.) recorded the statement of Smt. Ramvati and on her pointing out he made a spot inspection and prepared the site plan (Ext. Ka-28). He also collected one rajai (Ext. Ka-29), two blood stained daratis (Ext. Ka-30) and one pair of Kurta and pajamas (Ext. Ka-31), one danda (Ext. Ka-32), two empty liquor bottles and one steel glass (Ext. Ka-33). These items had blood stains.

Manoj, P.W. 1 also arrived at the place of incident and gave a report which was forwarded to the police Station Agauta where a case was registered at Case Crime No. 128 A/07 on 9.7.2007 at 9.10 a.m. regarding the abduction of his father Ranvir Singh, the previous night by the same accused persons. In this report, Manoj Kumar, P.W. 1 stated that there was a general merchant's shop in his house. At about 2.30 a.m., on the previous night, Anil along with his companions Manoj, Satish Gujjar, Devendra and Amit Jaat and two others had come to the shop and called for his father Ranvir Singh. Then his father, his aunt P.W. 3 Kusum and this witness Manoj came out. Anil asked his father for gutka, tobacco and namkin, which his father duly provided to him. Anil asked his father to accompany them. His father was then forcibly abducted by the accused persons. The miscreants, were recognized by this witness by means of the light of the shop. He was of the opinion that the miscreants had murdered his father. The investigation of this case was entrusted to Sri P.S. Devala, P.W. 11.

A third F.I.R. (Ext. Ka 5) was lodged at P.S. B.B. Nagar on 9.7.2007 by Ram Kumar Singh, P.W. 5, who was a resident of village Saidpur. This report alleged that this witness used stay at his tube well in the night for its care. At about 7 a.m., when he left for his home in Saidpur, at the side of the scale culvert near the Nisukhi ? Saidpur crossing he saw the corpse of an unknown person lying flat on the ground with a bullet wound on its head. This witness had also heard a gun shot fire from his tube well at 5 a.m on the same day. None was named in this FIR.

He also received a report scribed by PW-1 Manoj Kumar regarding the abduction of his father Ranveer Singh by Manoj, Satish Gujjar, Devendra, Amit Jaat and two others and a case was registered at crime No. 128A of 2007, under section 364 I.P.C at 9.10 a.m. which was investigated by SI P.S. Rawela, PW-11. Prior to that, Sri P.S. Rawela had conducted the inquest on the two dead bodies which were said to be those of Prakash and the appellant Rakesh @ Teetu. The bodies were then sent through Constable Amit Kumar and Manveer Singh for autopsy.

A raid was made to the houses of the accused persons which proved unfruitful. The I.O also subsequently obtained warrants for attaching the properties of the five accused persons from the C.J.M, Bulandshahar and non bailable warrants were issued and 82/83 Cr.P.C proceedings were initiated by the learned Magistrate concerned. As the informer gave an information that the appellant Devendra Jat was standing at a shop at the Garh crossing, the I.O arrested him at 4.35 P.M on 11.7.2007. Mukut Singh, PW-12 along with police force arrived at the informant Ramwati's residence. There Rahis and Daya Chand (who have not been produced) informed that Rakesh alias Teetu who was claimed to also have been murdered by the informant Smt. Ramwati was actually alive and had returned home.

PW-8 Constable Ajmal Singh of P.S. B.B. Nagar, registered the FIR lodged by PW-5 Ram Kumar Singh against unknown accused with regard to crime No. 139 of 2007.

As PW-12, Mukut Singh the I.O. of Crime No. 128 of 2007 had been transferred, the further investigation was assumed by PW-14 Harish Chand Joshi, the second I.O, who began investigation of this case on 11.7.2007. He deposed that he arrested the appellant Rakesh alias Teetu who confessed to his guilt. He also got a eucalyptus blood stained Danda recovered (vide Ext. ka 40) at the instance of Rakesh alias Teetu who was arrested at 2.45 P.M on 11.7.2007. According to the Serologist PW-15 Mohan Kapoor of the Forensic Science Laboratory, the danda recovered from the appellant Rakesh contained human blood. He completed the other formalities of this case, such as recording the statements of the formal and other witnesses (including inquest witnesses), and also recording the statement of PW-9 SI K.K. Tyagi, who was the S.O of P.S. B.B. Nagar who had investigated the murder case of the third deceased Budh Prakash, whose unknown dead body had been found on the Sherpur-Nikushi road near the Scale Bridge on the information of Ram Kumar, PW 5. PW-13 SI Pramod Chaudhary has also been examined, who conducted the inquest on the dead body of Budh Prakash. During the investigation, PW-9 SI K.K. Tyagi had learnt that some persons had disappeared from village Nimchana. He therefore visited the said village, where he had learnt that there was information regarding the disappearance of Budh Prakash. The family members of Budh Prakash, Satendra PW-6 and others visited the mortuary, and identified the dead body to be that of Budh Prakash by its photograph. After learning that a case regarding abduction of Budh Prakash was already registered at Crime No. 128 of 2007 at police Station Agauta, PW-9 SO K.K. Tyagi forwarded his case diary and other papers to P.S. Agauta.

PW-4 Dr. Shiv Nath Singh conducted the post-mortem on all the three deceased persons, i.e. on Budh Prakash on 10.7.2007 at 2.00 P.M, deceased Ranveer, who was wrongly shown as Rakesh, whose body was charred at 4.00 P.M on 10.7.2007 and Prakash, whose body was charred on 10.7.2007 at 4.30 P.M. The following ante-mortem injuries were found on their bodies:

Injuries found on the body of deceased Budh Prakash:

1.Firearm wound of Entry 1.5 cm x 1 cm x brain cavity deep on left side head, 2 cm above left ear at a 12 O'clock position. Blackening and tattooing present . Inverted margins. On exploration the right parietal and temporal bones fractured.

2.Firearm wound of exist 2 cm x 1.5 cm x brain cavity on upper part right side neck and ear margins everted communicating injury no.1.

3.Firearm wound of entry on left side front of chest 0.5 cm away from nipple at 9, O' clock position 1 cm x 0.5 cm x chest cavity deep. Blackening and tattooing present. Margins inverted.

4.Firearm wound of exit 2 cm x 1.5 cm x communicating to injury no. 3 on exploration left side on the fourth front rib and lung lacerated. 1.5 litres of blood found in chest cavity.

The brain and its membranes, left lung and its membranes were found lacerated. The gall bladder was full. The liver, spleen and kidneys were pale. The stomach contained 100 ml of food.

General Description of body of deceased Rakesh:

Charred Blackened part of body of length 2 feet, eight inches and width 12 inches. "Jala Maans Ka lothra" (Piece of burnt flesh). Cause of death, uncertain. Photo graph done by field unit BSR. Body as a whole preserved for sex determination, Age of person, time since death, Cause of death and handed over to accompanying police constable in sealed cloth.

Post Mortem done on charred body of Prakash s/o Chiranji, aged about 58 years.

Whole body description: Average built body charred and black. Right side leg and thigh missing, left lower leg missing on knee region. Skin poorly charred and blackened. Penis present and pubic singed. Eyes closed and congested. Tongue protruded between teeth. Right hand present with fingers and thumb unburnt, with cyanosed nails. 3 cm above wrist at forearm and arm charred. Bones exposed. Left arm and forearm ( full length) with hand are are poorly charred and blackened chest hairs, white in colour, scalp hairs seen . Back of gluteal region full charred and blackened. On exploration of neck, hyoid bone fractured. No soot particles present in trachea. No line of redness and vessication i.e. post mortem burn. The brain contained soft and pulpy matter. Muscles of neck ecchymosed. Cause of death Asphyxia due to ante mortem injuries.

Apart from the aforesaid formal witnesses, the P.W.s 1, Manoj Kumar, son of the deceased Ranvir, P.W. 2 Gayatri Devi, wife of deceased Ranvir and P.W. 3 Kusum, wife of deceased Budh Prakash, C.W. 1 Devendra, C.W. 2 Mukesh, son of the deceased Prakash, nephew of the deceased Ranvir and C.W. 3 Ramvati, wife of the deceased Prakash are the witnesses of fact to have been examined in this case.

P.W. 1 Manoj Kumar has deposed that he was running a general merchant shop at his house. In the night of 8/9/2007 at about 2.30 a.m. he was sleeping on the roof of his house along with his mother P.W. 2 Smt. Gayatri Devi, and his wife Rajbala. His father, the deceased Ranvir was sleeping in the courtyard. At that time two motorcycles arrived at the door of his house. Hearing the noise of the motorcycles, he woke up. The accused Anil, Manoj, Satish, Devendra, Amit and Rakesh alias Titu, were present on the motorcycles. Anil called his father to open the door, as he wanted some gutka, tobacco and namkeen. His father thereupon woke up, opened the door and switched on the light of the shop. He opened the outside door of the shop and gave gutka, tobacco and namkeen to Anil. The other accused persons were standing and talking amongst themselves. Anil was talking on his mobile phone to Ranjeet, resident of Saidpur and he informed Ranjeet that they would soon reach Saidpur and on that date, Ranvir's work would be done. This conversation was overheard by Smt. Gayatri Devi, and his aunt Kusum, who were standing there. Anil asked his father to go along with them to the gher. Ranvir tried to protest that he did not want to go, but Anil compelled his father to sit on the motorcycle. Manoj also climbed up on the same motorcycle. Amit, Devendra, Satish and Rakesh alias Titu had climbed on to the other motorcycle. They all proceeded towards the gher. This incident was seen by Manoj, PW 1, his wife Rajbala (who was not produced), his mother Smt. Gayatri Devi, PW 2 and his aunt Kusum, PW 3. Manoj, his wife and his mother were very fearful for their lives after this incident and out of fear, they had only gone to their neighbour Ibrahim's adjoining house to tell him about the incident. In the morning, some fire was burning in the bitaura in the gher. Manoj and his mother went to the gher, where the villagers had already gathered. After some time the police arrived and all the persons were engaged in extinguishing the fire in the bitaura. One half burnt corpse and one completely charred piece of meat were found there. The half burnt body was identified by his aunt Ramvati on the basis of its ring on a finger to be that of her husband Prakash, and the piece of meat (Maans ka lothra) was identified to be that of her son, Rakesh alias Titu. Manoj told his mother that Anil and his companions had also murdered his father. He also gave this information to the Police Inspector, who asked him to give a report in writing. Thereafter, Manoj got the report (Ext. Ka-1) scribed by Mahesh Chandra Arya and handed it over to the Inspector. Actually, Rakesh alias Titu was alive and his mother Ramvati in order to save him, had wrongly identified the burnt piece of meat (mans ka lothra) to be that of her son Rakesh alias Titu. But when Rakesh alias Titu returned his house on 11.7.2007, then this fact became apparent that Ramvati had wrongly identified the burnt piece of flesh to be that of her son Rakesh. There were illicit relations of Anil (the dead co-accused) with the sister of Rakesh alias Titu. Anil and his companions would come to the gher and would drink liquor. Prakash the father of Rakesh alias Titu had illicit relations with Rakesh alias Titu's wife. This caused Rakesh alias Titu to be annoyed with his father. His own father, the deceased Ranvir Singh had also told Prakash to behave in a proper manner, but Prakash could not give up his bad habits. Twelve days before this incident, Manoj's father the deceased Ranvir Singh had quarreled with Prakash over cutting of a grapefruit (chakotara) tree, due to which, Rakesh alias Titu and his father Prakash became inimical to Ranvir. It was further mentioned that Budh Prakash was also murdered by Anil and his companions in village Saidpur, which fell in P.S. B. B. Nagar. This murder was committed in order to prevent Budh Prakash giving evidence regarding the murders of Ranvir and Prakash, which he had witnessed. The piece of flesh had been identified to be that of Rakesh alias Titu was actually that of his father Ranvir Singh.

Smt. Gayatri Devi, P.W. 2 has deposed that on the date of incident, she was at her house. Her son Manoj, her husband Ranvir and daughter-in-law Rajbala were sleeping on the roof. At about 2.30 a.m., she had heard the cries of Anil asking her husband to open the door. At that time bulbs were burning in the courtyard and in her shop and also on the pillar Anil wanted some gutka and namkin. When her husband opened the door, Anil and Rakesh entered the shop, whereas the four other accused persons kept standing outside their shop. The accused persons included Manoj, Anil, Devendra and Satish Pradhan. Then Anil and Manoj threatened her husband Ranvir and made him forcibly sit on a motorcycle with them and told him that they were taking him to the jungle to talk with him, ignoring his protests to go along with them in the night. The other four accused persons Amit, Devendra, Satish and Rakesh went away on another motorcycle. She stated that none of the mohallawala persons saw the accused persons. Then she clarified that her devar Dharmaveer saw the accused persons and the deceased from the upper storey on roof. After that due to fear, they went to the house of their neighbour Ibrahim and told him about the incident. The next morning at 6 a.m. they learnt that there was a fire in the bitora in the jungle, on which two corpses were burning. One of the corpses was that of her husband and the other was that of Prakash, but Ramvati had told them that one dead body was of her son Titu and the other was that of her husband Prakash. But as Rakesh alias Titu returned on 11th of the month, it was apparent that the other dead body was that of her husband Ranvir Singh.

After the police arrived at the spot, her son Manoj gave a report to the Police Officer. There was a quarrel between her husband and Prakash over a chakotara tree. After this incident Rakesh alias Titu had begun to nurse a grouse against her family. In the course of this incident, Budh Prakash was also murdered, but she had no information regarding that murder.

P.W. 3 Kusum, the wife of Budh Prakash has deposed that the accused Anil, Devendra, Amit and Rakesh belonged to her village Nimchana. Manoj and Satish were residents of village Khanoda. Her husband Budh Prakash was murdered one year and two months prior to her deposition. At that time, Ranveer and Prakash were also murdered. At the material time, she was sleeping in her house which was opposite to the house of Ranveer. At about 2.00 A.M. she saw two motorcycles come to the house of Ranveer. Anil, Devendra, Prakash and two others were present, of whom one was Satish and the other Amit who were residents of village Nimchana. The miscreants asked Ranveer to open his door and asked for Gutka and Tobacco. Ranveer handed over the items to the miscreants but they made him forcibly sit on the motor cycle, along with Anil and Manoj. Satish, Amit, Devendra and Rakesh were present on the other motorcycle. They took Ranvir along with them towards the jungle. At that time, Ranveer's wife Gayatri, Manoj and Rajwati wife of Manoj were present. None else arrived at that time. In the morning it was learnt that a fire was burning in the "Bitora" in the jungle of the village. She also learnt that the corpse of Titu and Prakash were burning in the Bitora. After some time, she went to search for her husband in the jungle where he used to sleep, but she could not find him. After two days his body was found in the jungle of Saidpur by the side of the canal. The two corpses which had been burnt in the Bitora were those of Ranveer and Prakash. Ranveer's corpse was completely burnt out and only some bones were found, and on her Jeth Prakash's dead body, some pieces of flesh were found. Titu's mother recognized the dead body to be that of Prakash by the ring that he was wearing. The miscreants used to sit in Prakash's house where they used to eat and drink. Her family members had objected to this drinking which annoyed the accused persons because of which they murdered the three persons. After two days, Rakesh had returned home at about 6 A.M. A number of villagers gathered and Rakesh disclosed that he and five other persons had murdered Ranveer, Kusum's husband Budh Prakash and also Prakash. Devendra, Amit, Anil, Satish and Manoj were amongst the miscreants.

The fourth witness of fact is CW-1 Devendra. Although he was summoned by the court's order, he only claimed to know the accused Ranjeet Singh and none other. He denied seeing Budh Prakash or any other old man with the accused on 9.7.2007

CW-2 Mukesh stated that Prakash was his father and Budh Prakash was his uncle and Ranver was his tau. He claimed that he knew all the accused persons. Amongst the accused persons Manoj, Devendra, Satish Prakash, Rakesh (his brother) and Amit, one of the accused persons Anil Jat had already died. He disclaims having any knowledge of the murders of Ranveer, Budh Prakash and Prakash. He denied having seen the accused persons taking away Prakash and Budh Prakash in the night of 8/9.7.2007 on the motorcycle, nor had he made any such disclosure to his mother. At about 7 or 7.30 A.M, he learnt about the incident. He has no idea about the murder of his father. He was declared hostile by the prosecution.

CW-3 Ramwati wife of Prakash has deposed that on 9.7.200, she was at her house. At the Bitora two corpses were found. First she stated that she did not have any knowledge regarding the identity of the two corpses but later on she stated that the two corpses were those of her husband Prakash and her brother-in-law (Jeth) Ranveer. From the ring on the finger she had recognized one of the corpses to be that of her husband. She had stated that the other corpse was that of Ranveer on the basis of the suggestion of the villagers. She had affixed her thumb mark to an FIR, but it was torn up. She was unable to say whether the thumb impression on the report on the record, was hers or not. The report which was scribed by Satendra did not bear her thumb impression but the report which was on the record( Ext. Ka-6) bore her thumb impression. She does not know who wrote out this report or at whose dictation it was scribed.

All the accused persons denied the prosecution allegations in their 313 Cr.P.C statements. The accused Devendra and Amit filed written arguments. The appellant Rakesh denied the allegations against him and claimed to have come to the village three days after the incident. The rest of the allegations against him were false. He claims to have been working in Noida for the past one or two years. He learnt about the incident in the newspapers and came home. Manoj similarly denied the allegations and stated that the evidence in the case was fabricated. He stated that the charge sheet has been filed in collusion with the police. Similarly, the appellant Satish also denied the allegations and claimed that he was unconnected with the other accused persons and had been falsely implicated on account of village parti-bandi in collusion with the police

Sri G.S. Chaturvedi, learned counsel on behalf of the appellant, Amit and Devendra submitted that as admittedly the FIR has been lodged after arrival of the police its value was diminished, as it appeared to have been lodged at the behest of the police. Also there is not even a mention regarding the burning of the dead bodies in the "bitaura" in the FIR lodged by PW-1, Manoj at Crime Number 128 A of 2007. It was also not mentioned in the report that Rakesh alias Titu had arrived at the house of Ranveer. Therefore, inclusion of his name in the evidence of Manoj could not be relied upon. The conduct of the witnesses Manoj Kumar, Gayatri and Kusum that they did not follow the deceased Ranveer after his abduction but remained in their house till 6.00 A.M casts a doubt on the reliability of the witnesses. All the witnesses are partisan and interested and no independent witness has come forward for supporting the prosecution case. There was an S.T.D booth in the house of Kusum, PW-3 but it was not used for giving information to the police.

Sri S.N. Singh, learned counsel for the appellant Manoj alias Gurjar also adopted the contentions of Sri G.S. Chaturvedi and further submitted that admittedly the I.O had reached the spot and it is admitted by the I.O that none visited the police station from 7.10 A.M to 11.40 P.M on 9.7.2007.

Sri Gaurav Kakkar, larned counsel for the appellant reiterated the contention of Sri G.S. Chaturvedi that Rakesh was not named in the FIR lodged by Manoj at case crime No. 128A of 2007 and there was no eye witness account of this incident and the case is based on circumstantial evidence. A suggestion was given to PW-1 Manoj Kumar that he had given evidence on the basis of legal advice. There was inadequate proof of corpus delecti so far as the deceased Ranveer was concerned, because initially the second corpse which was found in the Bitora was considered to be the corpse of Rakesh alias Titu, but only after the return of Rakesh after three days, according to PW-1 Manoj, and PW-2 Gayatri, the wife of the deceased, the said corpse was considered to be that of the father of Manoj and husband of Gayatri, namely Ranveer. Ibrahim, the one neighbour of Manoj Kumar and his family members, to whose house the witnesses had rushed after the deceased Ranveer had been abducted in the night of 8/9.7.2007. has not been examined by the prosecution. No crime number was mentioned in the inquest report.

Learned Government Advocate on the other hand argued that the non-mention of Rakesh's name in the FIR is not fatal because Manoj and the others may have been misled as Smt. Ramwati wife of the deceased after identifying one of the burning dead bodies in the bitaura to be that of her husband Prakash, had stated that the other piece of burning flesh (Maans ka lothra) which was found burning on the other bitaura was that of her son Rakesh alias Titu. Likewise the non-mention that the corpse being burnt on the bitaura in the FIR lodged by Manoj PW-1 on 9.7.2007 at crime No. 128A of 2007 at 9.10 A.M could only be because he was under the impression that the unrecognizable mass of burning flesh was that of Rakesh @ Titu, because in Ramwati's report which was handed to the police some minutes earlier it had been described thus, and he would have no reason at that stage to doubt the correctness of what Ramwati was saying, especially as the burning mass of flesh was unrecognizable. It was mentioned that at that time, Manoj may have been under the impression that his father was alive and he may not have thought that the burning piece of flesh of the second deceased which had been described by Smt. Ramwati to be that of her son Rakesh was actually the flesh of his father, hence he may not have thought it important to mention this fact about the burning dead bodies on the bitaura in his FIR, as he did not consider the burning "Maas ka lothra" to be that of his father at that stage. There was no reason for the false implication of the appellants by the witnesses, if they had no concern with this incident. The mere fact that the police had arrived at the spot on the telephonic information of Guddu, and the lodging of the FIR subsequently could not affect the prosecution case. For this proposition, the learned G.A relied on 1964 (1) Crl. J. 140 (SC), State of U.P. Versus. Bhagwant Kishore Joshi, 2010 (10) SCC 374 Shambhu Das Vs. State of Assam, 2011(2) SCC Crl. 110, Satish Narayan Sawant Vs. State of Goa and 2012 ( 79) ACC 331 Subhash Krishnan Vs. State of Goa. All the accused persons except Rakesh alias Titu have a criminal history. The reason why the witnesses may not have followed the accused and the deceased Ranvir when he was being taken away on a motorcycle along with the accused persons could have been their sense of terror after such a grave incident, keeping in mind the fact that the accused persons except Rakesh alias Titu had a long criminal history. But they had gone to the house of their neighbour Ibrahim to inform him about the incident. There was no evidence that PW-3 Kusum was running the S.T.D booth in her house. Also, this is an undeniable fact that nowadays due to growing selfishness independent witnesses are extremely reluctant to intervene and to help the victim in such matters or even to give evidence in Court, as they feel that the problem does not concern them. Even the neighbour Ibrahim did not appear to give evidence for the prosecution in this case.

So far as the acquittal of Satish is concerned, Sri Veer Singh submitted that the trial court has given good reasons for his acquittal. No evidence has been led to show that he was involved in the conspiracy. Out of three witnesses, who have been examined, PW-1 Manoj, PW-2 Gayatri admitted that they had not seen this accused earlier. So far as PW-3 Kusum was concerned, she has stated that she only knew two persons from village Kharaunda, viz Satish and Manoj and no other accused resided there. It was further submitted that the sentence of death awarded to Manoj was sought to be defended by the learned Government Advocate on the ground that Manoj had a long criminal history and at present he was on bail in another murder case. So far as exclusion of the name of Rakesh alias Titu from Manoj, PW 1's FIR was concerned, it was contended that no question was asked from the informant PW-1 as to why he had excluded the name of Rakesh alias Titu from the FIR and it could not be ruled out that either the exclusion had been done because the informant may have had some kind of soft corner for his cousin Rakesh alias Titu, or because Smt. Ramwati had categorically described the second dead body to be that of her son Rakesh. A blood stained Lathi was got recovered at the instance of appellant Rakesh alias Titu. PW-15 Mohan Kapoor, the Scientific Officer of Forensic Science Laboratory, Agra had stated that the Danda which was recovered from the appellant Rakesh contained human blood.

Analysis of evidence and contentions of parties.

So far as non-mention of the name of appellant Rakesh in the FIR lodged by Manoj Kumar PW-1 is concerned, it should be kept in mind that Smt. Ramwati wife of Prakash and mother of Rakesh alias Titu had told the police that the two dead bodies were those of Prakash and the other burning piece of flesh was that of her son Rakesh alias Titu. In view of this categorical assertion by the mother of Rakesh, the witness Manoj PW-1 might have got confused into entertaining some doubts as to whether Rakesh alias Titu was present along with the other accused persons, who had visited his house at 2 or 2.30 A.M in the night of 8/9.7.2007 or he may have had a soft corner for his cousin brother, and hence not named him initially. However, after Rakesh alias Titu returned after three days, his doubt may have been cleared and thereafter in his evidence in Court the informant Manoj has clearly deposed that Rakesh alias Titu was also present at his house when the other accused had come to demand Gutka, Tobbaco and Namkeen and who had thereafter abducted PW-1 Manoj 's father Ranveer. We have also seen that no question was asked from this witness as to why he had omitted the name of Rakesh alias Titu from his FIR, hence no benefit can be taken by the accused of this omission.

So far as non-mention of the matter relating to the two dead bodies burning in the Bitora is concerned in his FIR, it may be noted that Manoj PW-1 had handed over his report to the Police Officer regarding disappearance of his father Ranveer after Ramwati had already already handed over her report which had mentioned that the two corpses on the Bitora were those of her husband Bhoora and her son Rakesh. Ramwati's report was dispatched to the police station where the case was registered on her report at 8.50 a.m. The report by this witness at Crime No. 128 A of 2007 was dispatched to the police station by the I.O. where it was registered at the police station at 9.10 A.M, i.e. 20 minutes after the report by Ramwati. In such circumstances the informant Manoj PW-1 may have nurtured an impression that his father had been abducted and had been taken elsewhere and in that background the absence of the fact of the fire and the burning of the corpses on the Bitora (which was already mentioned in the earlier FIR by Ramwati) was of no consequence. This witness could not have thought it necessary to mention this fact because at that stage, he had no reason to think that the burning "Maas ka lothra" on the bithaura which Ramwati had wrongly described to be that of her son Rakesh alias Titu was actually the dead body of his father Ranveer.

So far as the contention of absence of proof regarding corpus delicti and for confirmation that the second corpse on the bithaura being that of Ranveer was concerned, we think that although the witnesses had initially described the burning mass of flesh to be the dead body of Rakesh alias Titu but it was subsequently found to be that of Ranveer, once it was found that Rakesh alias Titu was actually alive, when he returned to his residence on 11.7.2007 two days after the incident. It is also no one's case that Ranveer has ever returned after the incident. Smt. Ramwati, who was examined as CW-3 (even though she has disowned her version in her FIR) has admitted that the burning dead bodies were those of her husband Prakash and her Jeth Ranveer. She has further conceded in her cross examination that she had wrongly described Ranveer's corpse to be that of her son Rakesh alias Titu. In this view of the matter no doubt remains regarding the identity of the second corpse being that of Ranveer, and there is sufficient proof of corpus delecti.

The contention that no one was informed about the incident is incorrect. The prosecution witnesses Manoj Kumar, Gayati Devi and Kusum have stated that they immediately proceeded to the house of their neighbour Ibrahim to inform him about the incident at their place. Looking to the gravity of incident, when Ranveer, the father of Manoj Kumar was picked up by the accused persons who had a long criminal history, from the mere non-pursuit of the accused persons who had left with the victim on motorcycles, no adverse inference could be drawn for doubting the credibility of the witnesses. The abduction of Ranveer had taken place at 2.00 A.M, in such circumstances non-appearance of any other witnesses of the locality is not very surprising. Manoj Kumar, Gayatri Devi and Kusum learnt about the corpses burning in the Bitora in the morning from their co-villagers and their proceeding to the spot thereafter is perfectly natural conduct as the witnesses must have earlier been scared about the grave danger to their lives, under the circumstances in which the deceased Ranveer had been abducted from their house at 2 a.m. in the night by the accused Anil (who was subsequently killed in an encounter during the trial) and the other accused persons, who had a criminal history. Therefore their reaching the bitaura after 6.00 A.M after they had received information regarding the burning of some corpses there does not impair the value of their testimony.

We have no reason to doubt the veracity and truthfulness of the testimonies of the witnesses who have no reason to falsely implicate the appellants and the co-accused Anil, if indeed some others had committed the grave crime and to spare the real offenders. Their testimony cannot be discarded simply because they are closely related to the deceased Ranveer.

Nothing significant turns on the defence counsel's suggestion as to why no telephone call was made from the house of witness PW-3 Kusum who had an S.T.D booth in her adjoining house. It has come in the evidence of PW-3 Kusum that the S.T.D which was being run in a portion of her premises, was shut on the relevant night and it was opened in the morning by the person to whom the shop had been rented out. It was not their personal shop, hence they may not have thought about breaking open the lock in the night to make a telephone call to the police at that unearthly hour.

We now need to examine the soundness of the defence argument that as the police had arrived at the spot on the telephonic information given by one Guddu at 7.10 a.m. on 9.7.07 regarding the presence of a burning corpse on the Bitora, the subsequent information given by Ramwati at crime No. 128 of 2007 and by Manoj Kumar at crime No. 128A of 2007 becomes inadmissible or is of limited value.

Here it may be mentioned that in Sambhu Das vs. State of Assam 2011 (2) SCC( Crl) 10, where the police had similarly arrived after receiving telephonic information at 6.30 p.m that the deceased was lying dead in a verandah, and the inquest was conducted at 9.30 p.m., but the formal FIR was lodged only at 11.30 p.m. On account of the mere arrival of the police on some telephonic information, and even conduct of inquest prior to lodging of the formal FIR, the evidence of witnesses in the Court could not be washed off. It was held in the said law report that the FIR under section 154 Cr.P.C was not a substantive piece of evidence, but could only be used for contradicting or corroborating its maker. Section 157 Cr.P.C envisages the police officer proceeding to the spot if on receipt of information or other wise, the police officer has reason to suspect the commission of an offence, he is required to proceed to the spot to investigate the facts and if necessary to take steps to apprehend the offender. There was no imperative requirement that the investigation can proceed only after lodging of a formal FIR under section 154Cr.P.C. In State of U.P. v. Bhagwant Kishore Joshi, 1964(1)Cri.L.J 140, the Apex Court has observed in para 8)

"8. ? Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation."

Also as held in paragraphs 22, 25 and 27 in Satish Narayan Sawant, (2011) 2 SCC (Cri) 110, the mere arrival of the police on some cryptic information regarding the incident, for verifying the correctness of the information, and for surveying the place does not imply that evidence is being collected, and that investigation has commenced. Rather, the visit and the initial steps could be in the nature of a preliminary inquiry. In such circumstances it cannot be said that the subsequent information given to the police by the informant was hit by section 162 Cr.P.C.

Even if for the sake of argument, the telephonic information of Guddu at 7.10 a.m. on 9.7.07 was treated as the FIR, and the police arrived at the spot for investigating the case, it cannot have any adverse impact on the substantive evidence given by the witnesses at the trial. At least this factual circumstance is clear, that the police had arrived at the village soon after the telephonic information was received, and then Ramwati handed over an FIR to the investigating officer, which was transmitted to the police station where the necessary G.D. Entry was made and the case was registered at 8.50 a.m. on 9.7.07 at Crime No. 128/07 against named accused persons. Thereafter another FIR was also promptly handed over by Manoj PW 1, which was also transmitted to the police station, where the G.D. Entry was made against the same named accused persons, at 9.10 a.m. on the same day at Crime No. 128 A/07.

Also from the mere arrival of the police at the spot pursuant to the telephonic information received from Guddu and the subsequent disclosures and FIRs to the investigating officer by Ramwati and Manoj Kumar, no inference can be drawn that the two FIRs are the handiwork of the police and cannot be relied on for this reason. The information mentioned in the FIRs were natural pieces of information which could have only been known to these witnesses, and could not have been supplied by the police. So far as Manoj Kumar's statement is concerned, he has stuck to the version given in his FIR in his evidence in Court except that one accused person Rakesh alias Titu has been added in the evidence. We have clarified the reasons above why the involvement of Rakesh alias Titu in Manoj's evidence does not appear to be false. It may also be clarified here that the motive of Rakesh @ Titu for commission of this crime could have been the dispute over cutting of the chakotra tree by his uncle Ranbir, and his possible annoyance with his father, if there was any substance in the allegation of his father Prakash having an evil eye for Rakesh's wife, or possibly Rakesh's need to participate in the murders to improve his image and status before the co-accused Anil (the gang leader who was killed in a police encounter). Readiness of a new entrant to commit a murder or a crime on joining a gang has been known to be a means of improving his social status and acceptability in the eyes of gang leaders and for the safety to the life of such an accused, if the victims are his own relations.

No doubt so far as Smt. Ramwati CW-3 is concerned, although she admitted that the FIR (Ext. Ka-6) contained her signature, she appears to have denied its contents. But she appears to have turned hostile and to have disowned her FIR after her son Rakesh @ Titu was made an accused in this case, after it was discovered that she had erroneously or deliberately shown her son as a deceased in her FIR, which fact was found to be incorrect after her son had returned to his place of residence after two days. For this reason also her other son CW-2 Mukesh has turned hostile and has disowned the FIR version to protect his brother Rakesh and the other accused persons in this crime.

No reason exists for the false implication of the appellants and co-accused Anil (who was killed in an encounter during trial) in this case and for the same names appearing in the FIRs lodged by Smt. Ramwati at crime No. 128 of 2007 and by Manoj Kumar at crime No. 128A of 2007.

Also although CW-2 Mukesh, and CW-3 Ramwati, brother and mother of appellant Rakesh alias Titu have resiled from the version given in the FIR lodged by Ramwati regarding the complicity of the other appellants, but Smt. Kusum PW-3 who resided two or three houses away from the deceased Ranvir's and Manoj Kumar's house, had described the incident at the house of Manoj Kumar PW-1 and Gayatri Devi PW-2, who were respectively, the son and wife of the deceased Ranveer. We therefore, find that from distinct and independent sources, the names of the same accused are surfacing who are said to be involved in the murders of Ranveer and Prakash. This is an important reason for relying on the testimonies of the witnesses PW-1, PW-2 and PW-3 who have stated that the appellants had taken the deceased Ranveer from his house at 2 or 2.30 A.M in the circumstances mentioned by these witnesses. No explanation has been given by the accused person against whom the evidence of abduction of Ranveer has been raised for explaining as to what happened after they abducted the accused and the circumstances of his murder. This is also an additional reason for reaching an inference regarding the complicity of the appellants in this crime. We therefore see no illegality in the orders of convictions awarded by the trial Court to the appellants Manoj Gurjar, Amit Jat, Devendra and Rakesh @ Titu under various counts.

However, so far as the acquittal of Satish Pradhan is concerned, we think that the trial court has given proper reasons for acquitting him viz the denial of the involvement of Satish Pradhan by Pw-1 Manoj Kumar and PW-2 Gayatri Devi. PW-1 has specifically denied the involvement of Satish and he was not in a position to identify him in Court and that he was not a resident of his village. PW-2 Smt. Gayatri has likewise disclaimed recognizing Satish Pradhan in her cross examination in Court and denied his involvement in this case. PW-3 Smt. Kusum has stated that she knew Satish Pradhan from village Kharaunda and no other person from that village. In the back ground that Satish Pradhan was also not directly involved in the dispute between the parties, we see no good reason for differing with the finding of the trial judge acquitting the accused-respondent Satish Pradhan and we affirm the said view, and dismiss the appeal under section 372 Cr.P.C and the government appeal preferred against his acquittal, which is accordingly dismissed and the leave applications are also rejected.

So far as the acquittal of Ranjeet who was only involved under section 120-B read with section 302 IPC is concerned, he was acquitted on the ground that the prosecution has only produced PW-1 Manoj Kumar who stated that at the time of incident he had overheard Anil Jat talking to Ranjeet, resident of Saidpurwa on the moblile phone saying that he would come after some time along with his companions to meet him and they have finished the work of Ranveer. We think that Manoj PW 1 overhearing such a conversation appears intrinsically unbelievable. Apart from this evidence of Manoj, nothing has come in the evidence against this accused. No motive has been suggested by the prosecution why Ranjeet would be interested in the murders of the three deceased persons in this case.

The ingredients of section 120-B require that two person agree to do an illegal act or enter into an unlawful conspiracy. Even the mobile phone on which the appellant Anil was said to be talking to Ranjeet has not been collected nor the call details have been obtained and only this hearsay evidence of the witness overhearing the conversation between Anil and Ranjeet (when the latter was not even visible) making the statements as abovementioned can not be relied upon. From this flimsy piece of evidence it would be unsafe to infer the factum of agreement between the two. We thus find that there was no evidence against Ranjeet in this case and the trial judge has committed no illegality in recording his acquittal, and the challenge to his acquittal by the impugned Government Appeal is dismissed.

One further question remains as to whether the trial court was right in singling out the appellant Manoj Gurjar for awarding a sentence of death. No doubt Manoj Kumar was said to be involved in the murder of one Deep Chand in an earlier incident for which he had been awarded imprisonment for life. In that case he was involved with co-accused Anil Jat who had absconded and was later killed in an encounter with the police. However, we find no additional circumstance showing a greater role of the appellant Manoj in this crime in comparison to the other appellants and he does not even seem to have as strong a motive for committing this crime, compared to the co-accused Anil Jat , Devendra and Rakesh alias Titu. Also according to Mithu v. State of Punjab, (1983) 2 SCC 277 which has declared award of mandatory death sentence to a prisoner undergoing life imprisonment unconstitutional, no difference can be made on the issue of sentence between a first timer and a lifer facing a murder charge and the circumstances of the crime and the individual prisoner need to be examined in both the cases for determining the appropriate penalty.

We find that the appellant Manoj Gurjar has been awarded death sentence in this case, principally on account of the fact that he was already undergoing a sentence of imprisonment for life, but was on parole. That would be a perfectly sound reason to award the death sentence were section 303 IPC in existence. However section 303 IPC has been declared unconstitutional, and no difference in the circumstances of the crime or his role were pointed out between Manoj Gurjar's case, and that of the other appellants.

In Sahdeo and others vs. State of U.P., (2004) 10 SCC 682 which was a case of 8 murders in a bus, the sentence of death to the appellants under section 302/149 IPC was replaced with a sentence of life imprisonment because the overt acts and precise roles of each of the accused in the murders could not be determined.

In Kannan vs State of Tamil Nadu, AIR 1989 SC 396 in order to avoid discriminatory treatment the Apex Court substituted the sentence of death to the appellant in a case of murder of 9 harijans because in similar (though less grave circumstances) the sentence of death to 3 appellants had been commuted from death to life of 3 co-appellants by the High Court.

In the aforesaid back ground, the ends of justice would be met if the appellant Manoj alias Manoj Gurjar should also be awarded the same sentence as has been awarded to the other appellants Amit Jat, Devendra Jat and Rakesh alias Titu and accordingly the sentence of death awarded to the appellant Manoj Gurjar is set aside and in its place he is awarded a sentence of imprisonment for life along with fine of Rs. 2 lakhs as has been awarded to the other three appellants. The other sentences awarded to the appellant Manoj Gurjar under the other provisions by the trial Court are affirmed.

We further affirm the conviction and sentence awarded by the trial Court to the appellants Amit Jat, Devendra Jat and Rakesh @ Titu under various provisions. The appeals preferred by the appellants against their convictions and sentences are dismissed.

We find that the trial Court has inadvertently failed to award any default sentence for non-payment of fines for the offences for which the appellants have been convicted and sentenced. We provide for further imprisonment of 3 years in default of payment of fines as awarded by the trial Court to the appellants Manoj Gurjar, Amit Jat, Devendra Jat, Rakesh @ Titu, or by this Court when affirming the conviction of Manoj Gurjar under section 302/149 IPC, but substituting a sentence of imprisonment for life instead of a sentence of death, and imposing an additional fine of Rs. 2 lakhs under the latter provision.

The death reference under section 366 Cr.P.C sent by the trial Judge in the case of Manoj Gurjar is rejected. Subject to the aforesaid modifications all the aforesaid appeals are dismissed.

Order Date :- 9.9.2013

sfa/HSM