Virendra Singh vs State Of U.P.
2019 Latest Caselaw 528 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 4								A. F. R. 
 
Case :- CRIMINAL APPEAL No. - 2677 of 1986
 

 
Appellant :- Virendra Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Y.K. Shukla,Raj Narayan Gupta
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Ghandikota Sri Devi,J.

1) Heard Sri Raj Narayan Gupta, learned counsel for the appellants and Smt. Manju Thakur, learned A.G.A. I appearing for the State assisted by Sri Awadhesh Kumar Shukla, State Law Officer.

2) This appeal has been preferred by appellants Virendra Singh A-1 and Shamshuddin A-2 against the judgment and order dated 18.09.1986 passed by the Ist Additional District & Sessions Judge, Farrukhabad in Session Trial No. 193 of 1982 (State Versus Virendra Singh and others), convicting both the appellants to imprisonment for life under section 302/34 I.P.C. Virendra Singh A-1 was further convicted and sentenced to 7 years rigorous imprisonment under section 201 I.P.C.

3) Virendra Singh (A-1) has died during the pendency of this appeal and this appeal qua Virendra Singh (A-1) was dismissed as abated vide order dated 30.04.2018. The appeal is now being heard on behalf of Shamshuddin (A2) alone.

4) Briefly stated the facts of this case are that P. W. 2 Jhande Singh gave a written information at police station Kotwali, district Farrukhabad on 24.2.1980 at 17:30 hours stating therein that while he was going to his field he had seen an unidentified dead body packed in a gunny bag, head inside and legs hanging out on the fence of the field of P. W. 6 Puttu Singh.

5) On the basis of the aforesaid information, S.H.O. Kotwali, Teerath Raj Pandey and Raj Kumar reached the place where the dead body was lying and after holding inquest on the unidentified dead body, prepared the inquest report Ext. Ka10 and other connected documents namely photo lash Ext. Ka11, letter addressed to R. I. Ext. Ka12, letter addressed to C.M.O. Ext. Ka13, specimen seal Ext. Ka14 and letter for returning the clothes of the deceased Ext. Ka15.

6) As per the recital contained in the inquest report, the deceased at the time of the inquest was wearing an underwear of the sky blue colour, a white vest and a multi colour muffler and search of the clothes of the deceased led to the recovery of a key from the pocket of his trouser which was sealed and its recovery memo Ex. Ka2 was also prepared on the spot.

7) Postmortem on the dead body was conducted by PW-7 on 25.02.1980, who also prepared the postmortem report as Ext. Ka-8. The postmortem report of the deceased indicates following ante mortem injuries :

"Ligature 1cm x 4 cm wide interrupted on right side of neck, placed horizontally over middle of neck. Margins inverted."

The cause of death was said to be asphyxia, as a result of strangulation. Postmortem report further indicated that age of cadaver of which autopsy was conducted was about 35-40 years.

8) During the investigation of the aforesaid case the names of co-accused, Bhagpal and Rakshpal surfaced as accused. The unidentified dead body which was recovered on 24.2.1980 was later identified as that of Nand Kishore son of P. W. 5 Godhan Lal. He in his statement recorded during investigation stated that his son, Nand Kishore was aged about 22-23 years and was studying in B.A. 1st year in Badri Vishal College Farrukhabad at the time of the incident. P. W. 1 Ram Kumar and P. W. 2 Jhanda Singh were also studying with him in the same college. They used to go to Farrukhabad in the morning by train to attend the college and returned in the evening. Since Nand Kishore was finding it inconvenient to travel from his village to Farrukhabad daily, he decided to take a room on rent in Angorri Bag, Farrukhabad for which his father gave a sum of Rs. 200/- as advance to him.

9) On 22.2.1980, Nand Kishore went to Farrukhabad by the morning train, he was carrying with him Rs. 240/- On that day, he was wearing a green t-shirt, sport shoe and muffler of yellow and mammal colour, titan watch, vest and underwear. He had also taken his text books and copies with him. Nand Kishore had left his house after informing that he was going to take a room on rent with the help of Virendra Singh (deceased A1) who would be sharing the room with him but he did not return.

10) On the next day, P. W. 5 Godhan Lal went to the house of P. W. 1 Ram Kumar but he could not meet him as he was not present there. His mother told him that Ram Kumar had not returned. Next day in the morning when he again went to the house of Ram Kumar, he met him. P. W. 1 Ram Kumar told him that he had left the college with Virendra Singh (deceased A1) and Nand Kishore at about 1:30 P.M. and when they reached near the crossing of Lal Ganj Chauraha, they met Shamsuddin A2. Virednra Singh (deceased A1) inquired from Nand Kishore about money on which Nand Kishore told him that he had the money with him. Thereafter, Shamsuddin A2, Virendra Singh (deceased A1) and Nand Kishore went towards Ganges River and when P. W. 1 Ram Kumar insisted on accompanying them, Virendra Singh (deceased A1) told him that he will meet him at the railway station. Thereafter, Virendra Singh (deceased A1), Nand Kishore and Shamsuddin A2 went away.

11) On 24.2.1980, P. W. 5 Godhan Lal went to the house of Virendra Singh (deceased A1) with Ram Prakash and Sukhvasi. His mother told him that Virendra Singh (deceased A1) had not returned. However, his neighbor and other persons who were also present there told him that Virendra Singh (deceased A1) had returned to the village and had gone towards the pond for washing his clothes. When he met Virendra Singh (deceased A1) he was looking petrified. On being questioned by P. W. 5 Godhan Lal about his son, Virendra Singh (deceased A1) told him that Nand Kishore and Shamsuddin A2 had come to his quarter but he was not aware where they had gone from there. P. W. 5 Godhan Lal then went to the house of Shamsuddin A2 but found it locked. He searched for Nand Kishore but could not locate his whereabouts. On coming across, a news item published in the newspaper seeking information about an unidentified body found in a gunny bag in Angoori Bag, he went to the police station and narrated to the police personnel that about 1 month before his son had gone missing, a quarrel had taken place between the deceased and one Hafiz, father of Shamsuddin A2 in which both of them had beaten each other. In retaliation, his father, Hafiz had beaten the mother of deceased-Nand Kishore who upon coming to know about the incident on his returning to his house had given a sound thrashing to Shamsuddin A2 and on account of which he had become inimical towards his son.

12) Thereafter, Virendra Singh (deceased A1) was arrested on 1.3.1980 at about 8:30 A.M. and after his arrest he confessed before the police that he had committed the murder of Nand Kishore in his room in Angoori Bag locality which he was occupying as a tenant.

13) Pursuant to the disclosure statement made by Virendra Singh (deceased A1), the lock of his room was opened from the key which was recovered from the pocket of his trouser which he was wearing at the time of his arrest and on his pointing out a bloodstained bag and textbook of deceased-Nand Kishore were recovered, recovery memo of the aforesaid articles were prepared on the spot and marked as Ext. Ka5.

14) The investigating officer also extracted pieces of plain and bloodstained floor from the floor of his room and after keeping the same into two different boxes, sealed the same and prepared recovery memo Ext. Ka14, recovery memo of the key which was recovered from Virendra Singh (deceased A1) upon his search was also prepared and marked as Ext. Ka2.

15) The investigating officer after completing the investigation filed chargesheet against the appellants, co-accused, Bhagpal and Rakshpal under Sections 302/34 and 201 I.P.C. before the Court of C.J.M. Farrukhabad.

16) Since the offences mentioned in the charge sheet were triable exclusively by the Court of Sessions, C.J.M. Farrukhabad committed the case for the trial of the accused to the Court of Sessions Judge Farrukhabad where their case was registered as S.T. No. 193 of 1982 and from there it was made over for trial to the Court of 1st Additional Sessions Judge Farrukhabad who framed charge against all the accused under Sections 302/34 and 201 I.P.C. The accused abjured the charge and claimed trial.

17) The prosecution in order to prove its case, examined as many as 7 witnesses of whom (pw-1) Ram Kumar, (pw-2) Jhanda Singh, (pw-3) Ram Prakash, (pw-4) Prakash Chandra, (pw-5) Godhan Lal father of the deceased, (pw-6) Puttu Singh were examined as witnesses of fact while (pw-7) Dr. H.P. Srivastava, who had conducted the postmortem on the body of the deceased and prepared his postmortem report Ext. Ka-8 was produced as a formal witness.

18) The accused were examined under Section 313 Cr. P.C. They denied the allegations levelled against them and stated that they had been falsely implicated in the case because of enmity. No evidence in defence was given by any of the accused.

19) Learned Ist Additional District & Sessions Judge, Farrukhabad after considering the submissions advanced by the learned counsel for the parties before him and the evidence available on record, both oral as well as documentary, convicted and sentenced the appellants Virendra Singh A-1 and Shamshuddin A-2 for imprisonment of life under Sections 302/34 I.P.C. Virendra Singh A-1 was further convicted and sentenced to 7 years rigorous imprisonment under section 201 I.P.C. While the co-accused Bhagpal and Rakshpal were acquitted from all the charges.

20) Hence, this appeal.

21) Since Virendra Singh (deceased A1) has died during the pendency of this appeal, the challenge to the impugned order in this appeal is now on behalf of Shamshuddin A2 alone.

22) Learned counsel for Shamsuddin A2 submitted that the conviction of Shamsuddin A2 in this case is based on no evidence. The motive suggested and proved by the prosecution during the trial for Shamsuddin A2 to commit the murder of Nand Kishore is not at all convincing. The irreconcilable conflict with regard to the age of the dead body which was recovered on 24.2.1980 and the age of deceased-Nand Kishore creates a very strong doubt about the authenticity of the prosecution's claim that the unidentified dead body which was recovered on 24.2.1980 pursuant to the information given by P. W. 2 Jhanda Singh was that of Nand Kishore. No incriminating article was recovered either on the pointing out of the appellant or from his possession. He lastly submitted that such being the state of evidence, neither the recorded conviction of the appellant nor the sentence awarded to him can be sustained and are liable to be set aside.

23) Per contra Smt. Manju Thakur, learned A.G.A. I appearing for the State assisted by Sri Awadhesh Kumar Shukla, State Law Officer submitted that the prosecution has not only proved the motive for Shamsuddin A2 for committing the murder of Nand Kishore but has also adduced cogent evidence fully establishing his complicity. Learned trial judge did not commit any illegality or infirmity in convicting Shamsuddin A2 for the murder of Nand Kishore and awarding life sentence to him. This appeal lacks merit and is liable to be dismissed.

24) We have heard the learned counsel for the parties very carefully and perused the lower court record.

25) Record shows that in order to establish the motive and the complicity of Shamsuddin A2, the prosecution had examined P. W. 1 Ram Kumar and P. W. 5 Godhan Lal, father of the deceased. P. W. 1 Ram Kumar was declared hostile after he failed to support the prosecution case. He was cross-examined at considerable length by the DGC (Criminal) with the permission of the trial judge. However, he failed to elicit anything out of him which may lend any support to the prosecution story. The last seen evidence given by him against Shamsuddin A2 is hearsay and hence inadmissible in evidence against him.

26) As regards the motive for Shamsuddin A2 to commit the murder of his son, P. W. 5 Godhan Lal deposed that Virendra Singh (deceased A1) and Shamsuddin A2 used to study in Primary School Neem Colony and his father, Hafiz had quarreled with his wife and during the quarrel Shamsuddin A2 and his father, Hafiz had beaten his wife. At that time neither he nor his son Nand Kishore were present in the house. When they returned in the evening, his wife narrated to him the whole episode on which he and his son, Nand Kishore thrashed Shamsuddin A2 and on account of which he became inimical towards them. After the aforesaid incident Shamsuddin A2 and his father had left the village and announced that they would return to the village only after murdering Nand Kishore.

27) Thus, from the evidence of P. W. 5 Godhan Lal it alone is established that a quarrel had taken place about 1 year before the occurrence in which as a measure of retaliation P. W. 5 Godhan Lal and Nand Kishore had beaten Shamsuddin A2 and his father who had left the village threatening that they would return only after committing the murder of Nand Kishore. The motive suggested and proved by the prosecution for Shamsuddin A2 to commit the murder of Nand Kishore in our opinion is not so strong so as to warrant commission of murder of Nand Kishore by him.

28) In the absence of any other circumstance or evidence indicating at the participation of Shamsuddin A2 in committing the murder of Nand Kishore, the conviction of Shamsuddin A2 recorded by the learned trial judge cannot be sustained and is liable to be set aside.

29) We have also found that it cannot be said with any certainty on the basis of evidence on record that the unidentified dead body which was recovered on 24.2.1980 was that of Nand Kishore. Reason being according to the prosecution case the age of the deceased was aged about 20-22 years while the medical evidence on record which comprises of the statement of P. W. 7 Dr. H.P. Srivastava who had conducted autopsy on the body of unidentified dead body recovered on 24.2.1980 and the postmortem report unequivocally indicates that the age of the cadaver on which postmortem was done was 35-40 years.

30) P. W. 7 Dr. H.P. Srivastava has categorically deposed during the trial that the age of the deceased of whose body he had conducted autopsy was about 35-40 years. Suggestion given by the defence counsel to P. W. 7 Dr. H.P. Srivastava that the age of the dead body on which he had conducted postmortem was 21-22 years was denied by him categorically.

31) Thus, in view of the foregoing discussion, we have no hesitation in holding that the prosecution has not been able to prove its case against Shamsuddin A2 beyond all reasonable doubts by leading any cogent and reliable evidence. The chain of circumstances from which the guilt of Shamsuddin A2 is sought to be inferred is neither complete nor conclusive.

32) Consequently, the appeal is allowed qua Shamshuddin A-2. The judgment and order dated 18.09.1986 passed by the Ist Additional District & Sessions Judge, Farrukhabad in Sessions Trial No. 193 of 1982, under Sections 302/34 I.P.C. is hereby set aside qua Shamsuddin A2. He is acquitted of all the charges under sections 302/34 I.P.C. Shamsuddin A2 is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. However, he shall comply with the mandatory requirement of Section 437-A Cr.P.C. within two weeks from the date of production of certified copy of this order.

Order Date :- 6.3.2019/SA/T.S.