Arun Bajpayee vs State Of U.P.
2018 Latest Caselaw 1607 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

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RESERVED
 
                                                                                                                                  A.F.R. 
 
Court No. - 46
 
Case :- CRIMINAL APPEAL No. - 998 of 2009
 
Appellant :- Arun Bajpayee
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ashwini Kumar Awasthi,A.N.Srivastava,Istiyaq Ali,Manish Tiwary,P.K. Srivastava
 
Counsel for Respondent :- Govt. Advocate,Anoop Trivedi,S.Shukla
 
Connected with 
 
Case :- CRIMINAL APPEAL No. - 1183 of 2009
 
Appellant :- Pappu Pandey
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.C. Kandpal,Dileep Kumar,Jeet Bahadur Singh,N.K.Singh,R.K. Saxena
 
Counsel for Respondent :- Govt. Advocate,Anoop Trivedi
 

 
Hon'ble Naheed Ara Moonis,J.

Hon'ble Chandra Dhari Singh,J.

(Delivered by Hon'ble Naheed Ara Moonis, J.)

Both the appeals have been filed on behalf of the appellants Arun Bajpayee and Pappu Pandey against the common judgment and order dated 11.2.2009 passed by the learned Additional Sessions Judge Court No. 3 Pilibhit whereby both the appellants have been convicted and sentenced to undergo ten years rigorous imprisonment with fine of Rs. 10,000/- for the offence punishable under section 364 IPC, life imprisonment with fine of Rs. 10,000/- for the offence punishable under section 302/34 IPC and two years rigorous imprisonment with fine of Rs. 500/- each under section 201 IPC with default stipulations in Sessions Trial No. 269 of 2003 (State versus Arun Bajpayee) and Session Trial No.33 of 2004 (State versus Pappu Pandey). All the sentences were directed to run concurrently.

The genesis of the facts giving rise to the prosecution in a short conspectus is that an FIR has been lodged by Baldeo Singh on 5.2.2003 under sections 364/302/201/34 IPC at Police Station Sungari District Pilibhit with the allegation that his son Narendra Jeet alias Goldee was living at his ancestral farm situate at gram Kuwarpur, Taluka Gajraula Police Station Pooranpur District Pilibhit. Goldee, the son of the complainant had an agency of Swaraj Tractor at Kasba Beesalpur. His son Goldee used to look after the aforesaid tractor agency. His eldest son Jitendra used to look after another agency of Swaraj Tractor situated in Qasba Puranpur. On the fateful day of 2.2.2003, Arun Bajpayee son of Shiv Shanker former salesman Puranpur Agency run by Jitendra, the son of the complainant r/o near Hanuman Temple Mohalla Civil Lines, South Police Station Sungari came to his farm and enquired from his wife about the presence of Goldee with the object of getting his some tractors sold. Goldee alias Narendrajeet with his associate Major Singh son of Arjun Singh and Arun Bajpayee came to Pilibhit. The accused appellant Arun Bajpayee suggested Goldee to sit at Indoform Tractor Agency situate at the crossing of Assam Road and persuaded Major Singh to accompany him uttering that he had to come across to an Advocate. When the victim Goldee was all alone, Raju Pandey son of Bhagwan Swarup Pandey resident of Devipur Police Station Madhau Tanda Pilibhit presently living at I.V.R. Gate Bareilly, the friend of his son Jitendra came with white Maruti Car and departed somewhere with Goldee. His son Goldee had not returned back since then. The complainant made hectic efforts to get searched out his son Goldee with his kith and kin at the Agencies of the tractor but he could not get any clue and tip off about his existence. The complainant divulged his mark of identification reflecting his dim white colour,long face, height about five feet nine inch,small beard, little hair, light black shirt, purple shade jacket, blue cap, woolen pant of yellow and white thread of brown colour and black socks, white shoes. The complainant requested to register the first information report and search out the corpus of his missing son Goldee. The first information report was scribed by Jaswant Singh and the same was proved by him as Exhibit Ka.1.

After registration of the first information report, the station officer Raj Kumar Sharma entrusted the investigation to Ram Pal Singh (S.I.) (P.W. 8) who ensued the investigation and subsequent thereto investigation was conducted by the station offier Raj Kumar Sharma (P.W. 7). He recorded the statement of the S.I. Rampal Singh, C/C. Kishan Pal Singh, Sardar Major Singh. He collected clinching and material evidence showing the complicity of the appellants in the commission of said offence thus the charge sheet was submitted against them under sections 364/302/34/201 IPC. The case was committed to the Court of Sessions and the charges were also framed under sections 364/302/34/201 IPC. The charges were read over and explained to the accused appellants. The accused appellants abjured the charges and claimed to be tried .

The prosecution in order to substantiate the charges , examined the complainant Baldeo Singh (P.W.1) who is the father of the victim, Major Singh (P.W.2) Bhupendra singh (P.W.3), Chakmaur Singh (P.W.4) Dr. Ajay Saxena (P.W.5) who had conducted post mortem of the deceased Goldee ,Anil Kumar (P.W.6) who had prepared the inquest report,Raj Kumar Sharma (P.W.7) and Ram Pal Singh (P.W.8) who were the investigating officer of this offence, Vinod Kumar Taneja (P.W.9), Pankaj Kumar, Senior Executive Idea Mobile Communication Ltd. NOIDA (C.W.1), Gaurav Agarwal (C.W.2) and Ajay Kumar (J.T.O) Sales Marketing BSNL Office Pilibhit (C.W.3). The first information report was proved as Exhibit Ka.1,Inquest report was proved as Exhibit Ka.2.Recovery memo with regard to one wrist watch and one gold chain of the victim was proved as Exhibit Ka.3. The post mortem report was marked as Exhibit Ka.4.Order dated 22.8.2006 on the written report was marked as Exhibit Ka.5.Inquest report was marked as Exhibit Ka.6. Challan Nash was marked as Exhibit Ka.7. Photo Nash was marked as Exhibit Ka.8. Letter of Chief Medical Officer Bareilly was marked as Exhibit Ka.9, Letter of Pratisar Inspector Bareilly was marked as Exhibit Ka.10. Sample of seal was marked as Exhibit Ka.11. Site plan of the place of occurrence was marked as Exhibit Ka.12. Recovery of incriminating articles viz. Wrist watch and gold chain was marked as Exhibit.14. The charge sheet was marked as Exhibit Ka.13. Recovery memo of Maruti Car No. UP25J-7782 was marked as Exhibit Ka.15. Site plan of spot indicating recovery of maruti car was marked as Exhibit Ka.16. Recovery of photograph of the victim Goldee and Rs.20/- was marked as Exhibit Ka.17. Site Plan was marked as Exhibit Ka.18. Charge sheet submitted against Pappu Pandey was marked as Exhibit Ka.19. Carbon copy of G.D.No. 42 dt. 22.2.2003 at about 22.30 hours , Carbon copy of G.D.No. 12 dated 5.2.2003 at about 7.10 and the computer print was marked as Exhibit Ka.22 and the list of mobile number and addresses was marked as Exhibit Ka.23.

In the statement under section 313 Cr.P.C. the accused appellants denied the charges and stated that the prosecution witnesses have given false and tutored statement. The accused appellant Arun Bajpayee unfolded in his statement that he had not gone to call the victim Goldee. He claimed his mobile No. 9412196105. The prosecution has set up a false and fabricated case on the basis of which prosecution witnesses have supported the prosecution version giving false and twisted statement.

From the evidence on record, the learned trial court found that the appellants, in association with Raju Pandey who was done to death during the trial were the main accused of abducting and killing of victim Goldee with prior concert and in a pre-planned manner. The corpus of the victim was concealed exhuming in the field of Ajhar Husain to wipe out the evidence therefore, both the appellants were convicted and sentenced under sections 364/302/34/201 IPC by the order impugned dated 11.2.2009 as mentioned in the opening paragraph-

Sri Ishtiaq Ali ,learned counsel appearing on behalf of Arun Bajpayee and Sri Rajrishi Gupta,learned counsel appearing on behalf of Pappu Pandey stressed that from the bald perusal of the first information report, it transpires that the appellants have been roped in the present case on account of suspicion. The learned trial judge has convicted and sentenced to the appellants relying upon the uncorroborated evidence hence the judgment and order passed by the learned trial judge is per se illegal and does not deserve to sustain. All the witnesses produced by the prosecution were highly partisan and interested who wanted to satiate their lust of grudge. The investigation was also not done in a very fair and unprejudiced manner. The investigation is tainted with biased and prejudiced colour. The presence of all the witnesses are very doubtful. There is material inconsistency in the prosecution version with the statement of the witnesses which itself creates great suspicion about the manner of occurrence,time as well as place where the dead body of the victim is alleged to have been recovered. The first information report has been lodged with considerable deliberation and consultation. The medical evidence also does not authenticate the prosecution version. No strong motive has been attributed for committing the said incident. The motive assigned to the appellants for committing such gruesome and hellish murder of the victim does not inspire any confidence corroborating its verity and truthfulness. There is bundle of contradictions in the prosecution version, medical testimony and statement of the witnesses. It is true fact that the victim had met to unnatural death which is corroborated from the medical report but who is the actual assailant cannot be deducted by implicating the innocent persons merely in the cloak of suspicion.

The learned trial judge has erroneously passed the impugned judgment and order attaching pivotal significance to the prosecution witnesses without vetting and weighing the material inconsistency in the prosecution version, medical evidence and the statement of the witnesses. The prosecution has utterly failed to authenticate that the accused appellants have committed overt act in furtherance of common intention at all the crucial stages. The conviction and sentence of the appellants relying upon uncorroborated testimony of the witnesses is not proper for want of independent corroboration , as the statement of the witnesses is replete with doubt and suspicion.

There is no evidence depicting the role of the appellants in respect of demand of ransom and committing murder of the victim, hence the judgment and order passed by the learned trial judge holding responsibility of murder, abduction and demand of ransom upon the appellants is per se illegal and injudicious and is liable to be negatived. The appellants were on bail during trial and have not misused the liberty of bail. The appellant Arun Bajpayee has been languishing in jail since 11.2.2009. The appellants had served out maximum period of sentence. There is no iota of evidence illustrating the involvement of the appellants in the commission of murder of the victim Goldee hence the life and liberty of the appellants cannot be slashed merely on the basis of suspicion. The role of abduction attributed upon the appellant Arun Bajpayee is also hypothetical and conjectural as there is no direct evidence corroborating abduction of the victim Goldee and the alleged recovery of incriminating articles planted by the police so as to strengthen the prosecution version. The prosecution has completely failed to establish the circumstantial evidence also from which an inference of guilt has to be drawn. The circumstance should be of a definite tendency leaving no room from the conclusion that within all human probability the crime was committed by the accused appellants and none else. In appreciating the evidence the trial court has not adopted a very cautious and careful approach and has recorded the conviction and sentence without taking care that all the links in the chain are not complete pointing to the guilt of the accused appellants. The appellants have been held guilty of abduction and murder but last seen together was neither proved nor could it be established hence the incriminating articles recovered from the field cannot be said to belong to the deceased.

In order to appreciate the arguments advanced by the learned counsel for the appellants, the statement of the prosecution witnesses are necessary to be examined . According to the prosecution case in hand , the statement of the complainant Baldeo Singh (P.W.1) who is the father of the victim Goldee revealed that he has two sons namely Jitendra Singh and Narendra Jeet Singh alias Goldee.The elder son Jitendra Singh has the agency of Swaraj Tractor situated at Pooranpur . The younger son Narendra Jeet Singh alias Goldee has the agency of Swaraj Tractor situated at Beesalpur . The elder son Jitendra Singh has performed marriage with Manendra Kaur in village Gola. His wife Manendra Kaur is also known by the name of Mintee. The co-accused Rajesh alias Rajoo Pandey had illicit relation with Mintee.He had seen Mintee associated with Rajoo in the Car as well as in the Farm. Rajoo is a notorious and hardcore person. There is criminal antecedent in his credit. The complainant P.W.1 had mustered courage to intervene in the extra-marital relation of Rajoo and Mintee with an object of vanishing it. On this crucial issue, Rajoo Pandey unfolded that he will decimate him. The marital ceremony of Narendra Jeet alias Goldee, the son of complainant (P.W.1) was fixed on 14.2.2003. On 1.2.2003 , Arun Bajpayee had arrived at the house of the complainant and went off uttering to his wife Charan Jeet Kaur that Goldee may be communicated to arrive at Indo Farm Agency situated at Assam Road Crossing. He will get his three/four tractors sold. Arun Bajpayee did not come across to him. His son Goldee associated with Major Singh had gone from residence at about 9.00 a.m. on 2.3.2003 on motor cycle at Indo Farma Agency situated at Assam Road Crossing. On that crucial day, he had settled his programme for going to Punjab for distributing the wedding card of his son Goldee. On that momentous day, after departure of his son Goldee, the complainant (P.W.1) himself had left to Punjab. The complainant had reached at Punjab Bus Station on 3.2.2003 at about 2.30 p.m. The complainant (P.W.1) tried to contact his son at Farm who did not respond. Subsequent thereto, the complainant (P.W.1) contacted to his Samadhee Amar Jeet Singh ,then it transpired that his son Goldee did not come back at his residence on that critical night. It was communicated by Amarjeet Singh that Rajoo Pandey had taken away Goldee in his Car near Assam Road Crossing. Thereafter, the complainant (P.W.1) proceeded for Pilibhit by the train running from Punjab. He had come back at Pilibhit in the noon of 4.2.2003. he came in contact with his wife and Major Singh at the crossing of Assam Road. Major Singh was present at that place with whom Goldee had left. The complainant (P.W.1) again made conversation with Major Singh. It was unearthed by Major Singh that he had reached at that pivotal place previous day i.e. 3.2.2003 at about 11.00 a.m. Thereafter he remained present at the agency about two and two & half hours. Arun Bajpayee had come thereafter and was making conversation on mobile phone hither and thither. He was also talking uttering the name of Rajoo Pandey time and again and had also stressed that Goldee had come at the Agency and thereafter Arun Bajpayee associated with Major Singh left for Market on the motor cycle of Goldee. Rajoo Pandey was seen coming on Car at the crossing of Assam Road. Rajoo Pandey and Arun Bajpayee hinted to each other with hands. Thereafter, Arun Bajpayee and Major Singh left for Market. Goldee was sitting at the Agency. It was informed by Major Singh that Arun Bajpayee was strolling the market approximately two to three hours. When came back at the Agency, Goldee was not present there. It was communicated by Ashik Ali a labourer that Goldee had left with Rajoo Pandey . Then the complainant taking the mobile of a boy contacted with Rajoo Pandey who narrated that Goldee was not associated with him. He assured to trace him out and also pleaded to him for search. The complainant had also sent this message at the police station Sungadhi. After some time, the Station Officer of Sungadhi came at the Agency . It was informed by the Station Officer concern that he was making his constant endeavour to search him out and also pleaded him to make efforts to trace him out. In case he is not traced out, it may be informed to the police station concerned. Next day morning ,the complainant reached at the police station and handed over a written script to the concerned scribbler of the police station concerned which was jotted down by Jaswant Singh at his dictum. The first information report was proved by the complainant as Exhibit Ka.1. After lodging of the first information report, it was divulged by the police personnel that they are making incessant efforts to locate him but the complainant may also try to collect the location and spot where the victim was hidden. Then the condition of the complainant deteriorated rapidly because the complainant was passing sleepless night for the last three four days. He was mentally disarranged and disquieted. On 6/7.2.2003 Pappu Pandey came in contact of the complainant (P.W.1) who was going to Sungadhee Police Station from the Railway Station. At that juncture, Pappu Pandey came in contact of the complainant and brought him in the office of Gupta Finance Company. Raju Pandey also made conversation with Pappu Pandey with the phone lying in the said office and the complainant also exchanged his views on the said telephone. It was divulged by Raju Pandey on telephone that Goldee was present with him. He demanded ransom of Rs. 15.00 lacs for liberating him. The complainant (P.W.1) told that firstly he may get him discoursed with Goldee reflecting that Goldee was with him. Thereafter Goldee made his conversation with the complainant transposing that he may acquiesce their demand otherwise he will be devastated. After that Raju Pandey took phone from Goldee and made conversation assuring him that Goldee was with him. He further asserted that he will inform about the programme after one or two days, in the meantime money may be arranged. It was also revealed that in case the complainant would dare to communicate to the police personnel or would detect any tricky device then his son will be slain. Thereafter he broke the conversation by reversal of the phone. Again on 9.2.2003, Pappu Pandey contacted on phone to Balkar Singh resident of Pooranpur alleging that he may come at Bareilly with Baldeo Singh and money. He assured him to contact him at the places which were disclosed naming to the adjoining area of Fun City, University and at the crossing of Shahjahanpur Road. At about 3'O' clock the complainant in association with Balkar Singh left for Bareilly on Car. The complainant had carried Rs.5.00 lacs cash. Firstly he stayed at the Gate of Fun City. When he did not come in contact of Pappu Pandey, he left for University Gate where he still did not come in contact of Pappu Pandey, thereafter he left for Shahjahanpur Crossing, then after sometime Pappu Pandey came near the Car. Pappu Pandey interrogated with the regard to amount of money. When it was informed that the complainant had merely brought Rs.5.00 lacs, then he went away. After ten to fifteen minutes, Pappu Pandey came back and sat in his car and asked that the Car may be turned back side. Again at the crossing of Beesalpur ,the Car was turned. After covering ¾ kilometres, he told that the vehicle may be stopped for sometime. He got the complainant and Balkar Singh descended and made thorough search of complainant and Balkar Singh with the purpose of confirming whether they were carrying any equipment. The car was also thoroughly searched out. Subsequent thereto they left ahead and reached at Bhoota where the car was stopped and he got down. After some time he again turned back and asked to go ahead . After covering 3 or 4 kilometres, he told to turn back the vehicle. When they reached at Bhoota, the vehicle was turned towards South. After covering 3 or 4 kilometres , the road which was turned towards left side was chosen to move. Hardly covering one kilometre on that road,the vehicle was stopped and he went on foot at some distance for some moment. He had gone towards the backside of the vehicle and returned in association with Raju Pandey. Raju Pandey was equipped with revolver at that moment. He enquired about the fetching of money. The complainant told that he had only arranged Rs.5.00 lacs. He told to the complainant to hand over the money, the complainant expressed his willingness of looking to his son. Besides showing to the complainant his son, he was taken at the backside of the vehicle. A car was standing in the midst of the bushes at the back of the road. He got the son of the complainant visible in the light of the Car who was sitting in the front seat. Raju Pandey took Rs. 5.00 lacs from him. Raju Pandey told him to arrange the rest of the money. The complainant made his best endeavour to get his son returned and assured to hand over the rest of the money. Then he told that the son of the complainant would be liberated when he would pay the rest of the money. The complainant stated that he would again make his contact after making the arrangement of money in three/four days . The complainant was allotted the time upto 12.2.2003 and was guided to come back again with his follower. After this chain of incident, Raju told Pappu to stand his vehicle for half an hour. Thereafter Raju left from that place. Again they seated in the vehicle. Raju Pandey went off taking the vehicle. When the complainant saw his son Goldee siting in the car of Raju ,one person was also sitting in the back seat. After half an hour, they arrived at Bareilly. Pappu Pandey was accompanied with him. Pappu Pandey got down at Bareilly. Prior to that on the way, the complainant told Pappu Pandey to give him next information at the time of bank. Thereafter they came back at the Farm. When the complainant did not get any information on 12.2.2003 at the time of bank, he divulged the entire scenario to the Station Officer. The complainant communicated to his eldest son as well as daughter in law to get his son Goldee liberated from the clutch of Raju Pandey. This communication was made by the complainant at Sharda Hospital to Jitendra and his wife. When the complainant was passing from Sharda Hospital, he saw the jeep of constables. It was informed by the police personnel that a dead body was found by them at Faridpur within the territorial precinct of Bareilly. The complainant in association of police personnel left from Sharda Hospital and reached at Faridpur Police Station. The complainant reached at the particular point of place where the dead body was lying. On reaching at the particular place he saw that the corpse of his son Goldee was lying there. From the face,the deceased was fully identifiable. The clothes and the rings were the same which was worn by him at the time of leaving house. The ring which was recovered at the particular point of place was handed over to him by the Police Personnel at the police station concerned. The receipt of that ring which was jotted down at the time, Supurdgi of Panchayatnama was written and signed by the complainant. The document on which the complainant, Amarjeet Singh and Bhupendra Singh had put their signature was marked as Exhibit Ka.2. The clothes were opened in the court which was proved and identified by the complainant. The wrist watch and the gold chain were marked as Exhibit Ka.6 & 7 respectively. The complainant was cross examined at length. He had denied the suggestion that there was any dispute with regard to property between his sons. He had stated that there was illicit relation between Raju Pandey and Manendra Kaur alias Mintee,the wife of his son Jitendra Singh. He has got the report registered in the basis of information given by Major Singh .He had totally denied that he had lodged the first information report falsely implicating the appellants. He had stated in the first information report that his son had gone along with Major Singh . He has completely denied that Arun Bajpayee had not come at his house to call Goldee and Arun Bajpayee had been falsely implicated.

Major Singh who was examined as P.W.2 has deposed that on 2.2.2003 he had come from Pooranpur to Pilibhit in association with Narendrajeet Singh alias Goldee. On the persuasion of Goldee, Major Singh had left from Puranpur to Pilibhit because he was called by Arun Bajpayee who was in contact with four customers of tractor. They had left from the house situated at Puranpur at 9.00 a.m. on motor cycle and had arrived at the Indofarma Agency located at Assam Road Crossing. Arun Bajpayee was sitting there. They had arrived at that place at about ten and half hours and were stay for more than two and half hours. Arun Bajpayee was communicating on phone to Raju Pandey to arrive with the customers of the Tractor as Goldee had come. Raju Pandey did not come upto 12 to 12.30 hours. When he did not come, Arun Bajpayee proposed to accompany him for the purpose of coming across to the Advocate. Major Singh (P.W.2) did not consent to leave with him but Arun Bajpayee was insisting to accompany him. When the Major Singh (P.W.2) did not acquiesce to accompany him, Goldee intervened suggesting the P.W.2 Major Singh to accompany him. Major Singh left with him on Motor Cycle. At the crossing, Raju Pandey came across to him in the car and Arun Bajpayee hinted him to come towards his agency. Thereafter they left towards the RTO office. Again they came back at the Agency at 3.00 'O'clock. In the interregnum period Arun Bajpayee was talking on phone with Raju Pandey . When they came back, the victim Goldee was not there and on interrogation, it came to light that Goldee had gone with Raju Pandey. Major Singh (P.W.2) enquired from Arun Bajpayee where Raju Pandey had taken to Goldee, he showed probability of leaving at his house. Major Singh (P.W.2) was siting there for more than two hours. When Goldee did not come back, Major Singh (P.W.2) asked from Arun Bajpayee about him, he told Major Singh (P.W.2) to leave for house because he had to go to Agra. Goldee might have reached at the house till then. When Major Singh (P.W.2) reached at the house of Goldee situate at Pooranpur and enquired from his mother ,then it transpired that Goldee had not come. He told to wait for sometime and in case of any intricacy, he may be searched at Pooranpur Station. Thereafter he had gone at the house of Amarjeet Singh and informed him that Goldee had gone with Raju Pandey. Amar Jeet Singh was prospective father in law of Goldee. Major Singh came back at the house and informed that Goldee had not come back. Major Singh (P.W.2) in association with the mother of Goldee as well as Amar jeet Singh reached at Pilibhit on 4.2.2003. Major Singh (P.W.2) was standing at the crossing of Assam Road at Pilibhit. It was beyond 12 "O" clock. At that particular place, Baldeo Singh , the father of Goldee came across to him. Major Singh (P.W.2) had narrated the entire episode to him. It was also averred by P.W.2 Major Singh that he was well aware about Raju Pandey and Arun Bajpayee much earlier to the incident.

Major Singh (P.W.2) was cross examined by the defence. Nothing was elicited from his testimony. It was averred by him that the deceased Goldee had communicated him that Arun Bajpayee had assured him that he will get his tractor sold. He had also stated that no customer had come at the agency. He had also clearly stated that Arun Bajpayee had taken him to come across to an Advocate with whom he was not conversant. Arun Bajpayee was talking on telephone with Raju Pandey. He denied the suggestion that he is giving false deposition because Goldee is his friend. It was specifically averred that he was strolling hither to thither with Arun Bajpayee and when he returned at the Agency, he found that Goldee was not present there. He has disclosed in his statement that on 2.2.2003, Goldee has communicated him that they had to go to Pilibhit to meet Arun Bajpayee at Indofarma Agency and when they reached at the Assam Road Crossing, Arun Bajpayee was sitting there. Major Singh (P.W.2) had supported the prosecution version.

Bhupendra Singh (P.W.3) was Engineer by profession and was engaged in doing the cultivation. His one brother was holding the post of Vice Chief of Air Staff and another brother was holding the post of Commandant (Air Force) At Chandigarh. His both brothers had retired. His one brother who had retired from the post of Vice Chief of Air Staff is the member of National Security Board. His son was holding the post of Major in the army. He had proved the demand of ransom. It was divulged by him that the complainant had informed him that Raju is demanding Rs.15.00 lacs but he had only Rs. 5.00 lac. He had requested him to arrange remaining amount of Rs. 10.00 lac. The complainant had informed him that he had given Rs. 5.00 lacs to Raju Pandey in association with Pappu. On 26.2.2003, Pappu has sought for help from Bhupendra Singh (P.W. 3) and admitted that he had entangled in this case on the persuasion of Raju Pandey. Pappu had specifically stated that Raju Pandey had slain Goldee. The statement of the P.W. 3 Bhupendra Singh was consistent with the prosecution version.

Chamkaur Singh (P.W.4) was examined and proved the recovery of chain and wrist watch of the deceased which was recovered at the instance of Raju Pandey. Chamkaur Singh (P.W.4) denied being the kith and kin of Baldeo Singh (P.W.1). He showed his ignorance with regard to the settlement of marriage of Goldee with the daughter of Amarjeet Singh. He also denied that Amarjeet Singh was his relative. Chamkaur Singh (P.W.4) had also proved the complicity of the accused appellants in the commission of said offence.

The prosecution has examined Dr. Ajai Saxena , Medical Officer M.C.U Jagatpur District Bareilly as P.W. 5. He deposed that he was posted as Medical Officer Central Jail Bareilly on 19.2.2003. He had conducted the autopsy of Narendra Jeet Singh alias Goldee aged about 28 yearson 19.2.2003 at about 12.30 P.M. The corpus was brought by Constable 222 Bachan Singh and Constable 338 Asha Ram in a sealed cover. The dead body was duly identified brought by the constables. On external examination of the deceased Goldee it was found that the body was average built. Rigor mortis was not present. Mud was present all over the body. Eye were buldging. The tongue was protruded between the teeth. Skin peeled off all over the body. Hair and nails were loosened. The teeth were loosened from sockets. Germs were present above the size of 1 cm . There was swelling in the scrotum . Big intestines were protruded and was out. Abdomen was distended.

Following ante-mortem injuries were found on the person of the decease Goldee :

1. Abraded contusion 20 cm x 15 cm over the front of neck and upper chest. On cutting the underlying tissue crushed and clotted blood were present . On opening the laryns and trachea were red inside. Clotted blood was present. Thyroid cartilage were broken. Pasty material above 50 gm was present in the stomach.

2. Small intestines and big intestines were of half filled with gases. Faecal matter and gases were soft and blackish weighing to 1200 gms. Gall bladder was half full.

The doctor opined that the cause of death is asphyxia as a result of strangulation.

Dr. Ajai Saxena (P.W.5) had proved the post mortem report which was prepared at the moment of conducting the post mortem of the deceased Goldee. According to the opinion of the Doctor Ajai Saxena (P.W.5) the death of the victim was caused approximately one week earlier from the date of post mortem. The post mortem report was duly proved by him which was marked as Exhibit Ka.4.

Dr. Ajai Saxena (P.W.5) was cross-examined by the accused persons, but nothing could be elicited to doubt about his testimony. Thus the post mortem report of the deceased stood uncontroverted.

The prosecution has examined S.I.Anil Kumar (P.W.6) who was posted at Police Station Faridpur District Bareilly at the relevant period. He had conducted the inquest of the deceased Goldee whose body was lying in the field of Tahir Khan Village Thakani Police Station Faridpur District Bareilly. The inquest was being conducted in the presence of Tavrej Ali, Azhar Husain, Mohd. Tahir Khan ,Asid Ali and in the interregnum period at about 5.00 p.m. Station Officer Sungari RK.Sharma, S.I. Sanjai Pratap Singh, S.I.D.R.Singh ,complainant Baldeo Singh and his brother Sukhdeo Singh, Devendra Singh r/o Model Town Bareilly came on the spot. The complainant had identified the body of the deceased son on the basis of appearance and ring .The complainant had stated that he had given missing report of his son Narendra Jeet Singh alias Goldee. The same was attached by S.I. Anil Kumar (P.W.6) along with inquest report and was duly signed by Baldeo Singh (P.W.1) and was marked as Ext. Ka.5. A gold ring which was in the small finger of the deceased Goldee was handed over to his father (complainant) of which description was made in the inquest report. Witnesses Phupendra Singh (P.W.3) and Amarjeet Singh had put their signature which was marked as Exhibit Ka.2. After inquest the dead body of the deceased Goldee was sealed and was handed over to Constable 222 Bachan Singh and Constable 338 Asha Ram for post mortem along with requisite documents i.e. Challan Nash, Photo Nash, letter of the CMO, Specimen of Seal, statement of Baldeo Singh .All the documents are on the record which were signed by him. The inquest report. Challan nash, photo nash, letter of CMO, letter of R.I. Specimen Seal were proved and marked as Ext.Ka.6,7,8,9,10 and 11.

In his cross examination he stated that during the course of inquest process, Baldeo Singh (P.W.1) and Phupendra Singh (P.W.3) and Amarjeet arrived there. The dead body was recovered from the sand. The corpus had ensued decomposition but it was identifiable. The condition of the corpus was deteriorating and the germs were moving at some places. He had given explicit elucidation of the corpus. Even in the inquest report, there is mention of decomposition of body . There was no slush on the corpus.

The prosecution has examined Rajkumar Sharma Inspector (C.B.C.I.D.) as P.W.7. He has stated that he was posted as Station Officer Sungari on 5.2.2003. The complainant had given a written information about the disappearance of his son Narendra Jeet alias Goldee at about 7.10 a.m. The investigation was handed over to S.I. Ram Pal Singh (P.W.8). After carrying out investigation by Ram Pal Singh (P.W.8) on 12.2.2003 at about 22.30 hours the case was registered as Case Crime No. 47 of 2003 under sections 364 IPC against Arun Bajpayee and Rajesh Pandey. Ram Pal Singh (P.W.8) had conducted the investigation and recorded the statement of witnesses. He had also visited the place of occurrence, Assam crossing, the tractor agency Indofarma belonging to Arun Bajpayee. Arun Bajpayee was arrested on 15.2.2003 at about 6.00 a.m. at the tea shop of station crossing. From the left pocket of his shirt, a coloured photo of Narendra Jeet alias Goldee was recovered which was produced. Arun Bajpayee had confessed his guilt unraveling that at the dictum of Raju Pandey, Goldee was called at his tractor agency situated at Assam Road . He divulged the mobile no. 7837031722 of Raju Pandey which was used for conversation. It was also averred that Raju Pandey had taken away to Goldee somewhere in his white Maruti Car . It was also unfolded that on 18.2.2003 Incharge Police Station Faridpur District Bareilly had made conversion with S. I. Sanjai Pratap Rathor bearing Mobile no. 9412296358 and 9412293291 that an unknown dead body olden to 14 to 15 days has been recovered from the territorial precinct of Police Station Faridpur. On whose cloth, a batch of lady tailor Bareilly was stitched. On getting the information, he reached at Faridpur with the complainant (P.W.1). The complainant, his brother Sukhdeo Singh & Narendra Singh looking to the clothes and the ring identified that it was the corpse of Naredra Jeet alias Goldee. According to the post mortem report, death has occurred on account of asphyxia as a result of strangulation delineating only one injury. According to the post mortem report, section 302/201 IPC was added. After handing over the dead body, on the basis of first information report, search was made to nab Raju Pandey at different places. The proceedings of section 82/83 Cr.P.C. was also initiated against the accused persons after obtaining the order from the court of Chief Judicial Magistrate. He had also recorded the statement of Anil Kumar Singh (P.W.6), Police Station Faridpur on 7.3.2003. He in association of Anil Kumar (P.W.6) left from police station Faridpur at the place where the dead body of Goldee was recovered and at the instance of witness Nasir Khan, the place of occurrence was inspected and a site plan was prepared which was proved and marked as Ext. Ka.12. He had also recorded the statement of witnesses of inquest on 17.3.2003. He made thorough search of accused Raju Pandey but no clue could be gathered. In the proceedings of 83 Cr.P.C. the house of Raju Pandey situate at Mandal Bihar Prem Nagar Bareilly was attached in the presence of witnesses Pankaj Suri and Sant Kumar and also the ancestral property of Devipura was also attached of which a memo was prepared . Attached properties were deposited in the police station Sungari. The statement of the complainant was also recorded. He had submitted charge sheet against Arun Bajpayee on 6.4.2003 after challan and accused Raju Pandey in abscondance which was marked as Exhibit Ka.13. He recorded the statement of Ashik Husain on 30.4.2003. The statement of Sukhdeo Singh Jaiswal was also recorded on 3.6.2003. He collected the call details of accused Raju Pandey on 29.6.2003 bearing Mobile No. 9837031722 which were made part of record bearing paper no. 124Kha/1 to 124Kha/10. It was collected by him from the Airtel Company at Bareilly.

On 19.8.2003, accused Raju Pandey had surrendered in the civil court and was sent to jail and with the permission of the court, he had recorded his statement in jail on 21.8.2003. He had also collected the proof of mobile No. 9412196105 belonging to Arun Bajpayee on 24.8.2003. Raju Pandey was taken on remand in police custody on 30.8.2003 for four days. On 31.8.2003 on the pointing out of Raju Pandey in the presence of Hardeo Singh and Chamkaur Singh , Police Constable Rama Shanker Kailash Dubey Satendra Singh at about 11.30 a.m. a gold chain and a wrist watch were taken out by the accused Raju Pandey beneath the culvert of I.V.R.I. Bareilly belonging to Goldee whch was marked as Ext. Ka.3. A memo was prepared which was signed by the accused and the witnesses. The site plan of recovery was prepared and signed by him which was marked as Exhibit Ka.14. On 31.8.2003 at about 2.30 p.m. at the pointing of the accused Raju Pandey in the presence of MukhtiyarSingh and Nazir Singh and police fore Bareilly near the Railway Station a Maruti Car No. UP 25J/7782 was recovered. It was divulged by the accused Raju Pandey that Goldee was abducted in the said Car. Recovery memo of the Maruti Car was prepared on the spot which was signed by the witnesses and was marked as Exhibit Ka.15. The site plan of the Maruti Car was prepared by him and was marked as Exhibit Ka.16. On 12.9.2003, the statement of Jitendra Singh and his wife Manindra Singh alias Mintee was recorded. On 23.9.2003, statement of Hardeo Singh, Chamkaur Singh ,Mukhtiyar Singh and Nazir Singh were recorded. Thereafter charge sheet was submitted against Raju Pandey. On 15.2.2003 after arrest of Arun Bajpayee on search a photo of Goldee and two notes of Rs.10/- denomination were recovered of which memo was prepared and signed which was marked as Exhibit.Ka.17. Sealed envelop was produced and opened in the Court contaiing photo of deceased Goldee and two notes of Rs.10/- denomination which were marked as Paper No. 9/1 & 9/2. On 13.2.2003 at the pointing of Baboo, the site was visited and a site plan was prepared of the place where the victim was abducted Baboo is also known Major Singh, the site plan was marked as Exhibit Ka.18. On 3.10.2003, the statement of Bhupendra Singh was recorded. On 10.10.2003, the statement of accused Pappu Pandey was recorded in the premises of jail.

On 10.11.2003, the wrist watch and gold chain were identified by the father of the deceased in the court of City Magistrate. Memo of which was prepared and was made part of the case diary. Thereafter charge sheet was submitted against accused Pappu Pandey which was marked as Ext.Ka.19. This witness was cross examined by the defence where he has disclosed about the recording of statement of the complainant and the attachment proceedings of the properties of accused Raju Pandey . He had also disclosed that during the course of investigation, complainant had gone to England. He further disclosed about his meeting with the complainant after identification of watch and wrist.He has further disclosed that Raju Pandey had made telephonic conversation with Arun Bajpayee about 8/9 times after the occurrence of incident. He had given description of mobile number of the accused. He had denied that he had arrested Arun Bajpayee from his house. He recanted the suggestion that at the inkling of complainant he had falsely roped Arun Bajpayee.

The prosecution has examined Ram Pal Singh Inspector Police Station Kotwali Civil Lines ,Aligarh as P.W.8. He had averred that on 5.2.2003 he was posted at Police Station Sungari. He was entrusted the investigation with respect to the missing of Narendra Jeet Singh alias Goldee on the written information of Baldeo Singh (P.W.1) at 7.10 a.m. He visited various places to trace out the victim and returned on 8.2.2003 which was entered in the GD no.27 at 16.10 hours. He again left for investigation on 12.2.2003 . During the course of search and investigation, he found that with the help of Arun Bajpayee, Raju Pandey had abducted to Goldee in his Maruti Car No. UP 25 J-7782 in a pre-planned manner from Assam Road. On the basis of missing report registered on 5.2.2003 by Baldeo Singh (complainant) for disappearance of Narendra Jeet alias Goldee a Case crime No.47 of 2003 under section 364 IPC was registered against Raju Pandey and Arun Bajpayee. During the course of investigation, it also came into light that Raju Pandey has formed a well organised gang and a number of cases are registered at different police stations against him. On account of his terror and horror, no-one is mustering courage to come forward to appear as witness. It was duly incorporated in G.D. On 12.2.2003 at about 22.30 hours, he has proved the registration of offence under section 364 IPC which was duly entered in G.D. and was marked as Exhibit Ka.20. He had recanted that he had made any forged entry in the GD and the entries made in the G.D. was anti-time. It was also divulged that till the case was converted,he did not find any intricacy showing the involvement of Pappu Pandey in this case.

The prosecution has examined Vinod Kumar Teneja Divisional Engineer BSNL Pilibhit as P.W.9. He divulged that print out of conversation of Mobile No. 9412196105 which is issued in the name of Arun Bajpayee resident of A 24 Ballabhnagar Pilibhit has been brought by him. He proved the list of conversations made by Arun Bajpayee from the aforesaid mobile and the same was marked as Exhibit Ka.22. This witness was also put for lengthy cross-examination by the defence.

The prosecution has examined Pankaj Kumar Senior Executive Idea Mobile Communication Ltd. NOIDA as C.W.1. He had denied the papers relating to the print out of Mobile No. 9337037722 pertaining to Raju Pandey.

The prosecution has examined Gaurav Agrawal as C.W.2. He divulged that he is the Franchise of M.S.Gopal Enterprises of B.S.N.L. Mobile. There is entry of Arun Kumar Bajpayeee s/o Shiv Sharan Bajpayee resident of A/24 Ballabh Nagar Pilibhit bearing sim card no.96105 in the register on which he has put the signature His name was entered at serial no.78. Certified photo copy of the same was proved and marked as Ext. Ka.23. He denied the suggestion that the said sim was not issued to Arun Bajpayee.

The prosecution has examined Ajai Kumar J.T.O. Sales Marketing office Pilibhit as C.W.3. He had proved that Arun Kumar Bajpayee was issued the Sim of Mobile No. 9412196105 on which his photo was affixed. It was also uncovered that landline number of Arun Kumar Bajpayee was 252626. All the documents were proved by him. In cross examination he denied about the acquaintance with Arun Bajpayee. He disowned that had been persuaded to give false statement. He denied that the record is not kept in order.

After closing the prosecution evidence, the statement of accused appellant Arun Bajpayee and Pappu Pandey was recorded under section 313 Cr.P.C. They completely denied the prosecution version. The co-accused Arun Bajpayee averred that the mobile belonged to him but the land line does not pertain to him. They have been falsely implicated in the present case out of personal animus and vendatta. They showed complete ignorance about the incriminating facts put forth before them.

It is submitted by the learned counsel appearing on behalf of co-accused Pappu Pandey that the appellant Pappu Pandey is not named in the first information report. His complicity came during the course of investigation. The name of Pappu Pandey surfaced in the statement of the witnesses investigating officer, Ram Pal Singh (P.W.8), Raj Kumar Sharma (P.W.7) and P.W.1 (complainant) the father of the deceased Goldee. In his statement , the complainant for the first time disclosed the name of the appellant Pappu Pandey during investigation for the demand of ransom . The complainant had never made any complaint with regard to the said demand of ransom nor disclosed his complicity to any witnesses or even to the police authorities. Bhupendra Singh (P.W.3) had also deposed in his testimony for the first time about extra judicial confession made by the appellant Pappu Pandey. He had never divulged any information with regard to confession of guilt to the complainant (P.W.1) or police authorities. Even at the stage of framing of charge it was not specified that the appellant Pappu Pandey had demanded ransom at any point of time . Charges have also not been framed in order as if the appellant was involved in abducting Goldee for the demand of ransom and in the series of which Goldee had been done to death, the role of the appellant as unearthed by the prosecution is highly suspicious and doubtful in itself. The prosecution has also failed to attach any strong motive for committing the murder nor there is any iota of evidence that the appellant Pappu Pandey has committed murder of the victim Goldee. No incriminating articles were also recovered at the pointing of the appellant Pappu Pandey hence the conviction and sentence of appellant Pappu Pandey resting on irrelevant consideration may be set aside. There is no evidence that Pappu Pandey had facilitated in giving and taking of ransom. Extra judicial confession before Bhupendra Singh (PW.3) is fragile evidence to make him liable for the commission of offence.

The testimony of P.W. 1 (Complainant Baldeo Singh) is not reliable and trustworthy. His testimony is based on hearsay and on unsubstantiated information. Hearsay and unsubstantiated information cannot be made as a part of evidence thus the conviction and sentence awarded by the learned trial court in respect of appellant Pappu Pandey is not sustainable and is liable to be rendered nugatory. The learned counsel for the appellant has relied upon the decision of the Apex court relating to the extra judicial confession.

Per contra learned counsel for the complainant Sri Anoop Trivedi and learned AGA opposed the contention of learned counsel for the appellant appearing on behalf of Pappu Pandey contending that there is complete chain of circumstances demonstrating both the appellants liable for the abduction, murder and concealing the dead body of Goldee for causing disappearance of evidence. There is clinching material to evince that the appellant Arun Bajpayee had come at the house of the complainant in his absence asking Goldee to come at Indofarm Agency situated at Assam Road Crossing for selling his tractor to some customer. On this illusion and allurement , Goldee the son of the complainant (P.W.1) who was not present on that day when Arun Bajpayee (accused-appellant) came at his house,went with Major Singh (P.W.2) on the very next day at the Agency where Arun Bajpayee was present. There is no suggestion at all about false implication of either Arun Bajpayee or Pappu Pandey when there is meeting of mind of the accused appellants to commit the offence in furtherance of common intention. There was a conspiracy to commit murder of Goldee on the demand of ransom taking pretext of selling his tractor. He was called from the house at a particular place which was prelude of the planning and from there he was taken away to another place in association with accused Raju Pandey in his Car . Major Singh (P.W.2) who is the credulous witness of the incident as he had remain associated with the deceased Goldee to the Agency of accused Arun Bajpayee. The accused appellant Arun Bajpayee had intentionally and deliberately left the victim Goldee at his agency and took away Major Singh (P.W.2) showing that he had some work with advocate and Major Singh had seen Raju Pandey who was coming in his white car. When Major Singh (P.W.2) and Arun Bajpayee came back after considerable period of time, Major Singh (P.W.2) did not find Goldee at the agency. He asked Arun Bajpayee who communicated that he would have been dropped by Raju Pandey to his house but it was not done so rather he kept Goldee in his captivity and demanded Rs. 15.00 lacs ranson for his liberation. The accused appellant Pappu Pandey had taken the complainant (P.W.1) in the office of Gupta Finance Company where accused appellant Pappu Pandey made conversation with Raju Pandey on the phone of the office and with the complainant .It was communicated by Raju Pandey on phone that Goldee was in his custody. He will be liberated on payment of Rs.15.00 lacs. Goldee was allowed to talk with his father who was in captivity of Raju Pandey .The assertion that Pappu Pandey (appellant) had no motive to commit such offence stands fully negatived as the deposition of complainant (P.W.1) is clear in this connection that the appellant Pappu Pandey had met the complainant at Shahjahanpur crossing and instructed to follow him and after travelling at different places any how the complainant could be able to see that his son Goldee was sitting in the car of Raju Pandey. Pappu Pandey armed with revolver came to the complainant demanding ransom. Raju Pandey had taken Rs. 5.00 lacs carried by the father of the victim Goldee and mandated to arrange rest of the money. Goldee, the son of the complainant (P.W.1) was done to death in a very fiendish and infernal manner by strangulation. The corpse was concealed in a field, to smash the appearance of evidence. The dead body was concealed in the field, at Faridpur Police Station District Bareilly. The accused appellants have rightly been charged to have abducted and murdered the son of complainant and concealing his body to destroy the evidence. The chain of circumstances unerringly points towards the guilt of the accused appellants. The victim Goldee was last seen with the accused appellants. In case the deceased Goldee might have been liberated,their complicity would have been obvious that they were in association to eliminate him for ransom.The recovery of the dead body and post mortem report of Goldee explicitly showed the duration when the complainant (P.W.1) last seen his son Goldee in the custody of the accused appellant Raju Pandey who later died during the course of trial. The prosecution evidence is fully in consonance with medical evidence as well as other incriminating materials recovered at the pointing of the accused persons. Mere grant of bail during trial will not assuage the gravamen and grim of offence. The complicity of the accused appellants and their common intention to execute the offence in question stood fully proved from the evidence and testimony of the prosecution witnesses. The statement of the P.W.3 Bhupendra Singh before whom accused appellant Pappu had confessed his guilt is complete chain of evidence showing his involvement. The intention of the accused persons can be deduced from their conduct and surrounding circumstances. There is no reason to implicate the accused appellants in the present case exculpating the actual culprits. The testimony of Bhupenra Singh (P.W.3) is authenticated by the testimony of other prosecution witnesses hence findings recorded by the learned trial court cannot be interfered as it is a case of murder by strangulation for not fulfilling the demand of huge amount of ransom for liberating the victim. Learned counsel for the complainant has relied upon the decision of the Apex court in re Pakkirisamy Versus State of Tamil Nadu (1997) 8 SCC 158 wherein it is held that it is a rule of caution that the court would generally look for an independent reliable corroboration before placing any reliance upon an extra-judicial confession. It is no doubt true that extra judicial confession by its very nature is rather a week type of evidence and it is for this reason that a duty is cast upon the court to look for corroboration from other reliance evidence on record. Such evidence requires appreciation with a great deal of care and caution. If such an extra judicial confession is surrounded by suspicion circumstances, its credibility becomes doubtful and consequently it loses its importance. In the facts and circumstances of the case, the court below committed no error in relying upon the extra judicial confession which is corroborated from several other proved circumstances. In addition, learned counsel for the complainant has placed reliance upon a catena of decisions in re State of Rajasthan Versus Raja Ram (2003) , SCC 180, Rameshwar Chandubhai Rathod Versus State of Gujarat, (2009) 5,SCC 740 and Sahadevan & another versus State of Tamil Nadu (2012) 6 SCC 403.

It has been dealt with Hon'ble Apex Court in the aforesaid judicial pronouncements that extra judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

The extra judicial confessional statement of appellant Pappu Pandey requires no further corroboration. The confessional statement of appellant Pappu Pandey was natural inflow of his emotional sentiments. When Bhupendra Singh (P.W.3) asked him to give him details, the accused appellant Pappu Pandey disclosed the entire incident in a natural and intrinsic manner. The defence has tried to take benefit of discrepancy in his statement ,the trial court has dealt with it with other material on record. The trial court has found the statement of Bhupendra Singh (P.W.3) trustworthy and convincing with respect to the extra judicial confession made by the by the accused appellant Pappu Pandey. His testimony cannot be discarded on the dint of trivial discrepancies.

The learned counsel for the complainant stresses that where the case rests upon the circumstantial evidence, the circumstances from which conclusion of guilt is to be drawn has been established by the prosecution witnesses. The chain of evidence is congruous with the guilt of the accused appellants. In the instant case there is not only direct evidence of Major Singh (P.W.2) who had gone along with victim Goldee and thereafter the victim Goldee did not come back. The prosecution has established all the pieces of incriminating circumstances by reliable and clinching evidence forming a chain of events that the offence was not committed by any other person other than the accused appellants.

Learned counsel for the complainant has also relied upon a catena of decisions on the point of circumstantial evidence viz. Gambhir versus State of Maharashtra (1982) 2,SCC 51, Padala Veera Reddy Versus State of Andhra Pradesh and others 1989 Supp. (2) SCC 706 and Sattatiya alias Satish Rajanna Kartalia Versus State of Maharashtra (2008 ) 3,SCC 210. wherein it has been illustrated that in case the prosecution has succeeded in establishing the chain of circumstances leading to inescapable conclusion, the accused had committed the crime, the accused can be convicted looking his entire conduct.

The testimony of complainant (P.W.1) establishes complete chain of events right from the elusive and evasive inducement till the recovery of the dead body of Goldee. The recovery of incriminating articles belonging to the victim was sufficient to have last seen in the company of the accused appellants. There is sufficient material on record to prove the intention of the accused appellants to commit murder of the victim Goldee and conceal his body in the field so as to wipe out the evidence. The surrounding circumstances are conclusive of the guilt of the appellants and leave any other hypothesis. The testimony of P.W.2 Major Singh represents igniting picture of manner of abduction and commission of offence for non-fulfillment of ransom. The abduction of Goldee, son of the complainant (P.W.1) was done in a very planned and well designed manner by adopting illusive and deceitful trick. The accused persons have executed their plan in a very artful and ingenious manner by alluring him to get his tractors sold and he was called at the agency of the appellant Arun Bajpayee . Thereafter Arun Bajpayee left the place and it was informed by co-accused Pappu Pandey that the victim Goldee was sitting in the agency and then at the inkling and connivance of accused Arun Bajpayee, Raju Pandey took him away and committed strangulation in association with co-accused. Major Singh (P.W.2) is the witness of fact who has proved that Arun Bajpayee was making conversation on phone that the victim was in his custody. Baldeo Singh (P.W. 1) had proved the demand of ransom of Rs. 15.00 lacs by Raju Pandey. The accused persons had warned the complainant that he would not disclose this incident to anyone otherwise, the son of the complainant (P.W.1) would be eliminated. Somehow the complainant (P.W.1) after arranging Rs. 5.00 lacs left for the given address with Pappu Pandey. Thereafter Pappu Pandey had taken the complainant on the pretext of showing his son and then Raju Pandey came near the car. He had shown his son who was sitting in the car of Raju Pandey. One unknown person was also sitting inside the car. This incident had taken place on 9.2.2003 and thereafter the accused persons exposed the complainant to arrange the money till 12th February 2003. Thereafter the complainant was informed that a dead body was lying in the field within the precinct of Faridpur Police Station District Bareilly. However, from the statement of P.W.3 Bhupendra Singh Barar, it is proved that the accused appellant Pappu Pandey had made confession on 26.3.2003 with regard to murder of Goldee. The accused Pappu Pandey had confessed that he in association with Raju Pandey had taken away Goldee in the cloak of demanding ransom of Rs. 15.00 lacs. He also uncovered that Raju Pandey had killed Goldee on account of non-fulfillment of demand of Rs.15.00 las. The confession of guilt made by Pappu Pandey before Bhupendra Singh Barar (P.W.3) is voluntary and emotional inflow of succouring to the complainant. Bhupendra Singh Barar (P.W.3) is independent witness and has narrated the prosecution case in a very natural and genuine manner. Lastly learned counsel for the complainant has relied upon the judgment of the Apex court in re State of U.P.versus Kishan 2005,(51) ACC 461 holding that the object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order , which public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence in built in the sentencing system. The conviction and sentence awarded by the learned trial court deserves to be upheld.

We have considered the submissions advanced by the learned counsel for the appellants, learned counsel for the complainant and learned AGA and have been taken through the material on record.

Before delving into the merits of the case, it is necessary to examine the certain provisions which are relevant for the purpose of this case.

Section 362 IPC defines whoever by force compels or by any deceitful means induces any person to go from any place, is said to abduct that person.

Section 363 IPC defines Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description of a term which may extend to seven years and shall also be liable to fine.

Section 364 IPC defines whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered shall be punished with imprisonment for life or rigorous imprisonment for term which may extend to ten years and shall also be liable to fine.

There is also another provisions section 364A IPC dealing with kidnapping or abduction for ransom.

Section 364A IPC defines whoever kidnaps or abducts any person or keep a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organist or and other person to do or abstain from doing any act or to pay a ransom shall be punishable with death or imprisonment for life and shall also be liable to fine.

It has been argued by the learned counsel appearing on behalf of the Arun Bajpayee that he has been implicated in the present case with some ulterior motive. The offence of kidnapping has not been proved against him. He had not taken out the victim from the custody of lawful guardianship. Even if it is admitted for the sake of argument that he had called the victim on the pretext of his tractor being sold, he cannot be said to have made any demand of ransom from the victim. In this connection, the statement of Major Singh (P.W.2) is very relevant who had disclosed about the manner that the victim had asked Major Singh (P.W.2) to associate him for proceeding to Pilibhit as Arun Bajpayee had called him to deal with the selling of tractors with the customers waiting there. This information which was unearthed by the victim to Major Singh (P.W.2) has been diluted by the complainant in his statement when he deposed that on 1.2.2003 Arun Bajpayee came at his residence and asked his wife Smt. Charan Jeet Kaur to send Goldee at the Indo Farm Agency Assam situate at Assam Crossing with the object of getting his ¾ tractors sold. His son Goldee associated with Major Singh (P.W.2) left from house towards Indo Farma Agency situate at Assam Road on motor cycle at about 9.00 'O' clock on 2.2.2003. This part of evidence clearly shows that victim was taken away in a deceitful and delusive manner from the house so that no body can guess or realize that he will be abducted for ransom. Thereafter Major Singh (P.W.2) narrated the entire incident which had occurred with him and Goldee, to the complainant on 4.2.2003. The statement of complainant P.W.1 corroborates the modus operandi as to what was stated by Major Singh (P.W.2) to the complainant P.W.1 as such the statement of complainant (P.W.1) cannot be said to be hearsay or fabricated. So far as Pappu Pandey is concerned, he was not named in the first information report but his complicity surfaced when he made telephonic conversation with Balkar Singh resident of Pooranpur to communicate Baldeo Singh (P.W.1) to come at Bareilly with ransom. The statement of Baldeo Singh (P.W.1) showing the complicity of Pappu Pandey is credential and trustworthy. The appellant Arun Bajpayee was arrested on 15.2.2003 and from the pocket of his shirt, the photo of abductee Goldee and two notes of ten rupees were recovered which goes to show that Pappu Pandey in association with Arun Bajpayee had played active role in taking away the victim Goldee and also eliminating him for ransom. It is evident that Pappu Pandey had given two three addresses to meet with Baldeo Singh (P.W.1) for taking the ransom. It cannot be said that the addresses which were given by Pappu Pandey on phone to Balkar Singh resident of Pooranpur were imaginative. Pappu Pandey had clearly disclosed that he will either meet near the Fun City or near University Road or at the crossing of Shahjahanpur. All these show that the appellant Pappu Pandey was in agreement with Arun Bajpayee in designing the plan of abduction for ransom. The argument that no incriminating articles were recovered at the instance of Pappu Pandey also stands discredited while gold chain and wrist watch was recovered at the instance of Raju Pandey as such the appellant Pappu Pandey has acted in concert and played potential role in liquidating the victim Goldee.

From the evidence on record it is conspicuous that on 1.2.2003 Arun Bajpayee had called the victim Goldee from his house in the guise of getting his ¾ tractor sold. Goldee, the son of the Baldeo Singh (P.W.1) was called at Indo Farm situate at Assam Road Crossing in a well design and pre-concerted plan. The victim (Goldee) in association with Major Singh (P.W.2) left from house at about 9.00 A.M. on 2.2.2003 on motor cycle and reached at Indo Farm Agency situate at Assam Road crossing where Arun Bajpayee was sitting. In the presence of Major Singh (P.W.2) Arun Bajpayee was conveying information to Raju Pandey to arrive immediately as Goldee had come. Raju Pandey who was well known to the victim came on Maruti Car and got him seated. The motive part also stands fully corroborated that on previous occasion there was a heated argument with complainant and Raju Pandey as Raju Pandey had illicit relation with Manendra Kaur alias Mintee , the daughter in law of the complainant. Raju Pandey was in search of causing physical and fiscal loss to the complainant and his family members. Baldeo Singh (P.W.1) used to intervene in the extra marital relation of accused Raju Pandey with Manendra Kaur alias Mintee ,the wife of Jitendra Singh his elder son but the accused appellant Raju Pandey did not mend his ways rather threatened to face dire consequences. The incident of kidnapping of Goldee has taken place on 1.2.2003 while the abductee Goldee was to be wedded with the daughter of Amarjeet Singh on 14.2.2003. The abductee Goldee was abducted in a planned and well designed manner on account of animus and vendatta. The victim Goldee was done to death in a very gruesome and infernal manner by the accused persons to satiate their personal hostility. The corpse was recovered on 18.2.2003 from the field of Ajhar Husain. The accused persons adopted very foul and loathsome device of destroying the evidence by concealing the corpse of Goldee in the field. During trial Raju Pandey was done to death as such it cannot be said that the appellants were not involved in abduction and elimination of victim Goldee in a concerted and planned manner. Minor discrepancies which are due to normal errors of perceptions has rightly been discarded as there is no discrepancy in narrating the actual incident.

It has also been stressed by the learned counsel for the appellants that charges were not properly framed to bring home the guilt of the accused persons under section 364 IPC. When charges were framed, no objection was ever raised against the error in framing the charges and they had also not pointed out any lacunae in framing of the charges and for the first time it has been raised before this Court and on that premise it has been emphasized that entire prosecution is vitiated in law. No prejudice is caused to the accused n account of non-framing of charges for the particular offence. Accused persons cannot be derive any benefit on account of any aberration in the framing of charges. The Court will act upon the substance of the case rather than delving into technicalities. The focal point of the Court is to examine as to whether the accused had badly been prejudiced for want of specific charge . Mere non-framing of charge under section 364 IPC is an irregularity and not an illegality unless it has occasioned to a failure of justice hence the trial cannot be vitiated.

Section 464 in The Code Of Criminal Procedure, 1073 ought to be noticed at this juncture.

464. Effect of omission to frame, or absence of, or error in, charge-

1. No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

2. If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may

a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;

b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.

This section is in mandatory terms and specifically provides what is to be done in cases where a charge is not framed or there is an error or omission or irregularity in framing of the charge. From the unequivocal terms of the section, it can be stated that a finding ,sentence or order could be set aside only in those cases where the facts are such that no valid charge could be preferred against the accused in respect of the facts proved secondly if the charge could be framed and yet it has not been framed but no failure of justice has in fact been occasioned thereby the finding, sentence or order of the Court of competent jurisdiction is not to be set aside on that ground. Thirdly, if there is failure of justice occasioned by not framing of the charge in case of an error or omission or irregularity in the charge, retrial of the case is to be directed under sub-section (2).

In the case of Lallan Rai vs State of Bihar 2002 supplementary ACC 407 SC the Apex court has observed "It is axiomatic that procedural law is the handmaid of justice and the Code of Criminal Procedure is no exception thereto. Its incorporation in the statute book has been to subserve the ends of justice and non observance of the technicality alone would not be enough to out weigh the course of justice.

In the present case it cannot be said that failure of justice has occasioned if the charge has not been framed properly which is otherwise incurable in nature. So far as the post mortem report of the deceased Goldee is concerned, it is in corroboration with the prosecution version. The testimony of the witnesses who have supported the prosecution version with regard to last seen is convincing and trustworthy. The victim was shown to have seated in the car of the accused persons. The complainant had paid a sum of Rs. 5.00 lac to Raju Pandey in front of Pappu Pandey. The dead body of victim Goldee was identified by Baldeo Singh (P.W.1). From his appearance and physique,it elucidated that the victim was done to death in a very dastardly and brutal manner by strangulation. There is no contradiction in the testimony of persecution witnesses rather it delineates the prosecution version in a very vivid and natural manner.

This Court does not see any cogent reason to disbelieve the statement of the prosecution witnesses which is duly supported by clinching material and the medical evidence as the entire evidence has been proved by the eye witness account. There is no material on record to authenticate that witnesses had any motive to falsely implicate the accused persons. The evidence of the witnesses are unimpeachable and any minor contradictions found therein were not fatal to the prosecution version.

The accused appellants have been convicted and sentenced under section 302 IPC with the aid of section 34 IPC. Section 34 IPC is a rule of evidence and does not create a substantive offence. Common intention is a question of fact depending upon the circumstances of each case. The common intention is inferred from the surrounding circumstances and the conduct of the accused persons. The victim has met to unnatural death on account of strangulation. The role played by each accused demonstrates that they shared the common intention who committed the ghastly and infernal murder of victim Goldee by strangulation.

So far as extra judicial confession made by the appellant Pappu Pandey before Bhupendra Singh (P.W.3) is concerned, it has been dealt with in extenso in the preceding paragraph. Evidentiary value of extra judicial confession must be examined and adjudged as an integrated and not separately while it indicates the guilt of the accused persons with certainty. There is a chain of evidence so complete that it would not leave any doubt to show that in all human probabilities the accused appellants have done the ghastly and infernal act of murder of the son of the complainant so as to satiate their personal vendatta. All the prosecution witnesses have withstood the test of searching cross examination but nothing could be elicited by the defence to disbelieve their testimony.

From the analysis of the verbose discussions, it emerges out that the learned trial court has dealt with all the issues in extenso and placed credance upon the testimony of the prosecution witnesses. The accused appellants have searched out very tactful device of hiding the evidence. The prosecution has proved the guilt of the accused appellant beyond reasonable doubt. Section 106 of Indian Evidence Act clearly contemplates that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The inference can be drawn regarding the death of the accused persons by vitrue of their special knowledge .In the case of State of Tamil Nadu versus Rajendra 1999 Vol 38 ACC 754 SC and State of U.P.Versus Dr. RavindraPrakash Mithal AIR 1992 SC Page 2045, it has been observed that in a case of circumstantial evidence, what is necessary to be examined by a Court is whether the circumstances from which the conclusion is drawn have been proved and such circumstances whether are of such conclusive nature that, it is consistent only with the hypothesis of guilt and inconsistent with the innocence of the accused.

The complainant had seen his son Narendra Jeet alias Goldee, in the car of co-accused Raju Pandey, who was abducted for ransom in the cloak of selling his three/four tractors sold by co-accused Arun Bajpayee. Thereafter the victim was not seen, the burden lies upon the accused persons to smash the prosecution version what they did after abduction of Goldee. In the absence of any explanation from the side of accused appellants renouncing the charges of abduction, there are every possibility evincing towards the guilt of the appellants that they have committed murder of victim Goldee in a very hellish and diabolical manner.

Section 106 Evidence Act clearly demonstrates that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. Section 106 Evidence Act will be attracted when the prosecution has succeeded in providing the facts from which reasonable inference can be drawn regarding his death by accused persons by virtue of their special knowledge and could have offered explanation which might lead the court to draw a different inference.

In the statement of accused persons under section 313 Cr.P.C mere denial of the prosecution case coupled with absence of any explanation would provide an additional link in the chain of circumstances to disprove the innocence of the accused persons. Requirement of the prosecution to establish no missing link in the chain of circumstances highlighted in the Joseph vs State of Kerala (2000) 5 SCC 197 and Bhodhraj @ Bhodhi and others Vs. State of J.K. Further in the matter State of U.P.Versus Kishan (Supra),Hon'ble Apex Court has rightly observed that object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. The Court would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order , which public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence in built in the sentencing system.

In the light of verbose and prolix discussion, we come to the irreversible and irrevocable conclusion that the impugned judgment and order dated 11.2.2009 passed by the learned Additional District & Sessions Judge Pilibhit does not suffer from any legal infirmity or vulnerability requiring interference by this Court. Conviction and sentence awarded by the learned trial judge is well based on evidence on record hereby maintained and upheld.

Resultantly, both the appeals fail and are hereby dismissed.

The judgment be certified and be kept on record.

Lower court record be transmitted to the court below forthwith.

A copy of this judgment be placed in connected Criminal Appeal No. 1183 of 2009 (Pappu Pandey versus State of U.P.) for ready reference.

Order Date :- 20.7.2018

Naim