Pappu Alias Ram Krishna vs State Of U.P.
2015 Latest Caselaw 2965 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

			AFR
 
Court No. - 36
 
Case :- CRIMINAL APPEAL No. - 3617 of 2014
 

 
Appellant :- 		Pappu Alias Ram Krishna
 
Respondent :- 	State Of U.P.
 
Counsel for Appellant :- 	    Jokhan Prasad,S.M. Yadav
 
Counsel for Respondent :- Govt.Advocate,Sharad Chandra Singh
 

 
Hon'ble Amreshwar Pratap Sahi, J.

Hon'ble Pramod Kumar Srivastava, J.

(Delivered by Hon'ble P.K. Srivastava. J)

1. This appeal has been preferred against the judgment of conviction and punishment dated 30.07.2014 passed by the Additional Sessions Judge, Bansi, district Siddharth Nagar in ST No. 188/ 2010, State Vs. Pappu alias Ram Krishna, case crime no. 488/ 2009 u/s 302/34 read with section 201 IPC, police station Bhawani Ganj, district Siddharth Nagar by which the sole accused was convicted for charge u/ss 302/34 and 201 IPC and punishment with imprisonment for life and fine of Rs. 20,000/- (in default of payment one year's rigorous imprisonment) and for charge u/s 201 IPC a sentence for imprisonment of 7 years rigorous imprisonment and Rs. 5000/- as fine (in default of payment 6 months' rigorous imprisonment).

2. The informant Smt. Indrawati Devi had informed the police in writing on 8.12.2009 that on 6.12.2009 she was in her village Jaitapur. She was returning after answering the call of nature at about 6 am in the morning, when on her way she saw her husband Siyaram going to ease himself towards the west of the village. She saw that behind her husband his relatives Pappu, Vinod alias Binda (sons of Ram Sanware) were going with vogdan (sharped edged agriculture equipment) and hansua (ripper) and were talking about the harvesting of sugarcane. She came back home where her brother Parshuram (PW-6) and his friend Ramhit (PW-7) were sitting. When they left, she got engaged in her domestic affairs. When her husband did not return then she started searching him in the village and inquired from relatives but she could not find him. She had also written in her report that she had suspicion against Ram Sanware because of enmity due to a dispute over partition of land. She had suspicion that due to the said enmity Pappu, Vinod alias Binda and Smt. Kabutara might have murdered her husband. When her husband was going then her brother Ramhit had also seen him. On the basis of the above mentioned report case crime no. 488/2009 was registered on 8.12.2009 for offence u/s 364 IPC. Later on a human skeleton was recovered by the police on 11.12.2009 in village Jaitapur. Postmortem of the said skelton was performed on 11.12.2009 by Dr. J.P. Singh (PW-1), who found the head of the said body amputated by a sharp edged weapon and an incised wound was present over which the head was missing, and the temporal bone had also incised wound of about 7 cm x 3 cm. The doctor found that both the shoulders, abdomen, chest of the body were eaten by insects and only bones/ skeleton were present. Doctor (PW-1) also found no viscera was present in said dead body and it was decomposing. The time of death may be 4 or 5 days earlier to postmortem. During investigation police had also recovered one spade (fawda) from Pappu on 13-12-2009. After completion of investigation the police had submitted charge-sheet against three accused namely Pappu, alias Ram Krishna, Vinod alias Binda and Smt. Kabutara Devi for offence u/s 302, 201 IPC. During trial Kabutara Devi died and accused Vinod alias Binda was declared juvenile. So the trial proceeded only against accused Pappu alias Ram Krishna.

3. During trail accused (/appellant) Pappu alias Ram Krishna was charged for offence u/s 302/34 and 201 IPC. He denied the charges and claimed to be tried. In support of the charges the prosecution examined Dr. J.P. Singh (who performed postmortem), PW-2 Ram Sagar (witness of inquest), PW-3 Jagdish (witness of Inquest), PW-4 Constable Dharmendra Singh (for proving recovery of murder weapon), PW-5 Parashuram (witness of fact), PW-6 Constable Ram Sumer Yadav (Moharrir of police station), PW-7 Ramhit (witness of fact), PW-8 Constable Suresh Prasad Chaurasiya (for proving recovery of dead body), PW-9 Indrawati (informant and witness of fact), PW-10 Radheshyam, (scribe of written FIR) and PW-11 Retd. S.I. America Singh (witness of fact and also of recovery of dead body), PW-12 retired S.I. Ram Laut Chaudhary and PW-13 Smt. Saroj Sharma (the then S.O., police station Bhawaniganj).These witnesses had proved documentary evidence of prosecution side as Ex-Ka-1 to Ex-ka-16 and also material Exhibits (Exhibit-1 to Exhibit-12).

4. After closure of prosecution evidence statement of accused-appellant u/s 313 CrPC was recorded in which he denied the prosecution allegations and stated that false evidence was given and a wrong charge sheet has been submitted against him. Accused had adduced defence evidence by producing and DW-1 Parmeshwar Prasad.

5. After receiving evidence of both sides and affording opportunity of hearing and after considering arguments the learned Additional Sessions Judge passed the impugned judgment dated 30.07.2014 by which accused appellant Pappu alias Ram Krishna was convicted for charges u/s 302/34 and 201 IPC as above and it was directed that both the sentences would run concurrently . Aggrieved by this impugned judgment dated 30.07.2014, the present appeal has been preferred.

6. Sri Jokhan Prasad appeared for appellant and Sri Ali Murtza, learned AGA represented respondents-State. We have considered their arguments and perused the original records of the case.

7. Learned counsel for the appellant contended that, in fact there is no evidence against the appellant. There is no evidence that accused persons had knowledge about the movement of the deceased. The FIR had been lodged on the basis of suspicion and no one had ever seen any accused in company or in the vicinity of the deceased at the approximate time of the charged incident. According to the prosecution version the accused were last seen going towards west of the village but the dead body of the victim, the identity of which is also doubtful, was found in the field of Ram Newas, which is in the opposite direction and at a far away place. Even according to the PW-11 the dead body was found at a different place namely Seria Tola, but inquest proceedings were performed in the village Jaitapura. The recovery of this dead body has no connection with any of the accused. The police had allegedly recovered a spade (fawda) from the appellant soon before the charged incident. Even according to witnesses of fact no accused was carrying fawda. The alleged recovery of alleged equipment (spade) was made on 13.12.2009, that is long time after the charged incident, and the said weapon was not sent to the forensic science laboratory for chemical examination to establish that any human blood stain was present over it which may prove its involvement in the charged incident. Learned counsel for the appellant further submitted that since there is no direct evidence of the case and the accused appellant was never seen with the deceased or near the place of charged incident or near the place of recovery of the dead body. Therefore in absence of any evidence judgment of conviction by trial court is erroneous and appeal should be allowed.

8. Learned AGA refuted the said arguments on behalf of the appellant and contended that spade (fawda) was not seen by witnesses, but during investigation it was found that it was the murder weapon used by any of the accused. He further submitted that why blood stained spade (fawda) was available with the accused if it was not used for murder. The blood stained spade (fawda) was found on the pointing out of Kalawati and Vinod. The appellant Pappu alias Ram Krishna is a member of their family and was seen with them just before the incident which indicates his involvement in the charged incident. Learned AGA has accepted that investigation was faulty and I.O. had not prepared site plan of recovery of the dead body and even not shown the distance of field of Ram Newaj from other places, but considering the enmity between two sides and the accused persons being seen going towards west of the village after the deceased, their involvement in the charged incident is proved and therefore this appeal should be dismissed.

9. We have heard the rival contentions and perused the available evidence. The matter is being disposed off finally as learned counsel have consented for final disposal.

10. PW-1 Dr. J.P. Singh is the person who had conducted the postmortem of the dead body, which was said to be that of Siyaram Yadav. But his testimony proves that the said dead body was not identifiable as most of the muscular portion of the body had been eaten by insects. The said body was in the form of a skeleton only without any skin on the chest, and head portion and no muscle or viscera was present in the area of chest or abdomen, which had been eaten by insects and animals and decomposition of the said body had already started. PW-1 the doctor could not fix the time of death of the said body and opined that time of death may be 4-5 days earlier. He had not stated anything about the presence of any clothes on the dead body. In these circumstances, identification of the dead body of this case which underwent postmortem appears to be unsubstantiated. Though the evidence of the doctor proves that the said dead body was that of a person who was murdered, but PW-1 the doctor had noted in the postmortem report that the age of the deceased was about 26 years. This postmortem was conducted on 11.12.2009. PW-9 Indrawadi wife of Siyaram was examined on 25.11.2011 at that time hear age was 30 years. She or any other witness had not stated about the age of Siya Ram at the time of the incident.

11. In any case, the abovementioned dead body was that of a person who had been murdered because of the injuries of an incised wound found on it.

12. Admittedly there is no eye witness of the incident in question. The prosecution witnesses, namely PW-1 Dr. J.P. Singh, PW-2 Ram Sagar, PW-3 Jagdish, PW-6 constable Ramsumer Yadav, PW 8 constable Suresh Prasad Chaurasiya, PW-11 America Prasad, PW-12 Ram Laut Chaudhary and PW- 13 Smt. Saroj Sharma were formal witnesses and they have no personal knowledge about the facts of the charged incident. PW-10 Radheshyam was scribed of the FIR who had proved writing of written report Ex-Ka-5 on the instruction of the informant Smt. Indrawati (PW-9). He had also no personal knowledge of the incident.

13. PW-4 constable Dharmendra Singh had stated that on 13.12.2009 accused Pappu @ Ramkrishna was arrested at 13:00 O' clock (1:00 pm.) and on same day one spade (fawra) recovered as murdered weapon from the west of the village near Jaitapur canal. The said spade had blood stains over it and it was seen on the spot. This witness had proved his signatures on the memo of recovery of this spade (fawra) but this fact is noteworthy that during the last seen evidence narrated by the other witnesses of fact carrying of spade (fawra) was not stated by any eye witnesses. It is also noteworthy that the said spade was never sent for testing of the alleged blood stains either to any laboratory or Government Forensic Science Laboratory, therefore it cannot be proved that the said spade had in fact contained human blood stains over it. No witnesses of fact had ever identified the said spade in court or stated anything about it. Now remain three witnesses of fact, namely, PW-5 Parsuram, PW-7 Ramhit and PW-9 Indrawati.

14. PW-9 informant Indrawati Devi w/o alleged victim Siyaram had supported her FIR version during her examination and stated that about 2 years ago, she was coming back after answering the call of nature at 6:00 a.m. in the morning, when she saw her husband Siyaram going for latrine towards the west. After sometime, she again saw Pappu and Vinod and Smt. Kabutari equipped with spade (fawara), vogda (sharp edged article of agriculture) and hansiya (ripper). These persons were talking to each other about the harvesting of sugarcane. After this she came back but her husband Siyaram never returned in spite of a long search. So third day, she reported the matter to the police. PW-9 also states that on the pointing out of Kabutari Devi (since deceased) the dead body of her husband was recovered in the field of Ram Niwas, and near the said dead body her husbands clothes, shoes were kept that were identified by her. This witness PW-9, is the informant of the case but she is not an eye witness of the incident. From description of the dead body mentioned above, it is evident that it was not identifiable and it did not have any clothes over it. PW-9 informant had identified the dead body on the basis of the clothes and shoes found not on the dead body, but were kept near it. But the prosecution did not produce the said clothes or shoes in Court. In any case, the dead body was not found on the pointing out of appellant Pappu @ Ram Krishna. A minute scrutiny of the deposition of PW-9 reveals that she had not stated the date when she last saw her husband going towards the west of the village or the accused persons going towards the same direction. She had also not stated as to whether the field of Ram Niwas, where allgedly the dead body was found, is in the west of the village or not. She admitted during cross-examination that she had named the accused persons on the basis of suspicion only because of earlier enmity.

15. The name of PW-5 is mentioned in the FIR as a person present in the house of the informant on the date of incident . He had also stated that he and Ramhit (PW-7) were sitting at the door of Siyaram at about 06:00 a.m. then they saw that her sister Indrawati (PW-9) had gone to latrine, after that his brother-in-law Siyaram had also gone for latrine. After that they saw that relatives of Siyaram, namely Pappu @ Ramkrishna with a spade (fawara), Vinod with Bogda (instrument for cutting sugarcane) and Kabutari equipped with hansiya (ripper) who all were going towards the west of the village and were talking about the cutting of sugarcane. After some time his sister had returned home but his brother-in-law has not returned. After that he went from there to his home. Five days after that the dead body of Siyaram was found in the field of Ram Niwas on the pointing out of Kabutari Devi. Then he reached on the spot and the dead body was sealed before him. During cross examination, he accepted that he reached on the spot at 2:00 p.m. and found that in that dead body only bones were remaining, and the muscle part was eaten by animals and its head was detached, so bones of the dead body were sealed. From the evidence of PW-5 Parsuram, it is clear that he had not seen the charged incident and even the dead body that was not recovered before him. He had stated only that on the date of the charged incident, he had seen the accused persons going towards the west of the village and talking about the harvesting of the sugarcane. From this evidence of PW-5, it is also proved that the said dead body was not identifiable and only bones of the dead body were recovered and sealed. He had not stated anything about recovery of the clothes on the basis of dead body that was allegedly identified. He could not tell the exact time of recovery of the dead body and during is examination-in-chief, he had stated that the dead body was recovered after five days of the last seen of the victim Siyaram but in cross examination, he stated that the dead body was recovered after four days of the charged incident.

16. Last witness of fact is PW-7 Ramhit who could not tell the date of the charged incident and stated that on 21.10.2011 about 22 months back, he had gone with Parsuram of his village to Parsuram's sister's house in Jaitapur and stayed there in the night. In the morning at about 6:00 to 6:30 O'clock he and Parsuram were sitting at the door and then they saw that Pappu with a spade (fawra), his mother with a bogda and Vinod with a hansiya were going towards their field which was situated in west. They were talking about the cutting of sugarcane. Before that Siyaram had also gone in that direction for latrine. Siyaram did not return home before him so he and Parsuarm went back from there because of some earlier appointments. Later on, they were informed that the dead body of Siyaram was found in a sugarcane field. This witness had not named that informant Indrawati PW-9 had also gone for latrine or was present there during his stay. He stated during cross examination that after 06.12.2009, he had never seen the accused persons and his knowledge about the charged incident is based on hearsay. He had also stated that he has seen the dead body of Siyaram at the police station. This part of the statement appears to be incorrect because according to other witnesses, after the recovery of dead body it was sealed on spot and was sent to post mortem in a sealed state. Therefore this portion of his statement appears to have been stated incorrectly due to unexplained reasons.

17. Another witness PW-11 America Prasad is a witness of inquest who stated that the said dead body was sealed before him and its inquest report was prepared before him and he had signed over it. In cross-examination he stated that there were only bones remaining of the dead body. He had specifically denied the statement of other witnesses regarding recovery of the dead body in the field of Ram Niwas and stated that the said dead body was found on Siria Tola from where the body was brought by police. He had admitted that after recovery of the dead body, police had summoned persons for preparation of inquest report. Even PW-12 Ramlaut Chaudhary had also stated that recovery of the dead body was made on the pointing out of Kabutari Devi and Vinod and its inquest report was prepared on that spot but this witness had not stated as to what was the spot of recovery of dead body. In spite of being witness of inquest PW-11 had not said about the place where it was actually found and recovered.

18. In spite of being the investigating officer and witness of alleged recovery, the PW-13 investigating officer had not prepared any site plan showing the place of recovery nor had stated in his statement about the said place. He had not even tried to corroborate and confirm as to whether the recovered dead body actually was that of Siyarm or not. He had believed the information given to him by other witnesses in that regard in spite of the fact that only it was in form of remains of a skeleton and bones, and no skin was available on this skeleton to identify it.

19. On the basis of above discussion, it is explicitly clear that on 11.12.2009 one skeleton was found in village Jaitpura which had no muscles or skin and it was not identifiable. PW-9 informant had allegedly identified the dead body on the basis of clothes and shoes found near it, but it has not been explained as to how and why those clothes and shoes were removed and kept away from the dead body. Those clothes and shoes were not produced in the court before the informant PW-9 so as to the fact and evidence relating to it may be confirmed in the Court.

20. The place of alleged recovery of the said dead body is not proved. The investigating officer had stated that the said body was found in Siria Toal. PW-11 Amerika Prasad had specifically stated that the said dead body was not found in the field of Ram Niwas but PW-9 informant was not witness of recovery of the dead body. PW 5 Parsuram had not stated about the place of recovery of the dead body. He is only a witness of inquest and said that the said dead body was recovered on the pointing out of Kabutara Devi and Vinod. In any case, the said dead body was not recovered on the pointing out of appellant Pappu @ Ram Krishna. It was also not stated by formal witnesses or witnesses of fact that accused were seen going towards the place where the dead body was found. From the statement of PW-5, PW-7 and PW-9 it is clear that at the time of last seen, the three accused persons namely Kabutari Devi, Vinod and Pappu were talking about cutting of sugarcane and not about anything else and these persons were going towards the field of sugarcane. So there appears no pre-planning or proof of intention of accused persons for the murder of Siyaram immediately before the alleged time of incident. There is no eye witnesses of fact who had seen any of the accused or the appellant near Siyaram or in his vicinity or in his company. Nothing relating to murder of Siya Ram was recovered from the appellant. The accused persons, specially appellant Pappu @ Ram Krishna were named in the FIR on the basis of suspicion and there is no immediate motive of the charged incident nor any proof to that effect, except some earlier dispute between the parties relating to partition of property for which there had been no litigation. These important facts and circumstances were not considered meticulously by the trial court. PW-9 informant had admitted that she had named accused persons in the FIR on the basis of suspicion only. Learned Additional Sessions has also rested his conclusions on the suspicion raised by the informant and two witnesses of fact without considering the fact that the said suspicion was never substantiated. This is a case of circumstantial evidence in which the accused can be convicted only when chain of circumstances are so inter-connected that it leads to only inference of his guilt, but in the present case nothing of this sort has been proved by the prosecution side. There is no evidence to connect the appellant with the death of Siya Ram. In the present case not only the identifiability of the alleged dead body of Siya Ram is doubtful but also there is no evidence that the accused persons had ever met Siya Ram or was found in their vicinity before or after the charged incident.

21. In these circumstances, the judgment of conviction and punishment passed by the trial court against the appellant for charges u/s 302/34 and 201 IPC is not substantiated and the charges do not stand proved. Therefore, said judgment of conviction and punishment of the trial court is erroneous. This appeal is therefore allowed. The judgment dated 30.07.2014 passed by the learned Additional Sessions Judge, Bansi, Siddharth Nagar in S.T. No. 188/ 2010 State v. Pappu @ Ram Krishna is set aside, and the accused appellant Pappu @ Ramkrishna is acquitted from the charges u/s 302/34 and 201 IPC. If the appellant is not wanted in any other case, then he be released immediately.

22. Let a copy of this order be sent to the District and Sessions Judge, Siddharth Nagar for ensuring compliance.

Order Date: 7. 10.2015

SKS