Monu Alias Chandra Prakash And ... vs State Of U.P.
2018 Latest Caselaw 819 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 4
 

 
Case :- CAPITAL CASE No. - 1943 of 2017
 

 
Appellant :- Monu Alias Chandra Prakash And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sudhir Kumar Agarwal,Ronak Chaturvedi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Rajiv Gupta,J.

Heard Sri G.S. Chaturvedi, learned Senior Advocate, assisted by Sri Ronak Chaturvedi, learned counsel for the appellants and Sri Shiv Kumar Pal, learned Government Advocate assisted by Sri J.K. Upadhyay, learned A.G.A. for the State.

Death reference case no. 06 of 2017 and Criminal Appeal No. 1943 of 2017 arise out of the judgement and order dated 24.03.2017 and 28.03.2017 passed by learned Additional Sessions Judge/Fast Track Court No.1, Muzaffar Nagar in S.T. No. 184 of 2011 (State Vs. Monu alias Chandra Prakash and another) arising out of Case Crime No. 322 of 2010 and S.T. No. 185 of 2011 (State Vs. Neetu) arising out of Case Crime No. 358 of 2010 whereby the appellant no. 1, Monu alias Chandra Prakash and appellant no. 2, Neetu have been convicted and sentenced to be hanged by neck till death together with fine of Rs. 1,000/- each and in default of payment of fine, 1 year additional imprisonment u/s 364-A I.P.C. and u/s 302 r/w 34 I.P.C., 7 years rigorous imprisonment and a fine of Rs. 1,000/- each and in default of payment of fine, 1 year additional rigorous imprisonment u/s 201 I.P.C. and 2 years rigorous imprisonment and a fine of Rs. 500/- each and in default of payment of fine, 5 months additional simple imprisonment u/s 403 I.P.C. The appellant no. 2, Neetu was further convicted u/s 25 Arms Act and sentenced to 2 years simple imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, six months additional simple imprisonment.

The prosecution case as set out in the written report (Ext.Ka.1) of P.W.1 informant Md. Rashid is that on 03.10.2010 while his sons, Wasid and Arshad were sitting in their junk shop, on Shahpur turning, at about 4 p.m. his son Arshad received a call on his mobile no. 8126197036 from some unknown person who asked him to meet him at some place in connection with purchase of some items on which his son, Arshad left his shop on his motorcycle. He did not return for quite sometime. His son Washid received a phone call from the mobile number of Arshad from someone who informed him that his brother Arshad had been kidnapped and his motorcycle was lying parked in Wahlana Chowk. He immediately rushed to Wahlana Chowk where he found Arshad's motorcycle parked and although he looked around all over but he could not get any clue about his son and he suspected that his son has been kidnapped by Farmaan, son of Salaam and his brother-in-law, Aasu and his nephew, Butta.

On the basis of the aforesaid written report (Ext.Ka.1), Case Crime No. 322 of 2010 u/s 364 I.P.C. was registered at P.S.- Mansoorpur, District- Muzaffar Nagar on 04.10.2010 at about 7:45 a.m. Check F.I.R. (Ext.Ka.3) and the corresponding G.D. Entry vide rapat no. 10, time 7:45 hours date 04.10.2010 were prepared by P.W.4 Constable Brijesh Kumar, carbon copy whereof was brought on record as (Ext.Ka.4).

The investigation of the case was entrusted by P.W.7 S.I. Anil Kumar Singh, officer in-charge, P.S.- Mansoorpur to one S.I. Pritam Singh who recorded the statement of the scribe of the F.I.R. and investigated the matter till 06.10.2010. On that date the investigation of the case was taken over by P.W.7 S.I. Anil Kumar Singh himself. He arrested all the three accused appellants on 06.10.2010 at about 15 hours from the main road while they were going somewhere on a motorcycle. The search of accused Monu alias Chandra Prakash (A1) led to recovery of one vodafone mobile 125 of black colour sim no. 8126197036 of airtel inserted in it. He told the Investigating Officer that the aforesaid mobile belonged to the kidnappee Arshad and he had made ransom calls from the same phone. Another black colour mobile A-5 Tel, A.G.-88 with sim no. 989774680 inserted in it and IMEI no. whereof was 952650040010478 was also recovered from left pocket of his trouser. The search of accused Jitendra led to recovery of one micromax mobile 250 of black colour with red patterns in which sim no. 9536236839 was inserted and IMEI no. whereof was 910001056633149. The search of accused Neetu (A2) did not result in recovery of any article from him. The accused-appellants could not produce any document pertaining to the ownership of the motorcycle bearing registration no. D.L.-5-5B-1774, C.D. Dawn of red colour which they were riding. On being interrogated about the kidnapping of Arshad, all the three accused confessed that they had kidnapped Arshad on 03.10.2010 and after committing his murder, they had hidden his dead body in sugarcane field of Omkar Singh, resident of Fahimpur and expressed their willingness to get the dead body of Arshad recovered. The recovery memo (Ext.Ka.12) of mobile sets recovered from accused Monu alias Chandra Prakash (A1) and Jitendra was prepared by the Investigating Officer on the spot, the same were wrapped in separate bundles and sealed on the spot. Thereafter, the Investigating Officer along with the members of his force and the accused-appellants went to the sugarcane field of Omkar Singh. The dead body of Arshad was recovered by them at about 4 a.m. from a place about 15 paces from the drain existing in the northeast portion of Omkar Singh's sugarcane field. The dead body which was covered with leaves, was identified by deceased's father, P.W.1 informant Md. Rashid and uncle Sajid as that of Arshad in the light of torches. Both hands of the deceased were tied with a green colour thin plastic rope and a tape was pasted across his mouth and both his legs were tied with a tape. The rope and the tapes were removed and seized and recovery memo thereof was prepared by S.I. B.P. Singh. The rope and the pieces of tape were kept in a piece of cloth and sealed on the spot. The dead body of the deceased was also sealed by the Investigating Officer on the spot. Recovery memos of the dead body, plastic rope and the tapes with which the deceased had been gagged and his hands and legs tied, were prepared by S.I. B.P. Singh on the dictation of P.W.7 S.I. Anil Kumar Singh. P.W.1 informant Md. Rashid, deceased's uncle Sajid, Constable Sompal, Constable Sanjiv Kumar, S.I. Munendra Singh, S.I. Brijesh Kushwaha, Constable Rajiv Kumar, Constable Vikas Kumar, Constable Om Pal Singh, Constable Suraj Pal, Constable Ram Kishor Sharma, Constable Rama Shankar Sharma, Constable Mir Hasan, Constable Akjaal Ahmad, Constable Roshan Singh, Constable Sonu Sharma, Constable Vikas Sharma, Constable Anjani, S.O. Anil Kumar Singh and S.I. B.P. Singh had put their signatures on the recovery memos.

The place of recovery of the dead body was inspected by the Investigating Officer on the same day who also prepared its site plan. The inquest on the dead body was conducted by P.W.7 Anil Kumar Singh who thereafter prepared the inquest report, photo lash, letter addressed to R.I., letter addressed to C.M.O., and other police forms. The dead body of the deceased was then sealed and dispatched to the mortuary for postmortem. The postmortem on the cadaver of Arshad was done by P.W.3 Dr. Yogesh Pd. Agrawal on 06.10.2010 at about 11:50 p.m. who also prepared his postmortem report and proved the same as (Ext.Ka.2). The postmortem report of the deceased indicates that no external injury was found on his body and the cause of death was asphyxia due to smothering.

Recovery of one 315 bore country-made pistol was made on 20.10.2010 on the alleged pointing out of Neetu (A2) from the sugarcane field of one Anil, resident of Dudhahedi, P.S.- Mansoorpur at about 7:30 a.m. and its recovery memo was prepared on the spot (Ext.Ka.14). On the basis of recovery memo of 315 bore country-made pistol (Ext.Ka.14), Case Crime No. 358 of 2010 u/s 25 Arms Act was registered at P.S.- Mansoorpur, District- Muzaffar Nagar on 20.10.2010 at about 7:30 a.m.

Upon completion of investigation, charge-sheet was submitted by the Investigating Officer in Case Crime No. 322/2010 u/s 364-A, 302, 201 and 403 I.P.C. against all the three accused namely Monu alias Chandra Prakash (A1), Neetu (A2) and Jitendra before the Chief Judicial Magistrate, Muzaffar Nagar on which he took cognizance of the aforesaid offences against all the three charge-sheeted accused and summoned them. Since accused Jitendra was declared juvenile in conflict with law, his trial was separated from that of appellants, Monu alias Chandra Prakash and Neetu. The Investigating Officer submitted charge-sheet against Neetu (A2) u/s 25 Arms Act in Case Crime No. 358 of 2010 before the Chief Judicial Magistrate, Muzaffar Nagar. Both the cases were committed for trial of the accused to the court of Sessions Judge by Chief Judicial Magistrate, Muzaffar Nagar by his order dated 04.02.2011 where the two cases were registered as S.T. No. 184 of 2011 (State Vs. Monu alias Chandra Prakash and another) and S.T. No. 185 of 2011 (State Vs. Neetu), from where both the session trials were made over for trial to the Court of Additional Sessions Judge/Fast Track Court No.1, Muzaffar Nagar who on the basis of material collected during investigation and after hearing the prosecution and the accused on the point of charge, framed charge u/s 364-A, 302 r/w 34, 201 and 403 I.P.C. against both the accused-appellants while a separate charge u/s 25 Arms Act was framed against Neetu (A2) in S.T. No. 185 of 2011. The accused-appellants abjured the charge and claimed trial.

The prosecution in order to prove its case examined as many as eight witnesses of whom P.W.1 informant Rashid and P.W.2 Wasid were examined as witnesses of fact while P.W.3 Dr. Yogesh Pd. Agrawal, P.W.4 Constable 582 Brijesh Kumar, P.W.5 S.I. Devi Ram, the first Investigating Officer of the case, P.W.6 Constable 816 Pratap Singh, P.W.7 S.I. Anil Kumar Singh, the second Investigating Officer of the case and P.W.8 S.I. Hoshiyar Singh were produced as formal witnesses.

The accused-appellants in their statements recorded u/s 313 Cr.P.C. denied the prosecution case and the evidence adduced against them as false and claimed themselves to be innocent. The accused-appellants however, did not examine any witness in defence.

Learned Additional Sessions Judge/Fast Track Court No.1, Muzaffar Nagar, after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted both the appellants u/s 364-A, 302 r/w 34, 201 and 403 I.P.C. and awarded aforesaid punishments to them.

Hence, this appeal.

Sri Ronak Chaturvedi, learned counsel appearing for the appellants submitted that it is a fundamental principle of criminal jurisprudence that circumstantial evidence should point invariably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused. He next submitted that the incriminating circumstances on the basis of which the trial court has convicted the appellants namely discovery of dead body on the alleged pointing out of the appellants, recovery of mobile set allegedly belonging to the deceased from the possession of Monu alias Chandra Prakash (A1), although the prosecution miserably failed to lead any legally admissible evidence to prove that the deceased's body was recovered on the pointing out of the appellants pursuant to the disclosure statements made by them before the Investigating Officer after their arrest and that the black colour mobile allegedly recovered from the possession of Monu alias Chandra Prakash (A1) on his search after his arrest, belonged to the deceased and that ransom calls were allegedly made by the appellants from the mobile phone of the deceased to his brother P.W.2 Wasid and father P.W.1 informant Rashid. In the absence of any call detail records duly accompanied by a certificate issued u/s 65-B of the Indian Evidence Act which would have been the best evidence to prove that the ransom calls allegedly received by the informant and his son were made from the cellphone belonging to the deceased, having not been filed, the evidence on record is wholly inadequate and insufficient to hold that the appellants were the perpetrators of the offence. He next submitted that P.W.1 informant Md. Rashid, father of the deceased had neither in the F.I.R. nor in his statement recorded u/s 161 Cr.P.C. stated that the mobile of the deceased had two numbers namely 8126197036 and 9528419614. In the F.I.R. and also in his statement recorded u/s 161 Cr.P.C., P.W.1 informant Md. Rashid had categorically stated that the number of cellphone of his son, Arshad was 8126197036. However, after the recovery of a black colour mobile from the possession of Monu alias Chandra Prakash (A1) after his arrest which the prosecution claims he confessed as that of deceased Arshad but when the number of sim card which was inserted in that cellphone was found to be 8126197036, the prosecution got the second statement of the first informant recorded in which he obviously at the behest of the Investigating Officer, stated that his son Arshad had two numbers namely 8126197036 and 9528419614. He next submitted that although in the recovery memo of the mobiles (Ext.Ka.12), it is mentioned that the number of black colour mobile which was recovered from the possession of Monu alias Chandra Prakash (A1) was 8126197036 which he had confessed to be that of the deceased Arshad but neither the sim card no. 8126197036 was exhibited during the trial nor the IMEI no. of the said cellphone was disclosed by the Investigating Officer and as such there is absolutely no evidence on record proving that the black colour mobile recovered from Monu alias Chandra Prakash (A1) belonged to the deceased. The prosecution having failed to exhibit and prove the alleged disclosure statements of the accused made by them after their arrest before the police during the trial and it not being the prosecution case that the disclosure statements of the accused-appellants were not reduced to writing, the recovery of the deceased's dead body pursuant to their disclosure statements is inadmissible under Section 27 of the Evidence Act. He lastly submitted that neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and the impugned judgement and order are liable to be set-aside.

Per contra Sri Shiv Kumar Pal, learned G.A. appearing for the State submitted that it is fully established from the evidence on record that the deceased after he had left his shop on 03.10.2010 at about 4 p.m. on receiving a call on his cellphone from the accused asking him to meet him in connection with purchase of some items, he was kidnapped by them and later murdered and his dead body dumped by them in the sugarcane field of Omkar Singh. He next submitted that the circumstances from which the conclusion of guilt of appellants has been drawn stand fully established and the same are consistent only with the hypothesis of the guilt of the accused. He next submitted that the dead body of the deceased having been recovered on the pointing out of the appellants pursuant to the disclosure statements made by them before the Investigating Officer after their arrest and the appellants having failed to come up with any explanation for having knowledge about the place where the dead body of the deceased was lying dumped, concealed under leaves, is sufficient to connect the appellants with the offence with which they have been charged. Moreover, the prosecution story finds full corroboration from the medical evidence on record and hence, neither the recorded conviction of the appellants nor the sentence awarded to them merit any interference by this Court. This appeal lacks merit and is liable to be dismissed. The death sentence awarded to them deserves to be confirmed.

We have heard learned counsel for the parties and examined the entire lower court record.

The only question which arises for our consideration in this appeal is whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not ?

Admittedly the conviction of the appellants in this case is based upon circumstantial evidence. There is no direct evidence either of kidnapping of the deceased by the appellants or their having committed his murder.

In Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116, a Bench of three Judges of the Apex Court, after analyzing various aspects, laid down certain cardinal principles for conviction on the basis of circumstantial evidence. The Apex Court laid down that the following conditions must be fulfilled before a case against an accused can be said to be fully established :-

"153.......(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. .... ....

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

It is thus clear that even in the absence of eye-witness after various circumstances relied on by the prosecution relating to the guilt, are fully established beyond doubt, the court is free to record conviction. However the chain of events must be complete in order to sustain the conviction on the basis of circumstantial evidence.

We now proceed to evaluate the evidence led by the prosecution in this case to establish the guilt of the appellants on the touchstone of the principles enunciated by the Apex Court in the case of Sharad Birdhichand Sarda (supra).

P.W.1 informant Md. Rashid in his statement made before the trial court, corroborating the facts stated by him in his written report (Ext.Ka.1), deposed that on 03.10.2010, his son P.W.2 Wasid and Arshad (deceased) were sitting in their junk shop situate on Shahpur turning. On that date his son Arshad (deceased) had received a call from an unknown person on his mobile no. 8126197036 who requested him to meet him in connection with purchase of some junk items on which deceased Arshad had left the shop and gone somewhere. He did not return despite lapse of considerable time. His second son P.W.2 Wasid received a call from someone on his mobile phone that Arshad (deceased) had been kidnapped and his motorcycle was lying parked in Wahlana Chowk. Thereafter, P.W.2 Wasid informed him about the call received by him on which he along with few other persons reached Wahlana Chowk where he found the motorcycle of his son Arshad parked but no one was around. He searched for his son in and around the place where his motorcycle was parked but he found no traces of his son. His son was very friendly with Farmaan, son of Salaam, his brother-in-law, Aasu and his nephew, Butta and he suspected that his son Arshad had been kidnapped by the aforesaid persons and on the basis of suspicion, he had nominated them as accused in the F.I.R. which he had lodged on the next day. He further deposed that the mobile set of his son Arshad had two sim numbers namely 8126197036 and 9528419614. The accused had made several ransom calls on the mobile phones of his son P.W.2 Wasid and his brother Sajid from the aforesaid two phone numbers and demanded different sums of money ranging from 15 lakhs to 10 lakhs to 8 lakhs as ransom. He also deposed that the Investigating Officer of the case along with the members of his police force, had arrested the accused on 06.10.2010 at about 3 p.m. in his presence and the search of Monu alias Chandra Prakash (A1) had led to recovery of his son's mobile phone from the right pocket of the trouser which he was wearing at the time of his arrest which he had confessed before him and the police personnel, belonged to the deceased in which sim no. 8126197036 of airtel was inserted. He also deposed that all the three accused had confessed before him and the police personnel that they had kidnapped his son Arshad on 03.10.2010 for ransom and after committing his murder, they had hidden his dead body in the sugarcane field of Omkar Singh and the dead body of his son Arshad was recovered in his presence on the pointing out of the accused-appellants at about 4 a.m. on 06.10.2010. He also identified the accused-appellants, Monu alias Chandra Prakash and Neetu who were present in the Court as the same persons who were arrested by the police in his presence and who had confessed their crime. P.W.1 informant Md. Rashid, in his cross-examination on page 38 of the paper book, stated that he was neither aware of the mobile phone number from which his son Arshad had received the first call nor he had disclosed the aforesaid number to the police. On page 44 of the paper book in his cross-examination, P.W.1 informant Md. Rashid admitted that the written report did not contain any recital that his son Arshad while leaving his shop on 03.10.2010 had taken away with him his mobile phone, number whereof was 8126197036. On page 42 of the paper book in his cross-examination, P.W.1 informant Md. Rashid stated that the information about his son's motorcycle being parked in Wahlana Chowk was received by him on 03.10.2010 at about 3 p.m. Thereafter, he had gone to Wahlana Chowk with his neighbours. They had not informed the police. However, after the motorcycle was found, he had informed the police and till the police had arrived, they had not touched the motorcycle. The motorcycle was taken away by the police and returned to him on the same day in the night. He did not know whether any papers pertaining to the seizure of the motorcycle were prepared by the police or not. He neither remembered the name of the person to whom he had given the motorcycle at the police station nor the name of the person who had returned it to him.

The deceased's mobile set allegedly recovered from the possession of Monu alias Chandra Prakash (A1) was neither produced before him during the recording of his statement before the trial court nor identified by him as that of his deceased's son.

P.W.2 Wasid, son of P.W.1 informant Md. Rashid deposed before the trial court that he owned a junk shop on G.T.B. Road, Mansoorpur at Shahpur turning. The occurrence is of 03.10.2010 when he and his brother Arshad (deceased) were sitting in their junk shop. His brother Arshad received a phone call on his cellphone from some unknown person who told him that if he wants to purchase saria, he can come and see the consignment on which his brother left the shop and went towards Berajpur on his Splendor Plus motorcycle bearing registration no. U.P.12 Q-4417. After sometime, he received a phone call on his mobile no. 9719463620 from his brother Arshad's mobile no. 8126197036 from an unknown person who told him that his brother had been kidnapped and his motorcycle had been left parked in Wahlana Chowk. He informed his father about the phone call immediately whereafter his father went to Wahlana Chowk with some other persons. The persons who had kidnapped his brother Arshad had demanded Rs. 15 lakhs as ransom by calling him on his mobile phone. The miscreants had asked him to come to Khatauli Railway Crossing with the money but when he had gone there, he did not find anyone. His brother Arshad had two sim cards numbers whereof were 8126197036 and 9528419614. He had received ransom calls from both the aforesaid numbers on two days. The miscreants had reduced the amount of ransom from 15 lakhs to 10 lakhs and then to 8 lakhs and when he had asked the kidnappers to let him talk to his brother Arshad, they had refused. The demand of ransom made by them had convinced him that his brother had been kidnapped for ransom and not for committing his murder. His brother Arshad was murdered after three days and his dead body was recovered on 06.10.2010. P.W.2 Wasid, in his cross-examination on page 53 of the paper book, deposed that neither the mobile phone nor the sim card of his brother Arshad (deceased) which was allegedly recovered by the police from the accused-appellants, were shown to him. Apart from the mobile of Arshad, he had received a call from another mobile no. 9528419614 on his mobile phone twice two days after the incident but he did not remember the dates on which he had received calls from the aforesaid number. He, in his cross-examination on page 55 of the paper book further stated that the mobile of his brother which was recovered by the police from the accused was never shown to him nor his brother's mobile or its sim card were recovered in his presence. On page 57 of the paper book, P.W.2 Wasid in his cross-examination, deposed that the ransom call was made on his father's mobile no. 9719271308 also and they were asked to come to Khatauli with the ransom amount.

Dr. Yogesh Pd. Agrawal who had conducted postmortem on the body of deceased Arshad was examined as P.W.3. He in his examination-in-chief deposed that the possible cause of death was asphyxia due to smothering. He had further deposed that the deceased had possibly died on 04.10.2010 around 12 noon.

P.W.4 Constable Brijesh Kumar who had prepared the check F.I.R. and the corresponding G.D. Entry vide rapat no. 10, at 7:45 hours on 04.10.2010, proved the same as (Ext.Ka.3 and Ka.4 respectively).

P.W.5 S.I. Devi Ram stated that on 16.10.2010, he was posted as S.I. at P.S.- Mansoorpur. On that day, he had conducted inquest on the body of deceased Arshad. After completing the inquest, he had prepared the inquest report and other relevant documents namely photo lash, letter addressed to R.I., letter addressed to C.M.O. and challan lash which were proved by him as (Exts.Ka.5, Ka.6, Ka.7, Ka.8 and Ka.9 respectively). He further deposed that after completing the inquest proceedings, he had got the dead body of Arshad sealed and dispatched to the mortuary for conducting postmortem.

P.W.6 Constable Pratap Singh, in his evidence recorded before the trial court proved the recovery memo of the 315 bore country-made pistol allegedly recovered on the pointing out of Neetu (A2) on 20.10.2010 on the basis of which Case Crime No. 358 of 2010 u/s 25 Arms Act was registered against him. He also proved the check F.I.R. and the carbon copy of the corresponding G.D. Entry vide rapat no. 11 at 9:10 a.m. on 20.10.2010 of the aforesaid case as (Ext.Ka.10 and Ka.11 respectively).

P.W.7 S.I. Anil Kumar Singh, the second Investigating Officer of the case in his statement recorded before the trial court, stated that after registration of Case Crime No. 322 of 2010 u/s 364 I.P.C. on 04.10.2010 when he was posted as S.H.O. of P.S.- Mansoorpur, District- Muzaffar Nagar, he had entrusted the investigation of the aforesaid case to S.I. Pritam Singh. However, on 06.10.2010, he took over the investigation of the aforesaid case himself and after arresting all the three accused namely, Monu alias Chandra Prakash (A1), Neetu (A2) and Jitendra on 06.10.2010, he recorded their statements. The accused at the time of arrest were riding a motorcycle which was being driven by Monu alias Chandra Prakash (A1). His search had led to recovery of one vodafone mobile set 125 of black colour sim no. 8126197036 of airtel inserted in it. On being interrogated about the mobile, he confessed that the mobile set belonged to deceased Arshad and that he had made ransom calls from the same mobile which was recovered from the left pocket of his trouser. Another black colour mobile set A-5 Tel, A.G.-88 with sim card no. 989774680 inserted in it was also recovered from him which he claimed to be his own. The cellphone recovered from Monu alias Chandra Prakash (A1) was produced from a bundle before the Court which bore the date 06.10.2010 and the signatures of the accused, Neetu (A2) and Jitendra. P.W.7 S.I. Anil Kumar Singh identified the signature on the bundle as his own. On the bundle, Case Crime No. 322 of 2010 u/s 364-A, 302 r/w 34, 201 and 403 I.P.C. was written. The sealed bundle was marked as (material ext.1) while the two mobile sets were marked as (material exts.2 and 3). He further deposed that upon the search of the second accused Jitendra, a black colour mobile was recovered from him which was produced before the Court in a sealed bundle on which the number of Case Crime and offences were written. P.W.7 S.I. Anil Kumar Singh proved his signature on the bundle. The sealed bundle was marked as (material ext.4) while the mobile set which was taken out of the bundle was marked as (material ext.5). Nothing was recovered from the search of accused Neetu (A2). The accused could not produce any papers relating to the motorcycle which they were riding at the time of their arrest. On being interrogated about kidnapping of Arshad (deceased), they confessed that on 03.10.2010 they had kidnapped him for ransom and after committing his murder, they had hidden his dead body in a jungle and that they could get the same recovered. He proved the recovery memo of mobiles of deceased Arshad as (Ext.Ka.12). On the same day, he had got the dead body of Arshad recovered on the pointing out of the accused-appellants from the sugarcane field of Omkar Singh which was identified by his father P.W.1 informant Md. Rashid and uncle Sajid. Both the hands of deceased were tied with a thin plastic rope while he was gagged by a tape pasted across his mouth and both his legs were also tied with a tape. The sealed bundle containing the aforesaid articles was opened before the Court and was marked as (material ext.7). The tape was marked as (material ext.8). He also deposed that a 315 bore country-made pistol was recovered on the pointing out of Neetu (A2) which he was carrying on 20.10.2010 with him at about 7:30 p.m. from the sugarcane field of one Anil, resident of Dudhahedi and proved its recovery memo as (Ext.Ka.14). The 315 bore country-made pistol allegedly recovered on the pointing out of Neetu (A2) was produced before the Court after opening the bundle in which it was packed. The bundle was marked as (material ext.9) while the 315 bore country-made pistol was marked as (material ext.10). He further deposed that on 20.10.2010, he had taken Neetu (A2) on police remand with a view to get the second sim of the mobile set of deceased Arshad recovered. Neetu (A2) took him near the railway crossing in Kasba Khatauli from where the accused Neetu led him and the members of the police force to a sugarcane field and started searching for the sim card but the same could not be found. He proved the memo prepared in this regard as (Ext.Ka.15). He proved the charge-sheet filed by him in Case Crime No. 322/2010 u/s 364-A, 302, 201 and 403 I.P.C. as (Ext.Ka.16).

P.W.7 S.I. Anil Kumar Singh in his cross-examination on page 86 of the paper book further deposed that it was correct to state that P.W.1 informant Md. Rashid in his statement recorded u/s 161 Cr.P.C. and also in the F.I.R., had stated that the number of the sim inserted in the deceased's mobile set was 8126197036 and it was also correct that P.W.1 informant Md. Rashid had, neither in the F.I.R. nor in his first statement recorded u/s 161 Cr.P.C., had disclosed that his kidnapped son, Arshad had another number. P.W.1 informant Md. Rashid had disclosed in the written report of the incident (Ext.Ka.1) and also in his statement recorded u/s 161 Cr.P.C. that someone had called on his son, deceased Arshad's mobile number 8126197036 whereafter he had immediately left his shop. He further deposed that he had obtained the call detail record of the aforesaid number 8126197036 but the same is neither on the record nor the aforesaid fact was recorded by him in the case diary but he had submitted a report about obtaining the call detail record which finds mention in the case diary but whether any call detail record was obtained or not is not recorded in the case diary. He further deposed that in the second statement of P.W.1 informant Md. Rashid which was recorded by him on 07.10.2010 after the arrest of the accused on 06.10.2010 at about 4 p.m., he had disclosed about deceased's other mobile number 9528419614 but he had not obtained the I.D. of the aforesaid number because he did not consider it necessary for the reason that the witness had informed him about it before. He also stated that a mobile number is issued only after the applicant submits a duly filled up form with his photograph affixed thereon accompanied with his I.D. proof. P.W.2 Wasid had told him that his mobile number was 9719463620 and he had received call on his aforesaid number from the deceased's mobile phone no. 8126197036 and during the investigation, he had given a report for obtaining call detail record pertaining to the mobile no. of P.W.2 Wasid but the same is not on record. P.W.1 informant Md. Rashid had not told him during the recording of his statement u/s 161 Cr.P.C. that the deceased Arshad had two mobile numbers. He then added that the informant's son P.W.2 Wasid had disclosed the aforesaid fact to him. P.W.2 Wasid in his statement recorded u/s 161 Cr.P.C. had not stated that the deceased Arshad had a mobile with two sim card slots but he had stated that deceased Arshad had a mobile with two numbers, which was recorded by him in the case diary. The call detail record which had been filed by him as paper no. 12 contains details of several numbers which indicate that the accused had called P.W.1 informant Md. Rashid and his brother Sajid from the deceased's sim no. 9528419614. He further deposed that it was true that every mobile set has its separate IMEI number and if a mobile set has provision for two sim cards then it is not possible to call from one sim number of the mobile set to the other sim number of the same mobile set. He further admitted that on 01.10.2010, mobile no. 8126197036 had received a call from mobile no. 9528419614. He further stated that it was correct that from 04.10.2010 to 06.10.2010 calls were made from sim no. 9528419614 from two different mobile sets having distinct IMEI numbers. He denied the suggestion given to him by the defence counsel that mobile phone no. 9528419614 did not belong to deceased Arshad and it was on account of the aforesaid fact that he had not made any effort during the investigation to ascertain the I.D. of the person in whose name the aforesaid number had been issued by the mobile company and that the mobile number ending with number 614 did not belong to deceased Arshad and it was on account of that reason that P.W.1 informant Md. Rashid had also not disclosed the aforesaid fact either in the F.I.R. or in his first statement recorded u/s 161 Cr.P.C.

Thus, from the evidence of P.W.2 Wasid, it stands proved that some unknown person had called the deceased on his mobile at 03.10.2010 at about 4 p.m. from an unknown person and thereafter he had left his shop to meet him on his motorcycle but from the evidence of P.W.2 Wasid, it is not established that while leaving his shop to meet the person who had called him on his mobile phone, the deceased had taken away his mobile phone with him. We now proceed to examine whether the prosecution has been able to establish by leading cogent and reliable evidence that the mobile set which the prosecution claims to have been recovered from the possession of Monu alias Chandra Prakash (A1) on his being searched by the police personnel after his arrest which he had allegedly confessed before the police and P.W.1 informant Md. Rashid, belonged to deceased Arshad actually belonged to him and whether any ransom call was made from the deceased's Arshad mobile no. 8126197036 or that the ransom calls which were made from another no. 9528419614 were made from the same mobile set of the deceased which was recovered by the police from Monu alias Chandra Prakash (A1) after his arrest ?

Although from the perusal of the recitals contained in the recovery memo of the mobile set which was proved by P.W.7 S.I. Anil Kumar Singh during the trial as (Ext.Ka.12), it transpires that Monu alias Chandra Prakash (A1) had confessed before the police that the black colour mobile set which was recovered from the right pocket of his trouser which he was wearing at the time of his search belonged to the deceased and P.W.1 informant Md. Rashid and his brother Sajid had also identified the said mobile as that of the deceased.

In our opinion, the confession made by Monu alias Chandra Prakash (A1) that the mobile set recovered from him belonged to the deceased cannot be read in evidence for proving the fact that the mobile set recovered from him belonged to the deceased in view of the prohibition imposed by Section 25 and 26 of the Indian Evidence Act. The best evidence which would have proved the prosecution's claim that the mobile set recovered from the possession of Monu alias Chandra Prakash (A1) belonged to the deceased and that from the said mobile, the accused had made ransom calls to the mobile phones of P.W.1 informant Md. Rashid and his son P.W.2 Wasid is the application given by the deceased before the concerned mobile company seeking issuance of sim no. 8126197036 which must have contained the particulars of the applicant along with his photograph, IMEI no. of the handset with the I.D. proof of the applicant attached to it and the call detail records pertaining to number 8126197036 which were admittedly not filed before the trial court and deliberately suppressed by the prosecution. The prosecution also did not get the mobile set allegedly recovered from Monu alias Chandra Prakash (A1) identified by P.W.1 informant Md. Rashid and P.W.2 Wasid during the recording of their statements before the trial court as that of the deceased by producing the same before them. Thus, we have no hesitation in holding that the prosecution miserably failed to prove that the black colour mobile set allegedly recovered from the possession of Monu alias Chandra Prakash (A1) belonged to the deceased.

Call details pertaining to the aforesaid number 9528419614 were obtained by the Investigating Officer and brought on record as paper no. 12 which indicated that from mobile no. 9528419614, several calls were made by the accused-appellants to the mobile phones of P.W.1 informant Md. Rashid and his brother Sajid, demanding ransom. But the theory that deceased's mobile set had provision for two sim cards, numbers whereof were 8126197036 and 9528419614 also stood demolished in view of the categorical deposition made by P.W.7 S.I. Anil Kumar Singh in his cross-examination on page 88 of the paper book that call was made from the mobile no. 9528419614 to the mobile no. 8126197036 and it was not possible to call from one number of a mobile set to the other number of the same mobile set. Even otherwise the call detail record of 9528419614 paper no. 10 having neither been exhibited or proved in accordance with law nor the same being certified as required u/s 65B of the Indian Evidence Act, the same was wholly inadmissible in evidence for proving that any ransom call was made from 9528419614 to the mobile phones of P.W.1 informant Md. Rashid, his brother Sajid or P.W.2 Wasid.

Even it is assumed for the sake of arguments that the prosecution case that mobile set recovered from Monu alias Chandra Prakash (A1) had two sims slots having nos. 8126197036 and 9528419614 and ransom calls were made from the said numbers to the mobile phones of P.W.1 informant Md. Rashid, P.W.2 Wasid and deceased's uncle, Sajid is true, the same in the absence of any proof that the owner of the mobile recovered from the possession of Monu alias Chandra Prakash (A1) was deceased's, the same was wholly irrelevant to connect the accused-appellants with the crime in question.

Another salient feature of this case is the total indifference on the part of the prosecution to ascertain the number of the mobile set from which the deceased had allegedly received the first call on his mobile set in response to which he had left his junk shop and the identity of the owner of the said mobile set. Unless it was proved and established that the first call received by the deceased Arshad on his mobile no. 8126197036 was made by Monu alias Chandra Prakash (A1) or any other accused, which was the main link in the chain of circumstances to be proved for establishing the guilt of the accused-appellants, the accused-appellants could not be justifiably and legally saddled with the liablity of the offence with which they were charged.

Another very important aspect of the matter which requires our consideration is that whether it is proved from the evidence on record that the dead body of the deceased was recovered on the pointing out of the accused-appellants pursuant to the disclosure statements made by them before the police after their arrest and also whether mere recovery of the dead body on their pointing out was sufficient to hold them guilty for the murder of the deceased ? It is true that P.W.7 S.I. Anil Kumar Singh, the Investigating Officer of the case, has deposed that the body of the deceased Arshad was recovered on the pointing out of all the accused at about 4 a.m. on 06.10.2010 along with the material used by them for tying up the hands and legs of the deceased and gagging him pursuant to the disclosure statements made by them before him after they were arrested and the deceased's mobile set was allegedly recovered from the possession of Monu alias Chandra Prakash (A1) and recovery memo thereof was prepared on the spot and proved by him as (Ext.Ka.12).

The recovery of the dead body of Arshad (deceased) at the instance of the appellants suffers from a serious infirmity. We have scanned the entire statement of P.W.7 S.I. Anil Kumar Singh, the Investigating Officer of the case, before whom the appellants had allegedly disclosed that after committing the murder of deceased Arshad, they had concealed his dead body and had expressed their willingness to get the same recovered but the disclosure statements allegedly made by the accused were neither brought on record or exhibited nor proved in accordance with law. Moreover from the evidence of P.W.7 S.I. Anil Kumar Singh, it transpires that all the three accused had simultaneously confessed their guilt and admitted having concealed the body of deceased after committing his murder and then the body of deceased itself was recovered on their simultaneous pointing out.

From the evidence of P.W.7 S.I. Anil Kumar Singh, it further transpires that the confessional statements made by all the three accused before him simultaneously were identical in content and identical in terms of expression. The Apex Court under identical circumstances in paragraph 7 of its judgement rendered in case of Bhag Singh Vs. State of Punjab reported in 2017 SCC Online SC 956 has held as hereunder :-

The recovery of the dead body of the deceased at the instance of the accused persons suffers from a serious lacuna/infirmity. We have perused the disclosure statements Exhibit P.26 to P.30 made by the accused persons wherefrom it clearly transpires that the statements recorded are identical in content and expression. The said statements, therefore, would hardly be an accurate recording of what was allegedly stated by the accused persons leading to discovery. That apart, five accused persons, one after the other, making the same statement before the Police Officer in identical terms does not inspire the confidence of the Court.

It is also settled law that mere recovery of an incriminating object is not sufficient to hold the accused guilty of the offence charged unless in case in which the possession or concealment of an object constitutes the gist of the offence charged.

In this regard, it would be useful to reproduce the following extract from the judgement of Pulukuri Kotayya and others v. King Emperor reported in AIR 1947 PC 67 :-

The second question, which involves the construction of Section 27 of the Indian Evidence Act, will now be considered. That section and the two preceding sections, with which it must be read, are in these terms. [His Lordship read ss. 25, 26 and 27 of the Evidence Act and continued:] Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.

Thus what follows from the reading of the aforesaid law report is that Section 27 of the Indian Evidence Act provides an exception to the prohibition imposed by Section 25 and 26 of the Indian Evidence Act and enables certain statements made by a person in police custody to be proved and the condition necessary to bring Section 27 into operation is that the discovery of a fact in consequence of information received from an accused in custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. In the instant case, the prosecution has failed to exhibit and prove the so-called disclosure statements made by the accused-appellants before P.W.7 S.I. Anil Kumar Singh after their arrest. The fact that the body of the deceased Arshad was recovered on their pointing out cannot be proved.

In so far as the recovery of the 315 bore country-made pistol on the pointing out of Monu alias Chandra Prakash (A1) pursuant to his disclosure statement is concerned upon which the learned trial Judge has erroneously relied upon for the purpose of connecting the accused-appellants with the offence in question, the same also does not help the prosecution in any manner inasmuch as the postmortem report of the deceased does not indicate any fire-arm injury and thus, the alleged recovery of 315 bore country-made pistol on the pointing out of Monu alias Chandra Prakash (A1) is not at all relevant for the purpose of connecting him with the offence with which he has been charged in the absence of any evidence showing use of the aforesaid fire-arm in the commission of the offence.

Thus, we find that the prosecution has miserably failed either to establish the circumstances and the facts from which the conclusion of guilt of the accused-appellants alone can be said to be fully established or the chain of evidence so complete indicating that in all human probability, the offences with which the accused-appellants have been charged were committed by them.

In view of the foregoing discussion, it is evident that there is no legally admissible evidence available on record by which the appellants can be connected with the kidnapping of the victim Arshad by them and the ransom calls received on the cellphone of P.W.2 Wasid on 03.10.2010. There is further no legally admissible evidence to connect the appellants with the recovery of the body of deceased Arshad in the absence of the alleged disclosure statements made by the appellants before P.W.7 S.I. Anil Kumar Singh, the Investigating Officer, being brought on record, proved and exhibited in accordance with law. Under the circumstances, this Court is of the view that the appellants are entitled to benefit of doubt.

In the result, the death reference case no. 06 of 2017 is answered in negative. The impugned judgement and order dated 24.03.2017 and 28.03.2017 passed by learned Additional Sessions Judge/Fast Track Court No.1, Muzaffar Nagar in S.T. No. 184 of 2011 (State Vs. Monu alias Chandra Prakash and another) arising out of Case Crime No. 322 of 2010 and S.T. No. 185 of 2011 (State Vs. Neetu) arising out of Case Crime No. 358 of 2010, are hereby set-aside. The appeal succeeds and is accordingly allowed. The appellant no. 1, Monu alias Chandra Prakash and appellant no. 2, Neetu are acquitted of all the charges framed against them. They are in jail. They shall be released forthwith unless they are wanted in some other case subject to their complying with the provisions of Section 437-A Cr.P.C.

Order Date :- 23.5.2018

KS