Allahabad High Court
Anil vs State Of U.P. on 8 January, 2025
Bench: Siddharth, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:3438-DB
Reserved On- 12.12.2024
Delivered On-08.01.2025
Case :- CRIMINAL APPEAL No. - 1995 of 2009
Appellant :- Anil
Respondent :- State of U.P.
Counsel for Appellant :- Anay Kumar Srivastava,Amber Khanna,Arbaz Danish,G.P. Dikshit,Pankaj Srivastava,Raj Kumar Khanna,Zia Naz Zaidi
Counsel for Respondent :- Govt. Advocate
and
Case :- CRIMINAL APPEAL No. - 2476 of 2009
Appellant :- Amit @ Bittu
Respondent :- State of U.P.
Counsel for Appellant :- Pankaj Bharti,Lav Srivastava,M.J.Akhtar,Mahendra Ram Maurya,Sunil Kumar,Sushil Kumar Pandey
Counsel for Respondent :- Govt. Advocate
Hon'ble Siddharth,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Hon'ble Siddharth,J.)
1. Heard Sri Pranvesh, Advocate and Sri Ankur Kushwaha, learned counsel for the appellant; Sri G.N. Kanaujia, learned A.G.A.-I for the State in Criminal Appeal No.1995 of 2009 and perused the trial court record.
2. Heard Sri Manish Tiwary, learned Senior Counsel assisted by Sri Atharva Dixit, learned counsel for the appellant; Sri G.N. Kanaujia, learned A.G.A.-I for the State in Criminal Appeal No. 2476 of 2009 and perused the trial court on record.
3. These criminal appeals have been filed against the judgment and order dated 26.03.2009 passed by Additional Sessions Judge, F.T.C. Court No.-1, Muzaffar Nagar, in S.T. No. 93 of 2004 (State Vs. Anil and others), convicting the appellants under sections 364/34, 302/34, 201 of I.P.C. and sentencing them to undergo 10 years rigorous imprisonment and a fine of Rs. 10,000/- and in case of default in payment of fine to undergo 1 year further imprisonment for the offence punishable under section 364/34 I.P.C., to undergo life imprisonment and a fine of Rs. 20,000/- and in case of default in payment of fine to undergo 1 year further imprionment for the offence punishable uder section 302/34 of I.P.C. and to undergo 5 years rigorous imprisonment and a fine of Rs. 10,000/- and in case of default in payment of fine to undergo 6 months further imprisonment for the offence punishable under section 201 I.P.C. with direction that all the sentences shall run concurrently.
4. The prosecution case, as per F.I.R. dated 27.06.2003 is that the informant alongwith his son, Neeraj Tayal, was returning with his son to his house after witnessing exhibition. As soon as they reached, Saheed Chowk, coming from Minakshi crossing side at about 11:30 p.m. on 26.06.2003, when a Maruti Van No- UP14 Q5089 came from behind which was being driven by Anil, son of Rampal. From the aforesaid van Akash Garg, Mahesh, Sanjay and Bittu, came out. Because of old enmity, they forcibly dragged his son inside the van and went towards Minakshi crossing. Informant had full apprehension that the aforesaid accused can cause murder of his son. The incident was seen by Vipin Chauhan, Rajesh Dayal and other persons.
5. On the next day i.e., 26.06.2003 at 01:45 a.m. the accused persons were arrested and on their pointing out dead body of deceased was recovered. Inquest proceedings were conducted on his dead body and other formalities were conducted by the police. Chargesheet was submitted by the investigating officer under section 364, 302, 201 IPC. The accused were accordingly charged. They denied the charges and sought trial.
6. The prosecution produced, Satish Chandra (informant) as P.W.-1; Vipin Chauhan as P.W.-2; Rajesh Tayal as P.W.3; Constable, Rishi Pal Singh as P.W.-4; Sub-inspector, Chandra Sen as P.W.-5; Vijay Singh, Incharge inspector as P.W.-6; Dr. Rakesh Kumar as P.W.-7; Sub-inspector, Ragvir Singh, as P.W.-8; Head-constable Vikram Singh, as P.W.-9 and constable, Deep Pal Singh, as P.W.-10.
7. The statements of the accused were recorded under section 313 Cr.P.C., wherein they alleged false implication on account of enmity.
8. The prosecution produced D.W.-1, Saiyyad Muzammil Hussain, D.W.-2, Mohd. Idrish and D.W.-3, Ashok Kumar.
9. P.W.-1 recognized the accused persons before the trial court. He stated that his son, Neeraj, was doing the job of photo framing. Respondent, Anil, was also doing the same job in the adjacent shop. The business of Anil had gone down on account of which he developed animosity against his son, Neeraj. In his cross-examination he admitted that he does not remember the number of the vehicle wherein his son was abducted by the accused persons. He also failed to state whether any weapon was in the possession of the accused or not. He stated that at the time of incident, no one was there except himself and Neeraj nor anyone saw the incident. Later, he stated that P.W.-2, Vipin Chauhan and P.W.-3, Rajesh Kumar, saw the incident. He proved his report made at the police station. In the night at about 03:30 a.m. to 04:00 a.m., a police constable came and informed that his son has been murdered and his dead body has been thrown in the jungle of Bopada. The inquest report was made in his and presence of his relatives. He proved his signature on the inquest report.
10. P.W.-2 stated in examination-in-chief that the incident in dispute took place on 26.06.2003 at about 02:00 p.m. He was awakened when he was sleeping in his house. The abduction of Neeraj did not took place before him nor he saw any abductor. P.W.-2 was declared hostile. In his cross-examination, he denied giving any statement to the Inspector. He admitted going to the police station with P.W.-1 for lodging the F.I.R., but denied that he saw the report. He stated that report was got lodged by P.W-1 and he does not know its contents. He stated that he signed the inquest report in the morning at 06:00 p.m. and at that time the dead body was not in the police station. The other witnesses also signed before him. He never went to see exhibition on 26.06.2003 and, therefore, there is no question of his meeting with P.W.-1 and P.W.-3. P.W.-2 stated in his cross-examination that P.W.-1 has informed him that his son is missing from house and accompany him to Kotwali.
11. P.W.-3, Rajesh Tayal, admitted in his statement that he is real brother of P.W.-2 and the deceased was his nephew. He denied knowing or recognizing any of the accused in court. He denied any knowledge about the incident and stated that on the next day i.e., 27.06.2003, he came to know that dead body of deceased, Neeraj, is lying in jungle of Bopada. He had gone to see the dead body of deceased, Neeraj, with police personnels. In his cross-examination also he denied the entire prosecution case and was declared hostile.
12. P.W.-4, admitted that he registered the case on the application given by P.W.-1.
13. P.W.-5, Sub-inspector, Chandra Sen, proved that he conducted the investigation of the case and completed all the necessary formalities.
14. P.W.-6, Incharge inspector, Vijay Singh, proved that P.W.-1 lodged the report regarding abduction of his son and investigation of the case was handed over to the P.W.-5. On 27.06.2003, during checking all the five accused were arrested. Their clothes and maruti van was stainted with blood. They informed that they had murdered, Neeraj, and his dead body was lying in Bopada jungle. He proved the recovery memo of the maruti van, site plan of recovery of knife used in the crime alongwith a rope.
15. P.W.-7, Dr. Rakesh Kumar, proved the injuries found on the person of the deceased. He found one incised wound of 8 c.m x 2 c.m. above hyoid bone of deceased infont of neck. It was deep inside the neck. The second injury was 1/2 c.m. x 29 c.m. in the form of ligature mark around neck of deceased above hyoid bone. The cause of the death of deceased was found to be shock and haemorrhage.
16. P.W.-8, P.W.-9 and P.W.-10 were formal witnesses.
17. D.W.-1, Saiyyad Muzammil Hussain, proved that he is doing the job of journalist for last 22 years. He stated that accused, Amit Kumar, is also a journalist of Dainik Sooraj Kesari Newspaper. He had published some news against the police in his newspaper and hence he was falsely implicated in this case.
18. D.W.-2, Mohd. Idrish, proved that he is registered clerk since 1990 of as Rahat Raees Siddiqui, Advocate. On 26.06.2003, the accused, Satya Prakash Garg, came to get a notary affidavit prepared and it was sworn before the oath commissioner.
19 D.W.-3, Ashok Kumar, stated that accused, Satya Prakash Garg, was his elder brother, who was father of accused, Akash Garg, and has been murdered on 10.09.2007. On 26.06.2003, he had come to the house of Satya Prakash Garg, at about 04:00 p.m., when one inspector and two police constables came with Satya Prakash and called, Akash Garg, and asked him to accompany them. They informed that Akash Garg has quarelled with a police man. Thereafter, they went to Kutchery where an application and affidavit of Satya Prakash was prepared for sending to Human Rights Commission, New Delhi; I.G. Meerut Zone, and S.S.P., Muzaffarnagar. The affidavit of Satya Prakash was produced before the court and exhibited. Satya Prakash had informed that because of police personnels demanding goods on credit from his shop, where Akash was sitting, dispute had taken place and hence police has falsely implicated his son. After the conclusion of evidence, the trial court convicted the accused, Anil and Amit, who have preferred Criminal Appeal No. 1995/2009 and in Criminal Appeal No. 2476 of 2009 respectively before this Court. The trial court has acquitted the co-accused, Sanjay and Akash Garg, and convicted only the appellants, Anil and Amit.
20. Learned counsel for the appellant has submitted that it is a case of false implication of the appellants. P.W.-1 is father of the deceased while P.W.-3 is uncle of the deceased. Both are interested witnesses. P.W.-1 and P.W.-2 both have admitted that initially missing report of the deceased was made by them at police station. P.W.-2 has stated that P.W.-1 had informed him that his son, Neeraj, is missing from the house and asked him to accompany him to Kotwali. He has further submitted that presence of witnesses are not mentioned in the site plan. Recovery memo of dead body of the deceased was not prepared by the police.
21. Nitin Kumar Tayal, who wrote the application for lodging the F.I.R. was not examined. The witnesses of recovery of bloodstained and plain earth, Sri Pal, was not examined. Recovery memo of bloodstained shirt of appellant, Anil, and mat of maruti van and pant of appellant, Amit, were prepared in the presence of constable, Vijay Pal, who was not examined. The motive of the crime regarding business rivalry was not proved. The owner of the shop where the deceased worked, namely, Jasveer Singh, was not produced in evidence. It has further been submitted that on the same set of evidence the two appellants, Anil and Amit have been convicted while two co-accused, namely, Akash Garg and Sanjay, have been acquitted.
22. Learned AGA has opposed the submissions made by the learned counsel for appellant and has submitted that the prosecution case has been proved beyond all reasonable doubts before the trial court. The recovery of incriminating articles have been made from the possession of the appellants. From the statements of the witnesses the role of two acquitted accused were found distinguishable from appellants. Hence, they have rightly been acquitted by the trial court. The prosecution case was proved beyond all reasonable doubts by the prosecution and hence the judgment of the trial court is justified and does not call for any interference.
23. After hearing the rival submissions, considering the material on record and the relevant case laws, we proceed to decide the present appeal. It is a case of circumstantial evidence since no one has seen the offence of murder being committed by any of the accused. There is only evidence of P.W.-1 (father of the deceased) of abduction of his son which has not been supported by any of the prosecution witness.
24. From the statements of P.W.-1 and P.W.-2, it appears that the son of P.W.-1 went missing and P.W.-1 had given some missing report at police station, but this fact has not been disclosed clearly by P.W.-1 in his statement. However, he has admitted that in the missing report of his son he did not inform the police what type of shoes and clothes he was wearing. P.W.-2 has stated that P.W.-1 has informed him that his son is missing from the house and asked him to accompany him to Kotwali. At Kotwali, P.W.-1, informed that his son is missing from the house. Therefore, it appears that the subsequent proceeding of lodging of F.I.R., by P.W.-1 naming five persons and assigning them role of abduction of his son was result of afterthought and consultation. Subsequently, the motive of the crime set up by the P.W.-1 was that the deceased, Neeraj, and appellant, Anil, were doing the job of photo framing and shop of both of them were adjacent. Son of P.W.-1 worked in the shop of Jasveer Singh and the business of appellant, Anil, was not good, and, therefore, he had animosity against the deceased and hence he caused his murder alongwith co-accused. It has come in the evidence that the owner of the shop was Jasveer and not the deceased, Neeraj. It has come in the statement of P.W.-1 that Jasveer Singh was having a cloth shop, therefore, the motive of decline in business of photo framing assigned to appellant, Anil, is of no avail. The deceased was only employee in the shop and, therefore, if there was business rivalry of appellant, Anil, it would have been with shop owner, Jasveer, and not Neeraj, who was only his employee. Hence, the motive set up by P.W.-1 before the trial court in this case of circumstantial evidence was not proved at all. In the site plan prepared by the investigating officer, presence of the none of the witnsses viz, P.W.-1, P.W.-2 and P.W.-3, has been shown by the investigating officer which further creates doubt about the presence of the aforesaid witnesses on the place of incident. The witnesses of recovery of the bloodstained and plain earth were not examined by the prosecution, Shripal Goyal. Similarly, the witness of recovery of bloodstaind mat and clothes of appellant, Amit, were made in the presence of Constable, Vijay Kumar, who was also not produced as witness.
25. The recovery of dead body of the deceased, clothes of appellants, Anil, Amit and also the mat of Maruti van containing bloodstains were made on 27.06.2003 at about 12:55 p.m., but they were sent for examination to Forensic Science Laboratory on 08.07.2003 after about ten days of the alleged recovery which creates doubt about the prosecution case.
26. The Apex Court in the case of Rahul Vs. State (NCT of Delhi) (2023)1 SCC 1983 has held that where forensic samples were seized on 14.02.2012 and 16.02.2012 and the same was sent to SFL for examination on 27.02.2012, the possibility of tampering with the samples cannot be ruled out. During this period the samples remained in malkhana of police station.
27. We further find that the incident of abduction took place on 26.06.2003 at 11:30 p.m; F.I.R. was got registered on 27.06.2003 at 12:10 a.m; and it was sent to the Magistrate concerned only on 01.07.2006 in violation of Section 157 Cr.P.C. as clear from the statement of P.W.-4, Constable, Rishipal. As per the mandate of Apex Court in the case of Chotkau Vs. State of U.P. (2023) 6 SCC 742 such delay will weaken the prosecution case if the testimonies of material witnesses are found untrustworthy.
28. A very important facet of this case is that regarding receipt of FSL report regarding the recovery of knife, sample of earth, clothes, etc., questions were never put before the accused for confronting them in their statements recorded under section 313 Cr.P.C. Therefore, as per judgment of the Apex Court in the case of Ravi Mandal Vs. State of Uttrakhnad (2023) LiveLaw (SC) 470, the recoveries were required to be excluded from consideration by the trial court.
29. Therefore, it is amply clear that the trial court has heavily relied upon the recoveries made by the police, but the FSL report regarding of bloodstained clothes of the appellants and the deceased and the mat of the maruti van having bloodstains was never made material of confrontation to the accused in their statements under section 313 Cr.P.C. It is further found from the record that the recovery memos prepared by the police regarding the recovery of incriminating material were not in accordance with law nor they were proved as per law. Number of recoveries have been made on the pointing out of the accused persons, but benefit of section 27 of the Evidence Act cannot be claimed by the prosecution. The Apex Court in the case of Ramanand @ Nandllal Bharti Vs. State of U.P. AIR 2022 SC 5273 has considered the relevant law in paragraph nos. 66 and 67 which are quoted hereinbelow:-
" 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".
30. What emerges from the evidence of the investigating officer is that the accused appellants stated before him while they were in custody that they will get the murder weapons used in the incident discovered. Their statements do not indicate or suggest that the accused appellants indicated anything about their involvement in the concealment of the weapons. Their statements are vague. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who got 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 appellants is accepted, what emerges from the substantive evidence as regards the discovery of weapons is that the appellants only disclosed that they would show the weapons used in the commission of offence.
31. 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."
32. Clearly in this case no panch witnesses were there in the panchnama. The words used by the accused for getting the recoveries made were not incorporated in first part of panchnama in the police station there were no public witness named in memo of recovery. Recovery memo was clearly in violation of Section 27 of the Evidence Act.
33. Finally we find that the trial court has found that although weapon (rope) allegedly used in the strangulating of the deceased was recovered, but it was not sent to the F.S.L. at all. The rope recovered was not even exhibited before the trial court. Finally we find that four accused were intially implicated, including the appellants, but two of them, namely, Akash Garg and Sanjay, have been acquitted on the same set evidence on the ground that they were not know to the P.W.-1 earlier. The Apex Court in the case of Javed Shaukat Ali Qureshi Vs. State of Gujarat, (2023) LiveLaw SC 782 has disapproved this conduct of the court.
34. For the reasons stated above, the judgment and order of conviction and sentence passed by the trial court against the appellants is set aside.
35. The appellants are acquitted of all charges levelled against them by giving them benefit of doubt. Both the appellants are on bail. Their bail bonds are cancelled and sureties are discharged.
36. The Appeals are accordingly allowed.
37. Let the trial court record be returned and this judgment be notified to the trial court within two weeks.
Order Date :-08.01.2025.
Abhishek
(Subhash Chandra Sharma,J.) (Siddharth,J. )
