Pappu vs State Of U.P.
2017 Latest Caselaw 6477 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
RESERVED
 
AFR
 

 

 
Case :- CRIMINAL APPEAL No. - 1263 of 2009
 

 
1.  Pappu, Son of Mohammad Ismaeel,
 
2.  Dr. Yunus, Son of Mohammad Ismaeel,
 
Both residents of Bayan Talab, Kasba and P.S. Safipur, District Unnao.
 
.................. Appellants
 

 

 
Versus
 

 
State of U.P.
 
............... Opposite party
 

 

 
Counsel for Appellant :- Gulam Mustafa,Anil Mishra,Arshad Ahsan Siddiqi,Begum Sabiha Kamal,Brij Mohan,Mohd. Abid Ali,Nagendra Mohan,Syed Mohd. Munis Jafari
 

 
Counsel for Respondent :- G.A.
 

 

 
                           AND 
 

 

 
Case :- CRIMINAL APPEAL No. - 1352 of 2009
 

 
1.  Munna, Son of Nanha Lodh,
 
2.  Hukum Chandra, Son of Ram Gulam Raidas
 
     Both residents of Sarya Mubarakali, Kasba and P.S. Safipur, District Unnao.
 

 
............. Appellants
 

 
Versus
 

 
State of U.P. 
 
................. Opposite parties
 

 

 
Counsel for Appellant :- Gulam Mustafa
 
Counsel for Respondent :- G.A.
 

 

 

 

 

 
Hon'ble Prashant Kumar,J.

Hon'ble Anil Kumar Srivastava-II,J.

(Delivered by Hon'ble Anil Kumar Srivastava-II, J.)

1. Heard Shri Nagendra Mohan, learned counsel for the appellants and learned A.G.A. and perused the record.

2. Both the appeals have arisen out of a common judgment, hence, are being disposed of by one judgment.

3. Instant appeals have arisen against the judgment and order dated 08.4.2009, passed by learned Additional Sessions Judge, Unnao in S.T. No.688 of 2006, arising out of case crime no.350/2006, Police Station Safipur, District Unnao, whereby the accused-appellants Dr. Younus, Pappu, Munna son of Nanha Lodh and Hukum Chand were convicted under section 364 IPC and sentenced to 10 years rigorous imprisonment and fine of Rs.5000/- with a default stipulation of six months imprisonment, under section 302 IPC read with section 34 IPC and sentenced to imprisonment for life and fine of Rs.5000/- with default stipulation of one year imprisonment and under section 201 IPC and sentenced to five years rigorous imprisonment and fine of Rs.2000/- with default stipulation of six months. All the sentences were directed to run concurrently.

4. According to the prosecution version, a written report was submitted by Dhanno wife of late Mahavir on 16.8.2006, which was written by one Umesh Kumar, Advocate stating that mango grove of complainant was taken on lease by Dr. Younus on a consideration of Rs.50,000/-. After the lapse of the time grove came in the possession of complainant. About a month before the incident accused Dr. Younus, his real brother Pappu and Hukum Chand and Munna Lodh son of Nanha came to her house and asked to sell the mango grove to Dr. Younus- accused. Complainant and her son Munna declined to sell the grove. All the accused left the place by threatening that the grove shall be taken by Dr. Younus. On 03.8.2006, all the accused Younus, Pappu, Hukum chand and Munna came to her house at about 10:00 AM on two motorcycles. They told the Munna son of complainant that they have left his mango grove. Document is to be executed at Safipur. After the execution of the document complainant and her son would be in possession. Complainant and her son agreed to it. Munna went with the accused who did not return till late night. Next day complainant went to the house of Dr. Younus where all other accused were present on his clinic. Complainant asked about her son, who told the complainant that Munna has left the place yesterday at about 04:00 PM. Since then complainant was searching her son but did not get any information then a written report was submitted by her at police station Safipur, District Unnao on 16.8.2006 at 15:10 hrs. First information report was lodged at case crime no.350/2006 under section 364, 302, 201 IPC. Investigation was handed over to SHO R.P. Shahi.

5. On the same day accused Hukum Chand was arrested by the Investigating Officer. His statement was recorded wherein he has stated that the deceased Munna has been murdered by him, Dr. Younus, Pappu and Munna. His head is chopped of and dead body is concealed after digging a pit in the field of Dhaniram. Investigating Officer informed the complainant, who also came at the spot. Dead body was recovered from the field of Dhani Ram which was identified by the complainant as well as wife of the deceased. Accused Hukum Chand further stated that the clothes of deceased were taken away, head, clothes, spade and knife were taken away by co-accused Munna, Younus and Pappu. Inquest proceedings of the body of deceased were conducted which began at 16:10 hrs on 16.8.2006 and concluded on 16.8.2006 at 19:00 hrs. Headless dead body was sealed. Police papers were prepared. Dead body was sent for postmortem which was conducted on 17.8.2006 at 04:00 PM. Site plan was prepared. Blood stained and plain earth was recovered from the place of recovery of dead body.

6. During investigation on 25.8.2006, Investigating Officer arrested the co-accused Munna son of Nanha Lodh at 13:10 hrs, who confessed before the Investigating Officer that he has kept the head of the dead body with the help of Younus and Pappu which was recovered from the southern side of the grove of Dhaniram on the pointing out of co-accused Munna. Recovery memo was prepared. Head was sealed and sent for postmortem which was conducted on 28.8.2006. On 07.9.2006 one spade, one knife and clothes of deceased were recovered by the Investigating Officer on the pointing out of Younus and Pappu from the field of Dhaniram. Recovery memo was prepared. Site plan of places of recovery were also prepared. Statement of the witnesses were recorded by the Investigating Officer. Spade and knife wre sent to Forensic Science Laboratory. According to the report of Forensic Science Laboratory, Lucknow human blood was found on the spade and knife. After concluding the investigation, chargesheet was submitted against the accused-appellants.

7. Accused were charged under section 364, 302 read with section 34 IPC and 201 IPC who denied the charges and claimed trial.

8. In order to prove its case, prosecution has produced PW-1, Dhanno complainant and witness of last seen, PW-2 Head Moharrir Matadeen, who has scribed the chik FIR, PW-3 Bholi wife of deceased, PW-4 Umesh Kumar scribe of written report, PW-5 Dr. Arun Prakash who has conducted the postmortem of the dead body on 17.8.2006 and found that head alongwith the neck at the base absent by traumatic amputation. Male organ was not present. Scrotum absent. According to the opinion of the doctor, death was caused due to shock and haemorrhage as a result of ante-mortem injuries. Duration was about two weeks. PW-6 SI M.P. Pal who witnessed arrest of accused Munna alias Ram Chandra and a witness of recovery of head, PW-7 Dr. Mahendra Pratap who has done the postmortem of the head on 28.8.2006, PW-8 Inspector Rajendra Pratap Shahi, Investigating Officer who has arrested the accused Hukum Chand on 16.8.2006. He has also recovered the dead body on the pointing out of Hukum Chand on 16.8.2006. He has also recorded the statement of witnesses. Spade, knife and clothes of deceased were also recovered on the pointing out of co-accused Younus and Pappu. PW-9 Constable Arvind Kumar who has taken the dead body for postmortem.

9. In the statement under section 313 CrPC accused Mohd. Younus has stated that he was not interested to purchase the grove of complainant and deceased, rather Hari Sharan has taken the grove on lease for five years in the month of June. Accused Pappu, Munna and Hukum Chand have denied the prosecution version and the recovery and stated that they have been falsely implicated. In defence registered deed of the grove in favour of Hari Sharan dated 2.6.2006 is filed while a copy of FIR showing name of deceased Munna and a copy of judgement wherein the deceased Munna was accused, were also filed.

10. We have heard the learned counsel for the accused-appellant and learned AGA and also gone through the evidence on record.

11. Learned counsel for the accused-appellants submits that the accused appellants have been falsely implicated in this case. There was no motive for the commission of the offence. Grove in question had already been taken on lease by Hari Sharan in the month of June 2006. Complainant and deceased were in possession of grove, hence, there was no question for executing any deed in favour of complainant or her son for releasing the grove. It is further submitted that the witnesses PW-1 Dhanno and PW-3 Bholi have admitted that they were in possession over the grove, hence, there was no occasion for the re-transfer of possession in favour of complainant.

12. It is further submitted that it is a case of circumstantial evidence wherein the chain of circumstances is not complete. The deceased went with the accused on 3.8.2006 but the First Information Report was lodged on 16.8.2006 at 3.10 PM. No explanation has been given for delay in lodging the FIR.

13. It is further submitted that FIR itself is ante-time as the same was registered at 3.10 PM while according to the inquest report of the dead body, which was allegedly recovered on the pointing out of accused Hukum Chand, inquest proceedings began on 16.8.2006 at 4.10 PM which shows that just after an hour of lodging of FIR accused Hukum Chand was arrested. His statement was recorded from a place which is about one and half to two Kms. from Police Station. Thereafter, dead body was also recovered after digging the pit for about four feet which shows that at the time of lodging the FIR dead body had already been recovered. It is further submitted that due to this reason the FIR was lodged under section 364, 302, 201 IPC. It is submitted that when the FIR was lodged after recovery of the dead body then the recovery as well as FIR becomes doubtful.

14. It is further submitted that the recovery of headless dead body, head and spade, knife and clothes of the deceased were made at different intervals on 16.8.2006, 25.8.2006 and 7.9.2006 from the same field. Recovery was made under section 27 Indian Evidence Act which is not legally proved.

15. It is further submitted that the genesis of the incident is doubtful. Condition of the dead body of deceased shows that the male organ of the deceased alongwith scrotum were not present on the dead body which shows that someone has brutally cut them alongwith the head. Such type of brutality could not be assigned to the accused as the motive is not such which may extend to such brutality.

16. Learned counsel for the appellant did not dispute the identity of the dead body or the head. It is fairly conceded that identity of the dead body of the deceased is not disputed.

17. Learned AGA submits that the prosecution had successfully proved its case beyond reasonable doubt. Chain of circumstances is complete. PW-1 complainant Dhanno was searching her son. When she could not succeed then she lodged the FIR. Thereafter recovery was made. Deceased was last seen in the company of the accused persons. Statement of the doctor correlates the date of incident. Recovery was made on the pointing out of the accused.

18. Now it is to be seen as to whether the prosecution has successfully proved the case against accused beyond reasonable doubt ?

19. Admittedly, it is a case of circumstantial evidence wherein the deceased went alongwith the accused on 3.8.2006 and the FIR was lodged on 16.8.2006 at 3.10 PM. At the very outset if we look into the legal position which emerges out that in a case of circumstantial evidence prosecution has to prove all the links which complete the chain.

20. Criminal cases cannot be decided on the basis of hypothesis. Another aspect which is to be kept in mind is that it is for the prosecution to prove the guilt of the accused charged for such an offence and that too, beyond reasonable doubt. In a case where there is no eyewitness and, which rests on circumstantial evidence, the prosecution is obligated to prove all those circumstances which leave no manner of doubt to establish the guilt of the accused person i.e. chain of circumstances must be complete and must clearly point to the guilt of the accused. Chain of continuous circumstances means that all the circumstances are linked up with one another and the chain does not get broken in between.

21. It has been held by the Hon'ble Apex Court in Satish Nirankari vs. State of Rajasthan, (2017) 8 SCC 497 that :-

"29. It is now well established, by a catena of judgments of the Hon'ble Apex Court, that circumstantial evidence of the following character needs to be fully established:

(i) Circumstances should be fully proved.

(ii) Circumstances should be conclusive in nature.

(iii) All the facts established should be consistent only with the hypothesis of guilt.

(iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused (see State of U.P. v. Ravindra Prakash Mittal, (1992) 3 SCC 300) ; (Chandrakant Chimanlal Desai v. State of Gujarat, (1992) 1 SCC 473 ). It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence, the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person.

30. The following tests laid down in Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 also need to be kept in mind: (SCC pp. 710-11, para 10)

"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

31. Sir Alfred Wills in his book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:

"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and

(5) if there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."

22. Another limb of the argument is about the delayed FIR. Admittedly, First Information Report was lodged on 16.8.2006 at 3.10 PM while the deceased went with the accused on 3.8.2006.

23. In this regard, we may refer with profit to a passage from State of H.P. Vs. Gian Chand, (2001) 6 SCC 71, wherein a three- Judge Bench of the Hon'ble Apex Court has expressed thus: (SCC p.79, para 12)

"12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

24. In Ramdas vs. State of Maharashtra, (2007) 2 SCC 170, Hon'ble Apex Court has observed that: (SCC p.179, para 24)

"24.. ..... 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. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation, there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them."

25. In the light of the aforesaid legal propositions now it is to be seen as to whether the chain of circumstances is complete or not ? Whether delay in lodging the FIR is duly explained or not ? At the same time, it is also to be looked into as to whether the First Information Report was lodged after recovery of the dead body of the deceased or it was lodged prior to it ?

26. PW-1 Dhanno is the complainant and mother of the deceased, who has stated that when the deceased left house with the accused, she kept on waiting till late night. When deceased did not came back then next day she went to the house of Younus wherein accused met her. When she asked them about the whereabouts of her son they told her that he had left for his house yesterday at 04:00 PM. Thereafter, she kept on searching her son for ten to twelve days. Then she went to Safipur tehsil and got a written report scribed by PW-4 Umesh Kumar Advocate.

27. No explanation for the delay in lodging the first information report is given by PW-1 Dhanno. Why the report was not lodged on the very same day or the next day of the incident when PW-1 Dhanno was knowing that the accused are inimical to her and her son. This delay and the date of loding the FIR attains importance in view of the date and time of recovery of dead body of deceased on the pointing out of accused Hukum Chand.

28. PW-8 Inspector Rajendra Pratap Shahi is the Investigating Officer of the case who has stated that he has taken over the investigation on 16.8.2006 itself and arrested the accused Hukum Chand. Interestingly the time of lodging the first information report is 16.8.2006 at 03:10 PM. PW-8 Inspector Shahi has stated that he had arrested accused Hukum Chand at 04:00 PM. In the inquest report exhibit ka-15 proceedings for inquest of the dead body began at 16:10 hrs on 16.8.2006 and concluded at 19:00 hrs on 16.8.2006. In the inquest report itself Investigating Officer had endorsed the factum of arrest of Hukum Chand. Confessional statement made before the Investigating Officer was also recorded in the inquest report. Thereafter, recovery of the dead body on the pointing out of the accused Hukum chand from the field of Dhani Ram is also mentioned in the inquest report. It appears that the Investigating Officer has lost sight of the provisions of Section 174 coupled with the purpose of preparing the inquest report.

29. It was held by the Hon'ble Apex Court in Madhu alias Madhuranath and Another versus State of Karnataka, (2014) 12 SCC 419 that :-

"The object of the inquest proceedings is merely to ascertain whether a person has died under unnatural circumstances or an unnatural death and if so, what is the cause of death. More so, the inquest report is not a piece of substantive evidence and can be utilised only for contradicting the witnesses to the inquest examined during the trial. Neither the inquest report nor the post-mortem report can be termed as basic or substantive evidence and thus, any discrepancy occurring therein cannot be termed as fatal or suspicious circumstance which would warrant benefit of doubt to the accused."

Same view was taken in Pedda Narayana v. State of A.P. (1975) 4 SCC 153, Rameshwar Dayal v. State of U.P. (1978) 2 SCC 518, Kuldip Singh v. State of Punjab 1992 Supp (3) SCC 1, George v. State of Kerala (1998) 4 SCC 605, Suresh Rai v. State of Bihar (2000) 4 SCC 84 and Munshi Prasad v. State of Bihar (2002) 1 SCC 351.

30. Purpose of the inquest report is only to the extent that as per the opinion of ''panchas' what may be the cause of death. Arrest memo of Hukum chand was to be prepared separately. Recovery of the dead body on the pointing out of the accused Hukum Chand was made by the Investigating Officer on 16.8.2006. The only document relating to the recovery and the disclosure statement of the accused Hukum Chand is the inquest report. As has been mentioned earlier, purpose of the inquest report is only to the extent of prima facie knowing the cause of death. In the inquest report itself the Investigating Officer has mentioned that he has recorded the statement of accused under section 161 CrPC and thereafter he alongwith accused Hukum Chand reached in the field of Dhani Ram and on his pointing out a pit about four feet was digged out and the dead body was recovered. Prosecution has nowhere proved the statement of the accused recorded by the Investigating Officer. Recovery was made under section 27 of the Indian Evidence Act. Section 27 of the Indian Evidence Act is an exception to Section 25 and 26 of the Indian Evidence Act. The conditions necessary for invoking the aid of the section are as follows :-

(a) There must be a discovery of a fact albeit relevant fact in pursuance of an information received from a person in police custody.

(b) The discovery of such fact must be deposed to.

(c) At the time of giving of the information the accused must be in police custody.

31. For applicability of the Section 27 of the Indian Evidence Act two conditions are prerequisite :-

(a) The information must be such as has caused discovery of the fact,

(b) The information must relate distinctly to the fact discovered. So much of such information whether it amounts to confession or not as relates distinctly to the fact thereby discovered may be proved. EARABHADRAPPA vs. State of Karnataka, AIR 1983 Supreme Court 446.

32. It was held in G. Somaiah vs. State of Karnataka, 2007 Cr.LJ 1792 (Supreme Court) that Section 27 appears to be based on the view that if a fact is actually discovered in consequence of the information given some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.

33. The first requisite condition for utilizing section 27 Evidence Act in support of the prosecution case is that the Investigating Officer should depose that he had discovered fact in consequence of the information received from the accused person in custody. The next component of section 27 relates to the nature and extent of information that can be proved.

34. In the inquest report the exact statement given by the accused Hukum Chand to the Investigating Officer is not recorded although in the statement as PW-8 the Investigating Officer Rajendra Pratap Shahi has deposed that Hukum Chand has stated that :-

"eSa] MkDVj ;wuql] MkDVj ;wuql ds HkkbZ iIiw o eqUuk iq= uUgk yks/k us feydj QkoM+s o Nqjh ls eqUuk iq= egkohj yks/k dh gR;k dj /kuhjke ds ckx esa xkM+ fn;k gS rFkk ;g Hkh dgk Fkk fd ''ko dks pydj eSa cjken djk ldrk gwa A "

35. Thereafter the Investigating Officer has stated that he went in the grove of Dhani Ram alongwith accused Hukum Chand wherein the dead body was recovered on the pointing out of Hukum Chand. Hukum Chand was arrested at 4.00 PM. Distance from the place of arrest to the grove of Dhani Ram was about 1.5 Km. After arrest, statement of Hukum Chand was recorded at the place of arrest. Number of persons were present there but none of them became a witness. Thereafter, Hukum Chand was taken to the grove of Dhani Ram. About 100 persons were present at the grove. Whole statement of PW-8 Inspector R.P. Shahi did not conform with the essential ingredients of the recovery under section 27 of the Indian Evidence Act. Whether the recovery was made on the pointing out of the accused Hukum Chand or not is not stated by the witness. It has nowhere been stated that the accused had shown the place where the dead body was concealed and on his pointing out that place was dug out and dead body was recovered rather a general statement is given that on the "Nishandehi" of accused recovery was made. It is settled legal position that if a particular procedure and legal requirements are prescribed for doing a certain act then that act must be done in accordance with the prescribed procedure established by law. A slip shot method or shortcut method cannot be accepted by the Court of Law. When a specific procedure is prescribed under section 27 of Indian Evidence Act for proving a recovery then that procedure should have been strictly followed. Section 27 Indian Evidence Act has serious consequences. It is an exception to the cardinal principles of criminal jurisprudence that a confessional statement made before a Police officer is not admissible in evidence but an exception is carved out by enacting section 27 of the Indian Evidence Act but for proper exercise of powers by the police officers specific procedure was laid down to prove the discovery of fact which should have been followed by the police officer but in the present case PW-8 Inspector R.P. Shahi has not followed the procedure prescribed by law, accordingly the recovery of the dead body under section 27 on the pointing out of accused Hukum Chand is not legally proved.

36. Learned Counsel for the Appellant has submitted that the first information report is ante-time. It is further submitted that there is a considerable delay in lodging the FIR which has not been duly explained by the prosecution.

37. Admittedly the incident occurred on 3.8.2006 while the FIR was lodged on 16.8.2006. PW-1 Dhanno is the mother of the deceased who is also a witness of fact. She has stated that the deceased left the house alongwith the accused on 3.8.2006. Thereafter, when he did not return to house she went to the house of the accused Dr. Younus on the next morning wherein all the accused were present. They told her that accused has left them yesterday at about 4.00 PM but this fact came to her knowledge on 4.8.2006. An effort has been made to explain the delay by stating that she continued to search her son but when she did not trace him then she lodged the FIR on 16.8.2006 at 3.10 PM. Interestingly, Inspector R.P. Shahi took over the investigation as he was posted as SHO of Police station Safipur, Distt Unnao. Just after lodging the FIR within an hour, he arrested the accused Hukum Chand. His statement was recorded. Dead body of the deceased was recovered from a distance of 1.5 Kms. from the place of arrest. Dead body was recovered after digging about 4 ft. of the earth. Thereafter, inquest proceedings also began at 4.10 PM. The whole story itself creates a serious doubt about the prosecution version. It is not a statement of an illiterate person wherein margin of time could have been given. It is a statement of Inspector of police who was legally entitled to refresh his memory in the court at the time of making the statement wherein specific time is mentioned by him. How could it be possible that the arrest was made at 4.00 PM and within 10 minutes statement of accused is recorded, distance of 1.5 Kms. is covered, 4 ft. of earth is dug out, dead body is recovered and the inquest proceedings also began at 4.10 PM ? This all indicates conclusively towards a fact that FIR was lodged with a considerable delay. When the dead body of the deceased was recovered and a story is cooked up by the prosecution. Minute to minute details as has been mentioned in the chik FIR, inquest report and the statement of Inspector R.P. Shahi conclusively proves that it is a case wherein the first information report is ante-time which is a serious lacuna on the part of the prosecution and benefit would go in favour of the accused.

38. PW-1 Dhanno and PW-3 Bholi reached at the spot where the dead body was recovered. Both of them have stated that they received information regarding recovery of the dead body at about 06:00 PM. PW-3 Bholi has gone to the extent by stating that she had not gone at the spot to identify the dead body while PW-1 Dhanno has stated that she received the information and reached at the place of recovery. Smt. Dhanno and Bholi are also the panches of the inquest proceedings which began at 04:10 PM on 16.8.2006. PW-1 Dhanno and PW-3 Bholi have stated that they have received the information at about 06:00 PM regarding recovery of the dead body. It also shows that the recovery was not made at 04:00 PM or the inquest proceedings did not began at 04:10 PM as has been stated by the prosecution.

39. There is another inherent defect in the prosecution version. There are three recoveries in this case. Headless dead body was recovered on 16.8.2006 at 4.10 PM on the pointing out of accused Hukum Chand. On 25.8.2006, co-accused Munna was arrested. On his pointing out head of the deceased was also recovered from the same grove of Dhani Ram with a shorter distance from the place of recovery of headless dead body. Recovery of spade, knife and clothes of the deceased was made on 7.9.2006 on the pointing out of accused Dr. Younus and Pappu. This recovery was also made from the grove of Dhani Ram. According to the prosecution version all the four accused have committed the murder of deceased. Thereafter, dead body was concealed in the field of Dhani Ram. It is stated by PW-8 R.P.Shahi, Investigating Officer, that after the recovery of headless dead body he asked the accused Hukum Chand about the head and other articles wherein he replied that when he concealed the dead body in the earth then other co-accused asked him to leave the place then he left the place. Interestingly, from a distance of 30-35 steps head was recovered while the spade, knife were recovered from 8-10 steps away. All these articles were recovered on the pointing out of different accused. No recovery memo of the head is prepared rather again in the same inquest report recovery under section 27 Evidence Act of the head was made. No separate recovery memo was prepared even the statement required under section 27 Evidence Act was not proved. A simple statement is made by PW-8 Inspector R.P. Shahi that :-

"vfHk;qDr eqUuk us e`rd dk lj cjken djk;k Fkk A"

40. Again it was stated that on the pointing out of Younus and Pappu spade, knife and clothes of the deceased were recovered.

41. Recovery of the head of the deceased under section 27 of Indian Evidence Act on the pointing out of accused Munna is also not legally proved. There is no witness of recovery made under section 27 Evidence Act. The only statement on record is a statement of PW-8 Inspector R.P.Shahi which too is not worth reliance. Recovery of head was not made in accordance with the procedure prescribed for the recovery under section 27 Evidence Act. What statement was made by Munna before the Investigating Officer is not proved. Accused Younus and Pappu have stated that they have committed the crime. Younus said that he can get recover the knife by which he has committed the murder while Pappu stated that he can get spade and clothes of the deceased recovered. These two recoveries were also not in accordance with the section 27 of the Evidence Act. As has been held in the earlier part of judgment a recovery under section 27 of the Evidence Act is an exception to the general principles of the criminal jurisprudence as has been prescribed under section 25 and 26 of the Evidence Act. Prosecution is under obligation to prove the recovery strictly in accordance with law which is not proved. Hence, neither the recovery of spade, knife, clothes of the deceased nor head of the deceased is legally proved under section 27 of the Indian Evidence Act.

42. It is a case of circumstantial evidence wherein the chain has to be completed. At the same time, it is also to be looked into as to what was the motive for commission of the crime. It has been held by the Hon'ble Apex Court in Tomaso Bruno and Another vs. State of U.P., (2015) 7 SCC 178 that :-

"Where the case is based on circumstantial evidence, proof of motive will be an important corroborative piece of evidence. If motive is indicated and proved, it strengthens the probability of the commission of the offence."

43. It is stated in the FIR that the grove was given on lease to the accused which period had expired. Again the accused were insisting upon the complainant and the deceased to let out the grove to Dr. Younus but the complainant and deceased were not agreeable. Then on 03.8.2006, accused came to the house of complainant and said that they have surrendered the lease. Deceased should go with them for documentation of the same. PW-1 Dhanno and PW-3 Bholi are mother and wife of the deceased. PW-1 Dhanno is also the complainant who has admitted in her examination-in-chief that the grove came in their possession from accused after the expiry of period of lease. Thereafter after a month accused came to her house and asked for further lease which is denied by complainant and her son. Thereafter, accused came and asked the deceased that they have surrendered the lease in their favour. Deceased went with them for documentation and did not return. This fact is also admitted by PW-3 Bholi that the grove was in their possession before the date of incident. Now, the question arises that when the grove in question was already in possession of the complainant and her son deceased then what was the occasion for the deceased to go with the accused for documentation regarding surrender or transfer of possession of the grove. It is also admitted by PW-1 Dhanno that the grove in question was let out by her to one Lala Hari Sharan fifteen days before the date of incident. A consideration of Rs.50,000/- was also received by her. Specific motive is alleged by the prosecution but the same could not be proved. When grove was already in possession of the complainant and decased and the same was given to Lala Hari Sharan for a consideration of Rs.50,000/- then what was the occasion for the deceased to go with the accused for executing the documents. Hence, motive as alleged by the prosecution is also not proved.

44. Chain of circumstances could not be proved by the prosecution. Material links could not be connected to conclusively prove beyond reasonable doubt the culpability of the accused-appellants.

45. On the basis of the discussion made above we are of the view that the prosecution has utterly failed in proving the charges against the accused beyond reasonable doubt. Learned trial court has misappreciated the evidence on record. Accordingly appeals deserve to be allowed.

46. Appeals are allowed. Judgment and order dated 08.4.2009, passed by the learned trial court is set aside. Accused-appellants are acquitted for the offence punishable under section 364, 302/34, 201 IPC. They are in jail. They shall be released forthwith if not wanted in any other case. Fine, if deposited, shall be refunded.

47. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.

Date :- 8.11.2017

mks

(Prashant Kumar, J.)

(Anil Kumar Srivastava- II, J.)