Rakesh Pandey vs State Of U.P.
2023 Latest Caselaw 9911 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 47
 

 
Case :- CAPITAL CASES No. - 5 of 2020
 

 
Appellant :- Rakesh Pandey
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rajrshi Gupta,Dileep Kumar(Senior Adv.),Rizwan Ahamad
 
Counsel for Respondent :- G.A.,Ashok Kumar Dwivedi,Ganesh Datt MishraVERAVAL - VRL
 
	
 
	With
 
Reference No. 4 of 2020
 

 
	And
 

 
Case :- CAPITAL CASES No. - 6 of 2020
 

 
Appellant :- Yashwant Chaubey
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rajrshi Gupta,Dileep Kumar(Senior Adv.),Rizwan Ahamad
 
Counsel for Respondent :- G.A.,Ashok Kumar Dwivedi,Ganesh Datt Mishra
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Vinod Diwakar,J.

(Per Hon. Ashwani Kumar Mishra, J.)

1. Aggrieved by the capital sentence awarded to them, the two appellants, namely Rakesh Pandey and Yashwant Chaubey have filed the present appeals challenging the judgment and order of conviction and sentence dated 10.2.2020/11.02.2020, passed by the Additional Sessions Judge, Court No. 1, Mau in Sessions Trial No. 75 of 1996 (State vs. Indrasan Pandey and others), arising out of Case Crime No. 83 of 1996, under Sections 147, 148, 201 and 302/34/149 IPC, Police Station - Sarai Lakhansi, District - Mau; whereby they have been convicted under section 147 IPC and sentenced to 2 years rigorous imprisonment alongwith fine of Rs. 2000/- and in case of default in payment of fine to undergo two months additional rigorous imprisonment; under Section 148 IPC sentenced to 2 years rigorous imprisonment alongwith fine of Rs. 3000/- and in case of default in payment of fine to undergo three months additional rigorous imprisonment; under Section 201 IPC sentenced to 5 years rigorous imprisonment alongwith fine of Rs. 5000/- and in case of default in payment of fine to undergo five months additional rigorous imprisonment and under Sections 302/34/149 IPC awarded death penalty alongwith fine of Rs. 1,00,000/- and in default of payment of fine, the same shall be recovered as arrears of land revenue. All the sentences were directed to run concurrently.

2. Apart from the two appellants, three other persons were also implicated in the aforesaid case crime no.83 of 1996. Two of these three accused, namely Indrasan and Ghanshyam have died during the course of trial. The third accused Mithilesh was declared juvenile vide order dated 7.12.2019, and his trial was segregated and transferred to the Juvenile Justice Board.

3. As death sentence was awarded to the two accused appellants, a reference i.e. Reference No.4 of 2020 has also been made to this Court under Section 366 Cr.P.C. by the court of sessions for confirmation of death penalty.

INCIDENT

4. On 12th March, 1996 at about 12.00 noon near the agricultural field of one Jiyutbandhan Singh the deceased Dubari Pandey S/o Dhanraj Pandey was allegedly done to death by chopping his head from neck, by a Dao (a heavy sharp edged weapon used for cutting wood) by accused Rakesh Pandey. The accused also cut both the thumbs of the deceased. The other accused namely Indrasan Pandey, Yashwant Chaubey, Mithilesh and Ghanshyam Pandey had pulled down Dubari Pandey on the ground and held him during the course of assault. Specific role of chopping the head and thumbs of deceased has been assigned to the accused Rakesh Pandey. Accused Rakesh Pandey left with the head of the deceased as also his two thumbs.

5. A written report in respect of the incident was given by the informant Akhilesh Kumar Pandey, which is Exhibit Ka-1. On the basis of said written report a first information report came to be lodged at the Police Station Sarai Lakhansi, District Mau as Case Crime No. 83 of 1996, under Sections 147, 148, 201 and 302/34/149 IPC at 3.10 pm i.e. on the very date of incident i.e. 12.3.1996.

INVESTIGATION

6. The investigation proceeded in the matter pursuant to the aforesaid report and the inquest (panhayatnama) of the body (without head) was conducted on 12.3.1996 at 17.40 pm. The inquest report is on record and is marked as Exhibit Ka-2. As per the inquest report the information with regard to the incident was furnished to the police by the informant Akhilesh Kumar Pandey. The witnesses of inquest were Sitaram, Lalji Pandey, Islam, Chandradev and Vishun Ram (PW-2). The inquest report also records that the dead body (without head and thumbs) of Dubari Pandey is lying in the wheat field of Jiyutbandhan Singh. The deceased was wearing a white colour old ''Dhoti' and a white vest i.e. ''Bandi'. He also had a checked ''Gamchha' (indian towel) on his body. The inquest witnesses suggested holding of postmortem in order to ascertain the exact cause of death. The detailed police scroll was prepared and thereafter the body was sealed and handed over to constable Rajpati Patel for getting the postmortem conducted.

7. The postmortem of the headless body was conducted at 2.15 pm on 13.3.1996. The autopsy surgeon has specified the age of the deceased as about 70 years and the expected time of death was reported to be about one day. The external examination of the dead body in the postmortem is as under:-

"Headless body, Rigor mortis present in lower extremity, Abdomen distended fecal matter coming out, Right and Left thumbs in part are missing.

Clotted blood present over neck, chest and back of neck."

8. Autopsy Surgeon determined the cause of death as shock and hemorrhage due to following ante-mortem injuries:-

"1. Incised wound 14x13cm x bone deep thru and thru (A.P. diameter), 3 cm above supra sternal notch and 1 cm above base of cervical seven vertebra underlying bone, muscles, vessels and soft tissue and cervical six vertebra is cut thru and thru apportion of cervical six is attached with trunk margin clear cut.

Note: Incised wound is having A.P. diameter 14 cm with Transverse diameter is 13 cm.

2. Incised wound 7 x 3 cm x muscle deep at the back of Rt. Shoulder joint.

3. Incised wound 3 x 2 cm x muscle deep on top of Rt. Shoulder joint.

4. Incised wound 4 x 2 cm x skin deep on the lateral side of right shoulder joint."

9. In addition to above, the autopsy surgeon has found following postmortem injuries on the deceased:-

"(1) incised wound 2 cm x 1½ cm x thru and thru on the proximal phalynx of right thumb underlying bone parts missing.

(2) incised wound 4 cm x 3 cm x bone deep obliquely placed on the middle phalynx of right index finger.

(3) incised wound 2 cm x 1½ cm x bone deep thru and thru on the middle phalynx of left thumb."

10. The autopsy surgeon also found the rectum of deceased to be loaded and fecal matter was coming out.

11. The record shows that a separate report was lodged with the Station House Officer of Police Station - Dullahpur, District - Ghazipur (an adjoining district of Mau, where the incident occurred) on 13.3.1996, by one Dhanpati Yadav S/o Jagroop Yadav stating that he has a tube-well situated on the east of the village near a pond. In the evening hours of 13.3.1996, a plastic polythene containing head of a male was found stuck in the khur (cracking) of a buffalo, when it came out of the pond. The polythene was of a shop selling school uniform and ladies bag, etc., situated below the Union Bank of India at Sahadatpura in District Mau. Both the eyes of recovered human head were missing and there were cuts on the cheek and face of the deceased.

12. On the basis of such information given by Dhanpati Yadav police personnel from Police Station Dullahpur reached village Sultanpur late in the evening and commenced investigation. Inquest of the recovered head was got conducted by Sub-Inspector Uma Nath Shukla of Police Station - Dullahpur, District - Ghazipur on the next morning vide Paper No. Ka.15, as per which the information with regard to recovery of the head has been received in the police station concerned at 21.45 pm on 13.3.1996 and has been recorded as Entry No. 37 in the General Diary. The inquest began at 6.00 am on 14.03.1996 and concluded at 7.15 am. The identity of the recovered human head was not ascertained and has been described as unknown. The inquest witnesses were Dhanpati Yadav, Ram Lal, Geeta Yadav, Jagroop Yadav and Ambika Yadav. The inquest witnesses found multiple injuries on the face and both the eyes were found missing. The recovered head was sealed and sent for postmortem. It is worth noticing that till the conclusion of inquest the identity of deceased was not established. Postmortem has been conducted in respect of the recovered human head from the pond on 14.3.1996 at 4.00 pm, which is Exhibit Ka-14. However, in the postmortem of the recovered head conducted by Dr. Bhupendra Nath Srivastava has been identified as that of the deceased Dubari Pandey. In the opinion of the autopsy surgeon the age of the deceased was about 60 years and the cause of death is reported to be shock and hemorrhage as a result of following ante-mortem injuries:-

"An incised wound size 10 cm x 10 cm at level of C2 margins clear cut.

An incised would size 4.0 cm x 1.0 cm x bone deep on right side of skull 15 cm above right eyebrow. Right frontal bone is sharply cut."

13. The Investigating Officer proceeded to collect evidence in respect of the offence. Statements of witnesses were recorded under Section 161 Cr.P.C. Upon completion of statutory investigation in accordance with Chapter XII of the Code of Criminal Procedure, the Investigating Officer submitted a charge-sheet against five accused on 15.6.1996 vide Paper No. 4K/1 (Exhibit Ka-12). The concerned magistrate took cognizance and committed the case to the court of Sessions where it got registered as Sessions Trial No. 75 of 1996 (State Vs. Indrasan Pandey and others).

THE TRIAL

14. Separate framing of charge orders were passed against the accused. Vide order dated 20.5.1999, the accused Rakesh Pandey was charged of committing offence under Section 148 IPC; whereas by a separate order of the same date the accused Rakesh Pandey, Mithilesh, Ghanshyam Pandey and Yashwant Chaubey were charged of committing offence under Section 302 r/w 149 IPC as also under Section 201 IPC. By yet another order of the same date, the accused Mithilesh alias Tipu, Ghanshyam Pandey, Yashwant Chaubey were charged of an offence under Section 147 IPC. The charges were read out to the accused who denied the same and demanded trial. Resultantly the trial procedure commenced.

PROSECUTION EVIDENCE

15. The prosecution in order to prove its case produced the following documentary evidence:-

"1. FIR dated 12.03.1996 as Ex.Ka.22

2. Written Report dated 12.03.1996 as Ex.Ka.1

3. Application dated 18.03.1996 as Ex.Ka. 3

4. Postmortem Report dated 13.03.1996 as Ex.Ka.13

5. Postmortem report (Head) dated 14.03.1996 as Ex.Ka.14

6. Affidavit by Sitaram dated 09.04.1999"

16. In addition to above documentary evidence, the prosecution produced Akhilesh Kumar Pandey (PW-1); Vishnu Ram (PW-2); Dhanpati Yadav (PW-3); Kusum Pandey (PW-4); Vansh Bahadur Yadav (PW-5); Anil Kumar Arya (PW-6); Bhupendra Nath Srivastava (PW-7); Rajendra Prasad Singh (PW-8); and Jamvant Jaiswal (PW-9).

17. Though in the charge sheet submitted by the Investigating Officer 28 prosecution witnesses were nominated but during trial the prosecution adduced only 9 witnesses, referred to above.

18. It is relevant to note that as per the FIR the incident is alleged to have been witnessed by the residents of village namely Sitaram and Chandradev, in addition to the informant. Sitaram, however, has filed an affidavit dated 9.4.1999 during trial stating that he has not seen the incident and that he had gone out of the village due to some urgent personal work. The other eye-witness Chandradev was got discharged by means of an application filed by the informant Akhilesh Kumar Pandey, through the Government Counsel. It is, therefore, apparent that out of the witnesses who have witnessed the incident only the first informant has been produced during trial by the prosecution.

19. PW-1 (Akhilesh Kumar Pandey) in his testimony has disclosed the name of his father as Ram Singhasan Pandey, who in turn was the son of Amardev alias Khedan Pandey. The father of Amardev was Dhanraj Pandey. Dhanraj Pandey had two sons namely Amardev alias Khedan Pandey and Dubari Pandey. As per the statement of PW-1, in his examination-in-chief, the deceased Dubari Pandey was unmarried and consequently issueless. Amardev, the elder brother of deceased Dubari Pandey had two sons namely Ram Singhasan Pandey and Indrasan Pandey. Ram Singhasan has two sons namely Kamlesh Pandey and Akhilesh Kumar Pandey (first informant). Indrasan Pandey (accused) has four sons namely Rakesh Pandey (accused), Mithilesh Pandey alias Tipu (accused), Amit alias Bhoja and Kavis alias Mandhata. Indrasan also has two daughters namely Kanaklata alias Urmila and Ruchi. Indrasan Pandey alongwith his two sons namely Rakesh Pandey and Mithilesh Pandey are the accused in this matter apart from Yashwant Chaubey, who happens to be the son-in-law of Indrasan Pandey and husband of Kanaklata alias Urmila. During the course of trial Indrasan Pandey and Ghanshyam Pandey have died. Accused Mithilesh Pandey son of Indrasan Pandey has been declared a juvenile and therefore his trial was segregated and sent to the competent forum i.e. Juvenile Justice Board.

20. PW-1 has further stated that younger brother of his grandfather namely Dubari Pandey was residing with his family and had no progeny. He was satisfied with the services rendered to him by the witness and consequently Dubari Pandey had bequeathed his movable and immovable property to PW-1 Akhilesh Kumar Pandey and his brother Kamlesh Pandey by way of a registered will and gift deed dated 30.3.1995. Indrasan Pandey and his heirs were not given any share in the estate of deceased Dubari Pandey. Accused Indrasan Pandey and his family members were thus annoyed. Even during lifetime of Dubari Pandey the accused Indrasan Pandey had misrepresented his daughter Kanaklata as Urmila, daughter of Dubari Pandey, and prepared a fraudulent unregistered will in her favour, showing her to be the daughter of Dubari Pandey in the family register. However, no date was mentioned in the family register regarding this entry. A civil litigation had already started in the matter. For such reasons the accused wanted to eliminate Dubari Pandey. On 12.3.1996, at about 12.00 noon PW-1 was returning with the deceased Dubari Pandey after inspecting the wheat crop. Dubari Pandey was a little ahead of PW-1. When they reached the field of Jiyutbandan Singh the accused Indrasan Pandey, Rakesh Pandey, Mithilesh, Ghanshyam Pandey and Yashwant Chaubey pulled down the deceased on the ground in an ambush. While Indrasan, Mithilesh, Ghanshyam and Yashwant held the deceased the accused Rakesh Pandey beheaded him with Dao (a heavy sharp edged weapon used for cutting wood) and also chopped both his thumbs. The head and thumbs of deceased were then taken away by the accused Rakesh Pandey threatened that no one standing should come in his way and proceeded towards south on the chak road. The accused also abused PW-1 and chased him. On raising alarm by PW-1, Sitaram Singh and Chandradev alongwith other villagers came on the spot and an atmosphere of terror prevailed in the village so that none may testify regarding the incident.

21. PW-1 was cross examined by the accused in which he feigned ignorance about the sister of deceased Dubari Pandey. He stated that Smt. Anjora was the wife of Amardev and he does not know the name of the wife of Dubari Pandey. He had not seen her and was not aware as to when the wife of Dubari Pandey died. He claims to know nothing about the wife of Dubari Pandey. PW-1 has further stated that the deceased Dubari Pandey had executed a will and gift in his favour on 30.03.1995. The original gift and will, however, was not available as it was allegedly filed in the mutation proceedings at the Tehsil from where the proceedings came to the Additional Magistrate. He then stated that original will has been submitted before the High Court in the case of Akhilesh vs. Gulabi. He then stated that will was taken from the court of Tehsil and submitted before the High Court. An application under section 156(3) Cr.P.C. was filed by the accused, against PW-1, which is challenged in High Court where the will is submitted. The original gift dated 24.04.1995 is also filed in the said case. The witness, however, did not remember the case number. He claimed to be unaware of the direction issued by the trial court to produce original will and gift deed. He claims that original will and gift deed is on record. The witness has further stated that on 24.04.1995 a registered gift deed was executed in his favour and also in favour of his brother but its photocopy has not been produced. Original deed has been given to the advocate at High Court as per PW-1. The witness asserted that the will dated 30.03.1995 as also the two gift deeds dated 30.3.1995 and 24.04.1995 are both registered documents.

PW-1 has further stated that the deceased Dubari Pandey was with him in the night of 11.03.1996. On 12.3.1996, they left at around 09.30 - 10.00 in the morning for the agricultural field. By then, they had eased themselves (attended nature's call) but had not taken bath or eaten anything. The agricultural field which he had gone to see with the deceased was at a distance of about 300 meters. The agricultural plot had already been partitioned in which share of Dubari Pandey was half while ¼th - ¼th shares were of Ram Singhasan and Indrasan. Cultivation in the agricultural field by deceased and PW-1 was done jointly. At the time when he had gone to inspect the wheat crop it was almost the harvesting time. There were agricultural fields of other villagers between his house and the agricultural fields. The names of other tenure holders whose agricultural fields are situated in between has been specified. He has explained that towards the east of the field of Jiyutbandhan Singh is the field of one Kuber and Khichadi and nearby it are the fields of Markandey Pandey. At the time of incident these persons were not in their fields. Khichadi, Kuber, Jhullan, Vinod Pandey, Jamuna had arrived much after the incident. The village Abadi is at a distance of about 300 meters on the eastern side. On the way to the fields PW-1 claims to have met Ganga Yadav and others working in the brick-kiln. The brick-kiln belongs to Rakesh Pal and is at a distance of 110-115 yard from the place of occurrence. He has stated that on the way to his field he had crossed the fields of about 20-25 persons. The witness has specified that he reached his agricultural field at about quarter to 11 and stayed there for about half an hour. They also talked to Shankar Yadav whose field was about 100 yards towards west. While they remained at their agricultural field none of the adjoining tenure holders were available. He has stated that while returning from their field the accused ambushed the deceased in the fields of Jiyutbandhan Singh. The place where the accused had hidden themselves was not visible from the chak road and thus he cannot specify it. The accused ambushed the deceased from behind and pulled him down. It was only when the accused came near them that the witness could see them. He saw the accused coming from a distance of 5-7 paces. Rakesh Pandey was carrying ''Dao' whereas other accused had sticks in their hand. PW-1 halted at a distance from them on the chak road. The accused hurled abuses and asked him to leave or else he too would be done to death. The witness was not chased by the accused. The deceased could not protect himself. The deceased fell on his back. PW-1 claims that he was at a distance of 70-80 paces from the place of occurrence when the incident occurred.

The cross examination of PW-1 continued and on 22.07.2003 he stated that the deceased was held by Yashwant, Mithilesh and Ghanshyam. Rakesh and Indrasan followed. PW-1 claims to have left when Indrasan started abusing him. He was chased by Indrasan Pandey for few steps whereafter Indrasan returned. However, PW-1 rushed 70-80 paces and halted thereafter. He raised an alarm from there. On raising alarm by PW-1 the workers engaged in the brick-kiln rushed to the place of occurrence. Various other villagers also came thereafter. On arrival of such persons from brick-kiln the accused left with the head and thumbs of deceased. About 20-25 persons had come from brick-kiln. Those 20-25 persons who came from brick-kiln did not chase or followed the accused. PW-1 has asserted that about 10 to 15 minutes was consumed between the deceased being pulled down and beheaded. He did not remember the name of those 20-25 persons but remembers the names of only Sitaram Singh, Chandra Dev Ram, Shree Ram Singh, Ganga Yadav, Lal Mohammad, Lalji Pandey, Shankar Yadav etc.

In his further cross-examination on 23.07.2003, PW-1 has stated that the place where accused had hidden themselves was at a distance of 20-30 paces from chak road. He had seen the accused in the village a day before. He further stated that the Investigating Officer had seen the place of occurrence when he arrived first. He had also seen the place where the accused were hiding. The place of occurrence was inspected by the Investigating Officer and his statement was recorded. He also stated that there was a solitary will executed by the deceased alongwith two gift deeds in his favour and that of his brother. The witnesses to the deeds executed by deceased were Jitendra Pandey and Girish Chandra. Jitendra Pandey is father-in-law of his sister whereas Girish Chandra is his maternal uncle. He stated that age of the deceased was about 70-80 years when he executed the will.

A Photograph was shown to PW-1 (Paper no.108) about which he stated that the persons standing near the dead body shown in the photograph is Indrasan Pandey. PW-1 was standing behind Indrasan in the photograph. The photograph included other persons namely Ghanshyam Pandey, Jai Prakash Singh @ Jaya Singh and accused Rakesh Pandey. Next to Rakesh Pandey is Radhey Shyam Chaubey who is father of accused Yashwant Chaubey. He has denied the suggestion that photograph (paper no.108) was of cremation of Dubari Pandey and stated that in fact Dubari Pandey was then alive. As per him this photograph was taken during the last rites of Anjora wife of Amar Dev @ Khedan. He also denied the suggestion that during the first consolidation proceedings a compromise was arrived at between Dubari Pandey, Indrasan Pandey and father of PW-1 Ram Singhasan Pandey whereby Dubari Pandey was prevented from transferring his agricultural land. He has denied the fact that Dubari Pandey was married or that name of his wife was Sharda. He has also denied having any knowledge of the fact that a daughter was born to deceased Dubari Pandey from Sharda Devi. He also stated that original suit no.456/95 (Indrasan vs. Dubari Pandey) filed in the court of civil judge (junior division) was dismissed in default. This witness has denied the suggestion that he had got the suit filed through an imposter claiming to be Indrasan Pandey. He also denied that some imposter had signed on the vakalatnama of such suit. He also denied the suggestion that distance of Abadi from the village is about 1 kilometer or that the brick-kiln was at a distance of 400 meter. He also denied the suggestion that gift deed executed in his favour is not by Dubari Pandey but was by some imposter. He has admitted that in his statement made to the Investigating Officer he had stated that various persons working in the nearby fields at the time of incident came to the place of incident and saw it. In his statement under section 161 Cr.P.C. he had also not disclosed that other accused were carrying sticks in their hands.

22. Prosecution then produced PW-2, Vishun Ram, who is the witness of inquest of the alleged beheaded body of Dubari Pandey. He has identified the headless body as that of Dubari Pandey. The dead body was sealed in his presence and the witness has identified his signatures on the inquest. In his cross-examination this witness has clearly stated that he had not identified the headless body as that of Dubari Pandey on the saying of PW-1. He had rather identified the body of deceased Dubari Pandey from the boil on the back of the deceased. He had seen the boil earlier also on the back of the deceased. The testimony of PW-2, in that regard, is extracted hereinafter:-

"मैंने खुद लाश को पहचाना वह दुबरी पाण्डे की थी। यह कहना गलत होगा कि अखिलेश के बताने पर मै माना कि लाश दुबरी पाण्डे की थी। दुबरी पाण्डे के धड व पीठ के फोडे़ को देखकर मैंने पहचाना की वह दुबरी पाण्डे की लाश है। मैं लाश का फोड़ा देखा था पहले से भी मैंने फोड़ा देखा था। पंचनामा के समय मैंने दुबरी पाण्डे की पीठ पर फोडा़ देखा था मैं मौके पर करीब रात्रि तीन बजे पहुँचा था। मैं पहुंचा तो लाश पीठ के बल पड़ी थी।"

23. PW-3 Dhanpati Yadav, who has proved the written report given by him to the in-charge of police station Dullahpur with regard to unidentified human head recovered from pond near his tubewell. He has stated that on his information the Sub-Inspector came on the spot and deputed two constables in the night. The Sub-Inspector again came in the morning and conducted inquest. It is at this juncture that the police of other police station alongwith family members of deceased came on spot and identified the recovered human head. The human head had no eyes and had signs of cut on cheek and face. The family members had recognized the human head as that of the deceased Dubari Pandey. This witness identified his signatures on the inquest. In the cross-examination PW-3 has explained the manner in which human head surfaced from the pond and he had informed the police about it. He has stated that he came to the place of occurrence alongwith Investigating Officer and it was dark by then. He again came in the morning at the place where human head was recovered and various paper formalities were carried out by Investigating Officer in his presence. He denied that he was an accused in a dacoity case. He also denied that he has given false testimony on the persuasion of Ram Lal, who was a client of Rakesh Pandey.

24. PW-4 Kusum Pandey, who is the wife of PW-1 and has stated that she had left alongwith Sitaram Singh, Chandra Dev Ram and Sub Inspector early in the morning to identify the recovered human head at village Sultanpur on 14.03.1996. When she arrived various persons were already present and the human head was kept in a polythene. The human head was taken out and on seeing it she identified it as that of the deceased. It is after such identification that the head was sealed by Investigating officer and she returned. In her cross-examination PW4 has stated that the Investigating officer came to her house at about 05.00 in the morning alongwith other police personnel and nobody else joined her. The Investigating Officer informed her that human head has been found which was to be identified by her and therefore she immediately left with the Investigating Officer. It was already day time when she arrived near the pond. She has stated that about 1-1½ hour was taken in reaching the pond from her house. The polythene was opened when she arrived there but she does not remember the colour of polythene. No proceedings were undertaken by the Investigating Officer in her presence. The polythene was kept there from before and police took out human head and showed it to her. When human head was taken out from polythene it had no blood marks and face was disfigured. However, she could recognize it. She returned alongwith police personnel. She denied the suggestion that she had not visited the pond and that the identification proceedings were never undertaken in her presence.

25. PW-5 Sub-Inspector Vans Bahadur Yadav, who was posted as Station House Officer of Police Station Sarai Lakhansi. He verified the receipt of written report by PW-1 and lodging of FIR thereafter. He has also explained the steps undertaken during investigation and that the thumbs of deceased could not be traced. Blood was found in the field but despite best efforts the head of deceased and his two thumbs could not be traced. He further stated that he received information on 14.03.1996 from the informer while he was conducting investigation of this case in the village itself that a human head of old man was recovered from a pond within the police station Dullahpur, Ghazipur. On receiving such information he left with PW-4 and others and found that Sub-Inspector Umanath Shukla alongwith his companion was present and had already filled various columns of inquest report. Before the recovered head could be sealed he had arrived at the place of inquest and the Investigating Officer had shown the recovered head to the family members which was recognized by the family members, who started weeping. It was thereafter that the human head was sealed and sent for postmortem. He has also proved the site plan and other police papers. He has stated that an application was moved by him before the concerned C.J.M. for custody of accused Rakesh Pandey, which was denied by the court and that is why the weapon used in the offence could not be recovered.

26. In the cross-examination PW-5 has admitted that he had recorded statement of Chandra Dev Ram on 20.03.1996. He had inquired about the incident from Jullan Pandey, Vinod Pandey and Jiyutbandhan Singh but their statements were not recorded. The informant had not disclosed to him about the persons whose lands are situate near the place of occurrence. He also stated that statement of brick-kiln owner Rakesh Pal was not recorded by him. Statements of the workers engaged at the brick-kiln were also not recorded. He also admitted that house of Shankar was about 200 yards from the place of occurrence but he had not recorded the statement of Shankar. He also denied that the fields of nearby villagers were not shown in the site plan deliberately. He also denied the suggestion that statement of Rakesh Pal and workers at brick-kiln was not recorded as they were not supporting the prosecution case. The informant had also not disclosed him about other accused having sticks in their hands. He also did not disclose that he was chased by Indrasan Pandey. He also had not disclosed that Dubari Pandey was grabbed from behind by the accused and was pulled down. With regard to identification of human head PW-5 has stated as under:-

"सिर के बरामदगी के सम्बन्ध में दुल्हपुर थाना से सूचना मिली थी। यह सूचना 14-3-96 को मिली थी। समय याद नहीं है। केस डायरी के पर्चा नं०-3 में अंकित किया है। स्वयं कहा कि मुझे मुखविर से ऐकवारे डीह में सूचना मिली थी।

मैने मृतक के सिर की बरामदगी नहीं की थी। केवल बरामदगी स्थल का निरीक्षण किया था।

दुबहा ताल पर वादी मुकदमा की औरत कुसुम थी। तथा विपिन कुमार दुबे, चन्द्रदेव राय, सीताराम सिंह को भी लेकर पहुँचा था। मैंने उक्त व्यक्तियों का सिर बरामदगी के संबंध में बयान नहीं लिखा था। वे बरामदगी के गवाह नहीं थे। शिनाख्त के गवाह थे।

यह कहना गलत है कि सिर को पोस्ट मार्टम होते समय मै गाजीपुर पहुंचा था।"

27. From the above it transpires that the information about recovery of human head was received by PW-5 on 14.03.1996. He, however, does not remember the time when such information was received. He stated that such information was received from informer at Raikwar Deeh where incident had occurred, however, the name of informer is not known. He had not recovered the human head but had only inspected it. He also admitted that statement of witnesses was not recorded by him at the spot. At the pond PW-4 was present alongwith Vipin Kumar Dubey, Chandra Dev Ram, Sitaram Singh etc. PW-5 admitted that he has not recorded the statement of above persons with regard to recovery of human head. He denied the suggestion that he arrived only at the postmortem house at Ghazipur. Human head was sent for postmortem by the police at Dullahpur. He has also stated that on identification he had mentioned the name of Dubari Pandey in place of unknown. He also gave an application for incorporating the name of deceased in the postmortem and this fact was mentioned in parcha no.3 of case diary. He recorded the statement of Dhanpati Yadav on 19.03.1996. PW-5 has also stated that when he arrived at the place where inquest was being undertaken of the human head and the head was sealed about half an hour, thereafter. The inquest proceedings continued for 15 minutes after his arrival. He has stated that informant had not disclosed that the head and thumbs of deceased were taken by accused Rakesh Pandey in a polythene. Informant had also not disclosed him that Dubari Pandey was unmarried or had no children. Informant had also not disclosed him that murder of deceased had been committed on account of a land dispute. The weapon used in the commission of offence could not be recovered by him. PW-5 has also denied that the information about recovery of a dead body in the field of Jiyutbandhan Singh was not given by the informant but by someone else. He has also denied that such information was given by Jai Prakash.

28. PW-6 Dr. Anil Kumar Arya, who conducted the postmortem of the headless body. As per him, age of the deceased was about 70 years and the period of death has been specified as one day. He found that rectum was loaded and the fecal matter was oozing out from the body. In the cross-examination the Autopsy Surgeon has stated that the abdomen was empty but large and small intestines had gas and fecal matter. Rectum was loaded. A Dhoti was wrapped around the dead body. The deceased was also wearing a vest (Bandi) alongwith a Gamchha and a Janeu when the body was handed over to him by the constable. He has stated that the deceased could have died after 5.00 in the morning on 12.3.1996. He had written the age of the deceased on the basis of police papers. He has further stated that there is a marked difference between the ante-mortem and the postmortem injuries. Ante-mortem injury show signs of bleeding and clotting and gaping, which is not there in the postmortem injuries. No pus etc. is found in the postmortem injuries. The injuries relating to chopping of thumbs of deceased were postmortem injuries. He has stated that injury no.1 is an ante-mortem injury. As per him, the abdomen gets empty after 7-8 hours of the meal and that fecal matter would remain in the small intestine for 2-3 days. Rectum load is a condition prior to defecation.

29. PW-7 Dr. Bhupendra Nath Srivastava, who conducted the postmortem of the human head. In his cross-examination this witness has stated that the police papers had shown the name of deceased as unknown and he cannot give a definite answer as to on what basis he has mentioned the name of Dubari Pandey in the postmortem report. He has mentioned the age of deceased as 60 years on the basis of hairs and teeth of the deceased. He has denied the suggestion that on the asking of the police personnel he has mentioned the name of deceased as Dubari Pandey.

30. PW-8 Constable Rajendra Prasad Sharma, who has proved the inquest of the human head. He had also seen the human head and had taken it to mortuary alongwith Constable Raj Kumar Yadav. In the cross-examination he has stated that in the evening of 13.3.1996 he had received information about the recovery of a human head from one Dhanpati at the police station. He had come to the police station after about 10.00 in the night alone. He has stated that the police persons had not seen the human head in the night and had seen it in the morning hours of 14.3.1996 at around 7.00, after the sunrise. In his cross-examination PW-8 has stated that inquest concluded at around 7.00-8.00 am. He later stated that it was concluded by 8.00-9.00 am. He has denied the suggestion that inquest report was not prepared in his presence.

31. PW-9 S.I. Jamwant Jaiswal, who was posted as Head Moharrir at Police Station Sarai Lakhansi. He has proved the check FIR of Case Crime No.83 of 1996. He has denied the suggestion that FIR was ante-timed or that the FIR was registered under pressure of Station House Officer after receipt of postmortem report.

32. It appears that during the course of trial an issue was raised with regard to the juvenility of accused Mithilesh. In order to ascertain facts in that regard court below summoned Rajnath Singh, who was the Principal of Balika Inter College Ramvan Kuti Kajha, Mau as CW-1. The court also summoned CW-2 Ram Lakhan Pandey, CW-3 Rakesh Kumar Pandey and CW-4 Raj Narayan Mishra on the question relating to juvenility of accused Mithilesh Pandey. On the basis of their testimonies court below came to the conclusion that Mithilesh Pandey was a juvenile on the date of occurrence. Accordingly, his trial was referred to the competent forum.

33. The incriminating material produced by the prosecution during trial was then confronted to the accused for recording their statements under Section 313 Cr.P.C. The accused have stated that they have been falsely implicated in the matter and that Kanaklata is not called as Urmila. Accused Yashwant Chaubey has stated that brother of his grandfather late Dukhari Chaubey was married to the sister of Dubari Pandey and that he has been falsely implicated in the matter.

DEFENCE EVIDENCE

34. The defence has produced Jai Prakash Singh, aged 60 years as DW-1, who has stated that Dubari Pandey had a daughter named Urmila, who pre-deceased Dubari Pandey. She was got married in Madhya Pradesh. He has stated that Dubari Pandey died in 1995 and he had participated in his last rites conducted at Ghazipur. This witness was confronted with paper no. 108 Kha. He has stated that Indrasan Pandey had performed the last rites of deceased Dubari Pandey. He has also stated that informant's father Ram Singhasan Pandey was employed in Madhya Pradesh and had got a servant about 30 years back. This servant was not seen after 11.3.1996. He had seen the headless body in the fields of Jiyutbandhan Singh. He has also stated that at about 6.00-7.00 in the morning he had gone to the field for grazing his cattle, where he found the headless body and had informed about it to the police. The police then arrived at about 10.00-11.00 in the morning. He has stated that in consolidation proceedings Dubari Pandey had given half of his land each to the branches of Indrasan Pandey and Ram Singhasan Pandey and they were in possession of their respective shares over such land. This witness has been cross-examined by the prosecution. He has denied that headless body was that of Dubari Pandey. He has further stated that Dubari Pandey had died a year back and he has no knowledge about any case having been filed by Dubari Pandey against him. He has further stated that under the influence of accused he is making a false statement. He has also stated that there was no dispute in respect of land of Dubari Pandey between the branches of Indrasan Pandey and Singhasan Pandey.

35. DW-2 is Santosh Kumar Singh, who has also supported the defence version that Dubari Pandey had a daughter, who was got married in Madhya Pradesh by the father of the informant Ram Singhasan Pandey. He has also stated that mother of Indrasan and Ram Singhasan Pandey had died six months after the death of Dubari Pandey. This witness has also stated that headless body was seen at about 9.00-10.00 in the morning and it was not of Dubari Pandey, as he had already died in the year 1995. He has also stated that this information was given to police by Jai Prakash Singh. He has also stated that there were rumours that headless body is that of an unknown person. He has also stated that after the death of Dubari Pandey a feast was organized in which Akhilesh and Singhasan Pandey had also participated. Last rights of Dubari Pandey were performed by Indrasan. This witness has denied the suggestion that on account of dispute of passage between him and the informant he is making false deposition.

36. DW-3 is Kedar, aged 55 years, who was running/managing the Cremation Ghat at Ghazipur. He has proved the death certificate, as per which Dubari Pandey died on 11.3.1995. He has stated that certificate of death has been issued by his Munim Mukhtar Khan.

37. DW-4 is Jagdish Pandey, who claims to be the brother-in-law of Dubari Pandey and has claimed that his sister Sharda Devi was married to the deceased and from their wedlock a daughter named Urmila was born. He has stated that on 11.3.1995 Dubari Pandey died. His cousin Ajoriya was married to Amardev Pandey and that he had participated in the last rites of Dubari Pandey. He was around 60 years of age. He had two sisters namely Sharda @ Saraswati and Rajpati. Sharda was married to Dubari Pandey, whereas Rajpati was married to Ramchandra Pandey. This witness was a clerk in the Indian Army. He has also stated that there was no enmity between the deceased with Indrasan Pandey. He has denied that he has been discharged from Army or that he is not receiving pension. He has denied that Dubari Pandey has been done to death on 12.3.1996.

38. DW-5 is one Premchandra Dubey, who allegedly had filed the application under Section 156(3) Cr.P.C. purportedly on behalf of Indrasan Pandey. This witness has stated that the person on whose instructions the application was filed under section 156(3) Cr.P.C. was brought by informant Akhilesh Kumar Pandey. He neither recognized the applicant Indrasan Pandey nor had he identified him.

JUDGMENT OF CONVICTION AND SENTENCE

39. Court below upon evaluation of the evidence brought on record and has come to the conclusion that prosecution has succeeded in proving the guilt of the accused appellants beyond reasonable doubt. For arriving at such conclusion the trial court has relied upon following material:-

(i) The FIR was promptly lodged in this case i.e. the incident occurred at 12.00 noon whereas FIR was lodged at 15.10 hours. Considering that place of occurrence was 18 kms from the police station, there was no delay in lodging of FIR.

(ii) There was a definite motive for the accused to commit the offence as the deceased had executed a will and gift deed in favour of the informant to the detriment of accused.

(iii) The dead body as also the human head was recognized/identified as that of the deceased Dubari Pandey by the family members of deceased i.e. PW-2 and PW-4.

(iv) Intense dispute was going on between the two factions i.e. the informant and the accused to inherit the property of Dubari Pandey and proceedings were pending before the civil court and revenue authorities.

(v) The testimony of PW-1 is trustworthy as he has seen the incident and his ocular testimony matches the inquest and postmortem.

(vi) The defence has not been able to establish that Dubari Pandey had already died on 11.03.1995.

(vii) The accused party had prepared an unregistered will and showing Dubari Pandey as dead, got the name of Urmila mutated by showing her to be the daughter of Dubari Pandey although she is actually the daughter of Indrasan Pandey. Dubari Pandey having came to know of it filed an application under section 156(3) Cr.P.C. for initiating criminal proceedings.

(viii) Even if the defence case about lack of motive is accepted, yet, it would not carry much weight since the direct evidence of PW-1 is truthful and reliable.

(ix) Minor contradictions in the testimonies of prosecution witnesses would not be material as there was huge time gap in the recording of statements and some variation is bound to arise.

(x) Prosecution has thus proved that incident has occurred in the manner stated by the prosecution witnesses and it being a case falling in the category of rarest of rare cases, merits awarding of capital punishment to the two accused.

APPELLANTS' ARGUMENTS

40. Aggrieved by the judgment and order of conviction and sentence, the two appellants herein have preferred the aforesaid appeals inter alia on following amongst other grounds:-

(a) Accused appellants have been falsely implicated by the informant in order to deprive them of the property to be inherited by them from the deceased, who was a common ancestor.

(b) Dubari Pandey had died on 11.03.1995 and such fact is clearly established by the defence by leading cogent and reliable evidence which has been erroneously discarded by the court below.

(c) The headless body alleged to be that of Dubari Pandey was actually of a servant of informant's father who had come from Madhya Pradesh and was not seen after 11.03.1996.

(d) The body alleged to be of Dubari Pandey was of someone else and the prosecution has failed to prove the identity of the beheaded body as that of Dubari Pandey.

(e) The alleged registered will and gift deed in favour of informant and his brother are fabricated documents executed through some imposter and the informant had himself got the thumbs of the dead body chopped of so that the identity of the deceased may not be established.

(f) Testimony of PW-1 is contrary to the medical evidence on record inasmuch as the witness (PW-1) has alleged that the accused appellant Rakesh Pandey had chopped the head and thumbs of the deceased in one go, whereas the postmortem shows that while chopping of head was an ante-mortem injury the chopping of thumbs was a postmortem injury, both of which could not have occurred simultaneously, in one incident, and exposes the falsity in the testimony of PW-1, who is otherwise a highly interested witness. As such he is neither a credible nor a reliable witness. Hence, his testimony is not worthy of reliance.

(g) Identity of the human head is also not established as being that of Dubari Pandey.

(h) Trial court has erroneously ignored the testimony of defence witnesses as per which Dubari Pandey had already died leaving behind a daughter and the testimony of PW-1 that deceased was unmarried or had no issue is contrary to the weight of evidence on record but the contra opinion of court below is unsustainable.

PROSECUTION ARGUMENTS

41. On the contrary, the counsel for the informant and State submit that the judgment of conviction and sentence is based upon proper appreciation of law and fact. It is urged that motive for the offence is established. Deceased Dubari Pandey was a common ancestor and had executed a registered will as well as registered gift deed in favour of the informant and his brother to the detriment of the accused. This act of the deceased had enraged the accused, who avenged the enmity by chopping the head of deceased. The incident has been seen by the informant and his testimony is trustworthy and reliable. It is further submitted that the manner in which the deceased was beheaded and his head was carried by the accused Rakesh Pandey created an atmosphere of terror in the village. It is urged that the offence on part of accused would fall in the category of rarest of rare case, and therefore the death sentence awarded by the court below is justified. Submission is that appeal lacks merit and is liable to be dismissed.

42. We have heard Sri Dileep Kumar, the learned Senior Counsel assisted by Sri Rajrshi Gupta and Sri Rizwan Ahmad for the appellants, Kumari Meena the learned AGA for State and Sri Kamal Krishna, the learned Senior Counsel assisted by Sri Ganesh Dutt Mishra for the informant and have carefully perused the records of the capital appeals and the reference as also the original records of the court below.

RELATIONSHIP BETWEEN THE PARTIES AND GENESIS

43. Before adverting to the incident or examining the respective pleas of the parties, we deem it appropriate to refer to the relationship between the parties, as also the issues of inheritance of the estate left behind by the deceased in order to understand the background of the case and also the genesis of the incident.

44. One Dhanraj Pandey was the common ancestor, who had two sons namely Amardev alias Khedan Pandey and Dubari Pandey (deceased). Amardev alias Khedan Pandey had two sons namely Ram Singhasan Pandey and Indrasan Pandey. Ram Singhasan Pandey had two sons namely Kamlesh Pandey and Akhilesh Kumar Pandey (first informant). Indrasan Pandey has four sons namely Rakesh Pandey, Mithilesh Pandey @ Tipu, Amit alias Bhoja and Kavis alias Mandhata. Indrasan also had two daughters namely Kanaklata alias Urmila and Ruchi. Kanaklata is married to accused Yashwant Chaubey.

45. The agricultural holding of Dhanraj Pandey devolved upon his two sons Amardev @ Khedan Pandey and Dubari Pandey in equal proportions. Half of the property accordingly devolved upon Dubari Pandey and the remaining half came to the share of Amardev @ Khedan Pandey. Upon death of Amardev @ Khedan Pandey his share devolved upon his two sons namely Ram Singhasan Pandey and Indrasan Pandey. The accused party in this case is Indrasan Pandey and his family, who inherited 1/4th share of the agricultural property from the common ancestor and 1/4th share of Ram Singhasan Pandey devolved upon his two sons Kamlesh Pandey and Akhilesh Kumar Pandey (first informant).

46. Going by the law of inheritance (Section 171 of the U.P. Zamindari Abolition and Land Reforms Act, 1950), the agricultural land owned by Dubari Pandey would have devolved upon his two nephews namely Ram Singhasan Pandey and Indrasan Pandey. If Dubari Pandey died intestate or had no heir (as is the prosecution case), the estate of Dubari Pandey in normal circumstance was thus to be equally divided between the two branches of Ram Singhasan Pandey and Indrasan Pandey, such that their share in the original property would work out to 1/2 each (1/4th + 1/4th).

47. The defence has produced an order passed by the Consolidation Officer in proceedings under Section 9(A)(2) of the U.P. Consolidation of Holdings Act, 1953 incorporated in Aakar Patra 23(1) of village Raikwar Deeh, Pargana Mohammadabad, Tehsil Sadar, District Mau, which contains a compromise between Dubari Pandey, Ram Singhasan Pandey and Singhasan Pandey to the following effect:-

"श्रीमान चकबन्दी अधिकारी मुकदमा 442/25.8.1966 धारा 9क(2) जोथ. चकबन्दी अ० सिंहासन बनाम दुबरी आदेश हुआ कि खाता सं० ...... मे डुबरी पुत्र धनराज का नाम सिंहासन व इन्द्रासन पुत्रगण अमर देव के साथ खातिरन दर्ज रहेगा उक्त आराजियात को डुबरी पुत्र धनराज को किसी को विक्रय करने व हिबानामा व आराजियात की नवाईयत को तबदील करने का कोई अधिकार आज से नही है और न कभी भविष्य मे रहेगा। डुबरी पाण्डे की नबालिग लड़की उर्मिला का देख रेख शादी विवाह सिंहासन व इन्द्रासन करेगें, यदि इस आदेश के खिलाफ सिंहासन व सिंहासन किसी प्रकार का विक्रय पत्र व हिबानामा व किसी प्रकार का कागजात पेश करेंगें तो वह गलत व नाजायाज माना जायेगा। हम दुबरी पुत्र धनराज के मृत्यु के बाद ½ सिंहासन व ½ इन्द्रासन पुत्र गण अमरदेव रहेंगे।

हस्ताक्षर

(अस्पष्ट)

12.09.66

च०अ०"

48. The effect of aforesaid compromise is that the share between the two branches of Ram Singhasan Pandey and Indrasan Pandey would remain equal upon death of deceased Dubari Pandey. The aforesaid order also contains recital to the effect that minor daughter of Dubari Pandey namely Urmila would be looked after and her marriage etc. would be performed by the two brothers Ram Singhasan Pandey and Indrasan Pandey and any sale deed or gift deed at variance with the above arrangement would be treated illegal. It is alleged by the defence that Dubari Pandey died a natural death on 11.3.1995. Thereafter the name of his daughter Urmila was recorded in the revenue records. Upon death of Dubari Pandey his share would thus devolve upon Ram Singhasan Pandey and Indrasan Pandey in the ratio of 1/2 each by virtue of the compromise.

49. Our attention has not been invited to any challenge made to the order of the Consolidation Officer nor is it shown to the Court that this order was reversed in any higher forum. It appears that subsequent consolidation proceedings have intervened and therefore no opinion on the claim of parties is required to be expressed by us, particularly as it not the lis to be adjudicated by us in these proceedings.

50. It appears that name of Urmila was recorded in place of Dubari Pandey in the revenue records by an undated order. A subsequent order was passed on 18.7.1996 in proceedings under Section 34 of the U.P. Land Revenue Act, 1901, expunging the name of Urmila daughter of Dubari Pandey and incorporating the name of Akhilesh Kumar Pandey and Kamlesh Pandey as Bhumidhar, on the basis of will dated 30.3.1995. An application for restoration was filed by Urmila on 31.8.1996 seeking recall of the order dated 18.7.1996. This restoration application has been allowed and the proceedings have been restored to its original number. The mutation proceedings have apparently not attained finality, since second consolidation proceedings have intervened in the village. The proceedings for determination the inter-se rights of the parties are thus sub-­judice before the appropriate forum and thus we refrain ourselves from expressing any opinion in the matter.

51. Contrary to the above position, the case of informant Akhilesh Kumar Pandey is that Dubari Pandey was unmarried and died issueless. Urmila Pandey is actually Kanaklata daughter of Indrasan Pandey, who has misrepresented herself as the daughter of Dubari Pandey. According to informant a registered will and gift deed has been executed by Dubari Pandey on 30.3.1995, whereby his immovable property is bequeath in favour of Akhilesh Kumar Pandey and his brother Kamlesh Pandey to the exclusion of the branch of Indrasan Pandey.

52. The informant has also brought on record a subsequent gift deed of Dubari Pandey dated 24.4.1995, which records that the wife of Dubari Pandey has died earlier.

53. The informant further alleges that an Original Suit No.456 of 1995 was filed by Indrasan Pandey Vs. Dubari Pandey (first set) and Kamlesh Pandey as well as Akhilesh Pandey (second set) seeking relief of injunction against the defendant. In the said suit an application came to be filed by Dubari Pandey (Application No.17Ga-2 for recording his statement as defendant due to his old age of 85 years. In this suit the trial court noticed that plaintiffs were not appearing and consequently issued notices to the plaintiff Indrasan and his counsel for securing their presence before the court on 14.3.1996. However, two days before the date fixed in the matter for appearance of parties, the deceased Dubari Pandey was brutally murdered.

54. Contrary to the above case set up by the informant, the defence case is that they never filed Suit No.456 of 1995 and that the suit was got instituted through an imposter by the informant Akhilesh Pandey, who is an Advocate by profession. As per the defence, they came to know about filing of the suit much later and filed application for comparing the signature of Indrasan Pandey on the plaint and Vakalatnama with his admitted signatures recorded at the time of framing of charge in this case.

55. On getting knowledge about the filing of the papers/documents on 26.06.2006 by complainant/first informant, two applications were filed on 05.10.2015 (Paper No. 448 Kha) and on 24.12.2015 (Paper Nos. 459/460Kha), highlighting the fraudulent act of Akhilesh Pandey and made a specific prayer that the signature/thumb impression purported to be of Dubari Pandey in different documents namely, Registered WILL, gift deed dated 30.03.1995 and gift deed dated 24.04.1995 and other documents, having the signature/thumb impression of Dubari Pandey, through Handwriting Expert, may be compared. The signature of Indrasan Pandey, appearing on Plaint No. 456/1995 may also be compared from his admitted signature, put on the ordersheet of the Court of Magistrate, at the time of committal of the case to the Court of Sessions. The said prayer was refused by the Learned Sessions Judge, vide order dated 17.12.2019. The said order dated 17.12.2019 was challenged through 482 Cr.P.C. Petition No. 2623 of 2020. On 20.01.2020, counter affidavit was called by fixing 11.02.2020. However, before disposal of the said 482 Cr.P.C. Petition, the present impugned judgment and order was passed on 11.02.2020.

56. Defence has also relied upon various documents to show that Dubari Pandey had already died on 11.3.1995. His daughter Urmila filed Original Suit No.1221 of 1995 before the court of Civil Judge (Junior Division), annexing copy of the order dated 7.9.1995, whereby the revenue authorities mutated the name of Urmila in place of Dubari Pandey. In the said suit the family register was directed to be put in sealed cover. Copy of the family register was also annexed with the said suit, which shows that name of Urmila was deleted on account of her marriage. A photograph (Paper No. 108 Kha) has also been filed to show that Dubari Pandey had died on 11.3.1995. The photograph of cremation shows the presence of informant Akhilesh Pandey as also accused Rakesh Pandey and the father of co-accused Yashwant Chaubey namely Radhey Shyam Chaubey. A school leaving certificate (Paper No. 220Kha) has also been filed by the defence showing Kanaklata to be daughter of Indrasan without any alias like Urmila.

ANALYSIS OF EVIDENCE

57. It is in the above backdrop and relying upon the case setup by the informant that the prosecution alleges that Dubari Pandey was alive and has been brutally done to death by the accused appellants in the incident which occurred on 12.3.1996. To the contrary, the defence version is that Dubari Pandey had already died on 11.3.1995 and the alleged will and gift deed dated 30.3.1995 and 24.4.1995 are fraudulent documents and have been prepared through an imposter. It is also the case of the defence that the informant's father namely Ram Singhasan Pandey was employed in Madhya Pradesh and had brought a servant with him about 30 years back. This servant was not seen after 11.3.1996. The defence, therefore, alleges that the informant has actually chopped the head of his own servant, so as to falsely implicate the accused for murdering Dubari Pandey and in order to suppress/conceal his identity the two thumbs of the deceased have also been chopped off.

58. It is in the above background that this Court has to examine whether the prosecution has succeeded in establishing that the accused appellants have beheaded the deceased on 12.3.1996 and have chopped off his two thumbs in the incident alleged by the informant. This Court is also required to determine whether the prosecution has succeeded in establishing the guilt of the accused appellants beyond doubt.

59. The background facts have been noticed by us in order to appreciate the issues that arise for determination in the present appeals. It is the criminality part of the incident which alone requires adjudication by us. We have to determine whether the incident, as is alleged by the prosecution, has occurred in the manner suggested by the prosecution and; secondly, whether the prosecution has succeeded in establishing the guilt of the accused appellants beyond doubt on the basis of oral and documentary evidence produced by it. Dispute relating to rights of the parties over immovable property or contentious issues relating to legality and validity of the will and the gift deeds do not form part of the lis before us, and therefore we refrain ourselves from making any observations on the merits of such contentions raised by the parties. We also hasten to clarify that any observation made by us while noticing the respective stand of the parties is for the limited purpose of proper appreciation of the background facts and does not amount to expression of our opinion on the merits of the claim of either party.

60. As per the prosecution the incident has occurred on 12.3.1996 at about 12.00 noon near the agricultural field of Jiyutbandhan Singh, wherein the deceased Dubari Pandey was done to death by chopping his head from the neck by a Dao. The accused also cut both the thumbs of the deceased. It is alleged that accused Rakesh Pandey took away the head and thumbs of the deceased. The head of the deceased has been recovered from a pond in an adjoining district. The thumbs, however, have not been recovered. The weapon of assault has also not been recovered.

61. So far as the medical evidence on record is concerned, the beheaded body of deceased has been subjected to postmortem at 2.15 pm on 13.3.1996. The external examination of dead body shows that a beheaded body of a 70 year old person was produced before the Autopsy Surgeon with rigor mortis present in lower extremity, abdomen was distended and fecal matter was coming out. Right and left thumbs in parts were missing. Clotted blood was present over neck, chest and back of neck. The cause of death has been determined as shock and hemorrhage due to ante-mortem injuries. There are four incised wounds. The first injury is an incised wound 14x13cm x bone deep thru and thru, 3 cm above supra sternal notch and 1 cm above base of cervical seven vertebra underlying bone, muscles, vessels and soft tissues and cervical six vertebra is cut thru and thru, apportion of cervical six is attached with trunk margin clear cut. The autopsy surgeon also found that the rectum of deceased to be loaded.

62. Apart from the above four ante-mortem injuries on the body, the postmortem report also shows three postmortem injuries, which are as under:-

"(1) incised wound 2 cm x 1½ cm x thru and thru on the proximal phalynx of right thumb underlying bone parts missing.

(2) incised wound 4 cm x 3 cm x bone deep obliquely placed on the middle phalynx of right index finger.

(3) incised wound 2 cm x 1½ cm x bone deep thru and thru on the middle phalynx of left thumb."

63. The second postmortem report is in respect of the recovered head. This postmortem was conducted on 14.3.1996 at 4.00 pm. The age of the deceased is mentioned as 60 years and the cause of death is shown as shock and hemorrhage, as a result of ante-mortem injuries. An incised wound of size 10 cm x 10 cm at level of C2 exists with margins clear cut. An incised wound of size 4.0 cm x 1.0 cm x bone deep on right side of skull 15 cm above right eyebrow also exists. Right frontal bone is sharply cut.

64. The medical evidence led by the prosecution has to be examined with an intent to determine whether the recovered head and the headless body are of same person. We are also to determine whether the prosecution has established that the recovered body is of the deceased Dubari Pandey.

65. The defence has seriously contradicted the prosecution case regarding the identity of the deceased as also whether the recovered head and the headless body are of one person. So far as the identity of headless body as being of Dubari Pandey is concerned, we find from the record that the beheaded body has been identified by PW-2 Vishun Ram and his statement shall be adverted to in the later part of this judgement when we examine the testimony of witnesses. There is also an issue with regard to identification of the head by PW-4 and her testimony shall be examined when we deal with the testimony of witnesses.

66. The star witness of the prosecution in this case is the informant Akhilesh Kumar Pandey who has been produced as PW-1. This witness claims to have seen the incident, wherein the accused persons in an ambush brought down the deceased and chopped of his head and thumbs. As per PW-1 the deceased had executed a registered will and gift deed in favour of his brother and himself. A subsequent gift deed of 24.4.1995 was also relied upon by PW-1. PW-1 has clearly stated that deceased Dubari Pandey was living with his family and he had no issue.

67. The incident as per PW-1 was seen by Sitaram Singh and Chandradev Ram as well as several other persons of the village who arrived at the place of occurrence. Sitaram Singh and Chandradev Ram are also the eye-witnesses of the incident in the first information report. These two persons, however, have not been produced in evidence by the prosecution. An affidavit has been filed by Sitaram Singh before the trial court saying that he has not seen the accused assaulting the deceased Dubari Pandey and that his statement has not been recorded by any police personnel. He has further stated that on account of his personal work he had gone out and was not even present in the village when the incident occurred. Similarly, on the date fixed for recording the statement of Chandradev Ram, an application was moved by informant Akhilesh Kumar Pandey through the govt. counsel stating that the witness Chandradev Ram though has appeared before the court but he has colluded with the accused and is not prepared to state correct facts. Prayer was accordingly made to discharge the witness Chandradev Ram. This application (Paper No. 109Kha) was allowed by the court on 12.9.2003 and consequently testimony of Chandradev Ram has also not been recorded during trial. Thus the only eye-witness of the incident is the informant Akhilesh Kumar Pandey (PW-1).

68. PW-1 is not only a related witness but is a highly interested witness in this case. We have already taken note of the background facts as per which the deceased had executed a will and gift deed in favour of informant Akhilesh Kumar Pandey and his brother to the detriment of other branch consisting of the accused persons. The relations between accused and the informant were thus highly inimical for the aforesaid reason.

69. Law with regard to the testimony of interested witnesses is by now well settled. In Md. Jabbar Ali and others Vs. State of Assam, reported in 2022 SCC OnLine SC 1440, the Court has observed as under in paras 55 to 58 of the report:-

"55. It is noted that great weight has been attached to the testimonies of the witnesses in the instant case. Having regard to the aforesaid fact that this Court has examined the credibility of the witnesses to rule out any tainted evidence given in the court of Law. It was contended by learned counsel for the appellant that the prosecution failed to examine any independent witnesses in the present case and that the witnesses were related to each other. This Court in a number of cases has had the opportunity to consider the said aspect of related/interested/partisan witnesses and the credibility of such witnesses. This Court is conscious of the well-settled principle that just because the witnesses are related/interested/partisan witnesses, their testimonies cannot be disregarded, however, it is also true that when the witnesses are related/interested, their testimonies have to be scrutinized with greater care and circumspection. In the case of Gangadhar Behera and Ors. v. State of Orissa (2002) 8 SCC 381, this Court held that the testimony of such related witnesses should be analysed with caution for its credibility.

56. In Raju alias Balachandran and Ors. v. State of Tamil Nadu (2012) 12 SCC 701, this Court observed:

"29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh [AIR 1953 SC 364] and pithily reiterated in Sarwan Singh [(1976) 4 SCC 369] in the following words: (Sarwan Singh case [(1976) 4 SCC 369, p. 376, para 10)

"10. ... The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."

57. Further delving on the same issue, it is noted that in the case of Ganapathi and Anr. v. State of Tamil Nadu (2018) 5 SCC 549, this Court held that in several cases when only family members are present at the time of the incident and the case of the prosecution is based only on their evidence, Courts have to be cautious and meticulously evaluate the evidence in the process of trial.

58. It is thus settled that the evidence of the related witnesses have to be considered by applying discerning scrutiny. ............."

70. In light of the principles laid down by the Supreme Court as noticed above, the testimony of PW-1 will have to be carefully examined in order to determine its credibility and reliability.

71. PW-1 has stated that when the accused persons had grabbed the deceased and held his hands and legs the witness raised an alarm and various persons came from the nearby brick-kiln to the place of occurrence. As per PW-1, by the time persons from the brick-kiln arrived at the place of occurrence, the accused had already chopped the head of the deceased and was leaving alongwith the head of the deceased. Relevant part of the testimony of PW-1 is reproduced hereunder:-

"मेरे शोर पर भट्ठे पर से दौड़ कर लोग आये। गांव से लोग घटना के बाद आये। भट्ठे से जो लोग आये वे घटना स्थल पर जब पहुँचे जब मुलजिमान दुबरी पाण्डे को मार कर सर लेकर चलने लगे थे। भट्ठे से लगभग 20-25 लोग आये थे। जब भट्ठे से लोग घटना स्थल पर पहुँचे थे मुलजिमान भट्ठे से सौ डेढ़ सौ गज दूर जा चुके थे। तथा मन्सड़ी जाने वाली सड़क के करीब पहुँच चुके थे। सड़क से 40-50 कदम उत्तर थे। मुलजिमान जो अपने हाथ में हथियार लिए हुए थे व सर लेकर भाग रहे थे। जो लोग 20-25 की संख्या में भट्ठे से आये थे वे मुलजिमान का पीछा नहीं किये। मुलजिमान को दुबरी पाण्डे को पटकने तथा सर काटने में 10-15 मिनट का समय लगा होगा। 20-25 लोगों में सबका नाम याद नहीं है कुछ का नाम बता सकता हूँ। उनमें सीताराम सिंह, चन्द्रदेव राम, श्रीराम सिंह, गंगा यादव लाल मोहम्मद, लालजी पाण्डे, शंकर यादव आदि थे। कुछ भट्ठे पर काम करने वाले थे सब भट्ठे पर काम करने वाले नहीं थे। उस समय ईंट की पथाई, पकाई झुकाई, ढुलाई चल रही थी। सब लोग करीब भट्ठे से ही आये कुछ लोग भट्ठे के करीब घांस कर रहे थे।"

72. However, none of these persons from the brick-kiln or others whose names are specified by PW-1 have been produced in evidence, nor their statements have been recorded by the Investigating Officer under Section 161 Cr.P.C. There is no explanation put-forth by the prosecution as to why these persons were not examined under section 161 Cr.P.C. The Investigating Officer has also been examined as PW-5, who has stated that though he had examined Jiyutbandhan Singh as well as other nearby tenure holders Jhullan and Vinod Pandey but their statements were not recorded. These persons have, however, not disclosed anything about the incident to the Investigating Officer. With regard to the testimony of the workers engaged in the nearby brick-kiln, the Investigating Officer has stated as under:-

"वादी ने मुझे यह बयान नहीं दिया था कि घटना स्थल के पश्चिम तरफ स्थित शंकर यादव का मकान व ट्यूवेल स्थित है, पर वादी व मृतक दुबरी पाण्डेय शंकर यादव से बातचीत किए थे। भट्ठा राकेश लाल का था। उनका कोई बयान मैंने नहीं लिया था वादी ने मुझे अपने बयान में यह नहीं बताया था कि राकेश लाल के उक्त भट्ठे पर काम करने वाले मजदूर भी घटना स्थल पर पहुँचे थे मैंने भट्ठा के मजदूरो से बयान नहीं लिया था।"

73. From the above statement of Investigating Officer it appears that PW-1 had not informed him that the brick-kiln belonged to Rakesh Pal or that workers from brick-kiln or others had came to the place of occurrence around the time of incidence. Their statements were also not recorded by the Investigating Officer. None of them has been produced in evidence. This is a material omission inasmuch as PW-1 has clearly stated that several workers from the brick-kiln and nearby had arrived at the place of occurrence and saw the accused taking/carrying the head of the deceased but none of them have been examined by the Investigating Officer. Their statements were also not recorded. As per the Investigating Officer, PW-1 in fact had not informed him about the workers from the brick-kiln coming to the place of occurrence at all. This anomaly in the prosecution evidence is crucial and remains unexplained.

74. We also find that PW-1 has clearly stated in his testimony that the deceased Dubari Pandey was never married. This fact in the testimony of PW-1 is contradicted by his own document i.e. will and gift deed dated 30.3.1995 and 24.4.1995 which records that the wife of deceased has already died. It is difficult to believe that being a grandson and inheriting the entire estate of the deceased, PW-1 would be unaware of the marital status of the deceased. His deposition is therefore unnatural.

75. Moreover, PW-1 in his testimony has stated that he left alongwith deceased to inspect the wheat field at around 9.30-10.00 in the morning. They (PW-1 and the deceased) had attended the nature's call but neither of them had taken bath or eaten anything. In specific terms PW-1 has stated that they had not taken tea or breakfast. This statement of PW-1 does not find corroboration from the postmortem report wherein the autopsy surgeon found the rectum of deceased to be loaded. Fecal matter was also coming out. The deceased had not passed the stool or eased himself as per opinion of the autopsy surgeon. The medial evidence thus does not support the ocular version.

76. It has thus been emphasized on behalf of the appellants that the statement of PW-1 about the deceased having eased himself before going to the field does not find corroboration from the medical evidence on record. If the testimony of PW-1 was correct about the deceased having eased himself, then that eventuality his rectum would not be loaded or that fecal matter would be coming out of the rectum of deceased. Autopsy surgeon when confronted with this aspect of the matter has stated as under:-

"जिस समय मृतक की मृत्यु हुयी उस समय आमाशय खाली था। छोटी आंत में गैस व मल भरा था। आदमी के खाना खाने के 7-8 घन्टे बाद आमाशय खाली हो जाता है। यदि व्यक्ति रात में 9-10 बजे खाना खाकर सो जाय तो सुबह 4-5 बजे उसका आमाशय खाली रहेगा। छोटी आंत में 2-3 दिन तक मल पदार्थ रह सकता है। Rectum Loaded शौच के पहले की स्थित होती है। शौंच के बाद अगर कोई व्यक्ति खाना न खाये तो उसके 3-4 घन्टे बाद रेक्टम लोडेड नहीं होगा।"

The above aspect also creates a doubt upon the reliability of the testimony of PW-1.

77. PW-1 in his testimony has stated that the accused Rakesh Pandey chopped of the head of deceased and also his thumbs. This statement of PW-1 has been examined by us with reference to the postmortem report and the testimony of the doctor. The postmortem report shows existence of ante-mortem injury as well as postmortem injury on the body of the deceased. The ante-mortem injury consisted of incised wound including the injury in which the deceased was beheaded. The three postmortem injuries on the deceased were incised wound on his thumbs. Autopsy surgeon was cross-examined on this aspect of the matter. The autopsy surgeon has stated that the ante-mortem injuries were caused to the deceased before his death while postmortem injuries were caused after the death of the deceased. The difference between the ante-mortem and postmortem injuries have been elaborated by PW-6, according to which, bleeding and clotting occurs in ante-mortem injury whereas such features do not figure in postmortem injury. No pus, etc., is found in postmortem injury.

78. PW-1 in his statement has not asserted that there was any gap in chopping of head and the thumbs. As per this witness both the injuries were caused in the same transaction/incident. However, as per the Autopsy Surgeon the chopping of head was ante-mortem injury whereas cutting the thumbs was a post-mortem injury. Though, in the opinion of doctor, no specific time gap can be specified but, in our opinion, by the very nature of things some time gap is bound to intervene between the two kinds of injury i.e. ante-mortem injury and post-mortem injury. The statement of PW-1 that both the injuries i.e. ante-mortem and post-mortem were caused by accused Rakesh Pandey in the same transaction/incident, therefore, does not find corroboration from the medical evidence on record. The postmortem report does not support the assertion of PW-1 that both injuries were caused simultaneously in the same incident. This also raises a doubt on the reliability of PW-1.

79. On behalf of the defence it has been strenuously urged that identity of the headless body has not been established and the prosecution has not been able to prove that the headless body was that of Dubari Pandey.

80. Learned Senior Counsel for the appellant has invited our attention to the will and gift deed dated 30.3.1995, allegedly executed in favour of PW-1 and his brother, which contains the following recital:-

^^ge eqfdj dh vk;q yxHkx 85 o"kZ dh gks pqdh gS^^

81. However, in the postmortem report the age of deceased is mentioned as about 70 years. In the postmortem report of head (Exhibit Ka-14), the age of deceased is shown to be 60 years. There is thus marked difference in the age of the deceased specified at different places. In the will the deceased is shown to be 85 years old, whereas in the postmortem report of the beheaded body the age has been specified as 70 years. This aspect also remains unexplained by the prosecution.

82. We have examined the issues relating to identity of the dead body in light of the prosecution evidence brought on record. The inquest report shows that the witnesses of inquest of beheaded body were Sitaram, Lalji Pandey, Islam, Chandradev Ram and Vishun Ram. Out of these five witnesses of inquest only Vishun Ram has been produced in evidence as PW-2 by the prosecution. PW-2 in his testimony has proved the inquest which is exhibited as Paper No. Ex.Ka-2. He has identified the beheaded body as that of deceased Dubari Pandey. This witness has been cross examined wherein he denied the suggestion that he had identified the dead body as that of Dubari Pandey on the saying of PW-1. He claims to have identified the body from the boil on his back. Following part of the statement of PW-2 is relevant and is reproduced hereinafter:-

"मैंने खुद लाश को पहचाना वह दुबरी पाण्डे की थी। यह कहना गलत होगा कि अखिलेश के बताने पर मैं माना कि लाश दुबरी पाण्डे की थी। दुबरी पाण्डे के धड व पीठ के फोड़े को देखकर मैंने पहचाना की वह दुबरी पाण्डे की लाश है। मैं लाश का फोड़ा देखा था पहले से भी मैंने फोड़ा देखा था। पंचनामे के समय मैंने दुबरी पाण्डे की पीठ पर फोड़ा देखा था मैं मौके पर करीब रात्रि तीन बजे पहुँचा था। मैं पहुँचा तो लाश पीठ के बल पड़ी थी। लाश को वहां से पुलिस ने पंचनाम होने के बाद उठाया।"

83. PW-2 has denied that he made a false statement on account of his friendship with PW-1.

84. On behalf of the appellants our attention has been invited to the inquest in which the condition of body as well as appearance have been specified as under:-

^^दशा शव - मृतक दुबरी पान्डेय उपरोक्त के शव को समझ वयान उपरोक्त निरीक्षण किया के श्री जिउत बन्धन सिह के गेहू के खेत के पच्छिमी उत्तरी छोर पर सर जानिब दक्षिण दोनो पैर जानिब उत्तर चित हालत में गर्दन कटा शव पड़ा है। सर नही है। दोनों हाथ का अगुठा कटा है।

हुलिया शव - सावला रंग औसत कद इकहरी मजबूत जिस्म। उम्र करीब 70 वर्ष।"

85. Clothes worn by the deceased have also been specified as under in the inquest report:-

"पहनावा - (1) सफेद रंग की पुरानी धोती पहना है।

(2) सफेद रंग की वन्डी पहना है।

(3) चेकदार गमछा धड पर है।"

86. On the strength of the above material it is sought to be urged on behalf of the appellants that PW-2 could not have identified the deceased only on the basis of boil on the back of the deceased when the deceased himself was lying on his back in the field of Jiyutbandhan Singh. The deceased was wearing a white colour vest (Bandi) and the body was clearly covered. In such a situation, it would be difficult for anyone to notice any boil on the back of the deceased particularly when the body itself was covered by clothes and is on his back. This argument of the appellant appears to have substance and raises a doubt with regard to identification of the body of the deceased. This aspect of the matter has not been explained by the prosecution during the course of hearing of the present appeals.

87. A doubt is also raised by the appellants with regard to the identification of the head as that of the deceased Dubari Pandey. From the evidence on record it transpires that PW-3 reported to the Station In-charge of Police Station - Dullahpur, Ghazipur about recovery of the head from a pond near his tube-well. The head was kept in a polythene which got stuck in the Khur (cracking) of a buffalo and came out with the cattle. The information about such recovery of head got received vide Exhibit Ka-3 in the late evening hours of 13.3.1996. The inquest of the recovered head Ex.Ka.15 shows that the inquest proceedings concluded at 7.15 am on 14.3.1996.

88. The inquest shows that an unknown death was reported vide Entry No. 37 at 21.45 pm on 13.3.1996. At the time of inquest the head was not identified. The prosecution, however, alleges that Investigating Officer while conducting the investigation at the village Raikwar Deeh received information about the recovery of the head of an elderly person. Such information was received by the Investigating Officer on 14.3.1996. The Investigating Officer has been produced as PW-5 and has stated as under with regard to the receipt of information about the recovery of head from the informant:-

"सिर के बरामदगी के सम्बन्ध में दुल्हपुर थाना से सूचना मिली थी। यह सूचना 14.3.96 को मिली थी। समय याद नहीं है। केस डायरी के पर्चा नं०-3 में अंकित किया है। स्वयं कहा कि मुझे मुखविर से ऐकवारे डीह में सूचना मिली थी।

मैनें मृतक के सिर की बरामदगी नहीं की थी। केवल बरामदगी स्थल का निरीक्षण किया था।

दुबहा ताल पर वादी मुकदमा की औरत कुसुम थी। तथा विपिन कुमार दूबे, चन्द्रदेव राय, सीताराम सिंह को भी लेकर पहुँचा था। मैंने उक्त व्यक्तियों का सिर बरामदगी के सम्बन्ध में बयान नहीं लिखा था। वे बरामदगी के गवाह नहीं थे। शिनाख्त के गवाह थे।

यह कहना गलत है कि सिर को पोस्ट मार्टम होते समय मैं गाजीपुर पहुंचा था।"

89. As per the prosecution the recovered head has been identified by PW-4 Kusum Pandey, who happens to be the wife of the informant PW-1. This witness has stated in her cross examination that the Investigating Officer arrived at her house at around 5.00 am and she left with him in his Jeep. PW-4 has stated that the Investigating Officer informed her that the missing head of Dubari Pandey has been recovered and that she may come with him to identify it. She says that it took about 1-1½ hours in arriving at the location where the head of deceased was found. She was the only one from her house apart from Sitaram Singh, Vipin Dubey and some other residents of the village. She claims that the recovered head was kept in the polythene and had not been sealed by then. She claims that no legal formality was done by the police personnels in her presence. The statement of PW-4 is relevant and is reproduced hereinafter:-

"दिनांक 14.3.96 को दरोगा जी मेरे घर गये थे, दरोगा जी मेरे लग० पांच बजे भोर में गये थे। उनके साथ और पुलिस थे, पुलिस के अलावा उनके साथ और कोई नहीं था। मेरे घर दरोगा जी पुलिस के जीप से गये थे, दरोगा जी घर गये तो बताये कि सर मिल गया है चल कर पहचान कर लों तो तुरन्त मैं दरोगा जी के साथ चल दी। जब मैं पहुँची पोखरे तो दिन निकल गया था। मैं घड़ी नहीं पहनी थी इसलिये मैं ठीक समय नहीं बता सकती कि क्या बजा था। घर से पोखरे तक थाने में लग० एक डेढ़ घन्टा लगा होगा। वहां पहुचने पर लग० 6-7 बज रहा था। मैं अपने घर की एकेली थी, और सीताराम सिंह, विपिन दूबे तथा गांव के एक दो लोग और थे बाकी पुलिस थी। मुझे इस समय याद नहीं है कि उस पोखरी के आस पास घर थे या नही। उस पोखरी के अगल बगल कुछ पेड़ वगैरह थे। जब मैं वहां पहुँची तो पुलिस दरोगा लोग थे और जनता के दो चार लोग थे। वह सिर पोखरी के दाहिनी व पूर्वी कोने पर थी, फिर कही कि सिर दाहिनी पश्चिमी कोने पर थी। मैं पोखरी पर सिर बरामदगी वाले जगह पर लगभग आधे घन्टे रही। जब मैं गयी तो पोलीथीन में रखा हुआ सिर रस्सी से बंधा हुआ नहीं था, पोलीथीन खुला था, पोलीथीन का रंग इस समय याद नहीं है, पोखरी पर हमारे सामने दरोगा जी सराय लखन्सी के कोई लिखा पढ़ी नहीं किया। पोलीथीन से जो पहले से वहां पुलिस थी वही सिर निकाल कर मुझको दिखायी। पोलीथीन की लम्बाई चौड़ाई मुझे याद नहीं है मैं अन्दाज से भी लम्बाई चौड़ाई नहीं बता सकती। दुबरी पाण्डेय की मृत्यु के समय उम्र लग० 70 वर्ष थी। उनका सर निकाला गया तो उनका चेहरा खून से लतपथ नहीं था। चेहरा विकृत हुआ था। पहचान में आ रहा था। चेहरे पर भी चोटे थी, चेहरे पर कटे की घाव थी, सूजन नहीं थी। जबड़ा कटा हुआ था, गाल पर चोट नहीं थी, माथे पर चोट नहीं थी, दाहिनी आंख के ऊपर चोट थी।

दरोगा जी ने मेरा बयान लिया था। दरोगा जी ने जहां मैं सिर को पहचानी थी वहीं पर मुझसे पूछे थी कि सिर को पहचान रही हो मैं कहा कि हाँ। मैं घड़ी नहीं पहनी थी, फिर वहां से मैं पुलिस वाली जीप से ही घर आयी, याद नहीं है कि मैं कितने बजे घर पहुँची। यह कहना गलत है कि न मैं मौके पर गयी और न मेरे सामने सिर की बरामदगी हुई।"

90. From the evidence available on record it transpires that the unknown head recovered on the information of PW-3 was subjected to inquest proceedings which concluded at 7.15 am on 14.3.1996. As per the inquest proceedings the recovered head was of an unidentified person. The inquest also records that the recovered head was sealed and sent for postmortem. In the event PW-4 had arrived at the place of inquest and had identified the head as that of Dubari Pandey then such identity ought to have been mentioned in the inquest report but such is not the case here.

91. We otherwise find certain missing links in the prosecution case.. The Police Station- Dullahpur had received information about the recovery of head at 9.45 pm. In the statement of PW-8 Rajendra Prasad Singh, who was posted at Police Station Dullahpur, it transpires that this witness was sent alongwith Constable Raj Kumar for investigation and preparing the inquest by the Sub-Inspector Uma Nath Shukla. He claims that as it was dark the inquest could not be conducted in night and the inquest was conducted the next morning. He has stated that after receipt of such information at the police station, he reached the pond at about 11.00 in the night. He has specifically stated that the police personnel had not seen the head in the night and had seen it only in the morning at around 7.00 am. This witness has also stated that no information was received on wireless set from adjoining district Mau about the missing head of a dead person. Although this witness has supported the prosecution case, as per which, the inquest was conducted at about 7.00-8.00 am, but he later stated that the inquest concluded by 8.00-9.00 am.

92. From the prosecution evidence it is clear that the information with regard to recovery of head was received fairly late in the evening and the police personnel arrived at around 11.00 pm at the pond from where the unknown head had been recovered. PW-8 admits that he had not seen the recovered head in the night. If that be so, it would be difficult to visualize as to how the Investigating Officer could know that the recovered head was that of an old male person and could be of the deceased. There is no material on record to show that the information regarding recovery of head was circulated to the adjoining Police Station or the police personnel of Sarai Lakhansi, District Mau. There is also nothing on record to show as to when and how the Investigating Officer came to know about recovery of the head of an elderly person. The unknown head was recovered from a good distance from the place where beheaded body was recovered and PW-4 herself has admitted that it took her about an hour and half to reach the pond. The prosecution case that the Investigating Officer (PW-5) received information about the recovery of head from an informer on 14.3.1996 without specifying the time of receipt of such information or the manner or person from whom such information was received creates a doubt in the prosecution case.

93. The statement of PW-5 that he was at village Raikwar Deeh and came to the house of PW-4 at 5.00 in the morning and left with her for identifying the head also creates some doubt. Neither the timing of receipt of information has been mentioned in the case diary by the Investigating Officer, nor prosecution has satisfactorily explained as to how recovered unknown head was identified as that of the deceased Dubari Pandey. No other person except the wife of first informant has come forward to identify the recovered head.

94. In addition to above, there are some other loop-holes in the prosecution story. The postmortem of the beheaded body shows that the first ante-mortem injury was a clean cut. Incised wound 14x13cm x bone deep thru and thru (A.P. diameter), 3 cm above supra sternal notch and 1 cm above base of cervical seven vertebra underlying bone. The chopping of head is at the level of cervical six vertebra whereas the postmortem report of head shows clean cuts to be at the level of C2. The situation of cuts in the body and the head does not entirely match as they are at a different levels. This creates a doubt in the prosecution itself that the recovered head was part of the body of deceased Dubari Pandey.

95. We have otherwise carefully examined the original records of the sessions trial and we find existence of an affidavit of the accused submitted before the S.S.P. Mau (Paper No. 392Kha/10) dated 13.3.1996 in which the accused Rakesh Kumar Pandey has made serious allegations against the Investigating Officer (PW-5) and has prayed for the investigation to be conducted by any other gazetted police officer. The accused Rakesh kumar Pandey has stated that his family was passing through a difficult phase due to lack of resources. Being elder son, he was selling newspapers to fund his studies. The supply of newspaper was also at the police station by him since long. The newspaper bills, however, were not cleared from 1st May, 1995 to 31st January 1996 amounting to Rs. 1458/-. The amount is not negligible. The accused has stated that he made a complaint against the Investigating Officer V.B. Singh Yadav to the S.P. Mau on 15.2.1996 and 21.2.1996, on account of which, he was extremely unhappy with him. It has, therefore, been alleged that for such reasons and also for other extraneous reasons the Investigating Officer was acting in collusion with the first informant to implicate him. The defence has otherwise stated that the beheaded body was seen in the morning and one Jai Prakash Singh and Ram Badai Singh had given information to police about recovery of an unknown dead body. This case has been specifically set up by DW-2.

96. The two other witnesses of incident as per the FIR namely Sitaram Singh and Chandradev Ram have not come forward to give their statements before court. Although various other workers from the adjoining brick-kiln are alleged to have seen the incident as per PW-1, but neither they have been produced in evidence, nor they have even been examined by the Investigating Officer. Their statements have also not been recorded under Section 161 Cr.P.C. The testimony of PW-1 is otherwise found inconsistent with other evidence on record for the following reasons:-

(i) PW-1 although has stated that the workers from brick-kiln have seen the incident but this statement is a clear improvement from his earlier statement made to the Investigating Officer under Section 161 Cr.P.C. The statements of workers have otherwise not been recorded. These workers could be independent and reliable witnesses and their unexplained non production, in evidence, creates a doubt in the prosecution case.

(ii) Though PW-1 alleges that the accused has beheaded the deceased and also chopped of his thumbs in the same incident, almost simultaneously, but the postmortem report shows that the act of beheading was an ante-mortem injury while chopping of thumbs was a postmortem injury. The act of beheading and chopping of thumbs, therefore, does not appear to be simultaneous or in the same incident. This also raises a serious doubt regarding the testimony of PW-1.

(iii) PW-1 claims that the deceased had attended natures call and had eased himself whereas the postmortem report shows rectum of the deceased to be loaded and fecal matter was coming out of the rectum of the deceased.

(iv) The identity of the dead body as being that of deceased Dubari Pandey is not established.

(v) We also find that PW-1 has clearly stated in his testimony that the deceased Dubari Pandey was never married. This fact in the testimony of PW-1 is contradicted by his own document i.e. will and gift deed dated 30.3.1995 and 24.4.1995 which records that the wife of deceased has already died. It is difficult to believe that being a grandson and inheriting the entire estate of the deceased, PW-1 would be unaware of the marital status of his own grand parent.

CONCLUSION

97. Having carefully examined the records of the present case, we find that the prosecution case is primarily based upon the oral testimony of PW-1 who is a highly interested witness. His testimony has not been found to be of sterling nature. In a recent decision of Supreme Court in Nand Lal and others vs. State of Chhatisgarh, (2023) SCC Online SC 262, the Court relying upon Vadivelu Thevar vs. State of Madras, 1957 SCR 981, has classified the category of witnesses as under:-

"33. Undisputedly, the present case rests on the evidence of interested witnesses. No doubt that two of them are injured witnesses. This Court, in the case of Vadivelu Thevar v. The State of Madras7, has observed thus:

"11. ......Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial......" [1957] SCR 981

34. It could thus be seen that in the category of "wholly reliable" witness, there is no difficulty for the prosecution to press for conviction on the basis of the testimony of such a witness. In case of "wholly unreliable" witness, again, there is no difficulty, inasmuch as no conviction could be made on the basis of oral testimony provided by a "wholly unreliable" witness. The real difficulty comes in case of the third category of evidence which is partly reliable and partly unreliable. In such cases, the court is required to be circumspect and separate the chaff from the grain, and seek further corroboration from reliable testimony, direct or circumstantial."

98. The testimony of PW-1 does not fall in the category of wholly reliable witness since PW-1 is a highly interested witness. In this circumstance the Court is required to be circumspect and separate the chaff from the grain and seek further corroboration from reliable evidence, direct or circumstantial.

99. When the testimony of PW-1 is examined in the light of above, this Court finds that there are issues with regard to genuineness of the alleged will and gift deed executed in favour of PW-1, by the deceased and, therefore, there is a cloud on the motive of the appellants. The gift and will, prima facie appears to be inconsistent with the order of consolidation court of the year 1966 passed in the title proceedings. PW-1 is the obvious beneficiary of these documents and is otherwise highly interested witness whose testimony does not appear to be trustworthy. The fact that he does not know the marital status of his grandfather who allegedly has executed will and gift in his favour, to the exclusion of other branch is questionable. He has also withheld the fact that other persons had witnessed the incident from the Investigating Officer. We have otherwise noticed that the testimony of PW-1 is inconsistent with the medical evidence on record. There are improvements in his testimony which are not explained. Upon careful evaluation of the evidence on record, we are not inclined to accept PW-1 as trustworthy and, therefore, his testimony is neither credible nor reliable. There are other serious issues with regard to identity of the body for which elaborate reasons have been given above. Even if we entirely ignore the defence version that the deceased had died earlier yet what can safely be inferred from the record of this case is that the prosecution case is open to doubt and once we suspect the credibility of the main prosecution witness it would not be safe for us to rely upon the prosecution case so as to convict the two accused appellants.

100. Though the trial court has convicted the accused appellants, but we find from the judgment of the court below that inherent contradictions in the testimony of PW-1 vis-a-vis medical evidence, as noticed above, have entirely been overlooked. The other circumstance with regard to identity of the dead body on the basis of prosecution evidence has also not been subjected to careful scrutiny. The trial court has completely omitted to consider that there existed an order of the consolidation court as per which the estate of the deceased was to devolve in equal proportion upon the informant and his brother as well as other branch of accused persons. We also find that PW-1 has clearly stated in his testimony that the deceased Dubari Pandey was never married. This fact in the testimony of PW-1 is contradicted by his own document i.e. will and gift deed dated 30.3.1995 and 24.4.1995 which records that the wife of deceased has already died. It is difficult to believe that being a grandson and inheriting the entire estate of the deceased, PW-1 would be unaware of the marital status of the deceased. This aspect has also been clearly overlooked by the court below.

101. In view of the discussions and deliberations made above, we come to the inescapable conclusion on the basis of appraisal of evidence led by the prosecution that it has failed to establish the guilt of the accused appellants beyond doubt. Consequently, these two appeals are allowed and the conviction and death sentence awarded to the accused appellants Rakesh Pandey and Yashwant Chaubey vide judgment and order dated 10.2.2020/11.02.2020, passed by the Additional Sessions Judge, Court No. 1, Mau in Sessions Trial No. 75 of 1996, arising out of Case Crime No. 83 of 1996, under Sections 147, 148, 201 and 302/34/149 IPC, Police Station - Sarai Lakhansi, District - Mau, is reversed. The death reference No. 4 of 2020 is answered, accordingly.

102. The accused-appellants shall be set at liberty, forthwith, unless they are wanted in any other case, subject to compliance of Section 437A Cr.P.C.

Order Date:- 5.4.2023

Ranjeet Sahu/Anil/Ashok Kr.

 (Vinod Diwakar, J.)         (Ashwani Kumar Mishra, J.)