Smt. Kamla Devi vs State Of U.P.
2015 Latest Caselaw 2269 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 44
 
1. Case :- CRIMINAL APPEAL No. - 763 of 2007
 
Appellant :- 		Smt. Kamla Devi
 
Respondent :- 	State of U.P.
 
Counsel for Appellant :- J.N. Singh, Ajai Kumar, Arimardan Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
2. Case :- CRIMINAL APPEAL No. - 880 of 2007
 
Appellant :- 		Balwant
 
Respondent :- 	State Of U.P.
 
Counsel for Appellant :- J.N. Singh, A.K.Dwivedi Amicus Curie, Arimardan Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
3. Case :- CRIMINAL APPEAL No. - 1109 of 2007
 
Appellant :- 		Mahendra Singh
 
Respondent :- 	State Of U.P.
 
Counsel for Appellant :- J.N. Singh, Arimardan Singh, Kashif Zaidi, Shiv Nath Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Tripathi, J.

Hon'ble Pramod Kumar Srivastava, J.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1.These appeals have been preferred against the judgment of conviction and sentence dated 29.1.2007 passed by Additional Sessions Judge, FTC, Court No. 1, Kanpur Dehat in Sessions Trial No. 502 of 2002, State v. Kamla Devi under section 302/149, 364, 201, 342 IPC , S.T. No. 502-B of 2002, State v. Mahdendra Singh and others u/ss. 302/149, 364, 201, 342 IPC, S.T. No. 502-C/2002, State v. Kamla Devi u/ss. 302/149, 364, 201, 342 IPC .and ST No. 389 of 2003, State v. Balwant, under section 302/149, 364, 201, 342 IPC all relating to crime no. 1/2002, p.s. Shivli, Kanpur Dehat and ST No. 503 of 2002, State v. Mahendra under section 25 Arms Act. Crime No. 4 of 2002, p.s. Shivli, Kanpur Dehat by which appellants Balwant, Mahendra and Kamla Devi had been convicted and punished. Since all the Sessions Trials related to same incident and same crime, therefore, their trial was carried and concluded jointly, hence above mentioned three appeals re being considered and decided jointly by a common judgment.

2.Prosecution case in brief was that complainant Smt. Ram Dulari wife of Surendra Nath, resident of Bagahi, Kanpur Nagar had given a written report (Ex. Ka-1) dated 04.01.2002 to S.P., Kanpur Dehat on the basis of which case crime no. 1/2002 under section 364, 342, 323 was registered. In this report she had alleged that her brother Rajesh was married to Shanti alias Gudia, daughter of Ganga Sagar, r/o village Ganga Sewak, Kheda, Unnao. Suresh was brother-in-law of complainant's brother Rajesh, who had some joint business with Jagat Pal and his son Ram Charan; but due to some dispute Jagat Pal and Suresh had separated their business. After sometime Jagat Pal had lodged a report in police that his daughter Kiran was abducted by Suresh, and in that case Suresh was detained in jail for long time. After release from the jail Suresh started residing with her sister and brother-in-law in Bagahi, Kanpur. Suresh had a talk with Jagat Pal with his false implication in criminal case. Jagat Pal had informed that he had married his daughter with Mahendra, of village Tehrani, Kanpur Dehat. Further talks in that regard was fixed to be held at residence of Mahendra on 31.12.2001. Complainant Ram Dulari, her Bhabhi Gudia, nephew Raj Kumar and Suresh had hired a vehicle (Gypsy) and started at 9.00 a.m. in the morning for village Tehrani, p.s. Shivli, Kanpur Dehat. They reached near village Tehrani at about 11:00 a.m., but before entering into the village Gudia's son Raj Kumar insisted for immediately going to latrine. On this Suresh told others that they may go to house of Balwant and he will come later on with Raj Kumar. Then complainant's vehicle reached at house of Balwant where some persons were sitting. Gudia informed complainant that sitting among them were father of Kiran, her brother Jagat Pal, Ram Charan and brother in law Raju. Ram Charan informed Gudia that Balwant Singh is father-in-law of Kiran and Mahendra as father of Kiran and a lady as mother-in-law of Kiran. When Jagat Pal asked about Suresh then Gudia told that Suresh will come with his nephew who were detained outside the village for latrine. Those persons asked complainant and Gudia to go inside the house. When complainant and Gudia entered in the house they were detained and locked in a room. After about two hours complainant and Gudia heard voices of Suresh and Raj Kumar, then they peeped through the window and saw that Jagat Pal, Ram Charan, Raju, Balwant and Mahendra were beating Suresh with kicks and fist, and Kiran's mother was holding Raj Kumar. After beating Suresh for sometime Jagat Pal told that these persons should be disposed off, then Balwant, Mahendra and Raju taken away Suresh from there, and Jagat Pal and Ram Charan had taken Raj Kumar. The complainant and Gudia had requested those accused persons for the release but they were not heard. Next day on 01.01.2002 at about 10 or 11 O'clock Balwant Singh had opened the door of room in which complainant and Gudia were detained, and told them that they may go to their places, and after a few days Suresh and Raj Kumar will be released after giving punishment. Then complainant called Driver and went with him directly to Kanpur and informed about the incident to her brother Rajesh, who had promised to look into the matter. Then Rajesh called Ashok from village on 02.01.2002. Rajesh, Ashok, Ganga Prasad, Ram Raj, Mool Chand, Kamlesh Rajput went to police station Shivali but police had not lodged report and asked to bring complainant because she had seen the incident. Complainant was not well so she could not come on 03.01.2002. Complainant went to police station on 04.01.2002 and reported the matter. She believed that Balwant Singh, Mahendra and Mahendra's wife, Jagat Pal, Ram Charan, Raju had abducted and killed Suresh and Raj Kumar. On the basis of this report of complainant/ informant the FIR in case crime under section 320/149, 364, 201, 342 IPC was registered against six persons named and investigation started. During investigation on 13.01.2002 police party has arrested Mahendra, s/o Balwant and recovered unlicenced country made pistol of 315 bore and two cartridges from his custody and registered case crime no. 13/ 2002 u/s 25 Arms Act on 13-01-2002. Accused Mahendra s/o Balwant had confessed the murder or Suresh and concealing his dead body in a place within village Kairani. He had consented for recovery of dead body and murder weapon. Thereafter Mahendra lead the police party to village Kairani, near bank of river, and pointed out a place where Suresh was murdered by imputation of head. At that place dried blood was present, so Investigation Officer has taken sample of blood soaked soil and also recovered one blood stained shoe; and after digging field on pointing out of Mahendra recovered an Axe which has no handle. Police had also recovered headless dead body of Suresh from the river Rind on 13.01.2002 which was sent for postmortem.

3.During investigation on 30.05.2002 police had arrested Balwant who had given the I.O. one Angauchha cloth by which he had strangulated Raj Kumar on 06.07.2002. I.O. had arrested Jagat Pal and recovered Rs. 110/- from him. After completing investigation police has submitted separate charge-sheets for offence under sections 364, 302, 201, 342, 323 IPC in same case against different accused. But in the end four sessions trials no. 502/2002, 502-B/2002, 502-C/2002, 389/2003 were jointly carried against five accused persons namely Balwant, Mahendra, Kamla Devi, Jagat Pal and Raju. Trial of Ram Charan was separated and trial of Jagat Pal abated due to his death during trial.

4.Accused Mahendra, Kamla, Raju alias Raj Bahadur, Balwant were charged for offences punishable under sections 364, 302/149, 201, 342 IPC. They had pleaded not guilty, denied charges and claimed to be tried. In support of charges prosecution side had examined PW-1 Ram Dulari (Informant), PW-2 Gudia, PW-3 Ashok Kumar (brother of the deceased Suresh). PW-4 Head Moharrir Narain Awasthi, PW-5 Dr. U.C. Sinha, PW-6 Kamal Singh, PW-7 Head Moharrir Rameshwar Dayal, PW-8 S.I. Omkar Singh (I.O.) and PW-9 SI Rajul Garg (I.O.). These witnesses had proved document of prosecution side.

5.After closure of prosecution evidence statement of accused Mahendra, Raju alias Raj Bahadur, Kamla Devi and Balwant. Were recorded under section 313 Cr.P.C., and statement of Mahendra was separately recorded u/s 313 CrPC for charge related to section 25 Arms Act. They had denied the prosecution evidence and stated false statements was given by witnesses. Defence side had not adduced any defence witnesses.

6.After affording the opportunity of hearing to both sides, trial court had passed combined judgment in ST No. 502 of 2002, State v. Raju alias Raj Bahadur, ST No. 502 B/2002 State v. Mahendra and ST No. 502-C/2002 State v. Kamla Devi, ST No. 389 of 2003, State v. Balwant for charges under section 302/149, 364, 201 and 342 IPC and ST No. 503 of 2002, State v. Mahendra was charged under section 25 of Arms Act. By this judgment accused Raju was acquitted of all charges, but all other three accused-appellants were convicted for all the charges framed against them. Accused Balwant, Mahendra and Kamla Devi each were punished for charge u/s 302/149 with imprisonment of life and fine of Rs. 10,000/- ( in default of payment one years rigorous imprisonment) for charge u/s 364 IPC, 7 years imprisonment and fine of Rs. 10,000/- (in default of payment six months rigorous imprisonment), for charge u/s 201 IPC three years' simple imprisonment and fine of Rs. 5000/- (in default of payment three months simple imprisonment) and for charge u/s 342 IPC one years simple imprisonment and Rs. 1000/- fine (in default of payment one month simple imprisonment). It was directed that all sentences would run concurrently. Accused Mahendra was convicted for charge under section 25 Arms Act and was sentenced to undergo simple imprisonment of one year and Rs. 2000/ fine (in default of payment two months simple imprisonment). Aggrieved by this judgment of conviction and sentence dated 29.01.2007, three appeals had been filed by three convicted accused persons. Since all above mentioned appeals are against same judgment relating to trial of case crime no. 1 of 2002, police station Shivli, Kanpur Dehat and Crime NO. 4 of 2002 of same police station; therefore these appeals are heard jointly and are being decided jointly.

7.Sri J.N. Singh, Advocate appeared on behalf of the appellants, Sri Chandra Jeet Yadav, learned AGA represented the State. During hearing, we have heard argument and rival contention and gone through the record of the case and relevant case laws.

8.Only two witnesses of facts namely PW-1 Ram Dulari, complainant, and PW-2 Gudia were examined. Other witnesses were formal. PW-3 Ashok Kumar is the brother of victim Suresh who was witness of inquest of headless dead body and had recognized the dead body as that of Suresh on the basis of clothes found on dead body. PW-5 Dr. U.C. Sinha had conducted the post-mortem of headless dead body relating to a person aged about 32 years; and stated the cause of death was anti-mortem injuries and shock because there was incised wounds of neck through and through. PW-4 Narayan Awasthi was Head Moharrir at police station Shivli and had proved Chick FIR and G.D. relating to case of section 25 Arms Act. PW-6 I.O. Kamal Singh had proved Ex. Ka-3 inquest report. PW-7 Rameshwar Dayal was Head Moharrir at police station Shivli and proved chick FIR and G.D. of case crime no. 1/2002. PW-8 Omkar Nath Singh was Investigation Officers of this case. PW-8 Omkar Nath Singh had not done anything during investigation and had only submitted charge-sheet Ex. Ka-17 in the Court. PW-9 Rajul Garg (S.I.) was S.O at police station Shivli on 8.1.2002 before him case crime no. 1/2002 was registered and he had accepted the investigation on 13.01.2002 when offence of section 302, 201IPC were added in case crime No. 1 of 2002. After recovery of dead body, he had submitted charge sheet Ex. Ka.-18 in the Court. He had given evidence of recovery of dead body.

9.In this case one headless dead body was allegedly found on 31.05.2002 in presence of PW-9 Rajul Garg, I.O. and PW-3 Ashok Kumar. This recovery was made on information allegedly given by accused Mahendra. PW-5 Dr. U.C. Sinha had conducted the postmortem and stated that at many places its colour became green and it was stinking and in a state of decomposition. PW-5 Doctor had stated that dead body could not be identified and name of deceased was mentioned in the post-mortem report on information given by the police. He was unable to tell as to how police has recognized that dead body. Time of death of that body could not be fixed. He had not noted mark of identification of that dead body. PW-9 I.O. had stated that dead body of Suresh was recovered on the basis of information furnished by accused during police custody. From available evidences it is proved that said dead body was in state of decomposed state having no mark of identification available on it for its identification. PW-3 Ashok Kumar is real brother of victim Suresh who had identified the clothes found on that dead body as those were worn by Suresh before his disappearance. Thus the dead body was identified only on the basis of clothes present on it. PW-1 complainant had stated in Court that on the date of incident Suresh was wearing bush-shirt of cream cololur with lining and pant of cream colour and sweater of cream colour; but she had not informed the I.O. as to what dress was Suresh wearing on the date of incident. This statement regarding colour of dress of victim Suresh was given by PW-1 on 5.8.2004. Statement of PW-2 was recorded in this regard on 20.8.2004. She stated during cross-examination that Suresh was wearing shirt, pant and sweater of cream colour. PW-3 Ashok Kumar had stated that white shirt, sweater and pant of grey (Slaty) colour was found on the dead body. PW-6 Kamal Singh I.O. could not tell the colour of any clothes found on the dead body. When the material Exhibits (clothes found on recovered dead body) shirt (Ex-7), pant (Ex-8) and other inner wear were opened and presented before the Court then it was found that there was no sweater. PW-3 had seen those clothes in the court and admitted that sweater was seen by him which was sealed before him, but was not in those clothes. He also found that colour of that shirt is dark brown (Katthhai) and colour of pant is grey (Slaty). These evidences show that no witness had informed the I.O. as to what was the colour of dress of deceased Suresh on the date of his disappearance. On point of colour of dress different statements were given by PW-1, PW-2 and PW-3 on different dates of their cross-examination. There was significant contradiction in their statement. PW-3 had never stated that just before the alleged departure of Ram Dulari, Gudiya and Suresh, he had seen Suresh but he had tried to tell the colour of dress of Suresh attired on the date of incident. I.O. could not tell the colour of dress found on the dead body. PW-1, PW-2 and PW-3 had informed the court during cross-examination that Suresh was wearing Sweater of While colour which was recovered on dead body, and according to PW-3 it was sealed, but in fact no sweater was found in the clothes which were taken out from the dead body. PW-1 and PW-2 had stated that Suresh was wearing cream colour pant but in fact different colour (dark brown/ katthai) pant was found on that dead body which was produced in the Court. In these circumstance there are immense difference in the statements of witnesses of facts regarding colour and description of clothes which Suresh was wearing on the date of incident and the colour of clothes actually found on the recovered dead body. Clothes recovered from said dead body were not shown to PW-1 or PW-2 in Court at the time of their statements. Since recovered dead body could not be identified and was identified only from the clothes found on it, therefore, contradiction in statement of witnesses and the clothes found on recovered dead body leads to only conclusion that it was not possible either for PW-3 or for PW-6 I.O. to ascertain that said dead body belong to victim Suresh. Learned trial Court had not appreciated these facts meticulously and reached on erroneous conclusion regarding identification of dead body as that of Suresh. Accordingly it is held that prosecution side had failed to prove the death of Suresh.

10.I.O. had allegedly taken blood stained samples from place near Rind river but no forensic test of sample was done so as to prove that said sample, in fact, contained blood.

11.I.O. had allegedly recovered one broken axe on information of accused Mahendra. Considering the nature of injuries found on dead body as mentioned in Ex. Ka-6 post-mortem report, it appears not possible that such injuries could have been inflicted by broken axe without handle. The dead body recovered by police during investigation contained through and through incised wounds which has proved that the person relating to that dead body was, in fact, murdered by sharp edged weapon by one stroke because PW-5 doctor had found that margins of wounds were clearly cut. Such injuries could have been caused by any weapon having long sharp edge. But axe does not appear to be such a weapon. Apart from it PW-5 doctor had admitted during cross examination that he could not tell exact time of death. This fact also indicates that for ascertaining time of murder of headless dead body some other information and evidence was required, which was not furnished by the prosecution side. From these evidence, it appears that one dead body was recovered by police on alleged information furnished by accused Mahendra, but it is not proved that said headless dead body was that of victim Suresh who was murdered by accused, by axe. Trial court had not considered these evidence meticulously and had accepted the statement of abovementioned witnesses on its face value without verifying the fact.

12.The court below had also given finding that Raj Kumar was murdered by strangulation by cloth 'angauchha' of accused Balwant which was handed over to I.O. by accused himself. The dead body of Ram Kumar was never recovered. Charged incident had occurred on 31.12.2001 or any time immediately thereafter. I.O. had arrested the accused Balwant on 30.5.2002 who had handed over his 'angauchha' to I.O. Since dead body of Raj Kumar was never found, therefore, it cannot be presumed conclusively that he was murdered by strangulation. It is unnatural that a person (accused Balvwant in present case) who allegedly murdered another person with help of his wearing colth 'angauchha', would continue to keep using that cloth for continuously next five months and keeping it with his body, in spite of the fact that the said 'angauchha' became very dirty and torn at several places with holes in it.

13.The defence side had denied any such recovery of said 'angauchha' from the body of accused after five months of the incident is not proof of the fact that Raj Kumar was actually murdered and that too by the said 'angauchha'. It is possible that 'angauchha' would have been found from accused Balwant but there is no proof of it being used in any murder. It is strange that mere fact of recovery of said cloth 'angauccha' from the body of accused Blavant had led the trial court to reach to the conclusion that it was tool used for murder of Raj Kumar. The factum that the said 'angaucha' was not placed before witnesses of facts namely PW-1 and PW-2 for identification leads to inference that important evidence was suppressed by prosecution side on this point, because PW-1 and PW-2 had never stated during their statement that on the date of incident Balwant was wearing any 'angauchha'.

14.In this case of circumstantial evidence conduct of witnesses of facts are very relevant. After the alleged incident of detention of PW-1 and PW-2 as mentioned in the FIR, complainant had allegedly freed the complainant PW-1 Ram Dulari informant and PW-2 Gudia on 01.01.2002 at about 10-11 a.m. One day earlier to it, that is on 31.12.2001 they had allegedly peeped out of window of the room of their detention and saw that accused persons were beating Suresh and detaining Raj Kumar, and also Jagat Pal had allegedly told others to kill those two detenues. Even then after returning her house on 01.01.2002 PW-1 Ram Dulari and PW-2 Gudia had not tried to approach the police immediately for giving information in time to save life of two allegedly abducted persons Suresh and Raj Kumar. Complainant had said that she has taken Raj Kumar son of her sister with her to accused place and returned next day without her, but she had not stated anything about giving these information to her sister, i.e. to parents of Raj Kumar. It is very unnatural and improbable that two persons Suresh and Raj Kumar were detained and beaten before PW-1 and PW-2, who were also detained, but after their release these two persons have not taken any immediate steps to save life of those two victims. The delay in lodging FIR in present case had been pointed out by appellant side as fatal to prosecution version.

15.The legal position of such delayed information (or FIR) is discussed by Hon'ble Supreme Court in its various judgments. In 'Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1' Hon'ble Apex Court had held as under:

"The obligation to register FIR has inherent advantages:

(a) It is the first step to "access to justice" for a victim.

(b) It upholds the "rule of law" inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State.

(c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law.

(d) It leads to less manipulation in criminal cases and lessens incidents of "antedated" FIR or deliberately delayed FIR."

In "Silak Ram v. State of Haryana, (2007) 10 SCC 464" Supreme Court had held:

"Delay in lodging FIR by itself would not be sufficient to discard the prosecution version unless it is unexplained and such delay coupled with the likelihood of concoction of evidence. There is no hard-and-fast rule that delay in filing FIR in each and every case is fatal and on account of such delay the prosecution version should be discarded. The factum of delay requires the court to scrutinise the evidence adduced with greater degree of care and caution."

In 'Thulia Kali v. State of T.N., (1972) 3 SCC 393 ', Hon'ble Apex Court held as under:

"First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."

In 'Kishan Singh v. Gurpal Singh, (2010) 8 SCC 775' Hon'ble Apex Court held as under:

"In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case."

IIn Ramdas v. State of Maharashtra, (2007) 2 SCC 170 Hon'ble Apex Court had held:

"Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to merit acceptance. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. - - - - Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact."

16.In present case the information given to police was very late after about a week, as case was registered on 08.01.2002. This delay in lodging the FIR is unnatural and excessive and reason for this delay could not be explained satisfactorily by prosecution witness. If it is accepted for the sake of argument that accused had promised to release two victims after teaching them lesson, in that case also police should have been informed immediately. Accused persons may have motive of murder of Suresh and enmity with him, but they had no enmity with child Raj Kumar. The delay in lodging the FIR of about 8 days in such matter was not explained properly by the prosecution and the reasons of delay mentioned in the statement of witnesses are unacceptable.

17.PW-1 informant had stated that her brother Rajesh had gone to police and his report was not lodged, but she (PW-1) had not accompanied Rajesh to police station; and Rajesh was not examined to prove this fact. The unnecessary and unexplained delay in lodging FIR had resulted in disappearance of very important and material evidences which could have led the I.O. to investigate the matter immediately and properly set the law into motion. For such unexplained deliberate delay in lodging FIR only the PW-1 and PW-2 are responsible. Such unexplained delay raise doubt on intention of these two witnesses of fact.

18.According to prosecution case PW-1 and PW-2 had gone to place of accused persons with Suresh and Raj Kumar on a hired Gypsy Taxi, driven by any driver. They had been allegedly gone for a talk of compromise and had to return immediately. They had allegedly gone to place of accused persons with whom they had serious enmity and dispute as accused-appellant Balwant had already lodged FIR against Suresh for kidnapping of his daughter and Suresh was in jail in that case for a long time, and that case was still pending. It was improbable for him to go to village of accused Balwant for staying there. In these circumstances, PW-1 and PW-2 had been allegedly detained and Suresh and Raj Kumar were abducted. According to statement of PW-1 complainant, on next date of her release taxi driver was still there who had taken PW-1 and PW-2 to their house in Kanpur. This driver was a very important independent witness. The alleged offence of detention of PW-1 and PW-2 was committed before him, and Suresh was allegedly beaten in his presence by accused persons and Raj Kumar was also allegedly detained and taken away before him; but none of the witnesses had given detail of taxi driver. Even I.O. had not taken pain to locate that driver and record his statement. In this regard most important witness (taxi driver) was hidden and suppressed by PW-1 and PW-2 for not giving details of taxi driver; and deliberate negligence was committed by Investigating Officers PW-6, PW-8 and PW-9 when they had not verified as to whether PW-1 and PW-2 had actually hired any taxi and went to house of accused persons in village Tehrani. This was most important evidence which was suppressed by witnesses of fact and investigation on most important point was not made by I.O. Suppression and concealment of such important evidence leads to presumption of fact against the prosecution case. This important fact was not considered by the trial court.

19.Section 114 of Indian Evidence Act deals with point of presumption of facts. The main section and its illustration (g) reads as under :

"114. Court may presume existence of certain facts.--The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations

The Court may presume--

- - -

(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

- - -"

20.As discussed above most important and witness of fact in this case was the taxi driver of Gypsi taxi who had taken informant and other witnesses of fact as well as victims to place of incident of detention, and in whose presence witnesses of facts (PW-1 & PW-2) were detained, and victims were beaten, and who had allegedly taken back the two witnesses to their residence next day. He remained at the place of incident throughout the day and night. He must have witnessed most of the activities of accused relating to charge. But neither the name of said taxi driver was disclosed by the witnesses nor his any description was given so that the facts might be verified. If I.O. was negligent in investigating matter relating to said taxi driver, then his description and details would have afforded opportunity to defence side to verify the facts for leading their defence. Whole prosecution case rest on fact that all victims had went to house of accused by a hired taxi, and thereafter two witnesses of facts came back by that taxi without victims. Non-production of said independent witness without any reason or explanation leads the Court to presume that had said taxi driver been examined, his testimony would have been unfavourable to the prosecution case.

21.From the FIR evidence and evidence of PW-1 informant, it is evident that all accused persons were not known to her before the date of incident. PW-1 had not named Kamla Devi in her statement and simply told that mother-in-law of Kiran had taken them inside house. PW-2 had also not named Kamla Devi in her statement and had stated that accused Ram Charan had told that old lady was mother-in-law of Kiran. No identification of accused was carried during the investigation or in the court. If for the sake of argument, the prosecution case is taken to be true for some time, in that case also there is no evidence to prove that accused Kamla Devi, wife of Balwant was, in fact, involved in this incident. The only available evidence for Kamla Devi is that an old lady was allegedly seen by PW-1 and PW-2 and who was introduced by one accused Ram Charan as mother-in-law of Kiran. It was never verified that old lady was Kamla Devi either by identification or by investigation. Even trial court had not considered this important point that accused Kamla Devi was not identified by any witness during trial even in the court. But the trial Court had convicted her merely on basis of hearsay statement that before the incident one Ram Charan had pointed out a lady to be mother-in-law of Kiran, and also that no one had ever pronounced the name 'Kamla Devi'. This also makes it clear that learned Sessions Judge was also not attentive for appreciating the evidence adduced in this case.

22.PW-1 Ram Dulari had named the persons of involvement of accused Raju in this case. On basis of her information to police Raju alias Raj Bahadur was made accused in the charge sheet. During cross examination she had admitted that Raju had been wrongly made accused in this case. The Trial Court had rightly acquitted Raju in this case which indicates that certain relevant facts had been concealed by prosecution side in this case.

23.Prosecution case has been that Suresh was in jail for long time on basis of case lodged by Balwant against Suresh for abducting his daughter, so Suresh had contacted Balwant for compromise talks. But this fact was never proved because such talk of alleged compromise was held between Suresh and Balwant. Accused Balwant had never said anything or admitted any such talk. Suresh is the alleged victim who is disappeared or murdered. Statement of PW-1 and PW-2, contents of FIR in this regard are based on alleged hearsay information given by Suresh. Therefore any statement in this regard is based on hearsay evidence is not admissible in evidence.

24.Learned trial Court had repeatedly mentioned in its judgment that ladies are given regard and men generally did not behave properly with women. Such observation is not incorrect because women in India take care of household affairs and outside affairs are tackled by men, and in the present case Suresh has been detained for longtime because of FIR lodged by Balwant for abduction of his daughter. In such a matter, according to prosecution case, no major male person had accompanied Suresh. In this situation he had allegedly gone to house on inimical, unfriendly and hostile accused Balwant without proper care, and only with two ladies and a child; and had not accompanied with any male person. Its reason was not explained by prosecution side. No independent evidence of Kanpur or village Tahrauni was collected or adduced to prove that Suresh, Raj Kumar and Ram Dulari and Gudia were actually hired Taxi driven by a driver and reached the house of accused, where accused persons had detained two ladies and beaten Suresh without hearing or knowledge of any person of village Tehrauni. This fact also raise doubt of prosecution story. This important fact, in this case of circumstantial evidence, was also not considered by trial court.

25.On the basis of above discussion, it appears that the I.O. of this case had almost deliberately been very negligent during investigation and had not tried to collect relevant evidence. It is not proved that headless dead body was recovered in this case belong to victim Suresh. It is not proved that the death of person of said dead body occurred on date of alleged incident mentioned in the charge. Though blood stained materials collected from spot were sent for forensic examination but its report were not submitted alongwith charge-sheet. Therefore, it is not proved that the alleged stains found near spot were blood stains. For the reasons best known to the prosecution side the recovered axe and shoes of deceased were not sent to forensic laboratory. The suppression of such important evidence leads to inference against prosecution case. No DNA finger printing test was conducted or attempted to ascertain that headless dead body was that of Suresh.

26.According to prosecution case a headless dead body, broken axe and cloth 'angauchha' were recovered on information of accused persons, but no question regarding said recovery was asked from accused persons in their statement under section 313 CrPC.. This was very important lapse on part of trial Court. In Sujit Biswas Vs. State of Assam (2013) 12 SCC 406, the Hon'ble Apex Court had held :

"It is a settled legal proposition that in a criminal trial, the purpose of examining the accused person under Section 313 CrPC, is to meet the requirement of the principles of natural justice i.e. audi alteram partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 CrPC, cannot be used against him and must be excluded from consideration. The said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement. "

27.The prosecution case has been dependent on proof of factum of recovery of alleged dead body of alleged victim, alleged recovery of broken axe, shoes, blood stained article and country made pistol but no question was asked from any accused. Therefore, even if prosecution case of alleged recovery is taken to be proved, in that case also conviction of accused persons was not possible. This is the legal position also for the charge under section 25 Arms Act for one appellant. Learned Addl. Sessions Judge had acted with material irregularity when he had not asked the accused questions u/s 313 CrPC relating to important facts of recovery on which his judgment of conviction was based. Therefore, judgment of the trial court is also legally erroneous.

28.This is case of circumstantial evidence in which no one had actually seen the commission of murder. It is settled law for conviction of charge based on circumstantial evidence the Court should be satisfied while recording finding for conviction that the chain of circumstances were so complete that they lead the irresistible conclusion of guilt of accused. If the chain of circumstances are not so complete, so as to avoid any hypothesis regarding innocence of the accused then accused cannot be convicted. In the present case motive of the charge incident is not proved, as it is based on hearsay evidence relating to talk between the accused and victim Suresh. There was extra ordinary unexplained delay in lodging of FIR which had been resulted into disappearance of important evidences due to delay in start of investigation, and also the behaviour and conduct of witnesses of fact had been suspicious. In the present case headless decomposed dead body recovered on alleged information of accused was, in fact, not identified and time of its death was also not proved. The clothes recovered from dead body were not the same as were stated by PW-1 and PW-2 in their statement when they last saw the victim, and the medico-legal evidence does not support the prosecution case. Apart from it, best evidences relating to investigation and examination of independent witness, the driver of gypsy taxi was deliberately suppressed. Such suppression of important evidence leads to presumption of facts against prosecution case. On every point relating to relevant facts prosecution had been proved unbelievable, untruthful or doubtful and conduct of witnesses had also been abnormal and unnatural. In these circumstances in the present case of circumstantial evidence, chain of facts and circumstances emerged from evidence are such that it does not lead to irresistible conclusion of guilt of any accused, even regarding recovery of alleged murder weapon or pistol. Therefore, the judgment of conviction passed by trial court has been found erroneous. It is held that prosecution side had failed to prove facts relating to charges against accused persons and no charge against any accused has been proved beyond doubt. Therefore, all above mentioned appeals are liable to be allowed.

29.On the basis of above discussion the judgment of the trial court relating to conviction of three accused Balwant, Mahendra and Kamla Devi are set aside and all appellants are acquitted of the charges of section 364, 302/141, 201, 242 IPC and accused Mahendra is acquitted of charges under section 25 of Arms Act. These accused be released immediately from judicial custody in this case. Accordingly the above mention criminal appeals (Criminal Appeal No 763 of 2007, Smt. Kamla Devi v. State of U.P., Criminal Appeal No. 880 of 2007 Balwant v. State Of U.P. and Criminal Appeal No. 1109 of 2007, Mahendra Singh v. State Of U.P.) are allowed.

30.Let a copy of this judgment be sent to the Sessions Judge, Kanpur Dehat for ensuring compliance of this judgment.

Date: 11-09-2015.

SKS