Pawan vs State
2019 Latest Caselaw 159 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 54
 

 
     CRIMINAL APPEAL No. 2669 of 2009
 
         Pawan	                          -------	             Appellant
 
Versus
 
 State of U.P.	        -------                Respondent 
 
_______________________________________________________________
 
For Appellant	            :   Sri Sanjay Kumar Yadav, Sri Mohit Kumar
 
				     	
 
For Respondent/State 	  :   AGA Sri J.K. Upadhyay,   _____________________________________________________________
 

 
Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J.

Per : Pritinker Diwaker, J.

(26.02.2019)

1. This appeal arises out of the impugned judgment and order dated 23.04.2009 passed by Additional Sessions Judge, Court No. 10, Saharanpur in Sessions Trial No. 827 of 2007 (State Vs. Pawan) convicting the appellant under Sections 364 & 302 of I.P.C. sentencing him to undergo life imprisonment and fine of Rs. 10,000/- each, in default thereof, to go further additional simple imprisonment of one year each, further convicting the appellant under Section 201 of I.P.C. sentencing him to undergo 7 years rigorous imprisonment and a fine of Rs. 5,000/-, in default thereof, to go further simple imprisonment of six months with a direction that all the sentences shall run cuncurrently.

2. Prosecution story is that as per his regular schedule, PW-1 Rishipal while working in the field was waiting for the tea to be received from his house. However, the said tea was never received by Rishipal and in the evening after returning from the field when he inquired from his wife as to why the tea was not sent to him, he was informed by his wife that deceased Ravi aged about eight years and Johny aged about four years, two sons of PW-1 and wife Veerwati had taken the tea at the scheduled time. Both husband and wife got panic as their sons had not reached to the field. They started searching them and during search they were informed by Rajendra Kumar (not examined) and PW-3 Arjun Singh that both Ravi and Johny were seen in the company of accused-appellant Pawan at about 04.30 P.M. at the 'rapta' (temporary path over canal). Villagers also inquired about the accused-appellant, who was found missing from his home. FIR Ex. Ka.-6A was lodged on 16.09.2007 at 11.00 P.M. by PW-1 Rishipal against the accused-appellant Pawan under Section 364 of I.P.C. In the FIR, it has been categorically stated by Rishipal that two days prior to the incident, accused Pawan had entered his house and touched his minor daughter with bad intentions and upon hearing her cries, accused-appellant was caught hold and was beaten by Rishipal and his wife. While going back appellant had threatened that he would ruin the family of PW-1 Rishipal. On 17.09.2007, dead bodies of two deceased were found in the filed of Om Prakash. Additional offence under Section 302 of I.P.C. was added in the FIR and on 17.09.2007 vide Ex. Ka-6 and Ka-7 inquest on the dead bodies of the deceased were conducted. Both the bodies were sent for postmortem, which was conducted on 17.09.2007 by PW-5 Dr. Ajay Kumar vide Ex. Ka-4 and Ka-5 and following injuries have been found on the body of the deceased Ravi:

"(1) Ligature mark 7 cm x 2 cm irregular over front of neck, horizontal, 4 cm from (R) ear 5 cm from (L) Ear.

(2) Multiple Abraded centric over forehead, nose & left side face. Largest 3 cm x 1 cm, smallest .5 cm x .5 cm.

(3) Multiple abraded centric over left lower exterior hip to lower half of leg. Largest 10 cm x 4 cm smallest 1 cm x 1 cm.

(4) Multiple abraded centric 15 cm x 3 cm over left side lateral part of chest. Largest 3 cm x 1 cm. Smallest .5 cm x .5 cm."

3. According to postmortem report, cause of death of deceased Ravi was due to asphyxia as a result of strangulation.

4. Following injuries have been found on the body of deceased Johny:

"(1) Ligature mark 7 cm x 2 cm irregular Transverse 6 cm below (R) ear 7 cm below (L) Ear.

(2) Multiple Abraded centric area 12 cm x 6 cm over right side face & chin. Largest 2 cm x 1 cm, smallest .5 cm x .5 cm.

(3) Multiple abraded centric 12 cm x 4 cm over lower half of (L) forearm front.

(4) Multiple abraded centric 6 cm x 4 cm over top of (L) shoulder."

5. According to postmortem report, cause of death of deceased Johny was due to asphyxia as a result of strangulation.

6. On 17.9.2007 itself, at the instance of the accused-appellant, seizure of two under wears vide Ex. Ka.-2, one steel box and two slippers vide Ex.Ka. 3 were made and these articles were identified by PW-2 Sumer Chand to be that of deceased persons.

7. Diary statement of PW-3 Arjun Singh, witness of last seen, was recorded on 25.09.2007, wherein he has stated that at about 4:30 P.M., he saw the two deceased in the company of the appellant.

8. While framing charge, the trial judge has framed charge against the accused-appellant under Sections 364, 302 and 201 of I.P.C.

9. So as to hold the accused-appellant guilty, prosecution has examined 11 witnesses, whereas three defence witnesses have also been examined. Statement of the accused-appellant was recorded under Section 313 of Cr.P.C. in which he pleaded his innocence and false implication.

10. By the impugned judgement, the trial judge has convicted the appellant as mentioned in paragraph 1 of this judgement. Hence this appeal.

11. Learned counsel for the appellant submits:

(i) that the accused appellant has been falsely implicated as the appellant had to take Rs.45,000/- from the informant PW-1 Rishipal.

(ii) that sister-in-law of informant PW-1 Rishipal was found in objectionable condition with one Shamsher Singh and the said Shamsher Singh was beaten by the informant and his brother and, therefore, possibility of two deceased being murdered by Shamsher Singh, cannot be ruled out.

(iii) that the FIR is antedated because as per statement of PW-1 Rishipal, the FIR was lodged in between 8-9 A.M. on 17.9.2007 and that too after the report was lodged by Arjun Singh and Susheel, meaning thereby that till 9:00 A.M. on 17.09.2007, no report was lodged by Rishipal.

(iv) that seizure of articles have not been produced by the prosecution as required under the law. Various items were found by the villagers, who handed over the same to the police and no seizure whatsoever has been made at the instance of the appellant.

(v) that PW-3 Arjun Singh, witness of last seen, is not reliable and merely on the basis of his statement, conviction cannot be made.

12. On the other hand, supporting the impugned judgment, it has been argued by the State counsel:

(i) that a prompt missing report was lodged by PW-1 Rishipal at 11:00 P.M., based on which offence under Section 364 of IPC, was registered against the appellant.

(ii) that in the FIR itself, PW-1 Rishipal has categorically stated that two days prior to the incident, appellant entered his house, touched his daughter with bad intentions and after being caught and beaten by Rishipal and his wife, while going back, he threatened his family of dire consequences. Learned counsel submits that there was a strong motive for the appellant to commit the offence.

(iii) that FIR is neither antedated nor was lodged on 17.9.2007 at 9:00 A.M.

(iv) that from the statement of PW-10 Veerpal Singh, it is clear that on 17.09.2007 at 6:05 P.M., offence under Sections 302 and 201 of IPC were added and prior to that at 1:30 A.M. on 17.09.2007, another crime no. 152 of 2007 was registered against some other accused person. He further submits that inquest on the dead bodies were conducted on 17.09.2007 at 7:00 A.M., which continued to 11:00 A.M. and in the inquests, a reference of converting FIR into 302 and 201 of IPC has also come. Learned counsel submits that had the FIR would have been anti-timed, in the inquests, no such details would have come.

(v) that seizure of various articles have been made on 17.9.2007 in accordance with law and the seized articles had been duly identified by PW-1 Rishipal to that of his two sons. Learned counsel submits that proper cross-examination of PW-4 Ramesh has not been made by the defence and, therefore, seizure cannot be called as a defective. In respect of DW-3, it has been argued that being brother of the appellant, he is trying to defend him.

(vi) that statement of PW-3 Arjun Singh, witness of last seen, remained intact and conviction can be based solely on his evidence.

(vii) that as per postmortem report, deceased died about a day prior to 4:30 pm on 17.09.2007 and thus, proximity of committing murder of the two deceased on 16.09.2007 has been duly proved by the prosecution.

(viii) that conduct of the accused appellant is very important where immediately after committing the murder of two deceased, he went missing.

13. Heard counsel for the respective parties and perused the material brought on record.

14. PW-1 Rishipal is father of two deceased and the informant. He has stated that the age of deceased Ravi was eight years whereas other deceased Johny was of four years and both of them were his sons. On the date of incident, his wife had sent both his sons along with tea but they did not reach in the field and in the evening when he inquired from his wife, he came to know that around 04.00 P.M. both his sons had gone to the field along with tea. He has stated that thereafter he searched his sons along with some other persons and he met one Rajendra and Arjun Singh (PW-3), who informed him that they saw the accused-appellant along with his two sons. Accused-appellant was searched but he was found missing from his home and then he lodged the report Ex. Ka 6A. He has further stated that about a week prior to the incident, the accused-appellant had come to his house, touched his daughter with bad intentions for which he was scolded and beaten and while going back, appellant had threatened for ruining his family. In the cross-examination but for minor contradictions, this witness remained firm and has reiterated as to the manner in which the incident occurred and has further reiterated about the motive part where the accused-appellant had threatened him for ruining his family.

15. PW-2 Sumer Chand had searched the two deceased along with PW-1 Rishipal. He also noticed the dead bodies of two deceased in the field of Om Prakash.

16. PW-3 Arjun Singh is a witness of last seen. He stated that on 16.09.2007 at around 4:30 P.M., when he was going to his field, he saw the accused-appellant with the two deceased Ravi and Johny, who were carrying a box with them. He states that, at that time, one Rajendra was also along with him. At about 6-7 P.M. in the evening, he met PW-1 Rishipal and other villagers who were searching for the deceased and then he informed them that he saw the appellant in the company of two deceased. In lengthy cross-examination, this witness also remained firm.

17. PW-4 Ramesh is a witness of recovery i.e two under wears, two pair of slippers, one steel box and has duly supported the prosecution case.

18. PW-5 Dr. Ajay Kumar conducted the postmortem on the bodies of the deceased vide exhibit Ka.-4 and Ka.-5.

19. PW-6 Sanjeev Kumar assisted during investigation.

20. PW-7 Devendra Kumar Sharma is a witness of inquest has supported the prosecution case.

21. PW-8 Babi is a daughter of PW-1 Rishipal, who has stated that while she was sleeping inside her house, accused-appellant entered the house and lay with her and when she informed her parents, they scolded the appellant and thereafter he left the house of Rishipal. However, after two three days he again came to her house and on that occasion he was beaten by his father and mother. In the lengthy cross-examination this witness also remained firm.

22. PW-9 Jitendra Singh and PW-10 Veerpal Singh assisted during investigation.

23. PW-11 Satyapal Singh is the Investigating Officer of the case has duly supported the prosecution case.

24. DW-1 Suhel-ur-Rahman has been examined to prove the date of birth of PW-8 Babi.

25. DW-2 constable Brijmohan Singh has not stated anything, which may help the accused person.

26. DW-3 Dharampal is brother of the accused, who has also not stated anything, which may help the accused person.

27. Close scrutiny of the evidence makes it clear that on the date of incident i.e. 16.09.2007, two deceased went missing and their dead bodies were found in the field of Om Prakash. The moment, the complainant PW-1 Rishipal came to know that his sons are missing, he started searching them along with other villagers and during said search, he met Rajendra and Arjun Singh (PW-3), who informed him that at about 04.30 P.M., he saw his two sons at 'rapta' (temporary path over canal) in the company of accused-appellant Pawan. Immediately after coming to know this fact, PW-1 Rishipal and other villagers had gone to the house of accused-appellant Pawan but he was not present there. The informant has also proved the motive by making specific averment that about a week prior to the incident the accused-appellant Pawan came to his house and threatened them to ruin his family. In the cross-examination, he remained firm and nothing could be elicited from him.

PW-3 Arjun Singh is a witness of last seen. While supporting the prosecution case, he has stated that on 16.09.2007 when at about 04.30 P.M., he was going to his field, he saw the two deceased in the company of accused-appellant and that two deceased were carrying a box with them. He further states that in the evening when he met PW-1 Rishipal, he informed him that he saw his two sons in the company of accused-appellant Pawan. In the lengthy cross-examination, this witness also remained firm.

28. True it is, that the evidence of last seen is being treated as a weak evidence and the same can be made basis for conviction only when it is trustworthy and inspire the confidence of the Court. Law in this regard is well settled. In the case of Paramsivam & Ors. Vs. State through Inspector of Police; 2015 (13) SCC 300, the Apex Court has observed that "from the evidence on record, we find that the Prosecution was successful in bringing on record the circumstantial evidences i.e. existence of motive; the circumstances in which the deceased was last seen alive in the company of the accused-appellant....."

In the case of Satpal Vs. State of Haryana; (2018) 6 SCC 610, the Apex Court has observed as under:

"We have considered the respective submissions and the evidence on record. There is no eye witness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine."

Further in the case of Sukhpal Singh vs. State of Punjab, 2019 SCC OnLine SC 178, the Apex Court has observed as under:

".....That apart we have already found that there is ample evidence to show that the appellant was last seen with the deceased, again, a fact which is established on the basis of testimony of witnesses who have been found to be creditworthy by two courts. In an appeal maintained under leave under Section 136 this Court would not ordinarily go into the credibility of the witnesses whose testimony has inspired the confidence of the courts"

29. In the present case, witness of last seen, appears to be fully trustworthy and reliable and we have no reason to disbelieve his testimony. Most importantly, while lodging the FIR itself, it has been stated by the first informant that witness of last seen PW-3 Arjun Singh had informed him that he saw the appellant in the company of two deceased. Thus, it cannot be said that there was any chance of improvement on the part of prosecution witnesses. Most importantly, the evidence of last seen is duly supported by the first informant, who, while lodging the FIR and in his Court statement, has deposed that prior to one week of the incident, accused-appellant Pawan had come to his house and touched his daughter and when was scolded by the first informant and his wife, he threatened him to ruin his family.

30. This apart, at the instance of the appellant, seizure of various articles of the two deceased have been made, which have been duly proved by PW-4 Ramesh and also by the Investigating Officer.

31. We find no force in the arguments advanced by learned counsel for the accused-appellant that the FIR is antedated and the appellant has been falsely implicated as he had to take Rs. 45,000/- from the informant. No such evidence has been brought on record to substantiate this argument. Likewise, we find no substance in the argument of the defence that the two deceased could have been killed by Shamsher Singh. There is no evidence to this effect.

32. Taking cumulative evidence adduced by the prosecution, we are of the view that the trial court was fully justified in convicting the accused-appellant Pawan.

33. The appeal has no substance, the same is accordingly dismissed.

34. The accused-appellant Pawan is in jail, therefore, no further order is required.

 
Order Date :- 26.02.2019
 
RK/SK
 

 
                    			  (Raj Beer Singh,J)          (Pritinker Diwaker, J)