Ajayveer Singh @ Kaluwa vs State Of U.P.
2018 Latest Caselaw 3229 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Court No. - 4
 

 
Case :- CRIMINAL APPEAL No. - 4036 of 2011 
 
Appellant :- Ajayveer Singh @ Kaluwa 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- Sanjeev Kumar,Ashwini Kumar Awasthi,Manish Tiwary,P.C. Srivastava,Rajesh Kumar Yadav,S.S. Sachan 
 
Counsel for Respondent :- Govt. Advocate 
 

 
				Connected with 
 

 
Case :- CRIMINAL APPEAL No. - 130 of 2011 
 

 
Appellant :- Pradeep @ Guddu 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- Sanjeev Kumar,Ashwini Kumar Awasthi,Lav Srivastava,Manish Tiwary,Subodh Pandey 
 
Counsel for Respondent :- Govt. Advocate 
 

 
Hon'ble Bala Krishna Narayana,J. 

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble Bala Krishna Narayana,J.)

1. Heard Sri Manish Tiwary, learned counsel for the appellant and Sri Saghir Ahmad, learned A.G.A. for the State.

2. These two connected criminal appeals namely, Criminal Appeal Nos. 4036 of 2011 and 130 of 2011 have been preferred by Ajayveer Singh @ Kaluwa, appellant in Criminal Appeal No. 4036 of 2011 and Pradeep @ Guddu, appellant in Criminal Appeal No. 130 of 2011 against the judgment and order dated 6.1.2011 passed by Additional Session Judge/ Special Session Judge, J. P. Nagar in S.T. No. 141 of 2000, arising out of Case Crime No. 65 of 2000, under Sections 364, 302, 201, 506, 34, 394 and 411 I.P.C., P.S. Rajabpur, District, J.P. Nagar by which both the appellants have been convicted and sentenced to 7 years rigorous imprisonment and fine of Rs. 3000/- and in default of payment of fine 3 months additional imprisonment under Section 364 I.P.C., life imprisonment and fine of Rs. 5000/- and in default of payment of fine 6 months additional imprisonment under Section 302 I.P.C. and 5 years rigorous imprisonment and fine of Rs. 2000/- and in default of payment of fine 2 months additional imprisonment under Section 201 I.P.C.

3. On the basis of the written report Ext. Ka1 given by P. W. 1 Samijan Khan at Police Station Rajabpur, District J.P. Nagar on 19.2.2000 at about 20:30 hours, case crime no. 65 of 2000 (State Versus Guddu and others) under Section 364 I.P.C. was registered against the appellants alleging therein that on 19.2.2000 he and his uncle Buniyad Khan (deceased), P. W. 2 Riyasat Khan and Firasat Khan had gone to Village Ghosipura for purchasing animals from where he, P. W. 2 Riyasat Khan and Firasat Khan had purchased one cow and two buffaloes. When they were returning to their village on foot along with animals purchased by them, his uncle Buniyad Khan had stayed back to purchase one more buffalo and when at about 3 P.M. they reached near Chamunda situate in the south of village Piplimegh Chand, they saw Guddu son of Hoshiyar Singh resident of Village Sarkada Kamal, Police Station Rajabpur and Ajayveer son of Parbin Singh and Kaluwa resident of Village Haripur, Police Station Saidangali going on a tractor which overturned and fell into a ditch while turning, on which they stopped. At that time, his uncle Buniyad Khan also arrived on a motorcycle which was being driven by him and Ashok Sharma was sitting on the pillion. When Buniyad inquired how their tractor had overturned, they became very angry and caught hold of their uncle and started beating him and while beating they took him towards Peetkhera on his motorcycle. The informant and his other companions tried to save him but they pulled out their country made pistols and threatened them with dire consequences, the informant and his other companions got frightened. Thereafter, he went to his village and started searching for Buniyad Khan along with the other villagers but failed to locate his whereabouts. They apprehended that three miscreants may have committed the murder of Buniyad Khan.

4. The investigation of the case was entrusted to P. W. 10 Mahipal Singh who along with the then S.H.O. Tejveer Singh and other members of his force went to the house of accused-appellant, Guddu situated in Village Sarkada Kamal and from there they reached the place of occurrence in Village Piplimegh Chand and at the behest of the informant inspected the place of occurrence and prepared its site plan Ext. Ka7 on the spot. He seized the overturned tractor lying at the place of occurrence and prepared its seizure memo Ext. Ka8 and made inquiries from the people present near the place of incident.

5. On 20.2.2000 while searching for the accused-appellants, the police reached village Peetkhera at about 10 A.M. The Investigating Officer received an information on R.T. set installed in his official jeep from Police Station Saidangali that an information had been received in the aforesaid police station that after committing the murder of Buniyad Khan his dead body had been burnt by putting it in a pile of dry cow dung (Bitaura) in village Rajikhera. On receiving the aforesaid information, the Investigating Officer along with his force and S.O. Saidangali reached village Rajikhera and met the police informer who informed him that Buniyad Khan had been murdered near the oil mill of co-accused, Nirankar resident of village Rajikhera and when the Investigating Officer reached the oil mill he found a piece of wood with stains of blood which was seized by him and its recovery memo Ext. Ka9 was prepared on the spot. He also recovered one jacket and a scarf which were identified by the witnesses as those belonging to the deceased and prepared recovery memo Ext. Ka10 and the site plan of the place of recovery Ext. Ka11 was also prepared. Thereafter, the Investigating Officer along with the police force reached the place where the dead body of Buniyad Khan had been put in the pile of dry cow dung (Bitaura) and set at fire. At that time P. W. 11 Shiv Raj Singh, S.O. Police Station Saidangali had already reached there. The burnt pieces of bones of Buniyad Khan's dead body and pieces of half burnt flesh were taken out from the pile of dry cow dung (Bitaura) on which inquest was conducted. The burnt pieces of bones and flesh were packed and sealed in a polythene bag and recovery memo Ext. Ka12 was also prepared on the spot. From the ash, a finger ring of metal was also recovered which was sealed and its recovery memo Ext. Ka13 was prepared. The site plan of the place where the dead body of Buniyad Khan had been burnt was also prepared and marked as Ext. Ka12. After the recovery of burnt pieces of bones and fleshes of Buniyad Khan, Sections 302/201 I.P.C. were added in the F.I.R.

6. Thereafter, the investigation of the case was taken over by P. W. 8 Tejvir Singh Chauhan who during the course of investigation recorded the statements of the witnesses and after arresting the accused-appellant, Ajayveer Singh on 26.2.2000, he recovered one gun and two cartridges from his possession and prepared its recovery memo Ext. Ka 4.

7. On 3.3.2000, co-accused Mukesh who was driving motorcycle of the deceased bearing registration no. UP21 E 4588 on noticing the police, abandoned the motorcycle and fled away from there. The motorcycle was seized by the police and its recovery memo Ext. Ka5 was prepared by the police. The investigation of the case was then transferred to P. W. 9 S.H.O. Raghunath Singh who after completing the investigation submitted charge-sheet Ext. Ka5 against accused-appellants as well as co-accused, Nirankar, Mukesh Singh, Pushpendra Singh, Samarpal Singh under Sections 364, 302, 201, 506, 34, 394, 411 I.P.C. and Ext. Ka6 against accused-Veer Singh under Sections 302, 120, 201, 364 and 506 I.P.C.

8. Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Session. C.J.M. J.P. Nagar committed the case for trial to the Court of Session Judge, J.P. Nagar where their case was registered as S.T. No. 141 of 2000 (State of U.P. Versus Pradeep @ Guddu and 4 others) and from where it was made over for trial to the Court of Additional Session Judge/Special Session Judge, J.P. Nagar who on the basis of the material on record and after hearing the prosecution as well as the accused on the point of charge, charged the appellants under Sections 364, 302, 201, 506, 34, 394 and 411 I.P.C. The accused abjured the charges and claimed trial.

9. The prosecution in order to prove its case examined as many as 11 witnesses, of whom P. W. 1 (informant) Samijan Khan, P. W. 2 Riyasat, P. W. 3 Shahin Khan, P. W. 4 Jishan Khan and P. W. 6 Maruf Khan were examined as witnesses of fact while P. W. 5 Dr. Y. C. Gupta who had conducted the postmortem on the pieces of bones and fleshes of the deceased, P. W. 7 Kailash Chand Sharma who had proved the arrest of appellant, Ajayveer Singh and recovery of firearm from him, P. W. 8 Tejvir Singh Chauhan, second investigating officer of the case, P. W. 9 Raghunath Singh, first investigating officer of the case, P. W. 10 Mahipal Singh who had prepared chik F.I.R. and the corresponding G.D. entry and proved the same as Ext. Ka2 and P. W. 11 Shivraj Singh, third investigating officer of the case who after completing the investigation had submitted charge-sheet against the accused were produced as formal witnesses.

10. The prosecution also adduced documentary evidence comprising of written report of the incident Ext. Ka1, postmortem report Ext. Ka2, recovery memo of motorcycle Ext. Ka3, recovery memo of the gun recovered from appellant, Ajayveer Ext. Ka4, one gun and two cartridges allegedly recovered from the possession of appellant, Pradeep @ Guddu were marked as material exhibits 1 to 3, charge-sheet submitted against the accused-appellant, Pradeep @ Guddu and others Ext. Ka5, charge-sheet submitted against the accused-appellant, Ajayveer Singh Ext. Ka6, site plan of the place of occurrence Ext. Ka7, recovery memo of tractor Ext. Ka8, recovery memo of plain and bloodstained earth Ext. Ka9, recovery memo of jacket and scarf Ext. Ka10, site plan of the place of recovery Ext. Ka11, specimen seal Ext. Ka12, recovery memo of Buniyad Khan's bones Ext. Ka13, site plan of the place where the dead body of Buniyad Khan was burnt Ext. Ka14, inquest report Ext. Ka15, challan lash, photo lash, specimen seal, report R.I., report C.M.O. Ext Ka16 to Ext. Ka20.

11. The accused-appellants in their statements recorded under Section 313 Cr.P.C. claimed that they were innocent and had falsely been implicated in the present case due to enmity.

12. D. W. 1 Jagesh Kumar, D. W. 2 Rishipal, D. W. 3 Kripal Singh and D. W. 4 Shoorvir Singh who were examined as defence witnesses merely deposed that the accused-appellants were not present at the place where the dead body of Buniyad Khan was burnt by placing it in a pile of dry cow dung (Bitaura).

13. Learned Additional Sessions Judge/Special Session Judge, J.P. Nagar after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record acquitted co-accused, Mukesh, Pushpendra, Samarpal and Veer Singh. However both the accused-appellants, Ajayveer Singh @ Kaluwa and Pradeep @ Guddu were convicted and awarded aforesaid sentences. Hence this appeal.

14. Learned counsel for the appellants submitted that both the witnesses of the alleged kidnapping of deceased-Buniyad Khan by the appellants being relatives of the deceased and the only independent witness P. W. 6 Maruf Khan having failed to support the prosecution case were highly interested in securing the conviction of the appellants and hence the trial court committed a patent error of law in placing reliance upon their evidence and convicting the appellants on the basis of their testimonies. He next submitted that unexplained and inordinate delay of about 5 and half hours, considering the fact that the distance between the place of occurrence and the police station is 10 K.M., is in itself indicative of the fact that no one had seen the occurrence and after the informant and his family members failed to locate the whereabouts of Buniyad Khan who had gone missing, they after due deliberations and consultations lodged the F.I.R. falsely implicating the appellants on the basis of an absolutely false and concocted story. He further submitted that the conviction of the appellants and awarding of sentence of life imprisonment to them for having kidnapped and committed the murder of Buniyad Khan notwithstanding the fact that the prosecution had failed to prove by any evidence that the pieces of burnt bones and flesh which were recovered from the pile of dry cow dung (Bitaura) were those of deceased's body is per se illegal. Since no one had seen the appellants committing the murder of the deceased, in the absence of the recovery of the dead body of the deceased, it could not have been presumed by the trial judge that the body of the deceased had been burnt after committing his murder. He lastly submitted that such being the state of evidence, neither the recorded conviction of the appellants nor the sentence of life imprisonment awarded to them, can be sustained and are liable to be set aside.

15. Per contra Sri Saghir Ahmad, learned A.G.A. appearing for the State-respondent submitted that the prosecution having succeeded in proving by leading cogent and reliable evidence that the deceased was kidnapped in the presence of the witnesses by the accused-appellants and since no one had seen him alive thereafter and after a short span of his being kidnapped by the appellants, the police had received information that the appellants after committing the murder of the deceased near oil mill of co-accused-Nirankar, had burnt his dead body by putting it in a pile of dry cow dung (Bitaura) and the police had reached the place where the deceased had allegedly been murdered and recovered deceased's jacket and scarf from there, no fault can be found with the recorded conviction of the appellants.

16. The aforesaid circumstances are sufficient to connect the appellants with the murder of the deceased and his body being subsequently burnt by them. The trial judge did not commit any error in awarding life imprisonment to them. The delay in lodging the F.I.R. has satisfactorily been explained in the F.I.R itself. Neither the recorded conviction of the appellants nor the sentence of life imprisonment awarded to them, require any interference by this Court. This appeal lacks merit and is liable to be dismissed.

17. We have heard the learned counsel for the parties and very carefully scanned 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.

18. Record shows that Buniyad Khan was beaten by the appellants who were named in the F.I.R. when he inquired from them about their overturned tractor and then kidnapped by them in the presence of his nephew-P. W. 1 Samijan Khan and P. W. 2 Riyasat Khan on the deceased's own motorcycle and when the informant and the other persons, who were present there tried, to save him they threatened them with dire consequences by pulling out their country made pistols from their pockets. The informant and the other persons including P. W. 2 Riyasat Khan then returned to their village and started searching for Buniyad Khan but when they could not find his whereabouts and apprehended that the appellants may have committed the murder of Buniyad Khan, they reported the matter to the police station. As far as first part of the incident is concerned, as narrated in the written report of the incident Ext. Ka1 and the chik F.I.R., P. W. 1 Samijan Khan in his examination-in-chief recorded during the trial, has fully supported the prosecution case on all material points pertaining to the time, place and manner of occurrence and the identity of the perpetrators of the crime. Similarly, P. W. 2 Riyasat Khan has also fully corroborated the facts deposed by P. W. 1 Samijan Khan in his examination-in-chief.

19. Both the eye witnesses of kidnapping were subjected to gruelling cross examination by the learned counsel for the defence but he has failed to extract or elicit anything out of them, which may render their testimonies either untrustworthy or unreliable.

20. The evidence of P. W. 1 Samijan Khan and P. W. 2 Riyasat Khan has been castigated by the learned counsel for the appellants on the ground that both P. W. 1 Samijan Khan and P. W. 2 Riyasat Khan being close relatives of the deceased are highly interested and partisan witnesses who were vitally interested in ensuring that the appellants were convicted and hence no reliance can be placed on their testimonies. We do not find any force in the aforesaid submission of the learned counsel for the appellants in view of the settled law on the issue that the evidence of a witness cannot be rejected merely on account of his being relative of the deceased, if the Court upon a careful and cautious appraisal of his evidence comes to the conclusion that he has given a cogent and correct version of the incident.

21. The Hon'ble Supreme Court in the case of Waman and others v. State of Maharashtra 2011 Crl. L.J. 4827 has observed in paragraph no. 9 which reads as follows :

"In Balraje @ Trimbak v. State of Maharashtra 2010 (70) ACC 12 SC, this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence.

22. Moreover, in the present case the appellants have not been able to show that P. W. 2 Riyasat Khan is in any manner related to the deceased. As far as P. W. 1 Samijan Khan and the other witness is concerned, they in our opinion, have narrated the incident in detail. We do not find any reason to disbelieve their evidence. It is true that part of their testimonies and the testimony of P. W. 4 Jishan Khan who had given evidence of presence of appellants and co-accused, Nirankar, Mukesh Singh, Pushpendra Singh, Samarpal Singh at the place, where the body of the deceased was burnt by the appellants, was disbelieved by the trial court and the aforesaid co-accused were acquitted, but that in itself is not sufficient to disbelieve the entire testimonies of the prosecution witnesses of fact.

23. The doctrine of "falsus in uno, falsus in omnibus" has not received the status of rule of law in our country and it is the duty of the Court to ascertain the truth after separating chaff from the grain. In this case, the evidence of P. W. 1 Samijan Khan and P. W. 2 Riyasat Khan has been throughout consistent and clinching on the point of the deceased being kidnapped by the appellants on his motorcycle.

24. P. W. 6 Maruf Khan, another eye witness of the kidnapping of Buniyad Khan, had failed to support the prosecution case and had been declared hostile but the same, in our opinion, is not sufficient to disbelieve the evidence of P. W. 1 Samijan Khan and P. W. 2 Riyasat Khan.

25. Since it is proved from the evidence of P. W. 1 Samijan Khan and P. W. 2 Riyasat Khan that Buniyad Khan was kidnapped by the appellants and he was never seen alive thereafter, what happened to Buniyad Khan and under what circumstances he was murdered, were facts within the special knowledge of the appellants. We are of the considered view that the trial court did not commit any illegality by drawing an inference against the appellants on account of their failure to come up with any satisfactory explanation as to how Buniyad Khan had died after kidnapping, by invoking Section 106 of the Indian Evidence Act that the appellants after kidnapping the deceased had committed his murder and thereafter burnt his dead body.

26. As far as the argument of the learned counsel for the appellants that the delay of about five and half hours in lodging the F.I.R. of the incident, is in itself sufficient to shatter the credibility of the F.I.R. is concerned, the same also does not have any merit. It has been mentioned in the F.I.R. that after the deceased had been kidnapped by the appellants, P. W. 2 had gone to his village and from there he and other villagers had gone in search of Buniyad Khan and when they did not find him and apprehended that the appellants may have committed the murder of Buniyad Khan, P. W. 1 Samijan Khan lodged the F.I.R. of the incident. Moreover, the delay in lodging the F.I.R. in this case, is in our opinion, does not appear to be so inordinate, so as to cast a doubt on the credibility of the prosecution as spelt out in the F.I.R.

27. Coming to the third ground of challenge to the impugned judgment and order that since in this case the dead body of the deceased was not recovered, his conviction under Section 302 I.P.C. for the murder of Buniyad Khan cannot be sustained and is liable to be set aside, the same is also without any merit.

28. The aforesaid issue was examined by the Apex Court in the case of Mani Kumar Thapa vs. State of Sikkim 2003 (3) Crimes 144 (SC).

It is a well-settled principle in law that in a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case the accused would manage to see that the dead body is destroyed which would afford the accused complete immunity from being held guilty or from being punished. What is therefore required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced.

29. Similar view was taken by the Apex Court in the case of Prithi Vs. State of Haryana 2010 (3) 225 (SC).

30. In the present case the jacket and the scarf of deceased Buniyad Khan were found near the oil mill of co-accused Nirankar where the deceased was allegedly murdered by the appellants. A metallic finger ring was recovered from the ash where the deceased's body was burnt by the appellants which was identified by the witnesses as that of Buniyad Khan.

31. Thus in view of the foregoing discussion, we do not find that the trial court committed any illegality or legal infirmity in convicting the appellants and awarding sentence of life imprisonment.

32. Both the appeals lack merit and are accordingly dismissed.

33. There shall be however no order as to costs.

Order Date:- 12.10.2018.

SA