Dharmendra @ D.K. Yadav vs State Of U.P.
2018 Latest Caselaw 4036 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 30.10.2018
 
Delivered on  30.11.2018
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 4531 of 2016
 

 
Appellant :- Dharmendra @ D.K. Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ram Chandra Yadav
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

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

1. The present criminal appeal has been preferred against the judgment and order dated 10.8.2016 passed by Additional District & Sessions Judge, F.T.C. Court No.2, Farrukhabad in S.T. No.13 of 2010 (State Vs. Dharmendra @ D.K.Yadav) and S.T. No.14 of 2010 (State Vs. Dharmendra @ D.K.Yadav) convicting and sentencing the appellant under Section 302 I.P.C. for life imprisonment and also awarded Rs.5,000/- as fine and in default of payment of fine, five months additional imprisonment and for the offence under Section 25/27 Arms Act, the appellant has been further convicted three years imprisonment and fine of Rs.2,000/- and in default of payment of fine, two months additional imprisonment.

2. The prosecution case in brief is that the informant, namely, Rajveer Singh, son of Yadunath Singh, resident of Village Khudaganj, Police Station Kamalganj, District Farrukhabad addressed a written report dated 3.8.2009 to the Station Officer of Police Station Kamalganj, District Farrukhabad stating therein that his agricultural field is near the tube-well of one Satyapal Singh, son of Chhotey Singh Somvanshi, Resident of Khudaganj, District Farrukhabad and on 3.9.2009 at about 9 a.m. when he had gone to to see crops at his agricultural field, he saw one person was lying at the roof of the tubewell of Satyapal Singh, he also raised voice from the ground but no one answered, hence he boarded the roof and saw that one person was lying dead and he suspected that the said person had received gunshot injury on his head. The said person appears to have been murdered by shooting him and dead body was lying at the roof, hence, he informed the police for necessary action.

3. On the basis of the said written report lodged by the informant, namely, Rajveer Singh, the police of Police Station Kamalganj, District Farrukhabad lodged an FIR on 3.8.2009 against unknown persons for the offence under Section 302 I.P.C. and also endorsed the said fact in the G.D. Rapat No.17 on 3.8.2009 at about 10.10 a.m. After registering the FIR at Police Station Kamalganj, the police reached at the place of occurrence and conducted the inquest report of the dead body of the deceased as unknown and after sealing the same, sent it for post mortem examination.

4. During the course of investigation, on 1.9.2009 one Chhotey Lal, son of Ram Singh Yadav, resident of Village Bhugaitapur,, Police Station Tirva, District Kannnauj gave an application addressed to the Inspector, Police Station Kamalganj wherein he stated that on 1.8.2009 at about 7.30 p.m. on the mobile of his son, namely, Tinkoo, a call was made by the appellant, namely, Dharmendra @ D.K. Yadav, which was received by his daughter, namely, Rozi on which the appellant enquired about his son from his daughter, then his daughter informed the appellant that Tinkoo was taking bath. After 10 minutes, again a phone call was made by the appellant on the mobile of his son, namely, Tinkoo which was attended by him, thereafter his daughter, namely, Rozi enquired about the same from Tinkoo, on which his son informed Rozi that the call was of Dharmendra @ D.K. Yadav who was calling him for repairing of refrigerator. Thereafter, while his son was taking his meal then the appellant,namely, Dharmendra @ D.K. Yadav, son of Becchelal, resident of Patti came to his house and took him away on the pretext of repairing of refrigerator at about 8 p.m. in the night as his son was doing the work of a mechanic and he used to come to house after several days. When his son did not return to the house on the festival of Rakshabandhan, then the family members got worried and on the next day of Rakshabandhan, I.e., on 6.8.2009, he along with his wife, namely, Smt. Uma Devi and mother-in-law, namely, Smt. Savitri Devi went to the house of appellant at Village Bholepur Dhobi Mohalla, District Fatehgarh, where they met the appellant along with his parents and other family members. On a query being made by them about his son, it was told by the appellant Dharmendra @ D.K.Yadav that his son Tinkoo would come tomorrow by 12 O'clock. The father of Tinkoo and other family members stayed in the house of appellant and went to the village on the next day and reached in the evening and mother of the appellant also accompanied them. Thereafter, the appellant Dharmendra @ D.K.Yadav disappeared and his whereabouts were utraceable. On reading a news item in the newspaper that a dead body was recovered from the roof of a tubewell in Village Khudaganj, Chhotey Lal along with his wife went to the police station Kamalganj for enquiry but on the way the Sari of his wife got entangled in the motorcycle, on account of which she sustained injuries. On reaching the Police Station Kamalganj, he identified the dead body from a photograph of his son but as his wife suffered injuries for which she was to be taken for medical treatment, hence, he could not give complete information and went away for medical treatment of his wife and after his wife became normal, he went to give complete information to the police station Kamalganj. It was stated by him that his son was murdered by the appellant Dharmendra @ D.K.Yadav and he requested that on his application necessary action be taken.

5. The investigating Officer in pursuance of the application given by the Chhotey Lal that the dead body which was recovered on 3.8.2009 as unknown, was of the son of Chhotey Lal, namely, Tinko who was taken by the appellant on 1.8.2009 in presence of his sister, namely, Rozi. The Investigating Officer taking the appellant, namely, Dharmendra @ D.K.Yadav to be involved in the present case, proceeded against him and made him an accused and also prepared a warrant under Section 309 Cr.P.C. He got the statement of the appellant recorded who made a confessional statement confessing his guilt for murdering the deceased, namely, Tinkoo and further made a statement that he would get the recovery of weapon of assault made also, for which the Investigating Officer took remand of the appellant for police custody from the competent court and on 10.10.2009 on the pointing out of the appellant got the countrymade pistol of 315 bore recovered and on the basis of the said recovery, a case under Section 25/27 of Arms Act was registered against the appellant and in both the cases charge sheet was submitted against the appellant.

6. The case was committed to the Court of Sessions and the trial Court framed charges against the appellant on 6.4.2010 in S.T. No.13 of 2010 under Section 302 I.P.C. and S.T.No.14 of 2010 under Section 25/27 Arms Act.

7. The accused appellant denied the prosecution case and claimed his trial.

8. The prosecution in support of its case has examined PW1-Chhotey Lal, PW2-Rozi, PW3-Constable Vijay Kumar Singh, PW4-Sub Inspector V.P. Pal, PW5-Rajveer Singh, informant of the case, PW6-Dr. Brijesh Singh, PW7-Ram Rekha Yadav, Sub Inspector, informant of case under Section 25/27 of Arms Act, PW8-Anoop Kumar, Sub Inspector who got the recovery of weapon of assault, PW9-Sub Inspector Salig Ram Verma, the first Investigating Officer and PW10- Sub Inspector Mahendra Pratap Singh, the second Investigating Officer.

9. The prosecution in support of its case has relied upon the documentary evidence, i.e., Ext. Ka.1-application of Chhotey Lal, Ext. Ka.2-Chick FIR under Section 302 I.P.C., Ext. Ka.3-Carbon copy of G.D. for registration of FIR under Section 302 I.P.C., Ext. Ka.4-Chick FIR under Section 25/27 of Arms Act, Ext. Ka.5-Carbon copy of G.D. , Ext. Ka.6-recovery memo of weapon of assault, i.e., countrymade pistol of 315 bore, Ext. Ka.7-written report, Ext. Ka.8-post mortem report, Ext. Ka.9- site plan of the place of recovery of weapon of assault, Ext. Ka.10- letter for sanction of prosecution, Ext. Ka.111-charge sheet under Section 25/27 Arms Act, Ext. Ka.12-site plan of the place of occurrence, Ext. Ka.13-recovery of blood stained earth and plain pieces of cemented roof, Ext. Ka.14-inquest, Ext. Ka15-photonash, Ext. Ka16-letter of C.M.O., Ext. Ka.17-Challan-nash, Ext. Ka.18-site plan of the place from where the recovery of weapon of assault was made, Ext. Ka.19-charge sheet under Section 302 I.P.C.

10. The statement of the appellant was recorded under Section 313 Cr.P.C. by the trial Court, who denied the prosecution case and also stated that all the police papers prepared are incorrect. The appellant has further vehemently stated before the trial Court that he has been falsely implicated in the present case due to Pradhani election of the village with one retired police personnel, namely, Asgar Ali who was Armourer, who in collusion with the police has falsely got the present case registered against him.

11. The defence relied upon the documentary evidence which was marked as paper No.52B/1 to 55B/1 which was submitted in three separate sheets.

12. PW1-Chhotey Lal has deposed before the trial Court that on 1.8.2009 on the day of occurrence, he had gone to Farrukhabad and returned from there on the third day. During the said period, his daughter, namely, Rozi and mother-in-law, namely, Smt. Savitri Devi were at his house and when he reached on the third day, he enquired about his son, namely, Tinkoo alias Pramod, on which his daughter, namely, Rozi informed that electricity is available only in the night and appellant, namely, Dharmendra @ D.K. Yadav had taken Tinkoo for repairing of the refrigerator. When he made a search regarding traceability of his son, namely, Tinkoo and when he could not be found then after 4-5 days he along with his wife and mother-in-law had gone to Bholepur to the house of appellant, namely, Dharmendra @ D.K.Yadav where he met the appellant and his parents and also enquired about his son, namely, Tinkoo from them, then it was told by the appellant to him that his son would come on the next day by 12 O'clock. He further deposed that he along with his wife and mother-in-law stayed at the house of the appellant Dharmendra @ D.K.Yadav in the night and thereafter the family members of the appellant disappeared, but the mother of the appellant had come back and she accompanied PW1 to his house. On the next day, when he saw the photograph of his son in the newspaper, thereafter he went to the Police Station Kamalganj, His wife and son-in-law also accompanied him to the police station and while he was going to the police station with his wife, he met with an accident in which his wife received several injuries and after admitting his wife in the hospital, he went to the police station where he saw the file and after seeing the photograph identified the same to be of his son and the police of the concerned police station did not lodge his report immediately and after 10-12 days registered his report. He further deposed that at the police station, he was narrating about the incident, the Inspector was writing the same and he has also put his signature on the same and proved the same as paper No.5A which was marked as material Ext. Ka.1. He identified the photograph which was numbered as paper No.18A of his son, namely, Tinkoo and which was marked as material Ext. Ka-1. He also identified the appellant in the Court and stated that it was the appellant who had taken his son from the house and it was the appellant who could tell where he had murdered his son or who else had murdered him. He denied the suggestion that besides the Inspector of the concerned police station, some other person had written the report. He further denied the suggestion that before registering the FIR, his statement was taken by the police and his statement was recorded by the police after 4-5 months and no one was interrogated in his presence by the Investigating Officer. He had informed the police about the fact that when he reached the Village Bholepur at the house of the appellant, his family members had disappeared. He further denied the suggestion that he in collusion with the police has lodged the present FIR against the appellant.

13. PW2-Rozi in her examination-in-chief has deposed before the trial Court that the deceased, namely, Tinkoo was her elder brother and her brother had gone from the house it was about 7.30 p.m. in the evening and two hours prior to his going, a phone call of the appellant had come and when the phone call of the appellant had come on the mobile phone of the deceased Tinkoo, his brother Tinkoo was taking bath at the hand pump and he had attended the phone. The appellant had asked her to call her brother, so that he could talk to him,on which she informed that he was taking bath and after 10-15 minutes appellant again made a call which was received by her brother and she enquired about it from him on which he informed that it was the appellant Dharmendra @ D.K.Yadav, who had called him for repairing of the refrigerator. Thereafter while his brother was taking his meal, at the same time the appellant had come to her house and asked her brother Tinkoo to get the refrigerator repaired and after taking meal at about 8 p.m. he had gone along with the appellant and thereafter he did not return. She further deposed that at that time she along with her grand maternal mother, namely, Smt. Savitri Devi was at the house, her parents were not at home as they had gone to Farrukhabad and on the next day when her mother had returned from Farrukhabad at her native village, then she told her mother that the appellant had taken her brother Tinkoo. He further deposed that her brother did not come to house on the festival of Rakshabadhan, on which her mother had made a call on the mobile phone of the appellant who stated that wrong number had been dialed, on which her mother, father and maternal grand mother had gone to the house of the appellant, namely, Dharmendra @ D.K.Yadav where they met the appellant at his house who told them that Tinkoo would come on the next day by 12 O'clock and thereafter her parents had returned next day to their house along with her maternal grand mother and mother of the appellant had also accompanied them. After her parents had returned from the house of the appellant Dharmendra @ D.K.Yadav, next day a news item was published in the news paper that an unknown dead body was lying at tubewell in Rajipur then they had gone there and as the dead body was taken away to the police station,they went to the police station Kamalganj and at the police station Kamalganj they identified from the photograph the dead body to be of Tinkoo. She also identified the appellant in the Court who had taken away her brother Tinkoo from his house and she deposed that either the appellant had murdered his brother or he had got him murdered by some one else. She further deposed that the appellant would frequently come to her house, hence, she knew him from before.

14. The said witness in her cross-examination has stated that phone call of the appellant had come for the first time between 3-4 p.m. and name of the appellant was being displayed and the appellant had told her that it was he himself who was speaking. She stated that she did not remember the phone number of the appellant and she had no relation with the appellant. She also did not remember the phone number of her brother and after 15 minutes, second call was made by the appellant which was attended by her brother Tinkoo and she was serving food and there was she along with her grand maternal mother and her brother was at the house on the said date. Near her house there were the houses of Chandrapal and others and it was dense area. She further deposed that the appellant had taken her brother while he was taking his food between 7-8 p.m., it was dark and lights were on.

15. This witness in her cross examination has stated that the house of the appellant was at Patti Katrauli which was at a great distance from Tirwa. She denied the suggestion that her brother had gone along with the appellant and her parents were also present at that time. She further denied the fact that she had seen the appellant with her brother before. The appellant used to frequently come to her house and after her brother had gone with the appellant, her parents had come on the third day to the house. She deposed that the day on which her brother had gone, after eight days she came to know that a murder has taken place at Rajipur tubewell and newspaper was brought to her by one Jugnu who was resident of the same mohalla where she was living and he used to work at cold store, on which her father had gone to the police station Kamalganj and she did not accompany her father and after one month of the incident, interrogation was made by the Investigating Officer. She admitted the fact that there was some enmity with one Chandrapal of her family and there was further enmity between the Chandrapal and her father due to some landed property. She had not gone to the house of the appellant nor gone to Patti Katrauli at any point of time and she did not further went out of her house to enquire about the incident and whatever information she had given about the incident, the same was being given on the basis of information received from her parents. She also did not remember the mobile phone of her brother and stated that the same would be provided when her parents would come. She further deposed that her brother used to remain out of the house for 2-3 days and used to come back. She denied the suggestion that the appellant had not made a call nor she had any talk with him. She further denied the suggestion that the appellant had no connection with the said incident and further denied that her statement under Section 161 Cr.P.C. was recorded by the police was a false one.

16. PW3- Constable Vijay Singh has deposed before the trial Court that on 3.8.2009 while he was on the post of Constable/Clerk at Police Station Kamalganj, the informant Rajveer Singh son of Yadunath Singh had come to the police station and had given a written report informing about the lying of a dead body of unknown person, on the basis of which an FIR was registered as Case Crime No.474 of 2009 against unknown person at 10.10 a.m., which was also endorsed in the G.D. Entry of the concerned police station and he proved the same as Ext. Ka.2 and Ka.3. This witness has further proved the Ext. Ka.4, by which the Station Officer Mahendra Pratap Singh had deposited in a sealed condition a countrymade pistol of 315 bore along with a cartridge which was stated to have been recovered at the pointing out of the appellant for which an FIR was also registered as Case Crime No.628 of 2009, under Section 25/27 Arms Act and endorsement about the same was also made in the G.D. Which was marked as Ext. Ka.5.

17. In cross-examination, this witness has denied that under the influence of the Station Officer he registered a false case.

18. PW4-Sub Inspector V.P.Pal has stated before the trial Court that on 10.10.2009 he was posted as Sub Inspector at Police Station Kamalganj. This witness has further stated that he along with Station Officer Mahendra Pratap Singh, S.I.Anoop Kumar Tiwari, Constable Rajesh Kumar Awasthi and Constable Jai Pal Singh had taken police custody remand of the appellant who was wanted in Case Crime No.474 of 2009, under Section 302 I.P.C. for getting recovery of the weapon of recovery of assault. He stated that the accused had got the said recovery of countrymade pistol made along with a cartridge found in the said pistol which was wrapped in the polythene and has confessed that he had murdered the deceased from the said pistol.The said recovery was made in presence of the witness, namely, Ram Khelawan, resident of Tera Akbarpur and Shree Chandra Mishra, resident of Kumurpur, police Station Kamalganj. He further deposed that Station Officer had dictated the FIR under Section 25/27 Arms Act against the appellant to S.I. Anoop Kumar Tiwari and recovery memo which was prepared was signed by the appellant and other police team including him. He has further proved Ext. Ka.6.

19. In his cross-examination, this witness has stated that the Advocate Commissioners who were appointed by the Court for making recovery of the weapon of assault did not accompany the police team but have gone separately. He denied the suggestion that the witnesses Ram Khelawan and Shree Chandra Mishra were taken by the police team from the Police Station Kamalganj and further stated that efforts were made to get the independent persons of the area and false witness were produced. He further denied the suggestion that recovery was made at the pointing out of the appellant and being posted under the subordination of Station Officer the entire recovery made is concocted one.

20. PW5-Rajveer, son of Yadunath Singh, is the informant of the case and he in his examination-in-chief has deposed that his agricultural field is near the tubewell of Satyapal son of Chhotey Singh and this witness has reiterated the version given by him in his written report marked as Ext. Ka.7 which was proved by mim.

21. In his cross-examination, this witness has deposed that when he reached at the place of occurrence, he saw that Asgar Ali brick-klin owner, Baburam son of Puntu Lal and police of Police Station Kamalganj were also present there. He further stated that the Inspector told him that his field is near the field from where the dead body was recovered, the Inspector was dictating the written report which was marked as Ext. ka.-7 and he was writing the same.

22. PW6-Dr. Brijesh Singh has stated before the trial Court that on 3.8.2009 he conducted the post mortem report of the deceased and the dead body of the deceased was brought by the Constable No.24 Ram Kishore Singh and Constable No.900 Pramod Kumar Singh of Police Station Kamalganj as of an unknown person and was handed along with nine police papers in a sealed condition and he found to have sustained the following injuries:

"Firearm wound of entry 1.50 cm. X 1.0 cm. X through and through over right of head 3.0 cm. above and behind right ear. Margins of ear lacerated and ecchymosed with communicating wound of exit 4.0 cm. X 3.0 cm. over left side of forehead. 2.0 cm. above from left eyebrow. Margins everted and lacerated on dissection both parietal and left side frontal bone fractured, right temporal and base of skull fractured, meninges brain lacerated with blood-clots."

23. According to the doctor, the cause of death of the deceased was found to be shock and hemorrhage as a result of ante mortem injury.

24. PW7-Sub Inspector Ram Rekha Yadav has deposed before the trial Court that on 10.10.2009 he was posted as Sub Inspector at Police Station Kamalganj and on the said date, an FIR was registered as Case Crime No.628 of 2009, under Section 25/27 of Arms Act and he was entrusted the investigation of the same and after recording the statements of the witnesses of recovery who were police personnel and other witnesses, namely, Ram Khelawan and Shree Chandra Mishra and informant of case Sri Anoop Kumar Tiwari, he submitted the charge sheet against the appellant which was proved as Ext. Ka.11 after taking sanction from the then District Magistrate.

25. This witness in cross-examination has stated that he has taken the statement of the police witnesses at the police station and further the public witnesses by summoning them at the police station. He further stated that the village of the public witnesses were about 6 Kms. away from the place of occurrence; near the place occurrence there was abadi and other villages also and the nearest village from the place of occurrence is village Khudaganj and village Patti Katrauli is also near the place of occurrence.He stated that he had further taken sanction for prosecution from the District Magistrate after submission of the charge sheet. He also denied the suggestion that being the subordinate of the Inspector Mahendra Pratap Singh, who is the Station Officer of the concerned police station and under his influence he had not conducted the fair investigation and had falsely submitted charge sheet.

26. PW8-S.I. Anoop Kumar Tiwari has deposed before the trial Court that on 10.10.2009 he along with Station Officer Mahendra Pratap Singh, S.I. V.P.Pal, Constable Rajendra Awasthi and Constable Jai Pal Singh had gone on a government vehicle which was being driven by Constable Vijay Kumar along with the appellant Dharmendra @ D.K.Yadav, who was an accused of Case Crime No.474 of 2009, under Section 302 I.P.C. for getting the recovery of the weapon of assault made with public witnesses, namely, Ram Khelawan and Shree Chandra Mishra and at the pointing out of the appellant, recovery of 315 bore countrymade pistol with one cartridge in it was made and handed over to the Station Officer by the appellant which was wrapped in a polythene, he also proved the recovery memo as Ext. Ka.6 and also identified his signature on the same.

27. This witness in his cross-examination has stated that the police team had taken the Advocate Commissioner to the place from where the recovery of the weapon of assault was made but the Rawangi G.D. is not on record. He stated that near the place of recovery, there is a brick-klin but he has no knowledge about the owner of the said brick-klin. He further stated that the said brick-klin owner is Asgar Ali and probably he belongs to police force. He stated that Ram Khelawan and Shree Chandra Mishra were taken by them on the way and they are not the residents of Patti Gaon as public witness Ram Khelawan is the resident of Terah Akbarpur and Shree Chandra Mishra is resident of Kunwarur and he knew the said public witnesses from before and they are not the witness of panchayatnama. He denied the suggestion that the said public witnesses being known to him, he had taken them to the place of recovery. He also denied the suggestion that he had deliberately not taken the public witnesses from village Patti, hence, he could not name any such witness. He further denied the suggestion that he, due village parti bandi and under the influence of the brick-klin owner Asgar Ali, has made a false and concocted recovery from the appellant, in fact the recovery of weapon of assault was made at the pointing out of the appellant and on the basis which case was registered against the appellant. This witness has further denied the suggestion that inspite of the orders of the Court, he did not take the Advocate Commissioner, hence he is not able to produce them before the Court and further denied the suggestion that under the influence of the Station Officer and being subordinate to him he is falsely deposing against the appellant.

28. PW9-Sub Inspector Salig Ram Verma, the first Investigating Officer, who conducted the investigation of the case, recorded the statements of the witness and prepared the police papers with respect to the inquest, post mortem and site plan and has proved the Ext. Ka.12 and 13. This witness has further deposed that on 24.8.2009 the father of the deceased had identified the photograph of the deceased claiming it to be was of his son and also admitted the fact that on 1.9.2009 an application was given by the Chhotey Lal, father of the deceased, about the deceased being taken by the appellant Dharmendra @ D.K. Yadav from his house and thereafter done to death. He further deposed that on his transfer, the investigation was entrusted to the Station Officer Mahendra Pratap Singh.

29. The said witness in his cross-examination has stated that the nearest village from the place of occurrence is village Khudaganj and near road side there is brick-klin and he does not remember the name of the owner of the said brick-klin and further he is not aware of the fact that the said brick-klin belongs to the police Armourer, namely, Asgar Ali. This witness has denied the suggestion that he deliberately concealed the name of the brick-klin owner and further does not remember the fact that as to when he reached the place of occurrence; whether Asgar Ali was present or not but crowd of 150-200 people was present there. He stated that he did not the know from before the public witnesses of recovery, namely, Shree Chandra of Rajipur, Police Station Kamalganj District Farrukhabad and Ram Khilawan of Tera Akbarpur, Police Station Kamalganj. He further stated that the informant Chhotey Lal had informed him regarding accident of his wife and she being in serious condition but he did not enquire about the same. He denied the suggestion that prior to the lodging of the second FIR neither the mother nor brother of the accused were brought to the police station and after complaint being made they were let off. He further denied the suggestion that house of the accused was ransacked by him. The brother-in-law of the deceased was not arrested by him, he himself had come and gone away on his own. He denied the suggestion that brick-klin owner Asgar Ali was present on the first day at the place of occurrence and also denied the suggestion that there was some parti bandi between the said Asgar Ali and the appellant at the instance of Asgar Ali and family members of the accused had approached the higher authorities by moving several applications, on account of which the appellant has been falsely implicated in a false case.

30. PW10- S.I. Mahendra Pratap Singh has deposed before the trial Court that on 13.9.2009 he had taken over the investigation of the Case Crime No.474 of 2009, under Section 302 I.P.C., Police Station Kamalganj from the earlier Investigating Officer Sri Salig Ram Verma. He further stated that he recorded the statement of Chhotey Lal, father of the deceased, Smt. Uma Devi mother of the deceased and Km. Rozi sister of the deceased and on 23.9.2009 he had taken the accused on remand who was confined in jail in another case. He further stated that the accused appellant confessed his guilt and had stated that he was having love affair with one Naina, daughter of one Pappu with whom he wanted to marry but her family members were against it and they solemnized the marriage of Naina with another person. This witness has further stated that the appellant admitted that he had shot dead the deceased Tinkoo on his head and concealed the countrymade pistol and cartridge near the bushes along the railway line and would get the same recovered and on the basis of said disclosure the recovery of countrymade pistol was made at his pointing out. This witness has proved the Ext. Ka.18 which is site plan of the place from where the recovery of the weapon of assault was made and also the charge sheet Ext. Ka.19 which was submitted under Section 302 I.P.C.

31. In cross-examination, this witness has stated that on the written report given by the father of the deceased, name of the appellant has come into light. He has further stated that near the place of occurrence, there is no village upto 1 to 2 Kms. He did not know the public witnesses, namely, Ram Khelawan and Shree Chandra Mishra from before. The village Khudaganj is about 2 Kms. South from the place of occurrence. The weapon of assault was recovered from the bushes near the railway track. He further stated that during the course of investigation, none of the witnesses have stated that they had seen the accused committing murder of the deceased. He has not examined Km. Naina or Harendra. He further stated that he had taken the accused on remand and the Court had ordered for two Advocate Commissioners to be accompanied at the time of recovery at the pointing out of the appellant, but he had not taken the said two Advocate Commissioners at the time of recovery nor their presence was entered in the G.D. He denied the suggestion that he had drawn the entire proceeding of recovery at the police station itself and obtained the signatures of the witnesses on the said recovery and because of the said fact he did not take the Advocate Commissioners at the time of recovery and in support of the FIR the entire investigation was done at the police station only and in order to falsely implicate the appellant on wrong facts charge sheet has been submitted.

32. Heard Sri Ram Chandra Yadav, learned counsel for the appellant, Sri Irshad Hussain, learned AGA for the State and perused the record.

33. It is contended by learned counsel for the appellant that the appellant is innocent and has been falsely implicated in the present case. He further submitted that the incident had taken place on 1.8.2009 and after one month of the incident the appellant has been made an accused in the present case on 1.9.2009. There is no eye witness account of the incident. He next argued that the appellant had neither made a phone call to the deceased Tinkoo on 1.8.2009 nor had taken him away from his house on the pretext for repairing of the refrigerator and after reading the news item in the newspaper regarding recovery of an unknown dead body, father of the deceased Chhotey Lal went to the police station Kamalganj and identified the photograph of the deceased to be of his son Tinkoo, on which the police had detained the mother, brother and other family members of the appellant at the police station and started harassing them. The appellant was having some election enmity with one retired Armourer Asgar Ali who was resident of his village and in collusion with the said Asgar Ali the police has concocted a false story and falsely implicated the appellant in the present case, also got the written report prepared and also got the signature of the father of the deceased Chhotey Lal on it, as is evident from the evidence of PW1-Chhotey Lal. He vehemently argued that so far as the evidence of last seen of PW2 Km. Rozi who is real sister of the deceased that it was the appellant who had taken away the deceased from his house on the pretext for repairing of the refrigerator in her presence on 1.8.2009 is also not reliable one. He has also drawn the attention of the Court towards the statement of the PW1-Chhotey Lal recorded by the trial Court that he narrated the facts and the Inspector was writing the same and he also put his signature on the same. It was submitted that the written report Ext. Ka.1 in fact was not dictated or narrated by the father of the deceased Chhotey Lal which was being written by the Inspector, but the police itself wrote a written report and got the signature of PW1-Chhotey Lal on it. The appellant and deceased were related to each other as the appellant was cousin (mausera bhai) of the deceased Tinkoo and there was no enmity or bad blood between them, hence, there appears to be no motive for the appellant to commit the murder of the deceased. The case rests on the circumstantial evidence as there is no direct evidence and in a case of circumstantial evidence, motive plays pivotal role in the commission of the crime and in the instant case there appears to be no motive on the part of the appellant to commit the murder of the deceased and neither PW1 Chhotey Lal in his written report has stated the same nor his daughter Km. Rozi has disclosed the same for the commission of crime by the appellant.

34. It was next argued that PW5 Rajveer Singh who is informant of the case, found the dead body of the deceased lying on the roof of tubewelll of Satya Pal Singh when he had gone to see his crops in his agricultural field and after noticing the dead body, he informed the police about the same by giving a written report which he proved as Ext. Ka.7 and he in his cross examination has stated that when he reached at the place of occurrence he found the brick-klin owner Asgar Ali, one Babu Ram and police of the concerned police present there at the place of occurrence and Inspector was dictating the written report which he was noting down.

35. It was next argued that from the evidence of PW5-Rajveer Singh, the prosecution case is falsified that after the information regarding the incident was given by PW5 on 3.8.2009 at 10.10. a.m. after submitting the written report to the concerned police station and thereafter the case was registered, inquest and panchayatnama of the deceased was conducted after the police reached at the place of occurrence.

36. So far as the recovery of countrymade pistol at the pointing out of the appellant is concerned, it is argued that no such weapon was recovered at the pointing out of the appellant but when the appellant was taken on police remand, the police had prayed that the appellant be given in police custody for three days but the Court allowed the police custody remand of the appellant for 24 hours only at the instance of the Investigating Officer on 10.10.2009 and further the Court observed that during the police remand, the Advocates of the appellant would accompany him and they would be allowed to be present along with the appellant at the time of recovery of the weapon of assault, but the Investigating Officer while taking the appellant in police custody on remand from jail had not informed the Advocates of the appellant nor had taken them when he was being taken for the recovery of weapon of assault.

37. It was next submitted that after taking the appellant on police remand, the Investigating Officer had done all the proceedings of recovery of weapon of assault at the concerned police itself and said weapon of assault, i.e., countrymade pistol was planted on the appellant at the police station itself and the FIR was registered under Section 25/27 of the Arms Act and an application to that effect was also filed in the Court below on behalf of the appellant on 12.10.2009, a true copy of which has been produced before the trial Court by the defence as paper No.55B/5. PW4-S.I. V.P. Pal, who had accompanied the police team when the recovery of the weapon of assault was made at the pointing out of the appellant, he in his cross examination has admitted the fact that no lawyers accompanied him at the place of recovery of the weapon of assault. The said fact is also evident from the evidence of PW10-Mahendra Singh who was the Investigating Officer of the murder case registered against the appellant and informant of the case registered under Section 25.27 of the Arms Act who also admitted in cross examination before the trial Court that as per the orders of the learned Magistrate two lawyers were allowed to accompany the appellant at the time of recovery of weapon of assault, but they were not taken by the police and in their absence recovery of countrymade pistol was made and one cartridge was found in it, which itself falsified the recovery. Moreover, the public witnesses, namely, Ram Khilawan son of Godhan, resident of Tera Akbarpur Police Station Kamalganj and Shree Chandra son of Munna Lal Mishra, resident of Kuburpur police Station Kamalganj, who have been shown as witnesses of recovery, are police pocket witnesses and no public witnesses of the place from where the recovery was made or of the place of occurrence were made as witnesses of recovery , hence, recovery of weapon of assault is not reliable one and same should be discarded by this Court.

38. Learned counsel for the appellant in support of his argument has placed reliance upon the judgments of this Court as well as of the Apex Court reported in 2003 (47) ACC 115, State of U.P. Vs. Chiraguddin and others (H.C.), 2003 (47) ACC 102, Mohd. Ikram Vs. State of U.P. (H.C) & 2015 (91) ACC 243, Nizam and others Vs. State of Rajasthan (SC). Thus, he argued that the conviction and sentence of the appellant by the trial Court is liable to be set aside by this Court and the appellant be acquitted.

39. Learned AGA on the other hand has vehemently refuted arguments advanced by learned counsel for the appellant and has submitted that the appellant was last seen by the sister of the deceased, namely, Km. Rozi (PW2) and in her presence the deceased was taken by the appellant from his house on the pretext for repairing of the refrigerator. He further pointed out that when the dead body of the deceased was recovered and an information regarding the same was given at the concerned police station on 3.9.2009 by PW5 Rajveer Singh and a written report was submitted by him to the concerned police station, an FIR was registered and thereafter the police reached at the place of occurrence, conducted the inquest and sent the dead body for post mortem.The deceased sustained one gunshot injury on his person and cause of death is shock and hammehroge as a result of ante mortem gunshot injury. PW1, father of the deceased, who came to know about the fact regarding murder of his son Tinkoo through a newspaper, thereafter had gone to the police station Kamalganj and identified the deceased from the photograph to be of his son and on 1.9.2009 had given an application to the concerned officer of the police station narrating the fact regarding taking away of the deceased by the appellant in presence of his daughter PW2-Km. Rozi on the pretext of repairing of refrigerator and the application given by the PW1 Chhotey Lal on 1.9.2009 narrating all the facts to the police station has been proved by him as Ext. Ka.1 and on the basis of which the appellant was made an accused in the present case. He further submitted that on 10.10.2009 while the accused appellant was detained in jail in another case, the Investigating Officer moved an application to the Court concerned for seeking his remand for the purpose of recovery of weapon of assault and on 10.10.2009 the same was granted by the Court and a country made pistol of 315 bore was recovered at the pointing out of the appellant in presence of two public witness, namely, Ram Khelawan and Shree Chandra, the appellant has also confessed his guilt that he had committed the murder of the deceased with the said weapon.The prosecution has proved its case beyond reasonable doubts against the appellant for committing the murder of the deceased and the trial Court has rightly convicted the appellant for the offence for which he is charged with and the appeal of the appellant is liable to be dismissed by this Court.

40. After having considered the submissions advanced by learned counsel for the parties and perused the record, it is apparent that the present case rests on the circumstantial evidence. The appellant and the deceased are closely related to each other as the deceased happens to be cousin (mausara bhai) of the appellant. In a case of circumstantial evidence, the motive plays an important role and in the instant case, from the evidence of PW1 and PW2 it appears that there was no motive on the part of the appellant to commit the murder of the deceased. Moreover, his false implication in the present case cannot be ruled out, as has been stated by the appellant in his statement under Section 313 Cr.P.C. that he was having some election enmity with one Asgar Ali, who was a retired Armourer of the police, who was a brick-klin owner and his brick-klin was situated near the place of occurrence and when the dead body of the deceased was found lying at the roof of the tubewell of one Satyapal Singh, the same was noticed by PW5, namely, Rajveer Singh who had gone to look his crops at his agricultural filed which was adjacent to the filed of Satyapal and after noticing the dead body he immediately informed the police of Police Station Kamalganj which registered an FIR against unknown person under Section 302 I.P.C. on 3.8. 2009.

41. From the evidence of PW5-Rajveer Singh, who in his cross examination, has stated that Asgar Ali, a retired Armourer and brick-klin owner along with one Babu Ram and police were present at the place of occurrence and police got the report registered under his signature as it was stated by them that as the place from where the dead body of the deceased was recovered, the agricultural field of the appellant was nearby to it.

42. PW1 Chhotey Lal who had given an application to the police on 1.9.2009 of police station Kamalganj which he proved the same as Ext. Ka.1 after he identified the dead body of the deceased at the police station on reading the newspaper, narrated the fact that his daughter PW2 Km. Rozi had informed him that the deceased was taken away by the appellant from his house on 3.8.2009 at 7.30 p.m. in the evening on the pretext for repairing of refrigerator by the appellant and when the deceased did not return for about 3-4 days then he was worried and made a search about his son and went to the house of the appellant where he met the appellant along with his family members on 6.8.2009. PW1 was also accompanied by his wife and mother in law and when they enquired from the appellant about the whereabouts of the deceased, namely, Tinkoo, then it was informed by the appellant that Tinkoo would return on the next day by 12 O'clock. The PW1, his wife and mother-in-law stayed in the night at the house of the appellant and returned on the next day along with the mother of the appellant and when he came to know about the death of the deceased from a newspaper, visited the police station Kamalganj and identified the photograph to be of his son, thereafter he had given an application and on the basis of the said application given by PW1 at Police Station Kamalganj on 1.9.2009 the appellant was made an accused in the present case.

43. From perusal of the evidence of PW1, PW2 and PW5, it is evident that none of the said witnesses have seen the deceased being murdered by the appellant and PW2-Km. Rozi, sister of the deceased, is the only witness of last seen,

44. So far as the recovery of country-made pistol at the pointing out of the appellant on 10.10.2009 is concerned, it is apparent from the evidence of PW4 V.P. Pal and PW10 M.P. Singh that the appellant who was taken on police remand for the purpose of recovery was allowed by the Court to be accompanied by his two lawyers, but the PW10 in his cross-examination has admitted the fact that he did not take the lawyers of the appellant for the purpose of recovery being made at the pointing out of the appellant. Moreover, the two public witnesses, namely, Ram Khelawan and Shree Chandra who were stated to be witness of recovery of countrymade pistol of 315 bore with one cartridge at the pointing out of the appellant is concerned, also does not appear to be reliable witnesses as it has been pointed out by the defence that the said witnesses are the police pocket witnesses and no effort was made by the police to arrange public witness near the place of recovery of weapon or from the place where the occurrence has taken place, both the said witnesses are resident of a place 6 Kms. away from the place of occurrence, hence, the argument of the learned counsel for the appellant that the said recovery which was made at the pointing out of the appellant does not appear to be a reliable piece of evidence and all the recovery proceedings appears to have been made by the police sitting in the police station Kamalganj itself where the said two witnesses were also summoned by the police with the other police personnel who are made the witnesses of recovery.

45. The finding which has been recorded by the trial Court regarding recovery of weapon of assault at the pointing out of the the appellant and taking it to be a reliable one and circumstances connecting him with the present crime on the basis of recovery made of the weapon of assault does not appear to be correct one as the trial Court has failed to take into account the fact that the appellant denied the recovery made at his pointing out and further casts doubt that false plantation of weapon of assault was shown at his pointing out, hence, it was prayed by him that two lawyers should accompany at the time of recovery of weapon of assault and the trial Court has allowed the same, but the police did not take the two lawyers of the appellant at the time of recovery of weapon at the pointing out of the appellant. Moreover, the two public witnesses, namely, Ram Khelawan and Shree Chandra, who were the witnesses of recovery, were also not produced by the prosecution before the trial Court to prove the said recovery. Thus, the recovery which has been made at the pointing out of the appellant raises clouds of doubt and it cannot be taken to be a true recovery of the weapon from the appellant.

46. The evidence of PW2 Km. Rozi, who is real sister of the deceased of last seen also does not inspire confidence as the deceased had received phone call on his mobile phone from the appellant twice, also is not borne out from the evidence as no evidence was adduced to that effect by the prosecution. Moreover, there appears to be no motive suggested by PW1 and PW2 for committing the murder of the deceased by the appellant who were cousin to each other and during the course of investigation the police had tried to suggest a motive for the appellant to commit the crime that the deceased was having some affair with one girl Naina who was the daughter of one Pappu who belonged to nanihal of the of the deceased and the deceased was opposing the said marriage but the said motive has also not been proved by the prosecution nor even suggested to the PW1 and PW2. Thus, the chain of circumstances does not appear to be complete as is requires in a case based on circumstantial evidence, whereby the prosecution has to show from the evidence on record that it should be conclusive proved by the evidence that it was the appellant who had committed the murder of the deceased, which the prosecution has failed to prove in the instant case and the trial Court committed error in recording the finding of conviction and sentence of the appellant. Hence, conviction and sentence of the appellant is liable to be set aside by this Court. It is, accordingly, set aside. The appeal stands allowed.

47. The appellant is stated to be in jail, he shall be released forthwith, unless otherwise wanted in any other criminal case.

48 It is further directed that the accused appellant shall furnish bail bond with surety to the satisfaction of the Court concerned in terms of the provision of Section 437-A of Cr.P.C.

49. Let the lower court record be transmitted to the trial Court concerned for its information and compliance.

	  (Dinesh Kumar Singh-I, J.)     (Ramesh Sinha, J.) 
 
Order Date : 30.11.2018
 
NS