Omkar vs State Of U.P.
2019 Latest Caselaw 5289 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 07.01.2019
 
       Delivered on 31.05.2019
 
Court No. - 34
 
Case :- JAIL APPEAL No. - 5804 of 2011
 
Appellant :- Omkar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Ashok Kumar Mishra,Dinesh Kumar Bhaskar,Suneel Kumar Rai
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. This jail appeal under Section 383 Cr.P.C. has been filed by accused-appellant Omkar through Jail Superintendent, District Jail, Meerut against judgment dated 09.06.2011 passed by Sri Sanjay Shaker Pandey, Additional Sessions Judge, Court No.12, Meerut whereby accused-appellant Omkar has been convicted under Section 302, 394 and 411 IPC. Under Section 302 IPC he has been sentenced to life imprisonment along with fine of Rs.10,000/-; under Section 394 IPC to undergo seven years Rigorous Imprisonment (hereinafter referred to as "RI") and fine of Rs. 2,000/- and under Section 411 IPC he has been sentenced to undergo three years RI with a fine of Rs.1,000/-. All the aforesaid sentences were directed to run concurrently. In the event of default in payment of fine, he has to undergo additional imprisonment for six months under Section 302 IPC; three months under Section 394 IPC and one month under Section 411 IPC. However, he has been acquitted of the charge under Section 201 IPC. By the aforesaid judgment another co-accused Begraj @ Chamku has been sentenced to undergo three years RI and fine of Rs. 1,000/- under Section 411 IPC and he has been acquitted of the charges under Sections 302, 201 and 394 IPC. Other co-accused Rajpal was also acquitted of the offences under Sections 302, 201, 394 and 411 IPC extending benefit of doubt.

2. Prosecution story, in brief, is that on 23.01.2006 at about 01:25 PM, a written report Ex.Ka-1 was presented in Police Station Sardhana, District Meerut by Informant, PW-1-Sompal Singh, stating that his father and uncle Sri Shishan had gone to Jungle on 22.01.2006 to graze goat as usual but they did not return home till late night have search was made in the night but they could not be traced. On 23.01.2006 again Informant went to Jungle along with other villagers in search of his father and uncle. At about 11 A.M. they found dead bodies of Informant's father Sohan Singh and uncle Shishan Singh in Nala (drainage) along the field of Rajveer Singh. First Information Report (hereinafter referred to as "FIR") states that they were murdered.

3. Immediately after receipt of FIR at the Police Station, PW-9 Vinok Kumar, Head Moharrir, prepared a Chik FIR (Ex.Ka-6) at 01:25 PM under Sections 302 and 201 IPC against unknown persons. He also made entry of the crime in General Diary (hereinafter referred to as "GD"), a copy whereof has been marked as Ex.Ka-7.

4. Investigation of case was undertaken by PW-10 Sub Inspector Rajpal Singh, who on getting information on R.T. Set, rushed to the place of occurrence along with Constable Bhopal Singh and Constable Naresh. Head Constable Jaiveer Singh and Inspector Nanhumal had already reached there along with Force after registration of FIR. PW-10 prepared inquest (panchayatnama) Ex.Ka-8 of the dead body of Shishan Singh and that of Sohan Singh as Ex.Ka-9. Thereafter, observing necessary formalities prepared documents i.e. Photo Nash, Chalan Nash, Report RI, Report CMO, Specimen Seal in respect of both the deceased Ex.Ka-10 to 19, he sent corpse of both the deceased in sealed cover to District Mortuary for the purpose of postmortem. He prepared site plan Ex.Ka-20 and also recorded statements of witnesses.

5. Autopsy on the dead body of deceased Sohan Singh was conducted by PW-6 Dr. S.P. Singh on 23.01.2006 at 09:45 PM. According to him deceased was aged about 70 years and about one day had passed since his death. Rigor Mortis was present all over body except neck. No decomposition was noticed; eyes were closed and congested. Doctor found no external injury on the body of deceased; lips and nails turned cynaposed. On internal examination, he found trachea fractured at the level of C-3 (carvical vertebrae III); both lungs were congested and ballooned; heart weighed 220 gms and right side contained blood; in small and large intestines gases and faecal matters present; lever was congested and weighed 1250 gms; gallbladder half full; pancreas congested; spleen congested and 80 gms in weight; weight of kidneys 220 gms and congested; urinary bladder empty. According to Doctor, cause of death was Asphyxia as a result of ante mortem strangulation. Doctor prepared postmortem report Ex.Ka-3.

6. On the same day, at about 10:20 PM, autopsy over the dead body of deceased Shishan Singh was conducted by PW-6 Dr. S.P. Singh. He found deceased to be aged about 65 years and about one day had passed since his death. Rigor Mortis was present all over body except neck. Eyes were closed and congested. Doctor found no external injury on the body of deceased; lips and nails turned cynaposed. On internal examination, Doctor found trachea fractured at the level of C-3 (Cervical Vertebrae-III); both lungs were congested and ballooned; heart weighed 200 gms and right side contained blood; 100 gm digested food was found in stomach; small and large intestines filled with gases and faecal matter; lever was congested and weighed 1200 gms; gallbladder half full; pancreas congested; spleen congested and 85 gms in weight; weight of kidneys 200 gms and congested; urinary bladder empty. According to Doctor cause of death was Asphyxia as a result of ante mortem strangulation. Doctor prepared postmortem report Ex.Ka-4.

7. On 24.01.2006, investigation was undertaken by PW-11 Sub Inspector Vijendra Kumar Singh who made efforts for arrest of accused and arrested the accused Omkar and Begraj. Thereafter on account of his transfer, investigation was entrusted to PW-2 Sub Inspector P.D. Sharma who concluded investigation and submitted charge-sheet Ex.Ka-2 in Court.

8. Cognizance of offence was taken by Chief Judicial Magistrate, Meerut on 01.09.2006 under Sections 302, 201, 394 and 411 IPC.

9. Case, being exclusively triable by Court of Sessions, was committed to Sessions Court on 16.09.2016, which was registered as Sessions Trial No.773 of 2006. Subsequently Sessions Trial was transferred to the Court of Additional Sessions Judge / FTC No.2, Meerut, who framed charge on 22.02.2007 against accused-appellant Omkar as well as other co-accused Begraj @ Chamku and Rajpal as under:-

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vr,ao eSa ,rn~}kjk funsZf'kr djrk gwW fd mDr vkjksiks ds fy, bl U;k;ky; }kjk vkidk fopkj.k fd;k tk,xkA"

I, Rajendra Prasad Gupta, Additional Sessions Judge/Fast Track Court No. 2, Meerut, charge you, accused persons, Omkar, Begraj @ Chamku and Rajpal, with the following charge: -

1. That on 22.01.2006 when complainant Sompal Singh's father Sohan Singh and his uncle Shisan Singh (Sohan Singh's younger brother) had gone into jungle to have their goats grazed, you persons, with the object of robbing them of their goats, committed their murder, which is an offence punishable u/s 302 IPC and within the cognizance of this court.

2. That on the aforesaid date and time, you, having committed murder of Sohan Singh and Shishan Singh, hid their bodies in the jungle, so that substantive evidence may be got disappeared, which bodies were found in the drains alongside the field of Rajvir at 11:00 a.m. on 23.01.2006; hence, you have committed an offence of attempting to disappear the substantive evidence, which is an offence punishable u/s 201 IPC and within the cognizance of this court.

3. That on the aforesaid date and place, you, in the attempt to rob Sohan Singh and Shishan Singh of the goats, inflicted injuries on their persons resulting in their death. In this way, you inflicted injuries while committing robbery, which is an offence punishable u/s 394 IPC and within the cognizance of this court.

4. That on 3.6.06 at around 12.30 PM five goats out of the robbed ones were recovered from Rajpal. You people sold rest of goats to Shakil, Naeem and Irfan for consideration of Rupees six thousand rupees. Hence, knowing these goats to be robbed ones, you retained them in your possession which is an offence punishable under section 411 IPC within the cognizance of this court.

Hence, I hereby direct that you be tried by this court for the aforesaid charges." (English Translation by Court)

10. All the accused including accused-appellant Omkar pleaded not guilty and claimed to be tried.

11. In order to prove the guilt of the accused, prosecution examined as many as eleven witnesses, out of whom PW-1 Sompal Singh son of deceased Sohan Singh, PW-3 Dharamraj, PW-4 Jagdeep and PW-5 Ompal are witnesses of fact. Rest are police witnesses and Doctor who had conducted autopsy on the dead body of deceased Sohan Singh and Shishan Singh. PW-2 Sub Inspector P.D. Sharma is the last Investigating Officer who had also conducted identification of accused persons and submitted charge-sheet Ex.Ka-2 in Court. He has proved the same. PW-6 Dr. S.P. Singh had conducted autopsy over the dead body of deceased Sohan Singh and Shishan Singh and proved postmortem reports, Ex.Ka-3, and 4. PW-7 Sub Inspector Balesh Kumar had recovered sheep and goats on 03.06.2006 at 01:45 PM from near the tube-well. He also arrested accused Omkar and other co-accused. Out of 45 sheep and goats, 5 sheep pertained to incident in question. He has proved recovery memo paper no. A5/1 and A5/4. PW-8 Constable Naresh Pal Singh is the police witness who had taken dead bodies of deceased Sohan Singh and Shishan Singh in sealed state to District Mortuary for postmortem. PW-9 Constable Moharrir Vinod Kumar had registered the case on the basis of written report Ex.Ka-1 and proved Chik report Ex.Ka-6, as also copy of entry in GD, Ex.Ka-7. PW-10 Sub Inspector Rajpal Singh, after registration of case had reached the place of occurrence and prepared inquest on 23.01.2006 at 03:10 PM. He has proved inquest, Ex.Ka 8, and 9, in respect of both the deceased as well as other relevant documents Ex.Ka-10 to 19. PW-11 In-charge Police Station Sub Inspector Vijendra Kumar Singh had continued the investigation after PW-10 Rajpal Singh. He also investigated accused-appellant Omkar, and Begraj who had been arrested by Sub Inspector Balesh Kumar PW-7. He also arrested accused Rajpal on 04.06.2006.

12. At the instance of Court, one Ram Avtar was examined as Court Witness no.1. He was Special Executive Officer, Meerut and had conducted identification proceedings in District Jail. He has proved identification memo Ex.Ka-22 prepared by him.

13. After evidence of prosecution concluded, accused-appellant Omkar was examined under Section 313 Cr.P.C. He has denied the incident and claimed that witnesses are deposing falsely and police has prepared false documents. He has further stated that he has been falsely implicated in this case and in fact, arrested from his house in Shahdara (Delhi). Similar stand has been taken by other co-accused.

14. After hearing learned Counsel for parties and scrutinizing evidence available on record, Trial Court has recorded verdict of conviction and sentenced accused-appellant Omkar as well as other co-accused as detailed above.

15. Trial Court has found that FIR was registered against unknown persons, and death of two deceased were due to strangulation, therefore, homicidal in nature. Proceeding to consider whether circumstantial evidence constitute a chain which indicate that offence has been committed by accused-appellant (we, in this case, are keeping our discussion on confined to appellant only) and none else, it has relied on the statement of PW-3, Dharamraj, that on 22.01.2006 at around 03:00 PM, he met three persons near Gadariyo-ka-pul; One of them was wearing Kurta Paijama and two younger ones were wearing Jeans Pant and around 20 - 25 years; they were going with goats towards Sardhana and PW-3 thought that they are Shepherds; subsequently he came to know that Sohan Singh and Shishan Singh were murdered on 22.01.2006 and their goats were looted, then he told Informant about these three persons and later on 23.08.2006, he identified accused-appellant Omkar in Jail. PW-3 also identified Begraj @ Chamku and Rajpal who had accompanied accused-appellant Omkar on that date. CW-1 Ram Avtar, Special Executive Officer, Meerut has proved identification of Omkar, Begraj and Rajpal by Jagdeep Kumar PW-4, Ompal PW-5 and Dharamraj PW-3. In the aforesaid identification parade, Jagdeep identified Begraj, Ompal identified Rajpal and Dharamraj also identified Omkar.

16. Trial Court thus observed that witnesses PWs-3 to 5 have identified, accused correctly and there was no challenge to the said identification parade on the part of accused-appellant. Virtually accused-appellant did not have any cross examination of CW-1, Special Executive Officer, in whose presence identification parade was conducted. On this basis Trial Court has drawn inference that accused-appellant Omkar was indulged in the loot of goats and in that incident caused death of Informant's father and uncle both. Accused-appellant Omkar was accompanied by two other persons in the said incident. On the above basis, Trial Court has resorted to presumption under Section 106 of 'Indian Evidence Act, 1872' (hereinafter referred to as "Act, 1972") to observe that it was then responsibility of accused-appellant to explain, wherefrom he got those goats and what he was doing near the place of incident which he did not explain at all. Trial Court has also relied on the statement of PW-7 who was posted on 03.06.2006 as Head Constable at Police Station Binaula, District Baghpat and on the information of Informer, accompanied Station In-charge and other police officials, arrested accused-appellant Omkar, Begraj @ Chamku, Shakeel and Irfan at about 01:45 PM along-with forty five sheeps and goats but in the process of arrest Rajpal and Naim were successful in absconding. PW-7 has also proved that out of forty five sheeps and goats, forty related to another case crime no. 110 of 2006 registered at Police Station, Binauli, and remaining five related to the incident in question of Village Salawa, in which two persons were murdered i.e. Informant's father and uncle. Irfan and Shakeel were identified as persons engaged in the trade of goats and Omkar and Begraj had admitted their crime. Out of five, two were goats and three were sheeps but in cross-examination, he clarified that there were five goats relating to incident of Village Salawa. This recovery has been believed by Trial Court to connect accused-appellant, Omkar; and Begraj with loot of five goats from two deceased. Trial Court has also relied on the statement of PW-11 that during investigation of case crime no.103 of 2006, registered under Sections 302 and 394 IPC, wherein goats were looted and a murder has caused, Mahendra and Ram Kumar were arrested by Nagina Police and it is their information whereupon two accused Omkar and Begraj were found suspicious accused in the incident and when further investigation was made, all the above facts were discovered. Trial Court has rejected the defence plea that there was no valid identification of accuses persons and their identity was already disclosed or that there was no recovery from accused-appellant and he has been falsely implicated. On the above basis, Trial Court has held accused-appellant Omkar and Begraj both guilty. Accused-appellant has been held guilty of offence under Sections 302, 394 and 411 IPC while Begraj has been found guilty of only offence under Section 411 IPC and remaining two accused were acquitted as the prosecution could not prove their guilt beyond reasonable doubt.

17. We have heard Sri Ashok Kumar Mishra, learned Counsel for appellant and Sri Rishi Chaddha, learned A.G.A for State-respondent at length and have gone through the record carefully with the valuable assistance of learned Counsel for parties.

18. Learned Counsel for appellant has challenged the judgement dated 09.06.2011 holding accused-appellant guilty of the offences under Sections 302, 394 and 411 IPC, contending that:-

a. There is no eye witness of the incident and entire case is founded on mere conjunctures and surmises.

b. Though Trial Court has given an impression that conviction of accused-appellant is founded on circumstantial evidence but in fact there is no circumstance at all, existed to implicate appellant in the crime in question and in any case the chain of circumstances is wholly incomplete. There are large gaps and unexplained facts and circumstance, therefore conviction of appellant is patently illegal and prosecution has completely failed to prove its case beyond reasonable doubt.

c. Conviction is founded on the alleged recovery of sheeps and goats by police in a different matter and therein out of forty five sheeps and goats recovered, five are allegedly relating to incident in question but those animals, whether sheeps or goats or both or only goats or only sheeps, were never got identified by any one to show that the same ever belong to two deceased persons i.e. father and uncle of Informant.

d. Appellant was allegedly arrested during investigation of some other matter but the present incident has falsely been added to claim appreciation from superior officer and show good work, though there is no involvement of appellant in the offence in question.

e. PW-3 who has been heavily relied by Trila Court is a chance witness and his evidence is not at all trustworthy so as to implicate appellant in the case in hand.

f. There is no evidence to show that the appellant a habitual offender, indulged in the crime of loot of goats and sheeps and some times also commit murder in furtherance of said loot when any obstruction is created by any one.

g. The entire story is concocted and appellant has been falsely implicated.

19. Learned AGA on the contrary submitted that though it is not a case of ocular version who could have proved directly that the offence was committed by accused-appellant but circumstances are so incoherent, that leaves no iota of any enmity or false implication but quite natural which if look collectively, prove beyond reasonable doubt that offence in question has been committed by appellant with some other persons and none else and he has rightly been convicted and sentenced by Trial Court.

20. We have considered rival submissions. The questions up for consideration in this appeal are; (i) "whether appellant has rightly been convicted by Court below for the offences in question for which he was charged," (ii) "whether said conviction is founded on legally admissible and valid evidence and the chain of circumstances is so complete so as to lead an inference that it is only accused-appellant and none else who has committed crime," and (iii) "whether prosecution has been able to prove its case beyond reasonable doubt or not."

21. PW-1, Informant is the son of deceased Sohan Singh and nephew of deceased Shishan Singh. Admittedly he is not an eye witness of the incident. Basically he is the witness to the fact that both deceased had gone to Jungle on 22.01.2006 in the morning at around 10:00 AM to graze goats. They did not return till late evening. Thereafter Informant along-with other villagers went in their search which remain futile till 11:00 PM. Thereafter in the morning at around 05:00 AM, again 50-60 persons went in search of two deceased persons and found their dead bodies in Nala (Drainage), near the field. Nala was about 5 ft. in depth and had running water. Dead bodies of both were found at some distance of about 300 ft. There was no sign of any injury on the dead bodies. Police Station was around 11 or 12 Kms. from the place where two dead bodies were found. Informant along with Suresh, Pappu @ Deshraj went to Police Station. Information was given to nearest Police Chauki at around 11:30 AM and report was lodged at Police Station Sardhana, at mid noon, around 01:30 PM. No goats were found. In the cross-examination, PW-1 stated, that, the dead body of PW-1 father was first detected by Deshraj son of his uncle which was found in the field of Meghraj. Sugarcane crop was standing at that time in the field of Meghraj and Rajveer. He said that there were seventeen goats which were taken by two deceased for grazing, but, this fact, though he told to Suresh to scribe, but why it was not written in report, he show his ignorance of any reason. Entire statement of PW-1 therefore at the best is relevant only to the extent that his father and uncle were found dead and goats taken for grazing were not found. He is not the witness of the crime. One more thing is that in cross-examination, he admits that the day on which incident took place, he was residing at Muzaffar Nagar, and, received information of non return of his father and uncle, in the evening, when he received telephone at seven in the evening. He started to search for the two in the evening of 22.01.2006. Therefore he was not even present when the two deceased had gone to Jungle with goats and he cannot be a witness reliable of the fact as to whether any goat were taken by them or how many goats were taken by two deceased for grazing in Jungle. He has also not stated any where that his uncle and father possessed only seventeen goats or more or that same goats belong to some one else and his father and uncle were taken them for grazing as a paid service.

22. PW-2, P.D. Sharma, a Police Officer, was posted as In-charge Police Station Sardhana, took over investigation on 15.07.2006 after transfer of erstwhile Investigating Officer. He recorded statements of Head Constable Balesh Kumar, Constable Surendra Singh, Constable Satyendra Kumar and Constable Braham Singh vide parch no.23 and also proved parcha no.22, identification of accused, conducted on 23.08.2006. He has stated to have identification on the basis of statement recorded by former Investigating Officer and admits that it is not a case of ocular evidence but founded on circumstantial evidence.

23. PW-3 is one of the crucial witness whose statement has been relied by Trial Court, constituting part of chain of circumstances. PW-3 Dharamraj admits that he knew Sohan Singh and Shishan Singh, both deceased persons, being resident of the same village i.e. Salawa, Police Station Shardhana. In the examination-in-chief PW-3 has said that on 22.01.2006 at 03:00 PM, he saw three persons with goats near a Bridge. One was wearing Kurta Paijama and two boys around 20-25 years of age were wearing Jeans Pants. All the three had 20-25 goats and he took the impression that they are Shepherds. All the three went to Sardhana. He subsequently came to know that Sohan Singh and Shishan Singh have been murdered by those who were indulged in the offence of loot. He also claimed that immediately on receiving information of death of Sohan Singh and Shishan Singh, he tole to Informant Sompal that he saw three persons including goats going toward to Sardhana and he can very well identify them. He is the star witness who identified accused-appellant Omkar during identification parade conducted on 23.08.2006. He also claimed to have identified Begraj @ Chamku and Rajpal who accompanied accused-appellant when he saw them on 22.01.2006. In cross-examination he admits that he was on his field where he had gone at about 10:00 AM on 22.01.2006. However, he could not tell number of goats and said that the same may be ten or twelve. All were goats and there was no sheep. Accused were going on the side of field. He admits in cross-examination that police made no attempt for identification of goats and sheep which were allegedly recovered by them, and allegedly belong to two deceased which were looted by accused-appellant. He also stated that information of having seen accused with goats was given to Sompal, Informant, but we do not find that any such statement was made by PW-1 in his examination-in-chief or cross-examination. We do not find any reason as to why this information, if given by PW-3 to PW-1, was not given to police which would have helped police in investigation. He also said to have met Sompal in the morning on 23.01.2006 i.e. the day next to the date of incident. If information was given by him to Sompal about having seen accused and others along with goats, why this information was not mentioned in FIR by Informant or why he did not make any such corroborative statement in his deposition. The questions remain be answered. Virtually statement of PW-1 is completely silent with regard to claim of PW-3 that he saw accused-appellant also with goats on the date of incident at around 3:00 PM, along with two others, and communicated it to Informant in the morning of the day, next to the date of incident. PW-3 admits that he is not the witness of incident. He however admit that he is an active person in village politics and used to regularly visit Court, still he claims that has not seen Rajpal and Omkar though Rajpal is residence of Village Salawa itself and Omkar is his brother-in-law.

24. PW-4 Jagdeep is another witness of fact. He is also resident of Village Salawa. He claimed to have seen accused-appellant and others, sitting in a Tempo on 22.01.2006 when he was coming from Samvoti to Village Salawa. Admits that in the tempo Rajpal as well as his brother-in-law Omkar and one more person were sitting. Rajpal was not residing in Village but in Delhi. PW-4 inquired from Rajpal where he was going, whereupon all the three persons got nervous and got down before Pulia of Nahar which was just at some distance earlier to village. Next day PW-4 came to know about murder of Sohan Singh and Shishan Singh and loot of their twelve goats. He thought that probably Rajpal, his brother-in-law Omkar and third person have committed this crime. Rajpal and Omkar both were residing in Delhi and indulged in these kind of activities. On 23.08.2006, he identified third accused whose name subsequently disclosed to him was Begraj. The number of goats belong to Sompal have been told by PW-4 and not by Sompal himself who has deposed as PW-1. In cross-examination PW-4 has stated that he proceeded from his house at around 10:00 AM and reached Sanauli Mill at around 11:30 AM. He met Omkar and Rajpal who were already sitting in Tempo. They got down mid way. From his statement, we do not find that he has seen any such thing which may connect accused-appellant Omkar and Rajpal with the incident in question except that they were coming in a tempo and got down near Pulia before reaching the village. He had seen accused persons in village Sanauli in Tempo but we do not find, what is the distance from Village Sanauli to Village Salawa and how much time was taken in Tempo ride. The Bridge was on the east side of village. He also said that in the morning of incident itself, he has told about his meeting with Rajpal and his brother-in-law Omkar and third person and this fact was also made known to other villagers like Dharamraj, Kalu etc. He admits in cross-examination that he was not knowing name of Omkar.

25. PW-5 Ompal, another villager, resident of Village Salawa, claim that he was going from Tempo from Dadri to Salawa along-with one Jagdeep when he met Rajpal, his brother-in-law Omkar and another person who were sitting in tempo. He also enquired from Rajpal, where he was going, whereupon he became nervous and got down and all the three were proceeded toward Nahar. PW-5 went to his place. When he was going along-with his Cart (Buggi), he saw above three persons carrying 10 or 12 goats and when he inquired about goats, they did not give correct answer and said that they have purchased. Subsequently he came to know about murder of Sohan Singh and Shishan Singh and loot of their goats. He gave this information and expressed his doubt over Rajpal and his brother-in-law Omkar by narrating the entire facts to Informant. He is the witness who identified Rajpal on 23.08.2006 in identification conducted in Jail. He was well known to Rajpal who is resident of same village. He also admits of knowing brother-in-law of Rajpal but later in cross-examination said when brother of Omkar was arrested then he told about Omkar, brother-in-law of Rajpal. He reiterated that he met three persons including appellant while going from Dadri to Salawa on 22.01.2006 and when they boarded down from Tempo, they had no goats but subsequently he saw them along-with goats. Further in cross-examination, he explained that out of 10-12 goats, 5-6 were small and all goats were white in colour. He claims that he recognized goats of Sohan Singh and Shishan Singh and when enquired specifically from accused and others, where they are carrying goats of two deceased, they got nervous. He has also stated, when in the night, informant and other villagers were searching for Sohan Singh and Shishan Singh on 22.01.2006, at that time also he apprised them that he had seen Rajpal, his brother-in-law Omkar and third person near the field but still this fact has not been stated either in FIR nor Informant has said anything in his deposition.

26. PW-6 Dr. S.P. Singh who has conducted autopsy has proved postmortem report and also stated the reason of death of both deceased i.e. by strangulation.

27. PW-7, Sub Inspector, Balesh Kumar, who had arrested accused-appellant and some others on receiving information from Informer (Mukhbir) has stated that in a incident in which one father and son were murdered, a case was registered as crime no.110 of 2006, under Sections 394 and 302 IPC, Forty sheeps and goats were looted, some one have brought them so as to take in a container else where for sale. PW-7 went along-with Force and made arrest in which accused-appellant Omkar was also arrested and admitted to have committed offence on 10.05.2006 murdering an old man and his son and looted forty sheeps and goats. Accused-appellant also admitted that in January 2006, he and two others, murdered two old men in Salawa Village and looted seventeen goats. Excluding forty goats and sheeps which belonged to another incident, and PW-7 claimed five goats and sheeps belong to the incident in question which were looted in village Salawa and specifically said that two were goats and three were sheeps. He also described colour of goats i.e. white, spotted and red-white and they all aged seven to eight months. Sheeps were nearly five to six months.

28. Statement of PW-11 Sub Inspector Vijendra Kumar Singh is also similar to that of PW-7 who was In-charge Kotwali Sardhana in June 2005 and made investigation of crime on 23.01.2006.

29. Rest witnesses are formal and we may refer to the same subsequently, if necessary.

30. Prosecution story is simple that accused-appellant along-with Rajpal and one another, went towards Village Salawa in a Tempo. During this ride PWs- 4 and 5 met them since travelling in the same Tempo. They made inquiry as to where they were going. The three persons got down near a Bridge over a Nehar just before the village. Thereafter PW-5, after some time saw them along-with goats. PW-3 also saw three persons along with goats at around 03:00 PM. PW-5 recognized the goats of two deceased persons and inquired from accused persons, where they were carrying goats, to which they did not give any reply and went towards Sardhana. Thereafter comes PW-7. In another matter of loot of goats and murder, he got information and when arrested, accused-appellant disclosed that he along with two others, committed crime in question in January, 2006 and out of forty five goats recovered, five belong to incident with which we are concerned. Therefrom the prosecution connected chain and have sought to prove the guilt of accused-appellant.

31. Now if we examine all the statements collectively, we find not only self contradiction but a huge gap and clear improvement on the prosecution story. The first persons who has seen accused-appellant, Rajpal and another person is PW-4 and 5. PW-4 and 5 both claim to coming from Village Salawa on 22.01.2006 in a Tempo when they met Rajpal, his brother-in-law and a third person. Pws-4 and 5, both inquired from Rajpal who was residing at Delhi, as to where he was going, whereupon all the three got nervous and got down near a Pulia before reaching the village. None of them have stated as to what time the three persons were met in Tempo, how much time they travelled together, and at what time they got down. PW-4 has said that he went to Sanauli Mill on 22.01.2006 at about 10:00 AM and reached thereat around 11:30 AM then he met Rajpal, Omakar and third person in the Tempo. PW-5 however has said that he was coming from Dadri to Salawa not from Sanuli Mill. PW-4 if had gone to Sanauli Mill and reached at 11:30 AM thereat, what he did there at and at what time he boarded Tempo to come back to village Salawa is not clear. He has not stated that he has gone to Sanauli Mill with PW-5 but it appear that PWs 4 and 5 both met each other in the same tempo but at what time and at which place they, separately or collectively, boarded Tempo is not stated any where.

32. PW-5 has very categorically said that he did recognize goats of two deceased persons and when three persons were carrying goats he also inquired as to where they are carrying goats but made no attempt to inform both Sohan Singh and Shishan Singh or Informant immediately. In the evening itself villagers proceeded to search for them. PWs-4 and 5 both belongs to same village. PW-5 in cross-examination has said that on 22.01.2006, he was coming from Dadri to Salawa at 11:00 AM in the Tempo and 8-9 passengers were in Tempo but as per PW-4 he reached Sanouli Mill. When PW-4 proceeded for village Salawa after completing his work at Sanouli Mill, nothing has been said about it. Whether they informed, Informant of having seen accused-appellant along-with goats and that they travelled in Tempo with them, this fact we do not find, either in the examination-in-chief or cross-examination of PW-1, Informant. PW-1 has also not found it necessary to mention in the FIR, though FIR was written on the next day at around 01:35 PM. Though according to PW-4 and 5 they had already disclosed their suspicion over Rajpal, his brother-in-law and third person by informing Informant.

33. These facts render statements of PWs-4 and 5, who belong to same village, active in local politics, doubtful and we find it really unsafe to rely on these two witnesses when we read deposition of PW-1 together. In a case of murder where dead bodies are found and nobody has seen the incident, if any information of suspicion in respect to any person, that too, when PW-5 as per his own statement identified goats of two deceased persons being carried by accused persons, and informed this fact to Informant, still, Informant did not disclose it either in FIR or in Investigation, raises a serious doubt over the statement of two witnesses.

34. The next circumstance is alleged discovery of five goats and sheeps, as the case may be. PW-7 claims have recovered forty five goats and sheeps, out of which five belong to the incident in question. Among those five, two were goats and three were sheeps. As per Informant as well as Pws-3, 4 and 5, deceased had only goats and there were no sheeps at all. PW-5 claims that all the goats were white in colour while description of colour given by PW-7 is different. Since statement was recorded after long time from the date of incident, we are ready to give due weight to the fact that after long time are may not remember the facts like a scripted verson and all the minor details may not be given correctly but here one of the most important aspect is that out of forty five recovered goats and sheeps, PWs-7 and 11, claimed that five belong to two deceased whose goats were looted in January, 2006 by accused-appellant and others. The goats could have been identified by PW-1 who is Informant and son of one of one deceased and nephew of another deceased. The goats belonged to him therefore he was the best person who could have easily identified goats. Then PW-5 claims that he very well recognized goats of two deceased persons. Unfortunately, alleged five goats and sheeps, recovered by police, were not got identified by any one and there is no evidence whatsoever that alleged five goats and sheeps at all belong to two deceased persons who were allegedly murdered by accused appellants and their goats were looted. For this purpose reliance is placed on the alleged admission of accused-appellant to PW-7 that he had committed crime by murdering two old persons in January, 2006 in Village Salawa and looted goats but this is in admissible in evidence. The description of goats and sheeps recovered did not tally with what was looted in January, 2006 inasmuch as no sheeps were either possessed by PW-1 or looted but PW-7 very categorically said that excluding forty sheeps and goats, remaining five belong to incident in question out of which two were goats and three sheeps.

35. Learned AGA however pointed out to recovery memo showing that there were five goats. Even if we give some margin that all five goats but still we do not find any evidence on record that these five goats actually belonged to deceased persons who were murdered on 22.01.2006. For this purpose alleged admission made by the accused-appellant before Police Inspector is not admissible in evidence under Section 26 of Act, 1872 and no other evidence has come on record to show that alleged recovery of goats, recovered by PW-7 in connection with another evidence, ever got identified so as relate to incident in question. This is a serious flaw and breaks entire chain of circumstance.

36. Even the alleged identification does not help prosecution at all for the reasons that Rajpal was admittedly resident of Village Salawa and it cannot be ruled out that local villagers very well knew him. In fact PWs-4 and 5 in their statements have admitted that they knew Rajpal. Accused-appellant is also brother-in-law of Rajpal and this fact was also known to both witnesses PWs-4 and 5 as admitted in their statements. In these circumstance it is difficult to believe that local villagers had not seen Rajpal's brother-in-law earlier in village and did not recognize him earlier. If they were already knowing him, the identification parade takes us nowhere so as to believe prosecution version. We are also of the view that once prosecution story is broken and chain of circumstances is not complete, instead it leaves serious gaps and breaks, the alleged offences under various Sections which are part of the same incident, cannot be said to have been committed by accused-appellant and we have no hesitation in holding that prosecution has miserably failed to prove the case beyond reasonable doubt. Court below has committed manifest error in not examining evidence in correct perspective. It has committed serious mistake in omitting to consider the contradictions, serious gaps and other relevant factors, which render witnesses of facts supporting prosecution story, seriously doubtful and untrustworthy. Accordingly, judgment and order of Court below, of conviction and sentence of appellant, cannot be sustained.

37. In the result, appeal is allowed. Judgment dated 09.06.2011 passed by Sri Sanjay Shaker Pandey, Additional Sessions Judge, Court No.12, Meerut in Sessions Trial No. 773 of 2006 convicting and sentencing accused-Appellant, Omkar, under Sections 302, 394 and 411 IPC, is hereby set aside. Appellant is in jail and shall be released forthwith, if not wanted in any other case.

38. Keeping in view provisions of Section 437-A Cr.P.C., appellant is directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.

39. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.

Order Date :- 31.05.2019

I.A.Siddiqui