Allahabad High Court
Anil And Another vs State Of U.P. on 8 November, 2024
Bench: Siddharth, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:176295-DB
Reserved On:- 23.10.2024
Delivered On:- 08.11.2024
Case :- CRIMINAL APPEAL No. - 2415 of 2010
Appellant :- Anil And Another
Respondent :- State of U.P.
Counsel for Appellant :- Ajay Kumar Srivastava,Yogesh Kumar Srivastava
Counsel for Respondent :- Govt. Advocate
Hon'ble Siddharth, J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Hon'ble Siddharth, J.)
1. Heard Sri Ashwani Kumar Ojha, learned counsel for the appellants; Sri G.N. Kanaujiya, learned A.G.A.-I for the State-respondent and perused the record.
2. The above noted criminal appeal has been filed on behalf of appellants, Anil s/o Jaipal Jat and Sanju s/o Gage Singh, assailing the judgment and order dated 25.03.2019 passed by Additional Sessions Judge, Court No. 5, Ghaziabad in Sessions Trial No. 1271 of 2007 (State vs. Anil and Another) convicting and sentencing the appellants under Section 302/34 IPC for life imprisonment and fine of Rs. 5,000/-; under Section 364 IPC convicting and sentencing the appellants for 10 years rigorous imprisonment and fine of Rs. 3,000/- each and under Section 201 IPC convicting and sentencing them to 5 years imprisonment and fine of Rs. 2,000/- each and in default of payment of fine to undergo additional simple imprisonment of one year each. All the sentences have been directed to run concurrently.
3. The prosecution case, as per F.I.R., is that informant, Shehnaz, wife of Shakir @ Kalu, resident of Loni, District- Ghaziabad, lodged the F.I.R alleging that on 25.07.2007, Anil, Bittu, Amrish, Naresh, Jogendra, Surendra, Pintu and Sanju, came to meet her husband at about 10:00 a.m. They started talking to her husband, Shakir @ Kalu, about money transaction and took her husband along with them. These persons used to frequent her house to meet her husband earlier also. When her husband did not return till evening, she started his search but his whereabouts were not known. She searched the aforesaid persons also but they were also not traceable. She had suspicion that because of dispute of money, they would have killed her husband. F.I.R was lodged after two days on 27.07.2007 by the informant after getting an application written by her son, Dilshad. Case Crime No. 729 of 2007 was registered at P.S.- Loni, District- Ghaziabad, at about 07:05 a.m.
4. The trial court framed charges against appellants under Sections 302/34, 302, 201 IPC on 12.08.2008 who denied charges and sought trial.
5. Before the trial court the prosecution produced 7 prosecution witnesses to prove the prosecution case. Rashid, son of deceased, was examined as P.W.-1; Noor Mohammad, brother-in-law of deceased, was examined as P.W.-2; Shehnaz, informant and wife of deceased, was examined as P.W.-3; Lajja Ram, posted as Sub-Inspector at P.S.- Loni, District- Ghaziabad at the relavant time was examined as P.W.-4; Sub-Inspector, Prem Chandra, who arrested the appellants and made other incriminating recovery was examined as P.W.-5; Constable, Dharamveer Singh, was examined as P.W.-6 and Rajendra Varshney, was examined as P.W.-7 before the trial court.
6. The statements of appellants were recorded under Section 313 Cr.P.C., wherein they alleged false implication in this case by the informant.
7. P.W.-1, Rashid, son of deceased, stated before the court that on 25.07.2007 appellants, Anil and Sanju and co-accused, Bittu, along with three others came to his house. They started talking about money transaction from his father and took his father along with them who never returned and, hence, F.I.R was lodged on 27.07.2007 against the aforesaid persons. On 27.07.2007 two accused, namely, Bittu and Anil, were arrested and they got the dead body of his father recovered which was in 18 pieces. The recovery was made in the presence of his mother, P.W.-3. He and his uncle (mama), P.W.-2, went to the police station where the police completed the formalities. Knife was also recovered hidden inside the earth like the dead body of his father and on the recovery memo he made his signature and his mother affixed her thumb impression at the police station. Two knives were recovered. In his cross-examination, he admitted that he is illiterate and he made signatures on the recovery memo in the police station. He saw the dead body of his father only after it was handed over to his mother at Hindon river. He went there along with his uncle (mama), P.W.-2. He denied that any recovery of knife was made from the accused before him because he admitted that he was not present on the place of recovery. He admitted that he did not saw two women, namely, Seema and Rekha, digging out the dead body of his father or putting mud-plaster over the place where his dead body was hidden. He admitted that police never came to call her mother or to give information that accused persons have been arrested, rather his mother went to the police station on her own when he along with his uncle (mama), P.W.-2, were present in their house. He admitted that he did not know the appellants prior to the alleged incident. He was informed about their names by the Inspector at the police station. He saw them when they had come to his house to call his father and then at the police station. He had not seen them on the place from where dead body of his father was recovered.
8. P.W.-2, brother-in-law (sala) of the deceased stated that he came to know about the murder of deceased in the morning of 27.07.2007. On reaching police station Loni, he came to know that accused who have been caught had gone with the police to Kachchi Colony for getting the dead body of his brother-in-law recovered. He reached the house of Yaseen and saw the appellants taking out pieces of dead body of his brother-in-law. Two ladies were also apprehended there. One was named, Rekha and the name of other was probably, Seema. His sister, Shehnaz, P.W.-3, was also present there and appellants had taken out two knives from the soil and handed over to the Inspector. Inspector had prepared papers and he also made two signatures on the same. In his cross-examination, he stated that he had not gone to the house of deceased and P.W.-3. They used to keep on changing their house. He received information of the incident at about 08:00 a.m on 27.07.2007 at his clinic. He reached police station- Loni after 1 and 1 ½ hours and met P.W.-1, Rashid, who was crying outside the police station. He had not seen the accused earlier and saw them only at the police station. He was informed about their names by the Inspector at the police station. He had asked the appellant, Anil, why he murdered, Shakir @ Kalu, so brutally. Anil informed that the deceased used to make recovery of "hafta" along with him and was also informer of police and would have got him arrested by police, therefore, they murdered him. He made signatures on the papers at police station. P.W.-1 and P.W.-3, also made signatures before him. He refused to identify knives recovered before the court stating that much time had passed and he cannot say whether the same knives were recovered by the police or not.
9. P.W.-3, wife of deceased, stated in her examination-in-chief that on 25.07.2007, Anil, Bittu, Sanju and 4-5 persons had come to her house and the two ladies present in court were also with them. The accused persons had come in the morning and took her husband along with them who did not return till the evening. She made his search for two days and thereafter she got an application written by a person and after putting her thumb impression gave it at the police station. The two accused arrested by the police were sitting in the jeep and they admitted killing her husband. They were taken to Pooja colony where the dead body of her husband was found in 18 pieces. Apart from dead body, clothes were also recovered. Papers were prepared and her signatures were taken thereon at the time of recovery of dead body of her husband. Her son, Rashid, P.W.-1, was also present and no other person was present there. She recognized the appellants before the court and stated that her husband used to work as Mason earlier and prior to that he used to work as Beldar. He was not bag lifter. Two persons had come inside her house while remaining 4-5 were standing outside whose name she did not know. The names of other accused were disclosed by the arrested accused. She did not know name of any accused prior to lodging of F.I.R. She mentioned the names of accused in the F.I.R as informed by the police. She knew about the appellants that they were pick-pockets and they had picked the pocket of a lady on the bus stand. The lady raised alarm and both of them were caught. She was present there at that time because she had gone to purchase vegetables. Police had taken her along with that lady to the police station and informed her that Sanju and Anil, have caused the murder of her husband. At the place where her husband was killed only tenants used to reside. At the time of incident, she along with her son, P.W.-1, were residing with her husband. Her husband had married two women. She had seen Seema and Rekha along with appellants, Anil and Sanju. She does not remember where she saw her brother, P.W.-2. She had made search of her husband at the house of her brother, P.W.-2 also. Her husband had left the house informing that he is going to dasna where dead body of 11 persons have been recovered in Pooja colony. Accused had taken out the dead body of her husband buried under the earth and they also got other dead bodies recovered. Her thumb impression was taken on the papers at the police station. She met her brother, Noor Mohammad, P.W.-2 at her house. The accused had gone to her house demanding money from her husband. She does not know why they were demanding money from her husband. She denied that her husband was bag lifter. Accused, Rekha and her husband used to reside in Pooja colony. She saw their house only after the incident. She admitted that her husband had informed that husband of Rekha had given Rs. 1,500/- to him which he was demanding back. For lodging F.I.R., she went to the police station along with her son, P.W.-1, and his brother, P.W.-2. F.I.R was got written by P.W.-1, Rashid. She denied that cause of enmity with the accused persons was regarding the demand of money and she had falsely implicated them or there was any dispute regarding money, of bag lifting which became the cause of murder of her husband.
10. P.W.-4, proved that he got information about the presence of appellants on the date of lodging of F.I.R and he got them arrested at 13:10 hours. P.W.-3, Shehnaz, identified them and informed that they had come to her house on the date of incident. The appellants admitted that they along with the deceased, Shakir, used to lift bag and the money of theft was not being given by the deceased. Hence, they caused his murder. He further proved that they got the dead body of the deceased recovered which was buried under the ground. After recovery memo was prepared, it was signed at the place of recovery by the wife of deceased, her son and brother. Clothes of the deceased and also two knives were recovered. F.I.R was written by Dilshad, son of Shaukat and got lodged by Shehnaz, P.W.-3. He conducted the investigation of this case and recorded the statements of witnesses. He stated that at the time of recovery of dead body 8-10 photographs were taken but none of them have been brought on record of the trial court. In the knives produced before this court, case crime number has not been mentioned anywhere on the sealed cover.
11. P.W.-5, proved that he accompanied P.W.-4 to affect the arrest of the appellants and made the incriminating recovery on their pointing out. He could not inform the court how many photographs were taken when the dead body of the deceased was being recovered. P.W.-3 had informed him that she and her husband worked as a labourers. He denied that on 25.07.2007 the appellants were caught while committing the offence of pick pocket and came to the police station along with P.W.-3 where they were implicated in this case.
12. P.W.-6, is a formal witness and P.W.-7 is the doctor who proved that he conducted the post-mortem of the dead body of the deceased which was 4-6 days old and in 18 pieces.
13. The trial court by the judgment and order dated 25.03.2010 convicted and sentenced the appellants and hence this appeal.
14. After hearing the rival contentions, this court finds that there is delay of two days in lodging of F.I.R by the P.W.-3 and in the F.I.R., there is no explanation of delay except that she was searching her husband for two days. She has stated that she made search of her husband, including at the place of her brother, P.W.-2, but P.W.-2 in his statement before the court has not affirmed any search. He stated that he came to know of the incident only at about 08:00 a.m on 27.07.2007, when the deceased went missing since 25.07.2007, therefore, it appears that the recital in the F.I.R about the search of deceased is not correct. P.W.-1, Rashid, son of deceased, has not stated a word about the place where he searched his father. He has only stated that when his father did not return, his search was made and F.I.R was lodged after two days.
15. P.W.-1, Rashid, son of deceased, has stated in his statement that recovery of dead body of his father and two knives were not made in his presence while P.W.-3, Shehnaz, wife of deceased, proved her presence on the place of recovery along with her brother, P.W.-2, in her statement before the court. From the statements of P.W.-1, P.W.-2 and P.W.-3, it is clear that no recovery memo was prepared at the spot but were prepared at the police station. In the memo of recovery, there is no public witness cited nor the procedure of recovery has been followed.
16. The Apex Court in the case of Ramanand @ Nandlal Bharti Vs. State of U.P., AIR 2022 Supreme Court 5273 has considered the relevant law in paragraph nos. 66, 67 & 68 herein quoted herein below:-
"66. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR 1947 PC 67, which have become locus classicus, in the following words:
"10. ....It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
67. What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon used in the commission of offence". This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the commission of offence. In the same manner we have also perused the panchnama Exh.32 wherein the statement said to have been made by the accused before the panchas in exact words is "the accused resident of Roghada village on his own free will informs to take out cash and other valuables".
68. What emerges from the evidence of the investigating officer is that the accused appellant stated before him while he was in custody, "I may get discovered the murder weapon used in the incident". This statement does not indicate or suggest that the accused appellant indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence."
17. The Apex Court in the same judgment has delineated the requirements of procedure for such recovery in paragraph no.53 which as follows:-
"53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
18. We find that in the present case, recovery was made from house of one, Yaseen, where the appellants are stated to be tenants but neither Yaseen was made an accused by the police, from whose house the recovery of the dead body of deceased and two knives allegedly used in the crime were recovered, nor he was produced as prosecution witness, therefore, the recovery of dead body and the knives by the police appears to be doubtful and affects the credibility of prosecution case.
19. P.W.-3, clearly stated that the appellants were caught involved in the pick-pocketing and were taken to the police station. She also followed them since she has seen the incident and there she was informed by Inspector that they are involved in the murder of her husband. She has admitted before the court that the names of appellants were informed to her by the Inspector at the police station and she did not know their names earlier. It appears that the police has worked out the case by implicating the appellants who were petty criminals after arresting them in a case of pick-pocketing and, keeping in view the functioning of police, it can not be held conclusively, that the appellants were involved in committing the alleged crime.
20. P.W.-4 and P.W.-5, have admitted that photographs were taken from the place of recovery of dead body but none of the photographs were brought on record which makes manner and mode of recovery of dead body of deceased doubtful.
21. None of the knives recovered from the possession of appellants was sent to the Forensic Laboratory for getting the expert opinion.
22. Finally, we find that it is a case of circumstantial evidence. In order to prove the prosecution case, the prosecution was required to prove the entire chain of circumstances which has not been proved in this case. The most important missing link in the prosecution case is the lack of evidence of Yaseen, from whose house, the prosecution claims that dead body of deceased was recovered. There is no independent witness of recovery nor the procedure of recovery has been followed. Hence, we are not inclined to believe the prosecution case as set-up by the prosecution. The relevant law in this regard has been laid by the Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, wherein the Apex Court has observed as follows:-
"33. In a recent three-judge Bench decision of the Apex Court in the case of Shatrughna Baban Meshram Vs. State of Maharashtra, (2021) 1 SCC 596, reiterating the legal principles set out in Sharad Birdhichand Sarda's case (supra), in para 42, it was observed:-
"...42. Before we deal with the second submission on sentence, it must be observed that as laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 16], a case based on circumstantial evidence has to face strict scrutiny. Every circumstance from which conclusion of guilt is to be drawn must be fully established; the circumstances should be conclusive in nature and tendency; they must form a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and such chain of circumstances must be consistent only with the hypothesis of the guilt of the accused and must exclude every possible hypothesis except the one sought to be proved by the prosecution. The decision in Sharad Birdhichand Sarda V. State of Maharashtra [(1984)4 SCC 116] had noted the consistent view on the point including the decision of this Court in Hanumant v. State of M.P. (1952 SCR 1091] in which a bench of three judges of this Court had ruled (AIR pp 345- 46, para 10):-
"10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be -of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused,"
34. In addition to above, we must bear in mind the most fundamental principle of criminal jurisprudence, which is, that the accused "must be" and not merely "may be" guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions (vide Shivaji Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793). These settled legal principles were also reiterated by a three-judge Bench of the Supreme Court in Devi Lal v. State of Rajasthan, (2019) 19 SCC 447 wherein, in paragraphs 18 and 19 of the judgment, it was held as follows:-
"18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.
19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same."
23. After giving thoughtful consideration to the facts and legal issues involved in this case we find that prosecution has failed to prove its case against the appellants beyond reasonable doubt. The statements of P.W.-1, P.W.-2, P.W.-3, P.W.-4 and P.W.-5 are full of inconsistencies and do not inspire confidence of the court.
24. In the F.I.R there are allegations against the appellants and five others who have been named as Bittu, Amrish, Naresh, Jogendra, Surendra and Pintu. However, P.W.-3 has named two woman also in her statements, namely, Rekha and Seema, who allegedly accompanied the appellants and five accused named above to her place to meet her husband prior to his death.
25. P.W.-3 has admitted that her thumb impression was taken on the recovery memo of the dead body in the police station. However, in the cross-examination, she has admitted that recovery memo of the 18 pieces of the dead body of her husband was prepared. Her signatures were taken thereon which is contradictory. P.W.-1 and P.W.-2 both have stated that they did not know the names of the appellants and their names were informed by the police to them.
26. P.W.-3 stated in her cross-examination that her son, Rashid, P.W.-1, wrote an application and F.I.R was lodged on the basis of same but P.W.-1 has admitted that he is illiterate. F.I.R was got written by Dilshad and not by Rashid, P.W.-1, as clear from the F.I.R itself. Dilshad was never produced as witness before the court. He is also not the son of P.W.-3.
27. P.W.-3 has stated that she went to the police station along with his son, Rashid, P.W.-1 and her brother, Noor Mohammad, P.W.-2 but P.W.-2 has admitted in his statement that he came to know about the incident only on 27.07.2007 at 08:00 a.m when the F.I.R was lodged on the same day at 07:05 a.m., therefore, the statement of P.W.-2 and P.W.-3 is contradictory.
28. P.W.-3 has stated that she made the search of her husband in the house of her brother, P.W.-2 also before lodging the F.I.R but P.W.-2 had stated that he was not aware of the missing of the deceased since 25.07.2007 and he came to know of the same only on 27.07.2007 at 08:00 a.m. The arrest of the appellants were made by the police soon after the lodging of F.I.R and recovery was also made on the same day by P.W.-5. There is no public witness or photographs of recovery as discussed above.
29. In the totality of facts and circumstances of this case the prosecution story is full of suspicion and conviction of the appellants ordered by the trial court cannot be sustained.
30. We are of the view that the appellants have undergone incarceration of more than 17 years in jail without any credible evidence against them but we are unable to compensate them in the absence of any statutory framework. The government has not implemented the 277th Law Commission Report which was regarding the wrongful prosecution of innocent persons. This court in the Criminal Appeal No. 60 of 2011 (Upendra @ Balveer vs. State of U.P.) has dealt with issue in detail by the judgment and order dated 25.10.2024.
31. The judgment and order of the trial court is set aside.
32. Appellants are in jail. They are directed to be set at liberty forthwith, if not wanted in any other case.
33. Criminal Appeal is allowed.
34. Office will return the record of trial court and notify this judgment to the trial court within 10 days.
Order Date :- 08.11.2024
Rohit
(Subhash Chandra Sharma, J.) (Siddharth, J.)
