Allahabad High Court
Mujeeb vs State Of Up And Another on 6 May, 2025
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:72249-DB
Court No. - 45
Case :- CRIMINAL APPEAL No. - 107 of 2024
Appellant :- Mujeeb
Respondent :- State of U.P. and Another
Counsel for Appellant :- Ahmad Nawaz Ansari,Salman Ahmad
Counsel for Respondent :- G.A.,Meenendra Tripathi
With
Case :- CRIMINAL APPEAL No. - 12823 of 2023
Appellant :- Dayanand @ Bhante
Respondent :- State of U.P.
Counsel for Appellant :- Anil Kumar
Counsel for Respondent :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Hon'ble Sandeep Jain,J.
1. List revised. None present for the appellant-Dayanand @ Bhante. We have heard Shri Salman Ahmad, learned counsel for the appellant-Mujeeb and Shri L.D. Rajbhar, learned A.G.A. for the State. None has appeared for the informant. Also, we have heard Shri Salman Ahmad as amicus, on behalf of the appellant - Dayanand @ Bhante.
2. Criminal Appeal No. 107 of 2024 (Mujeeb v. State of U.P. and another) and Criminal Appeal No. 12823 of 2023 (Dayanand @ Bhante v. State of U.P.) arises from the judgement and order dated 20.11.2023 passed by Shri Shiv Kumar-II, learned Special Judge S.C./S.T. Act, Jalaun at Orai, in S.T. No. 63 of 2011 (State v. Mujeeb, Chandraprakash @ Lal Bandar and Dayanand @ Bhante; S.T. No. 73 of 2011 (State v. Rajiya Begum @ Mamola); S.T. No. 01 of 2013 (State v. Nanak Chandra) and S.T. No. 2 of 2013 (State v. Harishanker @ Hari Gupta, Anees Thekedar and Ishtehaq @ Tesu, Rajkumari and Rehana Begum), arising from Case Crime No. 2007 of 2008, under Sections 364, 120B I.P.C. and Section 3(2)(v) S.T./S.T. Act, P.S. Kotwali Kalpi, District Jalaun. Vide order dated 09.09.2013 passed by learned trial court, all sessions trial were consolidated and Sessions Trial No. 63 of 2013 was made the lead case wherein evidence was received.
3. By the above order, appellants - Mujeeb and Dayanand @ Bhante alone have been convicted under Section 364 I.P.C. read with Section 3(2)(v) of S.C./S.T. Act. In addition to it, appellant-Dayanand @ Bhante has also been convicted for conspiracy under Section 120B I.P.C. Of the remaining, six were acquitted and two died during trial. Other than the above two appeals, there is another appeal filed by the State being Criminal Appeal No. 2748 of 2024 (State v. Mujeeb and 7 others), arising from the above described judgment and order, seeking conviction of the other/non-convicted accused and for enhancement of the punishment awarded to the convicted accused.
4. The prosecution story emerged on the Written Report (Ex.Ka-1 at the trial) submitted by Rajo @ Rajrani (P.W.-1 at the trial) who is the mother of the alleged victim Jayitri @ Gayatri, dated 03.08.2008. Therein, it was described that the victim Jayitri @ Gayatri went missing at about 11 a.m. on 01.08.2008 when she had gone to fetch water from a government handpump. It was disclosed in the Written Report that the said Jayitri @ Gayatri had been abducted. All efforts made to trace out the said Jayitri @ Gayatri failed. In that, Rajo @ Rajrani (P.W.-1) further disclosed, on making enquiries at the house of the appellant-Mujeeb, she found the bucket of Jayitri @ Gayatri lying inside his house. Upon enquiring about the same, she was told, since that bucket was lying outside, it had been brought home by the appellant-Mujeeb. Arising from that, suspicion was expressed in the F.I.R., by Rajo @ Rajrani (P.W.-1), that pursuant to a criminal conspiracy, Rajkumari, Rehana Begum, Gulauli Wali, Mamola and Mujeeb had abducted Jayitri @ Gayatri. Further suspicion was voiced in the Written Report on the strength of some undisclosed litigation between the appellants and the other parties. Thus, it was also suspected that Nanakchandra J.E., Prakashchandra @ Lalbandar, Hari Member, Tesu, Anees Thekedar had also held out threats to the first informant. On such suspicion, she applied to the police to search out Jayitri @ Gayatri.
5. During investigation, on 27.09.2008 i.e. almost two months after the disappearance of Jayitri @ Gayatri, an unclaimed dead body of a woman was recovered at Ghatampur. It lead to registration of a separate Case Crime No. 471 of 2008, P.S. Ghatampur, District Kanpur Dehat. The dead body was identified by Rajo @ Rajrani (P.W.-1) from the undergarment and clothes. A D.N.A. sample was obtained from that dead body. However, it could not be matched with the DNA of Rajo @ Rajrani (P.W.-1) (mother of the alleged abductee) for reason of refusal by the said Rajo @ Rajrani (P.W.-1), to provide her D.N.A. sample.
6. During investigation, two eye-witness of last seen arose namely Amar Singh (P.W.-2) and Babadeen (P.W.-3). They appear to have claimed (during investigation) that they had last seen the abductee travel with the appellant in a motor vehicle. In such circumstances, the Investigating Officer had submitted Charge Sheet. Upon the case being committed for trial, following charges were framed :
"प्रथमः यह कि दिनाँक 01.08.2008 को समय 11.00 बजे दिन स्थान मुजीब के घर के सामने लगे सरकारी हैण्ड पम्प स्थित मोहल्ला नई बस्ती राम चबूतरा कालपी, थाना कालपी जिला जालौन से आप लोगों ने वादिनी श्रीमती राजो (राजरानी) की पुत्री कुं० जावित्री उर्फ गायित्री का अपहरण इसलिए किया, कि उसकी हत्या की जाए और उसको ऐसे व्ययनित किया जाए कि वह अपनी हत्या होने के खतरे में पड़ जाए और इसके द्वारा आपने ऐसा कार्य किया जो भा०दं०सं० की धारा 384 के अंतर्गत दण्डनीय अपराध है और जो इस न्यायालय के संज्ञान में है।
द्वितीयः यह कि उपरोक्त दिनाँक समय व स्थान पर आप लोगों ने वादिनी की पुत्री कुमारी जावित्री उर्फ गायत्री की हत्या करने की योजना बनाकर उसका अपहरण करके आपराधिक षडयंत्र कारित किया। इसके द्वारा आपने ऐसा कार्य किया जो भा०दं०सं० की धारा 120बी के अंतर्गत दण्डनीय अपराध है और जो इस न्यायालय के संज्ञान में है।
तृतीयः यह कि आप अभियुक्त मुजीब एवं चन्द्र प्रकाश उर्फ ललाबंदर ने वादिनी की पुत्री कुं० जावित्री उर्फ गायत्री, जो अनुसूचित जाति की समस्या थी और आप लोग अनुसूचित जाति/जन जाति के सदस्य नहीं हैं, का उपरोक्त प्रकार से आपराधिक षडयंत्र करके उसका अपहरण किया। इसके द्वारा आपने ऐसा कार्य किया जो एस०सी०एस०टी० एक्ट की धारा 3(2)v के अंतर्गत दण्डनीय अपराध है और जो इस न्यायालय के संज्ञान में है।"
7. At the trial, the prosecution led evidence through 13 witnesses. Rajo @ Rajrani, the mother of the alleged abductee was examined as P.W.-1. Besides proving the Written Report and the fact that she had lodged the F.I.R. as narrated above, she further tried to prove that after Jayitri @ Gayatri went missing, one Dayashankar and Jagram had come to her house in the evening of the F.I.R. being lodged i.e. 03.08.2008 and offered to recover her daughter. Thereafter, a meeting was held at the residence of Muneem Gupta. In that, the present appellants and other accused persons were present. Dayashankar and Kallu Contractor were also present. In that meeting, she was persuaded not to press criminal prosecution against promise to recover Jayitri @ Gayatri. Also, she tried to prove that it was pressed on her to enter into settlement with Nanak Chandra, J.E. Further, she disclosed that Rs. 1,75,000/- were collected at that meeting and offered to her to settle the dispute. However, she refused to take that money and insisted that her minor daughter be restored to her. In such circumstances, Rs. 50,000/- were kept with Dayashankar and the balance Rs. 1,20,000/- with the Chairman i.e. Muneem Gupta. Jayitri @ Gayatri was never restored to her. In such circumstances, Amar Singh (P.W.-2) and Babadeen (P.W.-3) claim to have disclosed to her that Munni, Mujeeb, Rehana, Rajkumari, Mamola, Bhante, Aneesh, Tesu, Lalbandar, Hari Gupta, Nanakchandra J.E. had taken the girl Jayitri @ Gayatri to Kasoda. She further tried to prove that she learnt after two months that the girl had been murdered and that she gained knowledge of discovery of her dead body from newspapers wherein a report had been published about an unclaimed dead body recovered at Ghatampur. She described to have identified the unclaimed dead body, from the clothes.
8. During her cross-examination, she denied having told the Investigating Officer that she had been offered Rs. 1,75,000/- to settle the dispute. She also feigned ignorance why her statement was not recorded by the Circle Officer/I.O. wherein she claimed to have disclosed the facts pertaining to the terms of settlement offered by the accused person including her insistence that the abductee be recovered first. During her cross-examination she also could not establish the details of the meeting claimed to have held, after the abductee went missing.
9. At the same time, it stood admitted to the Rajo @ Rajrani that she had refused to offer her D.N.A. sample to match the D.N.A. of the dead body recovered by the police at Ghatampur - described to be the dead body of the abductee Jayitri @ Gayatri.
10. Thereafter, Amar Singh was examined as P.W.-2 and Babadeen as P.W.-3. During their examination-in-chief itself they denied having known the appellants from before. They specifically denied having seen the abductee with the appellants in the manner described by the prosecution i.e. the abductee was travelling with them on a motor vehicle. Both witnesses were declared hostile during their examination-in-chief. Nothing significant emerged during their cross-examination by the prosecution. Thus, the prosecution story was based only on suspicion and doubts voiced by the first informant Rajo @ Rajarani (P.W.-1). However, she is not an eye-witness of the occurrence.
11. As to the corroborative fact, that a meeting was held to settle the dispute against payment of money, was not proven, inasmuch as those statements were first made at the trial. Such statements not made during investigation, it clearly shows that a new story was offered by the said witness at the trial by way of material improvement rather, novation. Critically, though Rajo @ Rajrani (P.W.-1) chose to name numerous other persons who may have been witness to the occurrences described by her during her examination-in-chief starting from Dayashankar and Jagram who visited her in the evening of 03.08.2008 wherein a meeting was held and money was offered to her in the presence of other named persons (noticed above), none of the other persons were ever produced or examined at the trial.
12. Thereafter, formal witnesses were examined. In that, Head Constable Shiv Raj Singh was examined as P.W.-4. Being Head Moharrir he proved the preparation of the check F.I.R. and the registration of the criminal case. I.O. Rakesh Kumar Singh was examined as P.W.-5. He proved the unclaimed dead body of the woman discovered at Ghatampur and that sample was drawn from that dead body for a D.N.A. test. However, it could not be matched with that of Rajo @ Rajrani (P.W.-1) as the latter refused to provide her D.N.A. Sample. Next, Sarvanand Singh Yadav, the then Dy. S.P., C.B.C.I.D. was examined as P.W.-6. I.O. Chhotey Lal Gupta was examined as P.W.-7. Wajeeh Ahmad was examined as P.W.-9. I.O. Badri Narayan Singh was examined as P.W.-10 while Rajendra Prasad Pandey was examined as P.W.-11. Later, I.O. Devi Prasad Srivastava was examined as P.W.-12. I.O. Tribhuwan Singh, the then C.O. Kalpi was examined as P.W.-13.
13. In short, it may also be noted that since the unclaimed dead body was recovered at Ghatampur, in another case, 'Panchayatnama' and the autopsy report may have been prepared in that case. However, those documents were never summoned by the learned trial court. In that regard, Application-238(kha) made by the defence to summon such records, was rejected vide order dated 21.11.2022 on the Objection-239(kha) raised by the prosecution. Plainly, the learned court below has not seen those documents. The only reason offered by it is that it had appeared to the learned court below that the said application had been moved by the defence to delay the trial proceeding. Remarkably, though the learned court below has accepted (as a fact) the death of the abductee by relying on the oral evidence that her dead body had been discovered by the police at Ghatampur and it had also been identified by Rajo @ Rajrani (P.W.-1), neither the record of the other case had been summoned (suo moto) nor any charge was framed under Section 302 I.P.C.
14. Thereafter, statements of the accused were recorded under Section 313 Cr.P.C. and parties were heard.
15. Submission of learned counsel for the appellant is, present is a case where the prosecution story is nothing but a piece of imagination based solely on suspicion and false accusation. At the beginning in the F.I.R. numerous persons were named by Rajo @ Rajrani (P.W.-1). They were suspected to have caused the disappearance of Jayitri @ Gayatri, yet no credible material or evidence emerged during investigation to establish the involvement of the appellants and/or other accused persons who may have caused such an occurrence. The bucket described to be present inside the house of the appellant-Mujeeb, was not recovered from the appellants. Only a self-serving statement was made by Rajo @ Rajrani (P.W.-1) that she had seen such bucket inside the house of Mujeeb. Other than that, two witnesses of last seen emerged namely Amar Singh (P.W.-2) and Babadeen (P.W.-3). During investigation they are described to have stated that they had last seen the abductee with the appellants. Yet, at the trial, they completely denied that fact. They denied that they knew Mujeeb from before. They denied that they had passed in front of the house of the appellant-Mujeeb on the date of occurrence. They denied that they had seen the abductee Jayitri @ Gayatri with the appellants on that day. They also feigned ignorance if any effort was made to trace out Jayitri @ Gayatri. Further, as to their own statement about the occurrence they disclosed that they learnt from others that Jayitri @ Gayatri had been kidnapped. They also denied having ever stated that the dead body of the unknown woman discovered at Ghatampur was that of the abductee Jayitri @ Gayatri.
16. In the absence of any direct evidence of the occurrence or of last seen witness and there being no recovery whatsoever, it has been submitted, the present is a case of no evidence. For reasons not known to the appellants, the learned court below has rejected their applications to summon such records that may have brought out the truth as to the identity of that dead body. In any case Rajo @ Rajrani (P.W.-1) having refused to provide her D.N.A. sample, the unclaimed dead body recovered by the police (in the other case) could never be identified, with any certainty. Therefore, it may never be said that any evidence less so bereft of reasonable doubt emerged that the dead body recovered by the police was that of the abductee.
17. Then the recovery of the dead body was never proven. In fact, after the submission of the charge sheet, the abductee Jayitri @ Aneeta appeared before the learned Civil Judge (J.D.)/F.T.C. (Crime Against Women) and recorded her statement under Section 164 Cr.P.C. That statement though annexed with the present appeal, is not part of the record. It was not considered by the learned court below.
18. Insofar as the basic ingredients of the offence alleged are not established, it may never be open to the State to contend that heavier offence of S.C./S.T. Act had been committed because Jayitri @ Gayatri was a member of the Scheduled Castes and Scheduled Tribes.
19. On the other hand, learned A.G.A. would submit that the dead body of the abductee was identified by Rajo @ Rajarani (P.W.-1) from her clothing. Facts allegations made by her against the appellants pre-existed. Even though forensic evidence may not exist, the prosecution story may not be disbelieved.
20. Having heard learned counsel for the parties and having perused the record, in the first place, it cannot be denied that Rajo @ Rajrani (P.W.-1) who is the mother of abductee Jayitri @ Gayatri is not an eye-witness. Second, narration made by her in the F.I.R. is not based on any personal knowledge of any fact. She has merely expressed her apprehension and voiced her suspicion that the occurrence was caused by the appellants. In that, she named two sets of accused persons namely, Rajkumari, Raajepura, Kalpi, Rehana Begun, Gulauli Wali, Mamola and Mujeeb as having caused the alleged disappearance of the abductee and at the same time, she suspected, Nanak Chandra J.E., Prakash Chandra, Hari Member, Tesu, Anees Thekedar may have been caused such occurrence. Thus, the story brought by her was not singular. In any case, no strong motive was disclosed. Merely because a person may have disputes with certain other members of a civil society, it may give rise to suspicion but not to any proof at a criminal trial, by mere existence of such bad relations. As to the proof, the only evidence relied by the prosecution was the evidence of last seen that emerged at the hands of the Amar Singh (P.W.-2) and Babadeen (P.W-3). As noted above, both witnesses turned hostile during their examination-in-chief. They did not support the prosecution allegation, to any extent. Having denied knowledge of the occurrence and having refused to identify the appellants and having further refused to have seen the appellants in the company of the abductee, no reliance whatsoever may ever be placed on such testimony to prove the basic charge levelled that the appellants had caused the abduction of the abductee, Jayitri @ Gayatri. Third, mere description that the bucket belonging to Rajo @ Rajrani (P.W.-1) (that may have been carried by Jayitri @ Gayatri at the time of occurrence) may not prove the occurrence caused by the appellants. In that, first, the bucket was not recovered by the police during investigation. It is only a story offered by Rajo @ Rajrani (P.W.-1) that she had seen such bucket in the house of the appellant-Mujeeb after the occurrence. Second, it was not proven from that recovery, that any occurrence had been caused by the appellants. Fourth, it has been submitted, the reasoning of the learned court below that the proof of the occurrence exists upon recovery of the unclaimed dead body, is self-conflicted and perverse. In the first place, if the learned court below were to accept that the unclaimed dead body was that of the victim Jayatri @ Gayatri, necessarily appropriate charge had to be framed against the appellants. At the same time, the factum of the death of Jayatri @ Gayatri was not proven beyond doubt inasmuch as neither the learned court below charged the appellants under Section 302 I.P.C. nor Jayatri @ Aneeta daughter of Ram Prakash {whose statement was recorded under Section 164 Cr.P.C. on 24.11.2020 before the learned Civil Judge (Junior Division)/F.T.C. (Crime Against Women)} was summoned as a witness. Certified copy of that statement was brought on record by the defence. Application was also moved by the defence to compel the production of that person. That application is dated 22.09.2023 Paper no. 254(Kha). The order dated 22.09.2023 passed on the order sheet of the learned court below indicates that, the application remained pending till conclusion of the trial. It was neither allowed nor rejected. At the same time, the defence had also moved another application seeking D.N.A. matching of Jayatri @ Aneeta not produced at the trial (whose statement was recorded under Section 164 Cr.P.C.) and the first informant Rajo @ Rajrani (P.W.-1) had failed to provide her sample for that test, no evidence could arise.
21. The status of the defence evidence apart, we are of the opinion that the burden to prove the charge was squarely on the prosecution. On the test of charge being required to be proved beyond reasonable doubt, we find, no evidence exists as may have led the learned court below to reach the conclusion that the appellants had caused the disappearance of Jayitri @ Gayatri, the daughter of the first informant - Rajo @ Rajrani (P.W.-1). P.W.-1 is not an eye-witness. Her testimony does not prove any element of charge levelled. She has only proven her suspicion. Those may never have been relied to hold the charge proven against the appellants. As to the evidence of last seen, as discussed above, both witness of fact namely Amar Singh (P.W.-2) and Babadeen (P.W-3) were declared hostile during their examination-in-chief. They did not prove that the abductee was last seen with any of the appellants. As to the unclaimed dead body, neither we can say that the same is of the abductee in the circumstances noted above nor we may accept that the death had been caused by the present appellants. Also, Jayatri @ Aneeta (whose statement was recorded under Section 164 Cr.P.C.) was not examined as a Court witness. The statement of Jayitri @ Aneeta recorded under Section 164 Cr.P.C. does exist, inasmuch as certified copy is on record.
22. Whichever way we look at, not only reasonable doubt exists but we are constrained to observe that neither the investigation nor the trial was conducted, as stipulated by law. The Investigating Officer may have fallen prey to emotions and passions in making reports and submitting charge-sheet. We are constrained to make that observation since despite recovery of an unclaimed dead body, in Case Crime No. 471 of 2008, neither the 'Panchayatnama' nor the Autopsy Report nor other material that may have been part of that case were examined or made part of that investigation nor the issue of D.N.A. matching was carried to its logical end. In heinous offence such as this, it may have remained with the first informant to chose to not offer her D.N.A. sample to match with the D.N.A. sample obtained from unclaimed dead body, inasmuch other than the clothing, no other identification was done.
23. The matter does not stop there. We are also constrained to observe that the learned court below may have completely failed to discharge its bounden duty to unravel the truth. In that, it neither summoned Jayatri @ Aneeta who had made a statement under Section 164 Cr.P.C. nor it summoned the Case Diary of Case Crime No. 471 of 2008 nor it provided for effective order to ensure D.N.A. matching either between the first informant and the unclaimed dead body or the first informant and Jayatri @ Aneeta whose statement came to be recorded under Section 164 Cr.P.C.
24. It is appalling to note, the learned court below instead of drawing an adverse inference on the refusal offered by the first informant to disbelieve the prosecution story on that count, it has ignored the defence application moved in that regard resulting in denial of fair opportunity at the trial to the defence and it has recorded its conclusions based on unproven suspicions voiced/expressed by the first informant. Therefore, we find absolutely no chain of evidence and no link in the chain of witnesses to convict the appellants.
25. The judgement and order dated 20.11.2023 passed by the learned trial court is found to be perverse and unsustainable in the eye of law. It is accordingly set aside. Both the appeals are allowed. The appellants are in jail. Let them be released forthwith unless they are wanted in any other case, subject to their complying with the mandatory requirements of provision of Section 437-A Cr.P.C. within one month. All the appellants are acquitted of the charges levelled against them.
26. Let a copy of this order be communicated to the learned trial court as also to the learned Judge who may have passed the order dated 20.11.2023 for future reference.
27. Office is directed to send back the original trial court record along with a copy of this order.
28. Let a copy of this judgement be sent to the Jail Authorities concerned for compliance.
Order Date :- 6.5.2025
SA/Prakhar
(Sandeep Jain, J.) (S.D. Singh, J.)
