Avdhesh vs State Of U.P.
2018 Latest Caselaw 4200 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 1
 
Judgment reserved on 16.11.2018.
 
Judgment delivered on 10.12.2018.
 

 
Criminal Appeal No. 5236 of 2015.
 
Avdhesh  vs. State of U.P.
 
Connected with 
 
Criminal Appeal No. 4582 of 2014.
 
Shiv Singh vs. State of U.P.
 
Connected with 
 
Criminal Appeal No. 4768 of 2014.
 
Nanhey and another vs. State of U.P.
 

 
Hon'ble Ramesh Sinha, J.

Hon'ble Dinesh Kumar Singh-I, J.

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The aforesaid criminal appeals have been decided by a common judgment and order, hence with the consent of learned counsel for the parties, the same are hereby heard together and decided by a common order.

2. The aforesaid appeals have been preferred against the judgment and order dated 30.10.2014 passed by Additional Sessions Judge, Court No. 6, Budaun in S.T. No. 921 of 2012 convicting and sentencing the appellants under section 302 read with 34 read with 120-B I.P.C. for life imprisonment along with fine of Rs. 40,000/- and in default of payment of fine the appellants would have to undergo further ten months imprisonments.

3. The prosecution case in brief is that the informant Khunnu Shah son of Vande Shah resident of village Bilhat, police station Binawar, District Budaun gave a written report-Ex. Ka-1 to Station Officer, police station Binawar, District Budaun informing that on 26.5.2012 at about 6 a.m. in the morning when he had gone on a walk towards Bilhat Kundra Road near village Kundra at about one km. near the turning, he saw a dead body lying in the agricultural field of one Ramcharan Jatav. He tried to identify the same but failed to identify and it appeared to him that the person was from outside of the said village. He prayed that necessary action be taken accordingly. The said information given by Khunnu Shah was endorsed in G.D. No. 12 at 7:05 a.m. on the very same day and police reached at the spot and conducted the inquest of the dead body of the deceased and sealed the same and sent for postmortem. The inquest and post mortem of the dead body of the deceased was conducted as unknown.

4. Thereafter one Rakesh son of Rukum Singh resident of village Bilori, police station Aanwla, District Bareilly gave an application at police station Binawar, District Budaun stating that he along with his sister-in-law, namely, Aagna Devi and his mother, namely, Sudama Devi and other family members had visited police station Binawar where after seeing the photographs of the dead body and his clothes, identified the said dead body to be of his brother, namely, Surajpal. It was further stated in the said application by Rakesh that his brother Surajpal on 24.5.2012 at about 6 p.m. in the evening, had gone on foot to the house of his paternal aunt (Bua), namely, Launga Devi in village Pathra, police station Aanwla, District Bareilly which is about two kms. from his house informing the family members that he is going to help in the work of the marriage of his cousin, i.e., daughter of Launga Devi which was to be performed on 30.5.2012. When Surajpal did not return for few days then he along with his sister-in-law went to village Pathra where the neighbours of his Bua and other persons of the said village informed them that on 25.5.2012 in the evening, his brother Surajpal was called from the house of his Bua by the brother-in-law (dever) of his Bua, namely, Ramdas and Nanhe son of Lauki Khatik to their house where all the persons have taken liquor together and after consuming liquor some quarrel took place between them. Thereafter, Ramdas, Nanhe along with one of their relative have taken Surajpal on a motorcycle from the village. He has strong belief that his brother was done to death by Ramdas, Nanhe and one of their relative.

5. On the basis of said application, the police of police station Binawar registered a case as case crime no. 302 of 2012 under section 302 I.P.C. and the dead body was identified by Rakesh Kumar and his other family members including Smt. Anga Devi wife of the deceased and the same was endorsed in G.D. No. 14 at 7:30 a.m. on 29.5.2012.

6. The investigation of the case was taken up by Station Officer of police station Binawar, namely, Jai Prakash Yadav and after his transfer, the investigation was carried out by Station Officer, Binawar, namely, Ashok Kumar.

7. The investigating officer during the course of investigation recorded the statements of the witnesses, made a spot inspection of the place of occurrence, prepared the site plan and submitted the charge-sheet against the accused, namely, Nanhe, Ramdas, Awdhesh and Shiv Singh under section 302, 120-B I.P.C. and the learned Magistrate after taking cognizance on the charge-sheet committed the case to the court of Session on 3.11.2012 and the trial court on 5.2.2013 framed charges against accused-appellants Nanhe, Ramdas, Awadhesh and Shiv Singh, who denied the charges and claimed trial.

8. The prosecution in support of its case examined P.W.-1 Khunnu Shah, P.W.-2 Agma Devi wife of the deceased, P.W.-3 Dr. R.S. Yadav, who conducted the post mortem of the deceased, P.W.-4 Rakesh, brother of the deceased, P.W.-5 Ashok Kumar the investigating officer of the case.

9. The statements of the accused-appellants were recorded under section 313 Cr.P.C. by the trial court in which they denied the incident and have stated that the witnesses have falsely deposed against them on account of enmity and the case which has been registered against them is false case. They have further stated that they are wholly innocent.

10. No documentary evidence was produced from the side of the defence.

11. P.W.-1 Khunnu Shah has deposed before the trial court that on 26.5.2012 at about 6 a.m., he had gone towards village Kundra for a walk from his village and on the turning which is about one km. before village Kundra, he saw an unknown dead body lying in the agricultural field of Ram Chandra Jatav. He tried to identify but could not identify the same and it appeared to him that the said dead body is of a person outside of his village. He has deposed that on seeing the dead body, he had gone to police station Binawar and had informed the police about the same by giving a written report and had affixed his thumb impression on the written report which was read to him and proved the same. The said written report has been marked as Ex.-Ka-1. He submits that after some time, he came to know that the dead body which was recovered was of one Suraj Pal son of Rukum Singh resident of village Billori, police station Anwla, District Bareilly. He further deposed that the investigating officer had prepared the site plan of the place of occurrence where the dead body of the deceased was lying and also recorded his statement under section 161 Cr.P.C.

12. P.W.-2 Smt. Agma Devi, who is the wife of the deceased Surajpal stated before the trial court that on 24.5.2012 at about 6 a.m. in the evening, her husband Surajpal had gone to village Pathra for helping in the work of the marriage of the daughter of his Bua which was to be solemnized on 30.5.2012 and when her husband did not return for 2-3 days then she along with her Devar Rakesh had gone to village Pathra to enquire about her husband, she came to know that on 25.5.2012 in the evening her husband was called by accused-appellants Ramdas and Nanhe, who were the devar of her Bua at their house where her husband and the accused-appellants, Ramdas, Nanhe and their relatives Awdhesh and Shiv Singh consumed liquor and after consuming liquor some quarrel took place between them and at the instance of Ramdas and Nanhe, Awdhesh and Shiv Singh took her husband on a motorcycle and committed his murder. It was deposed by her that one Budhpal and Vijay, who belong to the village of P.W. 2 have seen the accused conspiring the murder of the deceased at the house of the accused Nanhe. Thereafter it was stated that she made a search of her husband and she received an information from Mullapur on phone that a dead body has been recovered and it was at police station Binawar on which she along with other family members reached there where they did not find the dead body as cremation of the same was done but when photographs and clothes of the deceased was shown to her, she identified the same to be of her husband Surajpal, who was missing and when the same were identified by her some papers relating to the same were prepared on which she and her family members put their thumb impression on the same which was marked as Ex. Ka-5Ka/2. The investigating officer has taken her statement under section 161 Cr.P.C. She has also identified the accused Nanhe, Ramdas and Awadhesh, who were present in the Court.

13. P.W.-3 Dr. R.S. Yadav deposed before the trial court that on 26.5.2012, he was posted as Senior Surgeon at District Hospital Budaun. He has conducted the post mortem of an unknown dead body which was sent by the police of concerned police station in a sealed condition brought by Constable Chedalal and Constable Rishipal. The said dead body was identified by the said constables. The said dead body was of a person aged about 26 years. The death of the deceased was possibly occurred 3-4 days prior.

14. The following ante mortem injuries were found on the person of the deceased:-

"1. LW = 4 X 1.0 cm. on front of forehead, Lt. side over eye brow brain cavity deep.

2. LW= 2.5 x 1.0 cm. over Rt. eye x bone deep.

3. Lw= 2 x 1.0 cm. on Lt. eye brow (lateral side x Bone deep)

4. An abraded contusion= 8 x 2.0 cm. on Rt. side of nexk, 7.0 cm. above the Rt. clavicle

5. An abraded contusion= 7 x 2.0 cm. on Lt. side of Neck, 6.0 cm. over Lt. Clavicle."

15. As per the opinion of the doctor the cause of death is due to ante mortem injuries. The clothes of the deceased was handed over by him to the Constable in a sealed condition. He has also deposed before the trial court that the death of the deceased appears to have occurred in the night of 25.5.2012 or 26.5.2012. The report which was prepared at the time of post mortem was written by him in his own handwriting and he has put his signature on the same and the same was proved as Ex. Ka-3.

16. P.W.-4 Rakesh, who is the brother of the deceased has stated before the trial court that accused Nanhe, Ramdas, Awadhesh and Shiv Singh are known to him. He has strong belief that they committed the murder of his brother Surajpal. He deposed that Surajpal had gone to village Pathra to help in the marriage ceremony of the daughter of his Bua prior to solemnization of the marriage and when he did not return for few days then he became worried and had gone to village Pathra along with his sister-in-law Agma Devi-wife of the deceased where it was informed to them that his brother Surajpal was called by accused Nanhe and Ramdas to their house where they consumed liquor thereafter some quarrel took place between them on which they along with their relative took him on motorcycle and committed his murder. He deposed that he did not name accused Shiv Singh and Awdhesh in his statement but only a reference has been given by him by their village as he did not know them by their name. He has proved Paper No. 5A/1 and deposed that it was the same which was got written by him through one Devdutt and put his signature on the same on the basis of which the case was registered. It was further deposed by him that the investigating officer recorded his statement under section 161 Cr.P.C. and other witnesses and has proved the same as Ex. Ka-1. He has further proved the police papers which were prepared by the police by which he identified the photographs and clothes of his brother and marked as Ex. Ka-2.

17. P.W.-5 Ashok Kumar, has deposed that he was the second investigating officer of the case as the earlier investigating officer was transferred. He has recorded the statements of informant and its witnesses under section 161 Cr.P.C., conducted the inquest of the dead body and submitted charge-sheet against the accused-appellants on 24.8.2012 and proved the same as Ex. Ka 2-5. He has further recorded the statements of the Constables, who were the witness of inquest. He has not made the site plan.

18. Heard Sri P.C. Srivastava, Sri Pankaj Satsangi, Sri Raghuvansh Mishra, learned counsel for the appellants, Sri. J. P. Tripathi, learned A.G.A. for the State and perused the record.

19. Learned counsel for the appellants submit that there appears to be no evidence against the appellants which may show their involvement in the present case, hence the conviction of the appellants by the trial court be set aside. It was argued that the case rests on circumstantial evidence. The dead body of the deceased was recovered on 26.5.2012 from village Kundra which was noticed by P.W. 1 Khunnu Shah and informed about the said fact to police station Binawar on the same day on which the police reached the place of occurrence and conducted the inquest being of an unknown dead body and further sent the same for post mortem as unknown. On 29.5.2012, P.W. 4 Rakesh brother of the deceased along with P.W. 2 Agma Devi-wife of the deceased when came to know about the recovery of a dead body then they visited police station Binawar and identified the same to be of his brother and husband through photographs of the said dead body and clothes. Thereafter on 29.5.2012, an application was given by P.W.-4 Rakesh against the accused appellants, namely, Ramdas and Nanhe suspecting that the deceased, who had gone to the house of his Bua to help in the work of marriage of the daughter of his Bua which was to be solemnized on 30.5.2012 was called by accused appellant Nanhe and Ramdas, who happens to be Devar of his Bua on 25.5.2012 to their house where they along with their relatives Shiv Singh and Awadhesh consumed liquor and after consuming liquor some quarrel took place between them. Thereafter the deceased was taken by the accused appellants on a motorcycle towards village Kundra and was done to death by them. The said fact was also deposed by P.W. 2, who is the wife of the deceased. It was alleged that information about the same was given to P.W. 2 and P.W. 4 by Budhpal, who is the Chachiya Sasur and Vijay, Chachere Jeth of P.W. 2. It was argued that the said persons have not been produced by the prosecution and only on the basis of hearsay evidence, P.W. 2 suspected the involvement of the appellants in the murder of the deceased which is not worth of credence, hence their testimony be discarded. Moreover, the motive to commit the crime has also not been suggested. There appears to be no recovery of any incriminating article made either from the possession or on the pointing of the appellants. There also appears to be no evidence of last seen thus, in these circumstances the conviction of the appellants by the trial court is wholly illegal and against the evidence on record as the chain of circumstances which bring home to the guilt of the accused is not established by the prosecution. Therefore, the conviction and sentence of the appellants by the trial court is liable to be set aside by this Court.

20. On the other hand, learned A.G.A. has vehemently opposed the arguments of learned counsel for the appellants and submitted that on receiving the information about the death of the deceased, P.W.-2 and 4 along with other family members reached the police station Binawar and identified the deceased to be Surajpal through photographs and his clothes. Thereafter, an application was given by P.W.-4 Rakesh brother of the deceased narrating the incident. The date on which his brother went to village Pathra to help in the work of marriage of the daughter of his Bua. Thereafter on 25.5.2012, the deceased was called by accused Nanhe and Ramdas at their house where they consumed liquor and after consuming liquor some quarrel took place between them on account of which the deceased was taken by the accused-appellants on a motorcycle and done to death and thrown the dead body in the field of Ram Charan Jatav which was later on seen by P.W. 1, who informed the police about lying of the dead body in the field of said Ram Charan Jatav on 26.5.2012 and on the basis of evidence brought before the trial court, the trial court has rightly convicted and sentenced the appellants for the offence they are charged with, hence no interference is called for by this Court.

21. Having heard the submissions advanced by learned counsel for the parties and perused the record.

22. Admittedly, the facts which appear from the record is that on 26.5.2012, an unknown dead body was found lying in village Kundra in the field of one Ram Charan Jatan which was noticed by P.W. 1 Khunnu Shah, who informed about the same to police station Binawar and gave a written information which was marked as Ex. Ka-1. The police reached at the place of occurrence and prepared the inquest report of an unknown dead body and sealed the same and sent for post mortem as unknown dead body. On receiving information about the recovery of a dead body, P.W. 4 and P.W. 2 along with other family members reached at police station Binawar and from the photographs and clothes identified the dead body to be of Surajpal, who was brother and husband of P.W. 4 and 2 respectively. P.W. 4 Rakesh gave a written application narrating that on 25.5.2012, his brother Surajpal had gone to village Kundra to help in the work of the marriage of the daughter of his Bua which was to be solemnized on 30.5.2012 and when he did not return for about 2-3 days, his wife-P.W.-2 tried to search him and they visited village Pathra where they were informed by Buddhpal and Vijay that they have seen the accused-appellants planning the murder of the deceased Surajpal. She was further informed by the said two persons and neighbours of his Bua that Surajpal was called by accused Nanhe and Ramdas at their house on 25.5.2012 where the other accused-appellants Shiv Singh and Awadhesh were also present where they together consumed liquor and after consuming liquor some quarrel took place between them and the deceased was taken by the accused-appellants Shiv Singh and Awadhesh on a motorcycle as it appears from the evidence of P.W. 2 at the instance of accused-appellants Nanhe and Ramdas to village Kundra and was eliminated. From the evidence of P.W. 2 and 4 it is absolutely clear that they have not seen the incident. On 26.5.2012 only on the basis of suspicion the accused-appellants were named by P.W. 2 and 4. So far as the information gave by Budhpal and Vijay is concerned, they too had not seen the accused-appellants consuming the liquor with the deceased or taking the deceased on a motorcycle on 25.5.2012 or quarrel which had taken place as has been stated as they only informed P.W. 2 that they have seen the accused-appellants conspiring the murder of the deceased. Moreover, the said two persons, namely, Budhpal and Vijay were not produced by the prosecution. Though they happen to be the relative of P.W.-2. No motive has also been suggested by the prosecution to accused-appellants for committing the murder of the deceased Surajpal. Further there is no recovery of any incriminating article either from the possession or pointing out of the accused-appellants. There also appears to be no evidence of last seen against the appellants. The learned State Counsel could not point out any incriminating circumstances against the appellants for their involvement in the murder of the deceased though he tried to justify the conviction and sentence of the accused-appellants by the trial court. Under these circumstances, the finding of conviction and sentence recorded by the trial court that the chain of circumstances were found to be complete and conclusively proves the guilt of the accused-appellants, is absolutely incorrect and wrong finding, hence the judgment and order of the trial court is against the evidence on record. The trial court committed error in convicting and sentencing the accused-appellants which is liable to be quashed and is hereby quashed.

23. The accused-appellants are stated to be in jail. They shall be set at liberty forthwith, if not wanted in any other case.

24. It is further directed that the accused-appellants shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.

25. The appeals stands allowed.

26. Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance.

 (Dinesh Kumar Singh-I, J.)     (Ramesh Sinha, J.)
 
Dated:- 10.12.2018
 
Shiraz.