Gudda @ Rajman @ Raj Kumar @ Jhalla @ ... vs State Of U.P.
2022 Latest Caselaw 22390 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

1
 
A.F.R.
 
Court No. - 48
 
Case :- CRIMINAL APPEAL No. - 5070 of 2013
 
Appellant :- Gudda @ Rajman @ Raj Kumar @ Jhalla @ Guddu
 
Kol And 3 Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- D.P. Singh,Daya Nand
 
Pandey,I.K.Chaturvedi,Muktesh Singh,Neeraj Kumar Pandey,P.K.
 
Singh,Rajendra Prasad Tiwari,Rajrshi Gupta,Smt Usha
 
Srivastava,Sushil Kumar Dwivedi
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Suneet Kumar,J.

Hon'ble Syed Waiz Mian,J.

Per Hon'ble Syed Waiz Mian, J.

1. This Appeal has been directed against the impugned judgment

and order dated 18.10.2013, passed by Special Judge, D.A.

Act/Additional Sessions Judge, Court No. 1 Chitrakoot, in

connection with Session Trial No. 147 of 2007, State vs. Gudda @

Rajman @ Raj Kumar @ Jhalla @ Guddu Kol and others, whereby,

the learned trial Court has convicted the appellants/ accused with

multiple sentences, for offences under Sections-147, 148, 149, 364,

302, 201 I.P.C. and Section 14 of D.A. Act, Police Station-Raipura,

District-Chitrakoot.

2. It has also been directed that all sentences shall run

concurrently.

3. Heard Shri Rajrshi Gupta assisted by Shri Rijvaan Ahmad,

Ms. Shambhavi Shukla, Shri D.P. Singh, learned counsels for the

appellants and Shri Om Prakash Mishra, learned A.G.A. for the

State and perused the record.

4. Brief facts of the prosecution story unfolds as under:

5. Informant Raghunandan Pathak, along with Ram Khilawan,

came to village Hanumanganj, to purchase wheat. They came at

the gate of Kamla in Kol Basti. In the village Hanumanganj, Daya

Shankar Kol met them; Shankar Kol was also present, who made

some conversation with Raghunandan. After a while, informant's

brother, Rajjan Mishra, had also reached there and seen that

Shankar Kol, Raghunandan, had some talk with him,

Gudda Kol had also reached there and Shankar Kol, Gudda Kol

and Jiya Lal caught the hand of his bother and took his brother

towards Jungle; at some distance, 15-20 people were spotted sitting

in two black four wheelers; Shankar Kol, Gudda and Jiya Lal took

his brother near the persons who were sitting in two four wheeler

vehicles and leaving their vehicles on spot, they all took his

brother towards Jungle and after some time, both vehicles returned

towards Lalta Road.

6. It is further alleged in the written First Information Report,

Exhibit Ka 3 that on 22.05.2007 at around 10 p.m. Shankar Kol,

Gudda Kol and Jiya Lal had visited his village and had forbidden

to pluck Tendu leaves.

7. It is also alleged in the written First Information Report that

on 23.05.2007 at around 4 a.m. wife of Gopi, and Rajjan had also

went in the northern side of Jungle to pluck Tendu leaves, where

Shankar, Gudda Kol and Jiya Lal were also present and all of them

had forbidden the aforementioned women to pluck Tendu leaves.

They had returned to their village; since then his brother Rajjan

Mishra was missing. Shankar Kol, Gudda Kol, Jiya Lal and their

15-20 associates to whom he had, no acquaintance, kidnapped his

brother with intention to kill him, from village-Hanumanganj. He

and others made search of Rajjan Mishra, but could not get any

information. Since the next day of the incident Raghunandan had

also gone to an undisclosed place.

8. On the basis of written First Information Report, Exhibit Ka-

13, a criminal case at Crime No. 46 of 2007 under Sections-147,

148, 149, 364, 302, 201 I.P.C. and 14 of D.A.A. Act, on

05.06.2007 at 13.30 p.m. was lodged against accused Shankar Kol,

Gudda Kol and Jiya Lal and their 15-20 associates. Substance of

the First Information Report was entered into G.D. No. 27 on

05.06.2007 at 1:30 p.m. and matter was investigated.

9. During investigation, accused Radhe @ Subedar was arrested.

Investigating Officer took him on police remand for 48 hours and

on his interrogation he stated that he can get recovered the voter

I.D. and Ration card of Rajjan Mishra and the investigating officer,

along with police team on 15.05.2008, accused Raju Kol,

Sukhnandan, along with public witnesses, Dharmendra Pandey and

Rajjan Mishra, went towards Giduraha (Bandhak) Jungle, at

Hanuman Chauk. Accused Radhe @ Subdear Singh, took them in

the east of Hanuman Mandir, Manikpur Range, near a deserted

Kothri and accused Radhe informed them that near the roof of said

Kothri in the heap of bricks he had concealed the I.D. card and

ration card. Accused Radhe @ Subedar, entered into the deserted

Kothri and from heap of bricks, lying near the roof, one polythene

packet got recovered and the same was handed over to him. On

opening this packet one voter identity card bearing No. CYQ

1410752, having been issued by the Indian Election Commission, in

the name of Rajendra S/o Ram Pratap, male age 37 (on

01.01.2001) and on the back of the identity card House No. 144,

Gram-Khandeha, Police Station-Mau, District-Chitrakoot,

constituency No. 315, Manikpur, was marked. This identity card

was having been issued on 14.10.2001, photo of Rajendra was also

pasted thereon. From the said polythene packet, one ration card

no. 45585 in the name of Rajednra Prasad Mishra, S/o Ram Pratap

Mishra, village Kandaila, Post Singwa, Police Station-Manikpur,

District-Chitrakoot was also got recovered. In the ration card name

of three members of his family were noted. Both the papers were

connected to Rajjan Mishra, therefore, both these papers were

taken in possession by Investigating Officer and his team and these

two papers were put in a polythene packet and the said packet

was wrapped up in a piece of cloth which was sealed on the place

of recovery in the presence of all the witnesses and a memo of

recovery of aforesaid papers was written; after reading over the

same to the witnesses, it was got signed by them.

10. During investigation the Investigating Officer also took Raju

Kol in police custody for 48 hours on 14.05.2008 and on his

interrogation, he had informed that they had killed Rajjan Mishra

by assaulting him with axe. On 15.05.2008, the Investigating

Officer with police personnel and also with other co-accused

Sukhnandan and Radhe @ Subedar came to their camp office

situated at town-Manikpur. Investigating Officer with police team

along with above noted accused proceeded from their office in the

hope of recovery of axe (weapon of offence); they along with the

co-accused, as well as, public witnesses Dharmendra Pandey and

Rajal Mishra reached near Garhit Nala (Channel) situated in the

Jungle. Raju Kol pointed out that in east-west side of the channel

he and co-accused Jiya Lal had killed the deceased Rajjan Mishra

assaulting him with two axes and after killing him they washed

the blood stained axes in the running water of the channel. They

thereafter concealed both the axes beneath the stones in the

bushes. Accused Raju Kol, got recovered an axe from the said

place and handed over the axe to Investigating Officer in the

presence of Police personnel and public witnesses. The recovered

weapon ''axe' was sealed in a piece of cloth. Memo of recovery of

axe, Exhibit-Ka-3 was prepared by the Investigating Officer in the

presence of the witnesses and the same was also signed by them.

11. During investigation, the officer incharge of Police Station-

Raipura, District-Chitrakoot, in the presence of the witnesses

Pradhumn Lal Kol, Chunni Lal, in connection with the incident,

the belongings of deceased Rajjan Mishra i.e. (1) Saafi (Tericot

cotton mix) green checked colour, border black (2) a torn red

black yellow checked full slieve shirt (3) one white sandow vest,

(Amul gold, 85 c.m.) (4) Green Colour torn pant of Tericot (5) one

brown colour brief, were also recovered.

12. All the aforementioned belongings of the deceased were blood

stained. One pair of white colour fibre slippers was also taken in

possession by the police and all the belongings of the deceased

were put in a piece of cloth; memo of recovery of the said articles

was prepared by Hari vansh Singh, Sub Inspector, on the dictation

of Sachindra Prasad Shukla, incharge of the police station.

13. During investigation accused Radhe @ Subedar was again

taken in police custody on 13.05.2008 and on the following date

i.e. 14.05.2008, Station House Officer, Rishikesh Yadav, with police

personnel came at Rampuriya under the territorial jurisdiction of

police Station Manikpur, District-Chitrakoot. At the instance of

accused Radhe @ Subedar, they reached at the house of Shiv

Poojan @ Dilli, who was not found at his house however, in the

presence of public witnesses and Daya Ram, house of Shiv Poojan

@ Dilli, was got searched but no contraband was found. Memo,

exhibit Ka-15 was accordingly prepared and the same was got

signed by Smt. Sunita w/o Shiv Poojan @ Dilli and other

witnesses.

14. Informant Ram Gopal Mishra, also reached at the police

station on 16.07.2007 and presented an application paper no. 18-

Ka, the informant averred in the application that the skeleton of

his brother Rajjan Mishra was lying in the bushes grown in the

channel. In the presence of informant, noted in application no. 18

Ka; the Investigating Officer with police force, along with the

informant and others, reached at the said place where Skelton,

clothes and slippers of the deceased were lying. Investigating

Officer Sachindra Prasad Shukla, inspected the place and prepared

a site plan, paper no. 20 Ka, Exhibit Ka11; people were present on

the said place had apprised him that these articles were the

belongings of Rajjan Mishra because on that date deceased had

worned them. In the front of head of the skelton his hairs had

disappeared.

15. Investigating Officer Sachindra Prasad Shukla, in the presence

of Panchan, an inquest report of the skelton was prepared and

skelton, pair of slipper, blood stained Safi, full sleeves checked

shirt, one sandow west, one torned green colour pant and one

brown colour brief, were took in the possession and memo Exhibit

Ka -12 and other necessary papers on the spot were prepared by

the Investigating Officer, Sachindra Prasad Shukla.

16. During investigation, Gudda @ Rajman was arrested on

22.07.2007 who disclosed to Investigating Officer that the deceased

was taken in Thick Jungle and near Garhit Nala (Channel), Rajjan

Mishra, was done to death by the blows of axe.

17. During investigation, the present case was transferred to

A.T.S. Lucknow. Investigating Officer, Abhay Kant Singh, took up

the remaining investigation on 29.07.2007, he recorded the

statements of accused and witnesses and during investigation names

of accused Shankar Kol, V.M. Lal, Gotar @ Rajam @ Halla @ Raj

Kumar @ Gudda Kol came in the light. Statements of Santosh

Kumar Vishwakarma, Satyanarayan, Abhilash, Umesh Dwivedi, and

other witnesses were also recorded. Investigating Officer collected

the incriminating evidence for the offences under Section 147, 148,

149, 364, 302 and 201 I.P.C.

18. During investigation, the Investigating Officer, Abhay Kant

Singh, also recorded the statements of Smt. Meena, Jamindar, and

Jhadi @ Bhola @ Kamru and on the basis of evidence Section 14

of D.A. Act was also added.

19. During the course of investigation statement of Aditya Nath

Tiwari, and additional statement of Santosh, Satya Narayan, and

accused were also recorded.

20. During investigation to ascertain real cause of death the

skelton of the deceased, inquest report and other necessary papers

were forwarded to District Mortuary through police constables.

21. Dr. R.K. Rao, had conducted the autopsy over the skelton on

16.06.2007 at 3.30 p.m. and he prepared post mortem report, in

his writing, Exhibit-Ka1.

22. On medical examination of the skelton Dr. R.K. Rao, could

not ascertain the cause of death of the deceased. He could also not

ascertain the nature of weapon by which deceased was killed. He

also failed to note the approximate time of the death of the

deceased.

23. After due deliberations and completion of investigation charge

sheet was filed before the competent Court of criminal jurisdiction;

since the matter was under the jurisdiction of Sessions Court, same

has committed to it. In the District and Sessions Court Criminal

case was registered as S.T. No. 148 of 2007.

24. Charges were framed, vide order dated 27.11.2007, by the

Special Court, under Sections 147, 148, 364, 302, 201 read with

Section 14 D.A. Act, against accused Gudda Kol and 14 others.

25. Trial Court vide its order dated 13.08.2008 also has framed

charges against co-accused Subedar @ Radhe and Jiya Lal under

Sections 147, 148, 364, 302 read with Sections 149, 201, 302, 364

I.P.C. and also Section 14 D.A.Act.

26. All the accused absurd their guilt and claimed complete

innocence.

27. In order to prove the charges against the accused, the

prosecution examined, P.W.-1 Anil Kumar Shukla, P.W.-2 Jagdish

Prasad, P.W.-3 Satya Narayan, P.W.-4 Santosh Kumar

Vishwakarma, P.W.-5 Umesh Chandra Dwivedi, P.W.-6-Jhari Lal,

P.W.-7 Chunni Lal, P.W.8-Dr. R.K. Rao, P.W.-9/C.W.9 Rajul,

P.W.10 C.P. Narendra Singh, P.W.-11 Babbu Ram, P.W.-12 Smt.

Nirasha Devi, P.W.-13 Smt. Sunita, P.W.-14 Shachindra Prasad

Shukla, P.W.15-Ram Gopal, P.W.-16 Smt. Meena Devi, P.W.17-

Abhay Kant Singh, P.W.-18-Rishikesh Yadav, Police Inspector,

posted in S.T.F. on 30.01.2008, P.W. 19-|Ram Abhilash P.W.-20

Aditya Tiwari, P.W.-21, Ram Dayal Tiwari, P.W.-22 Dharmendra

Pandey, P.W.-23-Ram Sewak, and P.W.-24-Constable Kamlesh

Kumar.

28. Statements of the accused under Section 313 Cr.P.C. were

recorded in which they have denied the charges and evidence

against them and they have said that they have been falsely

implicated due to animosity.

29. Accused in their statements under Section 313 Cr.P.C. have

also stated that they shall adduce evidence in their favour.

However, they have not examined any witnesses.

30. Learned trial Court after appreciating and analyzing the

evidence of the witnesses and other materials available on record

has convicted the appellants for aforesaid offences and also

awarded punishment as mentioned in para no. 35 and 36 of the

impugned judgment and order.

31. By means of instant appeal, appellants/accused have assailed

the impugned judgment inter alia on the grounds that the

judgment and order is illegal arbitrary and against the evidence on

record; there is no direct evidence against the appellants; instant

case rests upon circumstantial evidence but the chain is missing;

dead body of the deceased was not recovered; as per prosecution

case the skelton was recovered which was not of a human being;

D.N.A. test report was found negative; recovery of axe, voter I.D.

card, Ration Card etc. were false and the witnesses have turned

hostile as they have not supported the prosecution case. There is

also inordinate delay in lodging the First Information Report;

statement of P.W-15, informant is categorical that he has not

moved any application to the higher authority; he has not

disclosed the name of any accused to the police; he has also stated

that he has no fear of any one; his brother was a man of criminal

activities and also was inimical to several persons; he was also a

member of a gang and an award of 3,000/- was imposed upon

him; appellants/accused have been falsely implicated at the behest

of Daddu Prasad, the then Minister of the ruling party as the

appellants were supporters of Samajwadi Party. It is prayed that

the impugned order dated 18.10.2013, passed by the learned trial

Court in connection with trial No. 148 of 2007 State vs. Gudda @

Rajman @ Raj Kumar @ Jhalla @ Guddu Kol and others under

Sections-147, 148, 149, 364, 302, 201 I.P.C. and 14 D.A. Act,

Police Station-Raipura, District-Chitrakoot, be set aside.

32. Informant-P.W.-15, Ram Gopal has stated in his deposition

that the deceased Rajjan Mishra was his brother. On 23.05.2007 at

about 9 to 9.15, he was abducted while he was in front of the

house of Kamla at Hanumanganj by Shankar Kol and his two

associates. One of the accused Raghunandan had suggested him

and his brother to purchase wheat from Hanumanganj, in

pursuance thereof he and Raghunandan departed from his house to

Hanumanganj; his brother had told him that after having meal he

would reach there; at the time of abduction of the deceased he

(P.W.-15), Raghunandan Pathak had just reached at the house of

Kamla Pokhariya, at Hanumanganj; they saw that three miscreants

Shankar and his two associates, were sitting there; Raghunandan

had some conversation with all three miscreants; at this stage his

brother, deceased-Rajjan Mishra also had reached there and all

three miscreants abducted him towards forest. Thereafter, his

brother did not return; his report at the police station was not

lodged; police had lifted him from his house and also kept him in

the police station lock up for five days.

33. On the request of prosecution, -P.W.15 Ram Gopal was

declared hostile; he has denied his statement under Section 161

Cr.P.C. and has also feigned ignorance as to how it came to be

recorded by the Investigating Officer. He has further stated that he

did not disclose the name of the accused to the investigating

officer and how such statement came to be recorded is not known

to him.

34. In cross examination-P.W.-15, Ram Gopal, brother of the

deceased has not supported the allegations made in the First

Information Report and with regard to accused Shakar Kol, he has

contradicted in his cross examination that he had not disclosed his

name to the investigating officer.

35. P.W.-16, Smt. Meena, wife of the deceased Rajjan Mishra

has stated in her examination in chief that when her husband had

gone to Hanumanganj to purchase wheat, he was having Rs. 100/-,

betel nut, Batua and Kuraula. In the evening, her Jeth and

Raghunandan Pathak had come at her house, but her husband did

not return.

36. A day earlier her husband had gone to Hanumanganj, three

miscreants came along with Raghunandan Pathak; she had come to

know that her husband has been done to death. It is her belief

that her husband Rajjan Mishra was killed at the instance of Dadua

Gang, by Shankar Kol, Jiya Lal Kol and Gudda Kol. No person was

coming forward to disclose the name of the miscreants due to

fear.

37. In the cross examination, P.W.-16, has stated that on the

date of occurrence, Raghunandan and her Jeth Ram Gopal had

departed and on the same day both had returned to their house,

on their way to Hanumanganj, miscreants had met and her

husband was caught and abducted. After four to six days on her

visit to village Hanumanganj, wherein, she was apprised that three

miscreants had abducted her husband and took him towards the

forest.

38. It is the case of the prosecution that deceased had departed

from his house all alone and the statement of P.W.16 Smt. Meena

is based on hear-say which needs corroboration but her Jeth, P.W.-

15, Ram Gopal has not supported the allegations made in the First

Information Report, nor, his statement under Section 161 Cr.P.C.,

therefore, her indirect evidence has not been corroborated by her

Jeth, P.W.-15-Ram Gopal.

39. P.W.16, Smt. Meena Devi, has also stated in her examination

in chief that on the date of occurrence her brother Ram Abhilash

and nephew Umesh had visited her house and after taking meal

they had departed.

40. P.W.19 Ram Abhilash, has stated in his examination in chief

that on 23.05.2017, he had not visited the house of her brother in

law at village Kota Kadaila and he knew that his brother-in-law

was killed but he has not witnessed the incident. P.W.19 Ram

Abhilash has also been declared hostile and he has not supported

the prosecution case in his cross examination also.

41. P.W.-20, Aditya Tiwari has deposed on 27.04.2013 stating

that incident had occurred 6-7 years earlier. He along with his

uncle Ram Lal Tiwari, Jimindar and Jhari Kol from village Kota

Kadaila were going to their village through forest; they had heard

the sound of 1-2 fire arm shots, but he has not seen the incident,

nor, he had seen as to who had murdered deceased Rajjan Mishra.

42. P.W.-20, Aditya Tiwari has also been declared hostile as he

has not supported the prosecution story, nor, statement under

Section 161 Cr.P.C. attributed to him.

43. This witness has also admitted in his cross examination that

his house from village Kota Kadaila is situated at the distance of

15 Kilometers.

44. P.W.-21 Ram Dayal Tiwari, has deposed on 27.04.2013, that

the incident had occurred 6-7 years before at 10 to 10.30 A.M.

when he along with Jimindar, Jhadi Kol and Aadil, were returning

from village Kota Kadaila to their house at Mau Gurdari, they

heard the sound of fire shots and out of fear they had hidden

themselves but they did not see the incident.

45. P.W.-21 Ram Dayal Tiwari, has also been declared hostile

and he has not supported his statement under Section 161 Cr.P.C.

nor, the prosecution story.

46. P.W.-22 Dharmendra Pandey, deposed in his examination in

chief that on 13.05.2008 police had taken Raju Kol, Radhy and

Jiya Lal in their custody but he had not accompanied the police.

47. P.W.-1 Anil Kumar Shukla, stated in his testimony that

Raghunandan Pathak and Jagdish were known to him. He and

Jagdish, while sitting in their house, in the morning, were talking

to each other, in the meantime, Raghunandan Pathak, came and

said to him that he wants to speak to him in isolation to which he

said that since Jagdish is his friend, therefore, he can speak in his

presence, whereupon, Raghunandan Pathak had told him that in

the murder of Rajjan Mishra, police were implicating him; he

requested him, since police were familiar to him, therefore, to

save him; he had asked Raghunandan Pahtak about the incident to

which he had told him that Rajjan Mishra, has been murdered.

48. P.W. 19 Ram Abhilash, P.W. 20 Aditya Tiwari, P.W.-21 Ram

Dayal Tiwari, P.W. 22 Dharmendra Pandey, in their testimonies

have not whispered against the appellants/accused, nor, have

supported the allegations against them. On the contrary, they have

denied prosecution story and also their statements recorded under

Section 161 Cr.P.C., by the investigating officer, during

investigation.

49. P.W.-1, Anil Kumar Shukla has not stated in his statement

that accused Raghunandan Pathak had confessed to have killed the

deceased or participated in the alleged incident.

50. P.W.-2 Jagdish Prasad, in his examination in chief has stated

that appellant/accused Ankaj Kumar, Ramashankar Singh and

Surajpal, were known to him but rest of the accused were not

known to him. He also knew Anil Kumar Shukla but he does not

know the accused Raghunandan nor he has ever seen him. He

further stated that he also does not know the deceased Rajjan

Mishra. This witness has also denied the statement recorded under

Section 161 Cr.P.C. and has expressed his ignorance as to how his

statement came to be recorded by the investigating officer.

51. P.W. 3-Satya Narayan has stated that he does not know all

the accused who were present in the Court during his deposition.

He has also stated that Phool Chandra was also not known to him.

He refuted his statement recorded under Section 161 Cr.P.C. and

deposed his ignorance as to how his statement came to be

recorded by the Investigating Officer.

52. P.W.-4 Santosh Kumar Vishwakarma has also stated in his

examination in chief that Rajjan Mishra, the deceased, Balkumar,

Veer Singh, Radhe @ Subedar, Sotu Patel, Munna Singh, Kuldeep,

Ramshankar Patel, Mahesh Kumar Narayan, Sharban Patel, Ramlal

Patel, Surajbhan Patel, Girja Shankar, Munshi and Raju Kol were

not known to him. On 23.05.2007 he had not seen Rajjan Mishra

surrounded and was being abducted. On the contrary, he has

stated that on the said date he was not present in his village as he

was present in Ahmedabad.

53. P.W.-5 Umesh Chandra Dwivedi, has also stated in his

examination that he knew Rajjan Mishra and he has heard about

his murder but he does not know the killers. This witness has also

denied his statement under Section 161 Cr.P.C.

54. P.W.-6-Jhadi Lal has also stated in his examination in chief

that he knew Rajjan Mishra who was native of his village but he

does not know as to how he came to be killed.

55. P.W.-7 Chunni Lal has stated in his examination in chief that

he knew Rajjan Mishra, who was native of his village but he does

not know as to how he came to be killed.

56. P.W.-7 Chunni Lal has stated in his examination in chief that

since deceased Rajjan Mishra was a native of his village, therefore,

he was known to him. In rest of his deposition he has not

supported the prosecution case.

57. P.Ws.-2 to 7 have been declared hostile and also were put to

cross examination on behalf of the prosecution but the sequence of

denial of prosecution story has also continued in their cross

examinations and thus they have not given any evidence in their

respective statements in support of the prosecution story.

58. P.W.-11 Babbu Ram has stated in his examination in chief

that deceased Rajjan Mishra was his brother; he was abducted on

23.05.2007 but he does not know the date of his killing. Further

he has stated that his brother was killed by dacoit Dadua @ Shiv

Kumar who was known to him. Dadua @ Shiv Kumar was killed

in police encounter.

59. P.W.-12 Nirasha Devi, has stated in her examination in chief

that on 21.02.2009, she had gone in the jungle to pluck beetle

leaves; since Shankar Kol used to visit her village, hence, he was

known to her but he had not met her, nor, he had forbidden her

from plucking beetle leaves.

60. P.W.-13 Sunita has stated in her examination in chief,

recorded on 21.02.2009 in the Court that about 4-8 months earlier,

while she was plucking beetle leaves in the forest, Shankar Kol

and his two associates had not prevented her from doing so. She

has also expressed her ignorance about the character of deceased

Rajjan Mishra.

61. It is manifested from the testimonies of P.W.-2 to P.W.-7 and

P.W.-11 to 13 that neither they have supported the prosecution

story nor their statements recorded under Section 161 Cr.P.C.,

therefore, these witnesses P.W.-1 to P.W.-7 have been declared

hostile but in their cross examinations too there is no iota of

evidence against the appellants/accused.

62. P.W.-1 Anil Kumar Shukla has also denied his affidavit, paper

no. 83 Ka/17, however, he has identified his photo thereon but he

has stated in his testimony that he had told the investigating

officer that he did not know who had killed Rajjan Mishra.

63. P.W.-2 Jagdish, has also denied paper no. 83 Ka 10 and 11

83 Ka 10-13, however, he has admitted signature on this piece of

paper but, he has stated that he did not appear before the police

officers to submit his affidavit.

64. P.W. 4, Santosh Kumar Vishwakarma, has also stated in his

cross examination that STF personnel had got his signature on

plain papers and he had not stated anything with regard to the

incident.

65. P.W.-6 Jhadi Lal, has also stated in his cross examination

that affidavit 83/Ka/22 on the record was not having been sworn

by him. S.T.F. personnel had got his signatures on blank papers,

therefore, there is no evidence on record to show the involvement

of the appellants/ accused in the incident.

66. It is also the case of the prosecution that the voter identity

card, ration card, one pair slipper, blood stained clothes of the

deceased were recovered on 13.05.2008 and 16.07.2008 in the

presence of public witnesses, Dharmendra Pandey, Rajal Mishra.

They have not supported the alleged recovery of aforementioned

belongings of the deceased.

67. P.W.-22 Dharmendra Pandey, has stated in his examination in

chief that on 13.05.2008 police had not taken him into their

custody, nor, he was taken to jungle. He did not see whether voter

identity card and ration card were recovered at the instance of the

accused. Further, he has stated that he was not shown Voter I.D.

card and ration card.

68. Weapon of the offence is also stated to have been recovered

by the police party in connection with the instant case on

15.05.2008 at the instance of the Raju Kol @ Raghunandan. It is

also the case of prosecution that accused Raju Kol @ Raghunandan

had also made disclosure statement with regard to the weapon of

crime and also stated that he had killed the deceased by the

recovered blood stained axe.

69. Accused Raju Kol @ Raghunandan, in his statement under

Section 313 Cr.P.C has denied his admission and disclosure

statement before the police. P.W.-22 Dharmendra Pandey has

denied the recovery of blood stained axe at the instance of accused

Raju Kol. Further, he has stated that recovery memo paper no. 34

Ka-3 (Exhibit-Ka-3) was not having been signed by him. On the

contrary, his signature by the police was taken on piece of plain

paper.

70. It is specifically denied that no writing, in his presence was

made on the said paper, therefore, witness P.W.-22 has also not

supported the recovery of weapon of crime i.e. blood stained axe

and has also denied the recovery of other belongings of the

deceased in his presence.

71. P.W. 9 Rajul, has stated in his examination in chief that he

had visited police station-Manikpur on 15.05.2008, with regard to

his missing vehicle. At the police station his signature was taken

on plain paper and due to fear of the police he had signed the

paper. Further, he has deposed that neither the axe, nor Voter I.D.

Card or ration card was recovered in his presence, nor he has any

knowledge of its recovery.

72. P.W.-9, Rajul, like P.W.22 Dharmendra Pandey, was declared

hostile but both these witnesses have not only denied the

statements under Section 161 Cr.P.C. but also expressed their

ignorance about the papers 134Ka/2 and 134 Ka/3 as to how they

came to be written.

73. It is evident from the above analysis that the incident came

to be registered on the basis of written First Information Report,

paper no. 5Ka/Exhibit Ka-13. In this connection P.W.-15 Ram

Gopal, who happens to be elder brother of the deceased has stated

in his examination in chief that the case, at the police station was

not registered as per his account of the incident, but the police, at

the police station, had given him a written draft of the First

Information Report and he was asked to sign the same and as such

he had signed the written First Information Report, paper no. 5

Ka.

74. P.W. 15, Ram Gopal was also been declared hostile and he

has stated in his examination against the police, at whose instance,

he had signed the draft First Information Report, has not made any

complaint to any higher police officer against them. As such P.W.-

15 Ram Gopal has also not supported the allegations in the First

Information Report. It is also evident that any of the public

witnesses who were examined before the trial Court has not

adduced evidence against the appellants/accused. Moreover, the

recovery of the belongings of the deceased and weapon of the

crime has also been denied by all the aforestated witnesses and

since they have not supported the prosecution case, therefore, they

were declared hostile on behalf of the prosecution, but in their

cross examination, they have further denied their statements

recorded by the investigating officer under Section 161 Cr.P.C.

75. P.W.-15 Ram Gopal/ informant has stated in his examination

in chief that inquest of the Skelton was conducted in his presence.

In view of scattered clothes, he had identified the Skelton of

deceased. He has further stated that his brother deceased Rajjan

Mishra, was a criminal and he was associated with Dasyu gang but

was not its active member. Due to enmity of the deceased with the

miscreants of the area, he was killed. As such, the brother of the

deceased, P.W.-15 Ram Gopal has shifted the killing of his brother

from the appellants/accused to the miscreants of the area who

were inimical to the deceased.

76. P.W.-16, Smt. Meena W/o deceased Rajjan Mishra, has stated

in her examination in chief that after two months of the incident

in the by-lane of Garihan hill, Skelton of her husband was found

and near the Skelton, shirt, vest, and slipper and other belongings

of the deceased were recovered and in view of the belongings she

had identified Skelton being that of her husband.

77. P.W.8-Dr. R.K. Rao, has stated in his examination in chief

that on 16.07.2007 at 3.30 p.m. he had conducted autopsy over

the skelton of the deceased. On the basis skull, liver, Scapula,

spine bone, humerus, wrist, he could not come to any conclusion

about the cause of death of the deceased; he had recommended for

Forensic Science Examination of the skeleton, by Forensic Science

Laboratory. He has also stated that on the basis of the skull,

identification of the deceased was not possible.

78. P.W.-8 Dr. R.K. Rao, in his cross examination stated that

from the study of the post mortem during autopsy, it was difficult

to specify the age of the deceased and it was also not possible to

say with certainty that the skeleton was of a male or female; it

could have been established only by D.N.A. test, but D.N.A. report

is negative. However, Smt. Meena, P.W.-16 has identified the

skelton as being that of her husband on the basis of the head of

deceased and his other belongings recovered. We have no

reasonable ground to disbelieve her.

79. P.W. 8-Dr. R.K. Rao, has also stated in his examination in

chief that he was not in a position to opine as to how the

deceased came to be killed. He also stated that he was unable to

say by which weapon the deceased was killed. Further, he has

deposed that he cannot express his opinion about the time of

death.

80. Therefore, P.W.-8, Dr. R.K. Rao, would not ascertain the cause

of death of the deceased nor it could be established, by his

deposition, the weapon used in killing the deceased, and also it

could not be ascertained as to how many days before the autopsy,

he was killed.

81. P.W.10- C.P. Narendra Singh Sengar, has proved First

Information Report Chik No. 4K/5, Exhibit Ka-4, and he has

proved the copy of the G.D. No. 17 as Exhibit-Ka5. Initially a

criminal case at Crime No. 46 of 2007 had been registered under

Section 307 I.P.C. but on the basis of paper No. 18-Ka, it was

altered to Sections 147, 148, 149, 364, 302 and 201 I.P.C. and in

this connection P.W.10 Narendra Singh Sengar, has made entry to

this effect in the G.D. No. 11 on 23.07.2007 at 8.00 a.m.. He has

also proved the said G.D. as Exhibit Ka-7 and further he has also

proved paper no. 135 Ka/ 2, G.D. No. 20 dated 15.05.2008 at

13.30 by his secondary evidence because the entry in the said G.D.

was having been made by constable 240 Amar Nath.

82. P.W.14, S.O. Shri Sachindra Prasad Shukla, has stated in his

examination in chief that initially he had conducted the

investigation and at the instance of the informant he had sketched

the map of the spot, which is paper no. 15-Ka, Exhibit-Ka-10.

During investigation he had also recorded the statements of the

witnesses and had recovered the skeleton and other belongings of

the deceased in the presence of public witnesses.

83. During investigation, P.W.-14, Shri Sachindra Prasad Shukla,

has also stated that on 16.07.2007, he had appointed Panchan Ram

Gopal, Durga Prasad, Kaushal Kishor, Dinesh Chandra Tiwari,

Pradhumn Lal Kol, including, Chuuni Lal and others as Panchan

and at his direction S.I. Harbansh Singh had prepared the inquest

report of the skeleton of the deceased and also belonging of the

deceased were taken into custody; these were sealed and brought

to the police station and were kept in the record room, thereafter,

the investigation was transferred to C.D.F.D.

84. P.W.-18, Inspector Rishikesh Yadav, has stated in his

examination in chief that on 30.01.2008, he was posted as

Inspector in S.T.F.

85. P.W.-23, Ram Sewak, has stated in his examination in chief

that on 16.07.2007 he was posted as Home guard at Police Station-

Mau, Chitrokoot. On 16.07.2007 Constable Kamlesh Yadav was also

accompanying him. S.P. Shukla had prepared inquest report and

inquest report along with other necessary papers and also with

skeleton he and constable Kamlesh Yadav took the same to

mortuary for post mortem of the deceased.

86. P.W. 24, Constable Kamlesh, in his statement corroborated

the statement of P.W.-3 Ram Sewak Home guard.

87. P.W.18, Rishikesh Yadav, has also stated that after transfer of

investigating officer, Abhay Pratap, he had taken over the

remaining investigation of this matter. During investigation names

of accused Radhe and other had come into light, consequently,

Radhe and Raju Kol were apprehended by the Satna Police on

19.02.2008. In the lock up, he had recorded the statement of

accused Jiya Lal Radhe, Raju, Kol and Subedar @ Radhe. Accused

Subedar @ Radhe had admitted that he had killed Rajjan Mishra.

He had also recorded the statement of Raju Kol during his

incarceration in jail.

88. P.W.-18 Rishikesh Yadav, Investigating Officer has admitted

in his examination in chief that black colour Scorpio, which was

used in the commission of crime could not be recovered. However,

at the instance of Raju Kol, axe, weapon of crime with handle was

recovered. He has next stated that gun could not be recovered,

however, in the presence of public witnesses Dharmendra Pandey

and Rajul, Voter Identity Card and Ration Card of the deceased, at

the instance of accused Radhe & Raju Kol had been recovered on

15.05.2008. These witnesses has also deposed about the recovery of

other belongings of the deceased.

89. It is evident from the above discussions that public witnesses

Dharmendra Pandey and Rajul, have not supported the recovery of

the belongings of the deceased at the instance of accused Radhe

and Raju Kol, however, about recovery of Voter Identity Card and

ration card, clothes; slippers etc. and other belongings of the

deceased, there is other evidence on record. It has been denied

that the said recovery was made at the instance of the accused,

therefore, ration card or voter identity card and other belongings

of the deceased has not been linked to the accused.

90. P.W.-18, Rishi Kesh Yadav, has also stated that the

Investigating Officer, Abhai Pratap Inspector, S.T.F. Lucknow, has

forwarded the charge sheet against the accused on 22.10.2007.

91. In view of the above discussions, it is evident that in support

of charges against the appellants/ accused, P.W.-15, Ram Gopal,

who is elder brother of the deceased has not supported the written

First Information Report, and has also admitted in his testimony

that the deceased himself was a criminal and has also expressed

his suspicion that his brother could have been murdered by

miscreants who were inimical to the deceased.

92. P.W.-16, Smt. Meena Devi, wife of the deceased, her brother

and nephew, have not given any trustworthy evidence against the

appellants/accused. Confession alleged to have been made before

police officer/ investigating officer, in presence of the witnesses, by

one of the accused does also not find support. Further, witnesses

of recovery of weapon of crime i.e. blood stained axe with handle,

Voter Identity Card, Ration Card, clothes and other belongings

have also not been supported by the witnesses.

93. P.W.-8, Dr. R.K. Rao, could not tell the approximate time of

death of the deceased. As per P.W.-16, Meena Devi, the skeleton

and other belongings of the deceased were recovered after more

than two months of his abduction, but there is no credible

evidence to prove that the deceased was abducted by the

appellants/accused, nor, there is any evidence on record to show

that any of the witnesses had seen the appellants/ accused

abducting and killing the deceased.

94. Home guard/ Police Constable, and Investigating Officers have

supported formalities they had completed but the same has not

been corroborated by the public witnesses.

95. Even if, on face value, recovery of the axe and other

belongings on the pointing out of the appellants/ accused is

accepted, even then on that strength, appellants/ accused cannot

be convicted for want of substantial evidence.

96. Apex Court in Shahaja @ Shahajan Ismail Mohd. Shaikh Vs.

State of Maharashtra; 2022 Live Law (SC) 596 has outlined the

conditions necessary for applicability of Section 27 of the Evidence

Act:

"that the appellant stated before the panch witnesses to the effect that "I will

show you the weapon concealed adjacent the shoe shop at Parle". This

statement does not suggest that the appellant indicated anything about his

involvement in the concealment of the weapon. Mere discovery cannot be

interpreted as sufficient to infer authorship of concealment by the person who

discovered the weapon. He could have derived knowledge of the existence of

that weapon at the place through some other source also. He might have even

seen somebody concealing the weapon, and, therefore, it cannot be presumed

or inferred that because a person discovered the weapon, he was the person

who had concealed it, least it can be presumed that he used it. Therefore,

even if discovery by the appellant is accepted, what emerges from the

substantive evidence as regards the discovery of weapon is that the appellant

disclosed that he would show the weapon used in the commission of offence."

97. Appellants have denied in their statements under Section 313

Cr.P.C to have made disclosure statement to the investigating

officer. Even if, it is accepted, that after their arrest they had

made discloser statement to the arresting police officer yet in the

event of their denial before the Court such disclosure statement

cannot be relied and accepted.

98. In view of above referred judicial pronouncement, Shahaja @

Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra; merely, on

the strength of the discovery of the skelton, weapon of offence axe

with handle, clothes and other belongings of the deceased at the

pointing out of Raju Kol, it cannot be suggested that he had done

any act of concealment of the weapon of offence and body etc.,

and it is not sufficient to infer authorship of concealment by Raju

Kol, who got discovered assault weapon and dead body of the

deceased. This case rests upon circumstantial evidence.

99. Supreme Court in Hanumant vs The State Of Madhya

Pradesh, reported in 1975 AIR 1083, has held that ;

"In dealing with circumstantial evidence the rules specially applicable to such

evidence must be borne in mind. In such cases there is always the danger

that conjecture or suspicion may take the place of legal proof and therefore it

is right to recall the warning addressed by Baron Alderson to the jury in Reg

v. Hodge (1) where he said :--

"The mind was apt to take a pleasure in adapting circumstances to one

another, and even in straining them a little, if need be, to force them to form

parts of one connected whole; and the more ingenious the mind of the

individual, the more likely was it, considering such matters, to over- reach

and mislead itself, to supply some little link that 'is wanting, to take for

granted some fact consistent with its previous theories and necessary to render

them complete."

It is well to remember that in cases where the evidence is of a circumstantial

nature, the circumstances from which the conclusion of guilt is to be drawn

should in the first instance be fully established, and all the facts so

established should be consistent only with the hypothesis of the guilt of the

accused. Again, the circumstances should be of a conclusive nature and

tendency and they should be such as to exclude every hypothesis but the one

proposed to be proved."

100. Supreme Court in Jaharlal Das vs State Of Orissa, reported

in 1991 AIR 1388, has held that ;

"It may not be necessary to refer to other decisions of this Court except to

bear in mind a caution that in cases depending largely upon circumstantial

evidence there is always a danger that the conjecture or suspicion may take

the place of legal proof and such suspicion however so strong cannot be

allowed to take the place of proof. The Court has to be watchful and ensure

that conjectures and suspicions do not take the place of legal proof. The

Court must satisfy that the various circumstances in the chain of evidence

should be established clearly and that the completed chain must be such as to

rule out a reasonable likelihood of the innocence of the accused. Bearing

these principles in mind we shall now consider the reasoning of the courts

below in coming to the conclusion that the accused along has committed the

offence."

101. Having regard to the facts and circumstances of the case, and

for reasons stated herein above, we find that there is no cogent

and clinching evidence against the appellants to hold them guilty.

102. In our opinion the impugned judgment and order dated

18.10.2013, passed by the Special Judge (D.A.A. Act)/ Additional

Session Judge, Court No. 1-, Chitrakoot in Special Session Trial

No. 148 of 2007, State vs. Gudda @ Ramman @ Raj kumar @

Jhalla @ Guddu Kol & Ors., under Sections- 147, 148, 149, 364,

302, 201 I.P.C. & 14 of D.A.A. Act, Police Station-Raipura,

District-Chitrakoot, deserves to be set aside and is hereby set aside,

accordingly, all the accused/appellants are acquitted of the charges

levelled against them.

103. Appeal is allowed.

104. Appellants/accused No. 1 and 2, namely Gudda @Rajam

@Raj Kumar @ Jhalla @ Guddu Kol and Raghunandan Pathak,

who are on bail need not surrender. Their bail bonds and sureties

are discharged.

105. The appellants no. 3 and 4, namely, Jiya Lal Kol and

Subedar Singh @ Radhey, who are in jail stand acquitted of the

charges against them and shall be released forthwith, if not wanted

in any other case.

106. In view the provisions of Section 347-A Cr.P.C. the appellants

no. 3 and 4, namely Jiya Lal Kol and Subedar Singh @ Radhey,

are directed to forthwith furnish personal bonds in the sum of

Rupees Twenty Five Thousand and two reliable sureties each in the

like amount before the trial Court (which shall be effective for a

period of six months) to the effect that in the event of filing of

Special Leave Petition against the instant judgment or for grant of

leave, the appellants on receipt of notice thereof shall appear

before the Hon'ble Supreme Court.

106. Let a copy of this judgment along with lower court record be

sent back to the court concerned for immediate compliance.

107. Office to inform the concerned Jail Superintendent through

C.J.M. concerned to ensure compliance of the order.

Date:-22.12.2022

Deepak

(Syed Waiz Mian,J.) (Suneet Kumar,J.)