Kulveer And Ors vs State
2014 Latest Caselaw 4058 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved                                                 		         A.F.R.                                      
 

 
Case :- CRIMINAL APPEAL No. - 1842 of 1993
 

 
Appellant :- Kulveer & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- V. Singh,H C Dubey,Pradeep Kumar Rai
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arun Tandon,J.

Hon'ble Akhtar Husain Khan,J.

(Delivered by Hon'ble Akhtar Husain Khan, J.)

Accused appellants Kulveer, Hem Raj and Jai Prakash have preferred this appeal under Section 374(2) Cr.P.C. against judgement and order dated 18.10.1993 passed by Ist Additional Sessions Judge, Bijnore in Sessions Trial No. 366 of 1991, State of Uttar Pradesh Vs. Kulveer and others, under Section 364/302/34/201 I.P.C. Police Station Seohara, District Bijnore whereby learned Additional Sessions Judge, Bijnore has convicted accused appellants Kulveer, Hem Raj and Jai Prakash for offences punishable under Section 302 I.P.C. read with Section 34 I.P.C. and Section 364 I.P.C. and has sentenced each of them for offence punishable under Section 302 I.P.C. read with Section 34 I.P.C. with imprisonment for life and for offence punishable under Section 364 I.P.C. with rigorous imprisonment for a period of seven years. Learned Additional Sessions Judge has directed that both the sentences shall run concurrently.

S.T. No. 367 of 1991, State Vs. Kulveer alias Kaka under Section 25 Arms Act, P.S. Seohara, District Bijnore has also been decided by Ist Additional Sessions Judge, Bijnore by same judgement and order dated 18.10.1993 and accused Kulveer was acquitted of the charge under Section 25 Arms Act. No appeal has been preferred by State against acquittal.

Mr. Kamal Krishna, learned counsel appeared for accused appellants and Mr. M.S. Yadav, learned A.G.A. appeared for respondent.

We have heard both the parties and perused the records.

In brief relevant facts for decision of appeal are that on 4.7.1991 Daya Ram Sharma, Chaukidar R/o village Lakhipura gave oral information to P.S. Seohara that in village Govardhanpur barat of Prem Kumari daughter of Ram Pal Singh has come from village Rampur-Junnadar, P.S. Navgaonwa Sadat, District Moradabad. During night at anytime Sanjiv Kumar aged about 16 years son of Veer Singh resident of Rampur-Junnadar, P.S. Navgaonwa Sadat, District Moradabad, who has come in barat party, was killed by causing injuries with sharp edged weapon and dead body is lying in a dry drain situated in south of village. Many people of the village as well as baraties are present there.

On this oral information of Chaukidar Crime No. 207 of 1991 under Sections 302, 201 I.P.C. was registered in P.S. Seohara against unkonwn person. Later on, written report Ext.Ka-1 was presented to I.O. by Veer Singh father of deceased Sanjiv Kumar. Thereafter, inquest report of deceased was prepared and dead body was sent for post-mortem in sealed cover after having completed other formalities.

Veer Singh father of deceased Sanjiv Kumar has alleged in written report Ext.Ka-1 that his son Sanjiv Kumar aged 16 years and daughter Seema aged 9 or 10 years came in barat of Krishna Pal son of Rishiram to village Govardhanpur P.S. Seohara. On 4.7.1991 Narpal son of Bhasi Ram went to his house and informed him that his son Sanjiv Kumar has been murdered, then he went to village Govardhanpur and tried to know the facts. His daughter Seema as well as Khub Singh son of Harkesh Singh resident of Munavvarpur, Seohara and Satya Pal Singh resident of Janardar P.S. Nauganwan, who had also come in barat informed him that at about 12.00 p.m. in the night during chadhat ceremony of barat there occurred a scuffle between his son Sanjiv Kumar and accused Kulveer, Hem Raj and Jai Prakash. At that time accused drew knife also but the relatives intervened and pacified them. Later on, after chadhat ceremony of barat the said three accused came to his son Sanjiv Kumar and asked him to go to tube well for taking bath. They assured him that the above occurrence has taken place under influence of liqueur.

Thereafter, they took Sanjiv Kumar with Maruti Van No. D.A.C. 1169. Khub Singh and Satya Pal Singh have seen them while they were returning after having murdered his son Sanjiv Kumar. Since then they are absconding.

According to prosecution, during investigation on 5.7.1991 police arrested above accused appellants with Maruti Van No. D.A.C. 1169. At the time of arrest a blood stained knife was recovered from the possession of accused appellant Kulveer. Fard recovery of Maruti Van and knife Ext.Ka-3 was prepared by I.O. P.W-7 S.I. Preetam Singh. At the same time, on inspection of above Van, blood stains were found on foot-mats of back seat and bag of cement kept in van, therefore, I.O. P.W-7 Preetam Singh took pieces of mats containing blood stains as well as bag of cement containing blood stains and kept them in a sealed cover. At the same time he prepared memo of blood stains matting and bag Ext.Ka-2. Later on, after having completed investigation in accordance with law, police submitted charge sheet against accused appellants for offences punishable under Section 302, 201 I.P.C..

For recovery of knife from the possession of accused appellant Kulveer on 5.7.1991, seperate Crime No. 209 of 1991 under Section 25/4 Arms Act was registered in P.S. Seohara against accused appellant Kulveer and after having completed investigation, charge sheet was submitted by police against Kulveer for offence punishable under Section 25/4 Arms Act also.

Learned Magistrate took cognizance against accused appellants on both charge sheets submitted by police and after compliance of Section 207 Cr.P.C. committed the case to Session court for trial of accused appellants. Whereupon S.T. No.366 of 1991, State Vs. Kulveer & others was registered under Sections 302, 201 I.P.C. against all accused appellants. S.T. No.367 of 1991, State Vs. Kulveer under Section 25 Arms Act was also registered against accused Kulveer. later on both the Sessions trial was transferred to the Court of Ist Additional Sessions Judge, Bijnore, who framed charges against all accused appellants for offences punishable under Section 364 I.P.C., Section 302 I.P.C. read with Section 34 I.P.C. and Section 201 I.P.C.. Learned Additional Sessions Judge framed charge against accused appellant Kulveer for offence punishable under Section 25 Arms Act also.

All the accused appellants pleaded not guilty and claimed to be tried.

Prosecution examined P.W.-1 Veer Singh son of Ganesh Singh and father of deceased, P.W.-2 Veer Bhan Singh, P.W.-3 Km. Seema, sister of deceased, P.W.-4 Khub Singh, P.W.-5 Veer Singh son of Hari Singh, P.W.-6 Daya Ram Chaukidar, P.W.-7 S.I. Pritam Singh, I.O., P.W.-8 Dr. Arun Prakash and P.W.-9 H.C. Balbir Singh and closed his evidence. After prosecution evidence statements of accused appellants were recorded under Section 313 Cr.P.C.. They stated that they have been falsely implicated due to animosity and party bandi. They stated that the witnesses are giving false evidence due to animosity and relationship.

Accused did not adduce any evidence in defence. The trial court heard the arguments of both the parties and passed impugned judgement and order whereby Trial court convicted all the accused appellants for offences punishable under Section 302 I.P.C. read with section 34 I.P.C. and Section 364 I.P.C. and sentenced each of accused appellant for offence punishable under Section 302 I.P.C. read with Section 34 I.P.C. with imprisonment for life and for offence punishable under Section 364 I.P.C. with rigorous imprisonment for a period of seven years.

Learned counsel for the accused appellants contended that the judgement and order passed by learned trial court is against law as well as against evidence. He further contended that this is a case of circumstantial evidence and evidence adduced by prosecution does not establish chain to lead inference that the offence has been committed by accused appellants.

Learned counsel for the accused appellants contended that P.W.-1 complainant Veer Singh is not an eye witness and the statements of P.W.-2 Veer Bhan Singh, P.W.-3 Km. Seema, P.W.-4 Khub Singh and P.W.-5 Veer Singh son of Hari Singh are highly doubtful because there is material contradictions in their statements and if they had seen the deceased going with accused after chadhat ceremony of barat, they must have informed Chaukidar P.W.-6 Daya Ram that they have seen deceased going with accused just before occurrence but they have given no information to Chaukidar P.W.-6 Daya Ram, who has lodged report Ext.Ka-4 against unknown persons.

Learned counsel for the accused appellants further contended that above witnesses of facts are relatives and interested persons.

Learned counsel for appellants contended that P.W.-3 Km. Seema is a child witness and she has admitted in cross-examination that she has been tutored before examination in court.

Learned counsel for accused appellants contended that the evidence adduced by prosecution is not sufficient to convict accused appellants.

Learned counsel for the accused appellants cited following Rulings in support of his contentions:-

(1) (2014) 2 S.C.C. (Crl.) 413, Kanhaiya Lal Vs. State of Rajasthan.

(2) A.I.R. 1979 S.C. 1127, Kanan and others Vs. State of Kerala.

(3)(2012) 3 S.C.C. (Crl.) 795, K. Venkateshwarlu Vs. State of Andhra Pradesh.

Learned counsel for the accused appellants prayed that the appeal should be allowed and all the accused appellants should be acquitted.

Learned A.G.A. contended that the evidence adduced by prosecution is sufficient to convict accused appellants for offences punishable under Section 302 I.P.C. read with Section 34 I.P.C. and Section 364 I.P.C..

Learned A.G.A. contended that P.W.-2 Veer Bhan Singh, P.W.-3 Km. Seema and P.W.-4 Khub Singh have stated in their statements on oath that they have come with barat in which deceased Sanjiv Kumar has also come. P.W.-2 Veer Bhan Singh and P.W.-4 Khub Singh have supported this fact also that P.W.-3 Km. Seema has also come in barat with his brother Sanjiv Kumar, therefore, testimony of these witnesses may not be discarded.

Learned A.G.A. contended that there is no material contradiction in the statements of witnesses examined by prosecution, therefore, there is no sufficient ground to disbelieve them.

Learned A.G.A. contented that the conviction recorded by trial court is based on evidence and there is no sufficient ground to interfere with the judgement of trial court.

Learned A.G.A. prayed that appeal should be dismissed.

We have considered the submissions made by the parties.

After having considered evidence adduced by prosecution trial court recorded finding that prosecution can be said to have established following circumstances against three accused; namely Kulveer, Hem Raj and Jai Prakash:-

(1)Deceased Sanjiv and above three accused, namely, Kulvir, Hemraj and Jai Prakash and (P.W.2) Veer Bhan, (P.W.3) Km. Sima and (P.W.4) Khub Singh had come to village Goverdhanpur in the marriage of Krishanpal.

(2) When in the night, marriage procession was going on, there was an altercation between deceased Sanjiv and above three accused over playing of a particular tune and in the said altercation, deceased was pushed and when he got up, he gave some slaps to Kulvir, who is Behnoi of Krishanpal, (bridegroom) and above circumstance was the motive of the crime.

(3) At the time of said altercation, accused had given a threat to the deceased that they would see him later on after the procession is over.

(4) That after the marriage procession was over, three accused went to the deceased, where party was staying for the night and in the presence of P.W.2 and P.W.3 took away the deceased in Maruti Van No. D.A.C. 1169 in which above three accused had come in the marriage under the excuse that they were going to have a bath at the tube-well.

(5) Same night, (P.W.4) Khub Singh saw three accused in the said Maruti Van near the tube-well and he also heard a shriek from Maruti Van, but he thought that since accused were under intoxication, they may be in playing mood.

(6) That after three accused took away the deceased, he was not found alive and in the early morning of 4.7.91, dead body of the deceased was found near the tube-well having stab-wounds, and

(7) That when police recovered the said Maruti Van, it had blood stains on foot-mat, cover seat and also on the cement bag found in Maruti Van.

After having considered whole evidence available on record, we are of the view that the findings recorded by trial court regarding circumstances are not based on correct and legal valuation of evidence.

In the case of Kanhaiya Lal Vs. State of Rajasthan, (2014) 2 S.C.C. (Cri) 413, Hon'ble Apex Court has held that," The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."

In the case of Krishna Ghose Vs. State of West Bengal, AIR 2009 SC 2279 (SC), Hon'ble Apex Court held that, " the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances."

We have examined the statements of witnesses carefully.

P.W.-2 Veer Bhan Singh has stated in his statement that a scuffle took place between Sanjiv and all the three accused regarding tune of song but they pacified the quarrel. Thereafter Sanjiv came to janvasa where barat was staying. Accused also came in janvasa. Thereafter, accused Kulveer went to Sanjiv and asked him to go with him for taking bath. Relevant portion of statement of P.W.-2 Veer Bhan Singh is reproduced below:-

" fQj latho lhek tuok'ks esa vk x;s tgkW ckjkr Bgjh FkhA vkSj eqyfteku Hkh tuokls esa vk x;sA mu fnuksa esa xehZ dk ekSle Fkk] ,d QykZax nwj ij V;woSy py jgk FkkA >xMs+ gksus ds yxHkx ,d ?kaVs ds ckn dqyohj] latho ds ikl tuok'ks esa x;k dqyohj us dgk fd latho tks ckr gks xbZ gS chr xbZ ugkus pyrs gSaA lkjh ckjkr okys tc latho ls dqyohj us ;g ckr dgh Fkh rks ekStwn Fks fQj latho dqyohj ds lkFk ugkus pyk x;kA "

Above statement of P.W.-2 Veer Bhan Singh shows that only accused Kulveer asked Sanjiv to go with him for taking bath and Sanjiv went with accused Kulveer only. In his statement P.W.-2 Veer Bhan Singh has not stated that accused Hem Raj and Jai Prakash also went with deceased Sanjiv.

P.W.-3 Km. Seema has stated in her statement that after scuffle during chadhat ceremony of barat when she and her brother Sanjiv came to janvasa, all the three accused came to janvasa and asked her brother to go for bath with them and thereafter they took away her brother in Van.

P.W.-4 Khub Singh has stated in his statement that a quarrel took place between Sanjiv and accused Kulveer, Hem Raj and Jai Prakash. They intervened and pacified the quarrel. Thereafter he (P.W.-4 Khub Singh) went alongwith Satya Pal to tube-well for taking bath and after having taken bath when they were standing at the canal, there came a Van. The van was being driven by accused Hem Raj and accused Kulveer and Jai Prakash were sitting in it. He has further stated in his statement that there was none other in the Van except said three accused. Relevant portion of statement of P.W.-4 Khub Singh is reproduced below:-

" ml jkst cgqr rst xehZ FkhA eSa vkSj lR;iky fV;wooSy ij x;sA ogka ij ugk;sA rks tc ge ugj ds ikl [kMs+ Fks ogka ij oSu vkbZA ogha vke dk isM+ Fkk mlds uhps ge [kMs+ FksA ml xkM+h dks gsejkt pyk jgk FkkA ml xkM+h esa dqyohj] t;izdk'k FksA vkSj dksbZ ugha FkkA "

Thus, statement of P.W.-4 Khub Singh makes it clear that when he saw the Van, the van was being driven by accused Hem Raj and accused Kulveer and Jai Prakash were sitting in it but Sanjiv was not in the Van alongwith said accused. The statement of P.W.-4 Khub Singh falsify the statement of P.W.-3 Km. Seema that all the three accused took Sanjiv with Van.

In view of above, we find material contradiction in the statements of P.W.-2 Veer Bhan Singh, P.W.-3 Km. Seema and P.W.-4 Khub Singh.

The age of Km. Seema has been recorded 11 years on 8.7.1993 when her statement had been recorded before trial court. The date of occurrence is 4.7.1991. Therefore, on the date of occurrence her age was nine years. Para-3 of her cross-examination is relevant to reproduce below:-

"3. geyksx 10 cts ls igys U;k;ky; esa vk x;s FksA vc 12&[email protected] cts gh tc xokg ls iwNk x;k fd D;k vkt rqEgsa fdlh us C;ku le>k;k rks xokg FkksM+h nsj pqi jgh] fQj gka dgk ysfdu ckn esa dgk ugha le>k;kA fQj dgk eq>sa vkt U;k;ky; esa le>k;k x;k Fkk vkSj ogh C;ku vkt U;k;ky; esa ns jgha gwW A "

In the case of K. Venkateshwarlu Vs. State of Andhra Pradesh (2012) 3 S.C. C. (Cri) 795, Hon'ble Apex Court held that,"A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion."

Above statement of P.W.-3 Km. Seema shows that she has been tutored before examining her in court.

In cross-examination P.W.-3 Km. Seema has stated on Page 16 (Page 25 of Paper book) that Veer Bhan Singh P.W.-2 has come with his father. Admittedly father of P.W.-3 Km. Seema, Veer Singh P.W.-1 had come in morning from his village after having received information of murder of his son. Therefore, in view of above statement of P.W.-3 Km. Seema the presence of P.W.-2 Veer Bhan is doubtful in barat at night.

P.W.-3 Km. Seema has stated in cross-examination on page 16 (Page 25 of Paper book) that police went back from place of occurrence after having arrested present three accused.

But in F.I.R. Ext.Ka-1 P.W.-1 Veer Singh father of deceased has stated:-

"lkFk fyokdj ek:rh oSu ua0 Mh0,0lh0 1169 esa cSBkdj ys x;s rFkk gR;kjksa ls eku dj yk'k Mkydj okil vkrs gq;s mUgsa [kwc flag o lR;iky flag us ns[kk gS os yksx rHkh ls eS; xkM+h ds Qjkj gSaA "

According to prosecution all the three accused appellants were arrested on 5.7.1991 and at the same time Maruti Van was recovered from their possession. Blood stained mat and bag was found in van at the same time. According to prosecution a blood stained knife was also recovered from possession of accused Kulveer. P.W.-5 Veer Singh and P.W.-7 S.I. Pritam Singh have supported prosecution version in their statements and have proved recovery memos of van, blood stained knife and other blood stained articles. These recovery memos are Ext. Ka-2 and Ext.Ka-3. These recovery memos also revealed that all three accused were arrested on 5.7.1991 and van, blood stained knife and other blood stained articles were taken in possession by P.W.-7 S.I. Pritam Singh on 5.7.1991. But above statement of P.W.-3 Km. Seema falsified the whole version of prosecution regarding arrest of all accused on 5.7.1991 and recovery of blood stained knife and other blood stained articles on that day. Trial court has also not accepted arrest of accused on 5.7.1991 and recovery of blood stained knife on that day.

All the accused have stated in their statements under section 313 Cr.P.C. that they were arrested on 4.7.1991 and have been falsely implicated. Statements of accused finds support from statement of P.W.-3 Km. Seema.

In view of discussion made above, we are of the view that alleged arrest of all accused as well as recovery of van, blood stained knife and other blood stained articles on 5.7.1991 is false and fabricated.

Blood stained articles have not been examined by Serologist and no report of Serologist has been filed to show that alleged blood stains found on above articles were human blood.

P.W.-1 Veer Singh father of deceased is a hear say witness. He has proved report Ext.Ka-1. But the Report Ext.Ka-1 appears to have been dictated by police as P.W.-3 Km. Seema has specifically said in her statement in cross-examination on Page 16 (Page 25 of Paper book), " tc rd iqfyl vkbZ esjs firk th yk'k ds ikl gh jgsA iqfyl okys vk x;s rks iqfyl okyksa us esjs firk th ls fy[kok;k FkkaA "

P.W.-6 Daya Ram has given oral information to police station regarding murder of deceased on the basis of which Crime No. 207 of 1991 under section 302/201 Cr.P.C. was registered against unknown person. P.W.-8 Dr. Arun Prakash is doctor who has conducted post-mortem of deceased. P.W.-9 Balveer Singh has proved Chik report Ext. Ka-15 and corbon copy of G.D. Ext. Ka-16 as a secondary witness.

In view of discussion made above, after having considered whole evidence on record as well as circumstances of the case, we are of the view that prosecution story as well as evidence adduced by prosecution is not free from doubt and evidence on record does not establish beyond doubt that deceased Sanjiv went with accused appellants in van at the last seen.

In view of above, we are of the view that evidence on record is not sufficient to hold accused appellants guilty of offences punishable under Section 302 read with section 34 I.P.C. and Section 364 I.P.C. Conviction and sentence recorded by trial court is not sustainable.

Appeal is allowed.

Conviction as well as sentence recorded by trial court vide judgement and order dated 18.10.1993 is set a side and accused appellants Kulveer, Hem Raj and Jai Prakash are acquitted of all charges.

Accused appellants are on bail. They need not to surrender. Their bail bonds are cancelled and sureties are discharged.

Send copy of judgement to trial court.

Return back records of trial court.

Date:06.08.2014

LJ/-

		(Hon'ble Akhtar Husain Khan,J.)     (Hon'ble Arun Tandon,J.)