Allahabad High Court
Heera Lal And Another vs State Of U.P. on 25 July, 2022
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Reserved on : 18.04.2022
Delivered on : 25.07.2022
Court No. - 1
Case :- CRIMINAL APPEAL No. - 381 of 2016
Appellant :- Heera Lal And Another
Respondent :- State of U.P.
Counsel for Appellant :- Saurabh Srivastava,Maneesh Kumar Singh,Navita Sharma,Sheo Prakash Singh,Vimal Srivastava
Counsel for Respondent :- Govt. Advocate,Amitabh Tripathi
Hon'ble Ramesh Sinha, J.
Hon'ble Mrs. Saroj Yadav, J.
(Per Ramesh Sinha, J. for the Bench) (1) Two accused persons, Heera Lal and Vrindavan, were tried by the Special Judge, Gangster Act/Additional Sessions Judge, Court No.5, Raebareli in Sessions Trial No.467 of 2012: State of U.P. Vs. Heera Lal and another, arising out of Case Crime No.20 of 2008 under Sections 147, 364, 302/149, 201 I.P.C. and Sections 2/3 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Khiro, District Raebareli.
(2) Vide judgment and order dated 24.02.2016, the Special Judge, Gangster Act/Additional Sessions Judge, Court No.5, Raebareli acquitted accused/appellants under Sections 2/3 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as "Gangster Act") and convicted and sentenced them in the manner as stated hereinbelow:-
(i) Under Section 302 read with Section 149 I.P.C. to undergo life imprisonment and fine of Rs.10,000/- each. In default of fine to undergo additional three months imprisonment.
(ii) Under Section 364 I.P.C. to undergo ten years rigorous imprisonment and fine of Rs.3,000/- each. In default of fine to undergo additional one month imprisonment.
(iii) Under Section 201 I.P.C. to undergo three years imprisonment and fine of Rs.1,000/-. In default of fine, to undergo additional ten days imprisonment.
(iv) Under Section 147 I.P.C. to undergo one year imprisonment.
All the sentences were directed to run concurrently and the period of incarceration of the accused persons was directed to be set off against the sentence of imprisonment.
(3) Aggrieved with their aforesaid conviction and sentence, the convicts/appellants, Heera Lal and Vrindavan preferred the instant appeal before this Court.
(4) It is pertinent to mention that during pendency of the instant appeal, convict/appellant no.2-Vrindavan died, hence, the instant appeal filed on his behalf was ordered to be abated vide order dated 24.03.2022. Now the instant appeal survives only against convict/appellant No.1-Heera Lal.
(5) In view of the judgments of the Apex Court in Bhupinder Sharma vs. State of Himachal Pradesh : (2003) 8 SCC 551 and Nipun Saxena and anothers vs. Union of India and others : 2018 SCC Online 2772, the name of the victim is not being mentioned and transcribed her as victim 'x' in the judgment hereinafter.
(6) At the first instance, application dated 07.02.2008 (Ext. Ka. 2) was moved by the informant Shyam Lal (P.W.1) before the Station House Officer, Police Station Khiro, District Raebareli to the effect that he is the resident of Village Pure Durgin Ka Purwa, Police Station Khiro, District Raebareli. In the evening of about 03:00 O'clock on 05.02.2008, his daughter (victim ''x') aged about 5 years, while playing, went towards the house of his neighbour Vrindavan (convict/appellant No.2). After that, his daughter (victim ''x') could not be traced despite of search in village and nearby areas. It has been alleged that the son of his brother Ganga Prasad, namely, Avadhesh was murdered one year ago by the family members of Ganga Dhar, against whom legal action was initiated. Therefore, he apprehended that due to the said enmity, these people picked up his daughter (victim ''x').
(7) The informant Shyam Lal (P.W.1) got the aforesaid written report (Ext. Ka.2) scribed by his nephew Gyanendra outside the police station Khiro, who after scribing, read it over to him and after that informant put his signature on it and then proceeded to Police Station Khiro, District Raebareli and lodged the same.
(8) The evidence of P.W.6-Constable Brij Kishore Rawat shows that on 07.02.2008, he was posted as Constable Moharrir at Police Station Khiro, District Raebareli. On the basis of written report submitted by the informant Shyam Lal (P.W.1), he prepared Chik F.I.R. No. 07/08 and registered the case as Case Crime No. 20 of 2008, under Section 364 I.P.C. He proved the Chik F.I.R. (Ext. Ka. 9) and G.D. (Ext.Ka. 10).
(9) A perusal of the chik FIR shows that the distance between the place of incident and Police Station Khiro was 15 kilometers. It is significant to mention that a perusal of the chik FIR also shows that on its basis, a case crime no. 20 of 2008, under Section 364 I.P.C. was registered against the family members of Gangadhar, resident of Village Durgin Ka Purwa, Police Station Khiro, District Raebareli.
(10) Thereafter, on 08.02.2008, informant, Shyam Lal (P.W.1) had filed another application/written report (Ext.Ka.1) at Police Station Khiro, District Raebareli, informing that on 07.02.2008 he gave information about the missing of his daughter (victim 'x'). However, on 08.02.2008, in the morning at about 6-6:15 A.M., his wife Smt. Dhanawati (P.W.2) and his niece Milana daughter of Shiv Shankar Yadav came and told him, family members and relatives that his neighbours Heera Lal Yadav (convict/appellant no.1) s/o Triloki, Anil Kumar Yadav s/o Shakun Chandra Yadav, Resu d/o Prem Candra Yadav, Urmila and Vrindavan Yadav (convict/appellant no.2) went towards an under construction house of Prabhudei (D.W.1) wife of Gaya Prasad Yadav while carrying white sack, which seemed to be heavy and full. On this information, he (P.W.1), his brother Ganga Prasad, Sri Lal and his relatives Dev Narayan Yadav (P.W.3), Awadh Pal and Gyanendra Kumar Yadav (who transcribed the written report Ext. Ka.2) ran to the under construction house of Prabhudei (D.W.1) and saw that aforesaid accused persons were hiding the white sack in the under construction house of Prabhudei (D.W.1). Thereafter, Heera Lal Yadav (convict/appellant no.1) and Urmila were caught on the spot, whereas accused Anil Kumar Yadav and Resu fled away from there. Thereafter, when they opened the sack, they found the corpse of his daughter (victim ''x'). On hue and cry, the police personnel present in the village reached at the place of occurrence.
(11) The evidence of P.W.8-S.I. Karunesh Singh shows that on 08.02.2008, he was posted as Constable Maharir at Police Station Khiro District Raebareli. On the said date at 7:15 A.M., the informant (Shyam Lal Yadav P.W.1) of Case Crime No. 20 of 2008 under Section 364 I.P.C. came at Police Station Khiro District Raebareli and submitted an application regarding the corpse of his missing daughter (victim 'x') and also about catching the accused persons. On the aforesaid written report (Ext. Ka.1), Sections 147, 302, 201, 120B I.P.C. were added in Case Crime No. 20 of 2008.
(12) The evidence of P.W.5, S.I. Raj Pal Singh shows that on 03.03.2007, he was posted as Principal Writer at Police Station Khiro District Raebareli. On the said date, on the basis of written report of Shri Ganga Prasad, chik No.14 of 2007, Crime No.43 of 2007 under Sections 302/201 I.P.C. was lodged at 11:15 A.M. against accused persons Anil Kumar, Vrindavan and Prem Chandra. He proved the said F.I.R. (Ext. Ka-7) and concerned G.D. (Ext. Ka-8).
(13) The investigation of the case was conducted by P.W.10 S.I. Rakesh Pratap Singh, who in his examination-in-chief, had deposed before the trial Court that on 07.02.2008, he was posted as Station House Officer at Police Station Khiro District Raebareli. On 07.02.2008, he started the investigation of Case Crime No.20 of 2018, under Section 364 I.P.C. On 07.02.2008, he recorded the statements of informant, Shyam Lal (P.W.1), his wife Smt. Dhanawati (P.W.2) and also inspected the place of occurrence and prepared the site plan (Ext. Ka-17).
P.W.10 had further deposed that on 08.02.2008, when the informant Shyam Lal (P.W.1) submitted an application regarding the corpse of his daughter (victim 'x') and caught hold of Heera Lal Yadav (convict/appellant no.1), Vrindavan Yadav (convict/appellant no.2), Kumari Urmila along with a corpse, report No.10 was lodged at Police Station Khiro at 07:15 A.M. After that he went along with S.I. S.N. Pandey (P.W.9), S.I. Radhey Shyam Chaudhary, informant Shyam Lal (P.W.1) and Dev Narayan (P.W.3) at the place of occurrence and found the corpse inside the sack. At the place of occurrence, family members of the informant, namely, Awadh Pal Yadav, Sri Lal, Constable Nawal Singh, Constable Ramteerath, Hira Lal Yadav (convict/appellant no.1), Vrindavan Yadav (convict/appellant no.2), Km. Urmila Yadav and some other villagers were also present. Thereafter, he directed S.I. S.N. Pandey (P.W.9) to conduct panchayatnama in accordance with law.
P.W.10 had further deposed that the proceeding to conduct panchaytnama of the corpse was started at 10 A.M. and ended at 11:30 A.M. Thereafter, Heera Lal Yadav, Vrindavan Yadav and Km. Urmila were taken into custody and sent along with S.I. Radhey Shyam Chaudhary, Constable Nawal Singh and Ramteerath to Police Station Khiro. He seized blood-stained plastic sack and prepared the recovery memo (Ext. Ka-5) and also collected blood soaked and plain soil from the spot and prepared recovery memo (Ext. Ka-4). After that, he reached the Police Station Khiro and recorded the statement of the accused Kumari Urmila, Heera Lal (convict/appellant no.1) and Vrindavan (convict/appellant no.2) under Section 161 Cr.P.C. On 09.02.2008, he recorded additional statement of the informant and inspected the place of occurrence on pointing out of informant and prepared the site plan (Ext. Ka-19). On the same day, he also recorded the statement of Dhanawati (P.W.2) and Km. Milana. On the information of an informer, he arrested the accused Ganga Dhar Yadav at 3:40 P.M. from Paho Tiraha. After that investigation of the case was conducted by S.I. Saroj Kumar Singh (P.W.11).
In cross-examination, P.W.10 had deposed that on 07.02.2008, the F.I.R. of the incident was lodged in his presence. He denied that informant Shyam Lal (P.W.1) did not tell him in his statement recorded under Section 161 Cr.P.C. that accused Urmila had called his daughter by showing plums (ber). He further deposed that when he reached at the place of the incident, he found that several thatches were put on fire but he did not record statement of anyone to know how, when and who had set fire on the thatches. He did not see anyone dousing the fire. He did not mention the factum of fire in the investigation proceedings. However, he mentioned in the case diary that he informed the Fire Brigade for dousing the fire. He further deposed that he did not mention in the site plan, about the fire. The first site plan was prepared by him on 07.02.2008 when he searched the house of the accused, however, he did not find anything therein. He further deposed that during search, none of the accused tried to escape and the search was made in the presence of the accused. He searched the house of the accused on his own and neither informant nor his wife nor any witness had told him that accused persons had kept the victim ''x' there after kidnapping. On 07.02.2008, he did not search the house of Prabhudei (DW 1). On 08.02.2008, he sent the corpse of deceased (victim ''x') for postmortem examination at about 11:30 P.M. P.W.10 had further deposed that he did not record the statement of Constable Ramteerath and Constable Nawal Singh, however, he deputed them to search for the victim ''x'. He further deposed that investigation of the case was with him for about ten days, during this period, he did not record the statement of any of the Constable mentioned above. Neither of these Constables informed him about the incident or corpse of the victim ''x'. He denied the suggestion that he did not prepare the recovery memo on spot. He also denied the suggestion that as both the aforesaid Constables did not support the prosecution case, hence he did not record their statements under Section 161 Cr.P.C.
(14) The evidence of P.W.9- Surendra Narayan Pandey shows that on 08.02.2008, he was posted as Chowki In-charge at Semri P.S. Khiro District Raebareli. He conducted the panchayatnama of the corpse of the deceased (victim ''x') on the direction of Station House Officer Rakesh Pratap Singh (P.W.10). First of all, he appointed the ''panchan' and in their presence, he conducted the ''panchayatnama', thereafter he sealed the corpse and sent that for post-mortem examination through Constable Shiv Shankar Yadav and Home Guard Vijay Kumar alongwith necessary documents viz. photo lash (Ext. Ka.14), letter to C.M.O. (Ext. Ka.15), challan lash (Ext. Ka. 16).
In cross-examination, P.W.9 had deposed that when he reached at the place of incident, the thatches were on fire and Station House Officer R.P. Singh (P.W.10) was present there. He further deposed that he did not remember whether R.P. Singh (P.W.10) had prepared memo of fire or not. He deposed that corpse was found from the under construction house of Gaya Prasad. He further deposed that at the time of conducting the ''panchayatnama', copy of the F.I.R. was with him. He also deposed that signature of Investigating Officer was not on ''panchyatnama' (Ext. Ka.3). He denied the suggestion that ''panchayatnama' (Ext. Ka-3) was prepared after due deliberation at police station.
(15) The evidence of P.W.11- Saroj Kumar Singh shows that on 19.02.2008, he was posted as Station House Officer at Police Station Khiro District Raebareli. The investigation of Case Crime No.20 of 2008, under Sections 147, 364, 302, 201, 120B I.P.C. was entrusted to him on transfer of former Investigating Officer R.P. Singh (P.W.10). On 22.02.2008, he took arrested accused persons on police custody remand. On 06.03.2008, he arrested accused Anil Kumar Yadav and also recorded his statement. On 25.04.2008, Gangster Act was imposed upon accused Anil Kumar, Hira Lal and Vrindavan after the recommendation of the higher officials. On 30.04.2008 after recording the statement of witnesses, Awadh Pal, Ganga Prasad, Sri Lal S/o Lala, Shri Devnarayan S/o Suraj Bali, Gyanendra Kumar S/o Ram Pal Yadav, Bablu S/o Rajjo Yadav, Shiv Shankar Yadav, S.I. S.N. Pandey, submitted charge-sheet (Ext. Ka.21) before the Court under Sections 147, 302, 201, 364 and 120-B I.P.C. against accused Urmila D/o Vrindavan, Ganga Dhar S/o Triloki Yadav.
In cross-examination, P.W.11 had deposed that he himself prepared the gang chart. He denied the suggestion that he knowingly gave false evidence.
(16) The evidence of P.W.7- Shiv Kumar Sharma shows that the investigation of Case Crime No.20 of 2008 under Sections 147, 302, 201, 120B, 364 I.P.C. was handed over to him as per orders of Divisional Officer, Division Lucknow, Government of Uttar Pradesh. He started investigation from 18.06.2008. He perused the proceedings conducted by earlier Investigating Officer, Anita Chauhan and recorded her statement. During the investigation, on 24.10.2008, the statement of Sri Surendra Narayan Pandey, Sub Inspector (P.W.9), Sri Radhey Shyam Chaudhary, Sub Inspector, Constable, Ram Tirath, former Investigating Officer Sri Saroj Kumar Singh (P.W.11) and constable Naval Singh were recorded. On 25.10.2008, the statements of constable Braj Kishore Rawat (P.W.6), informant, Shyam Lal (P.W.1), witness Smt. Dhanawati (P.W.2), Kumari Milana Yadav, witness Shri Ganga Prasad, Shri Dev Narayan Yadav (P.W.3) and Shri Gyanendra Kumar alias Babloo were recorded and on the pointing out of informant, he inspected the kidnapping site and prepared the site plan (Ext. Ka-11). After that statements of witness, Shri Tej Narayan Shukla and Shri Suresh Trivedi and Shri Ram Vilas Yadav of the village were recorded. On 26.10.2008, the statements of witnesses, Shri Rajan Shukla, Smt. Kamala @ Mantrani, Shri Ram Manohar, Smt. Prabhudei (D.W.1) and Kumari Bina alias Vithalla and Shri Anil Kumar Yadav and Shri Surya Narayan Yadav were recorded.
P.W.7 further deposed that on 28.03.2009, a warrant under Section 55 Cr.P.C. was issued against the wanted accused Kumari Reshu. On 09.04.2009, the permission of the Superintendent of Police was obtained to submit the charge sheet under the U.P. Gangster Act, the details of which were mentioned by him in C.D. and submitted the charge sheet No. 7 of 2009 (Ext. Ka.12), under Sections 147, 302, 201, 364 I.P.C. and 2/3 of U.P. Gangster Act against the accused Heeralal Yadav (appellant no.1), Vrindavan Yadav (appellant no.2), Anil Kumar Yadav in the Court.
In cross-examination, P.W.7 had deposed that former Investigating Officer also, had prepared two site plans; first site plan was related to the place from where the victim ''x' was Kidnapped; and second site plan was related to the place from where she was recovered. He (P.W.7) did not prepare the site plan of the place from where the victim ''x' was recovered. However, he prepared a separate site plan of the place from where the victim ''x' was kidnapped because he found some difference about the place of occurrence and site plan.
(17) The post-mortem examination of the corpse of the deceased was conducted on 08.02.2008 at about 4:30 P.M. at District Hospital, Raebareli by P.W.4- Dr. Arvind Kumar, who found the following ante-mortem injuries on the dead body of the deceased (victim ''x').
"Ante-mortem injuries of the deceased (victim ''x')
1. Contused swelling 4 cm x 4 cm on the (Lt.) side of head, about 5 cm above the (Lt.) Ear, on palpation underlying bone fractured.
2. L.W. 1 cm x 0.5 cm x muscle deep on the (Rt.) sub- mandibular region.
3. L.W. 3 cm x 1 cm on the (Lt.) side of chest, just above the sternal notch.
4. Abraded contusion 6 cm x 4 cm on the upper part of chest below the sternal notch.
5. Abraded contusion 3 cm x 2 cm on the (Lt.) knee.
6. Blood & Blood clots are present over the back."
The cause of death spelt out in the autopsy report of the deceased (victim ''x') was shock and haemorrhage as a result of ante-mortem injuries.
(18) It is significant to mention here that P.W.4-Dr. Arvind Kumar has mentioned the aforesaid cause of death of the deceased/victim ''x' in his statement before the trial Court. He has stated that deceased/victim ''x' was aged about 05 years and the probable time of her death was approximately 2½ days ago. He further deposed that on external examination of the corpse of the deceased/victim ''x', he found that the corpse was of normal stature and after death, 'rigor mortis' was passed away from the upper and lower parts; the eyes were closed and swollen; the mouth was half open; blood stains were present on the face; soil and straw were present on the body of the corpse; and there was froth of blood from both nostrils and mouth. He further deposed that on internal examination, he found that the brain membrane on the left was torn in the parietal region; the brain on the left was torn; 100 ML blood and blood clots were found in the cranial cavity; there was about 100 ML of undigested food inside the stomach; the gall bladder was half full; and uterus was empty. He proved the post-mortem report (Ext. Ka. 6).
In cross-examination, P.W.4 had deposed that no cut or cut mark was present on the body of the deceased/victim ''x'. All the injuries of the deceased were caused by some hard and blunt object. He accepted the suggestion that if someone falls on a hard object, then such injuries could be attributable. He deposed that though he told that injuries were 2½ day's old but considering the nature of the injuries, it could be possible that injuries were caused 10 hours back (i.e. 10 hours ahead of post-mortem examination) (19) The case was committed to the Court of Sessions on 05.09.2008. After getting gang-chart (Ext.Ka.20) approved as per law, P.W.11 Sri Saroj Kumar Singh had filed a charge-sheet under Sections 147, 302, 201, 364 I.P.C. and Sections 2/3 of Gangster Act against Heera Lal, Vrindavan and Anil Kumar on 09.04.2009, upon which the Court took cognizance on 02.05.2009. As accused Anil Kumar was juvenile, hence his trial was separated and sent to Juvenile Justice Board. On 10.01.2013, the case of accused Km. Urmila was also separated and sent to Juvenile Justice Board. After that a charge-sheet under Sections 147, 302, 201, 364 I.P.C. against accused Km. Reshu was submitted before the Court concerned by P.W.7-Shiv Kumar Sharma and subsequently her trial was separated. On 25.10.2012, the Special Judge, Gangster Act, Court No.5, Raebareli, framed charges against convicts/appellants, Heera Lal and Vrindavan under Sections 147, 302/149, 201 I.P.C. and Sections 2/3 of Gangster Act. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.
(20) During trial, in all, the prosecution examined eleven witnesses viz. P.W.1-Shyam Lal, the informant of the case and father of the deceased (victim ''x'); P.W.2- Smt. Dhanawati, mother of the deceased (victim ''x'); P.W.3- Devnarayan, uncle (fufa) of deceased (victim ''x'); P.W.4- Dr. Arvind Kumar, who conducted post-mortem of the deceased (victim ''x'); P.W.5- S.I. Raj Pal Singh, who was posted as Principal Writer at Police Station Khiro, Raebareli and lodged Chik No. 14/17 on the basis of written report submitted by Sri Ganga Prasad; P.W.6- Constable Braj Kishore Rawat, who lodged chik F.I.R.; P.W.7- Shiv Kumar Sharma, who is the third Investigating Officer of the case; P.W.8- S.I. Karunesh Singh, who was posted as Constable Moharrir and received an application from P.W.1 regarding corpse of his missing daughter (victim 'x') and requested to arrest the accused persons; P.W.9- Surendra Narayan Pandey, who conducted the panchayatnama proceeding of the corpse of the deceased (victim ''x'); P.W.10- S.I. Rakesh Pratap Singh, who is the first Investigating Officer of the present case; P.W.11- Saroj Kumar Singh, who investigated the present case due to transfer of former Investigating Officer R.P. Singh (P.W.10).
(21) After completion of prosecution, statements of convicts/ appellants were recorded under Section 313 Cr.P.C., wherein they denied the prosecution evidence and stated that they have been falsely implicated due to enmity. They examined Prabhudei as D.W.1, in defence.
(22) P.W.1- Shyam Lal, who deposed in his examination-in-chief that deceased (victim ''x') was his daughter, who was five years old at the time of incident. The incident is of 5th February, 2008 at 3 P.M. His daughter was plucking plum from a plum tree located in front of his house. Thereafter, Urmila called his daughter and took her to her house. His wife Dhanawati (P.W.2) was feeding the bullocks at the door. He was in Lalganj on that date. On the same day at 3:30 P.M., his wife Dhanawati went to house of Urmila in search of her daughter, then father of Urmila said that her daughter (victim ''x') did not come to his house. His (complainant's) wife informed him about the missing of their daughter through telephone when he was at Lalganj. Thereafter, he came to home at 5 P.M. He asked his wife about his daughter, she told that Urmila took his daughter to her house to give plums but she did not come back. Then he, his wife Dhanawati (P.W.2) and his brother went to search out his daughter in the house of Urmila where father of Urmila, Vrindavan (convict/appellant no.2) said that victim ''x' did not come to his house. After that Vrindavan (convict/appellant no.2), Heera Lal (convict/appellant no.1) and Urmila picked up a lathi and said that his daughter (victim ''x') did not come here and get away from there. On the next day too, he searched his daughter (victim ''x') but his daughter (victim ''x') was not traceable. Thereafter, when he went to lodge report at the police station about missing of his daughter (victim ''x'). The police met him at the Sahajaura hotel and he told whole factum to the police. Thereafter, the policemen asked him to search his daughter (victim ''x') and they will go and tell the Inspector at police station. Thereafter, he again searched his daughter (victim ''x') on 6th February, 2008 but could not find her. On the next day i.e. on 7th February, 2008, he went to the police station and told the whole factum of the incident to the Inspector. Thereafter, the Inspector told him to write an application about the incident. After that he went outside the police station and got scribed report from his nephew, who after scribing read it over to him and after that he signed on it and reached police station and lodge F.I.R..
P.W.1 had further deposed that, on 08.02.2008, at 06:00-6:15 A.M. his wife Dhanawati (P.W.2) and niece Milana were returning after attending the call of nature and when they reached near the under construction house of Prabhudei (D.W.1), they saw that Vrindavan, Heera, Urmila, Reshu and Anil were holding a white sack and coming towards the house of Prabhudei (D.W.1). After that, his wife and niece came home and told him that the aforesaid accused persons were bringing a loaded sack. Thereafter, he, his brother Ganga Prasad, Srilal and his relatives, who had come to his house after knowing about the incident, ran towards the house of Prabhudei (D.W.1) and saw that the accused persons were hiding a sack in a wall. On seeing them, all the accused persons got amazed and Reshu and Anil ran away after pushing Dhanawati (P.W.2). However, they caught Urmila, Heeralal and Vrindavan. When he opened the sack, he saw the corpse of his daughter (victim ''x') in the sack and her throat was slit with a knife. They started crying, then, people of his village and two patrolling policemen came there. Thereafter, he went to his house, wherein he got transcribed an application (Ext. Ka. 1) by his nephew Gyanandra and proceeded along with his nephew Gyanendra and Dev Narayan to police station and lodged it. He proved Ext. Ka.1. On it F.I.R. was lodged against the accused persons and a copy of which was also handed over to him. Thereafter, he went to his house. The police came at the place of the occurrence and conducted ''panchyatnama' of the corpse and also made interrogation.
P.W.1 further deposed in his examination-in-Chief that a year before this incident i.e. on 28.02.2007, his nephew was murdered by the family members of the accused. He was also a witness in that case and he did 'pairvi' of the case. On account of this enmity, the accused killed his daughter. The accused Heeralal, Umashankar, Ramesh used to meet at the Chaupal of Gangadhar and threatened him by saying that they have got the accused liberated and now they will teach him a lesson. He deposed that in the murder of his daughter, there was conspiracy of Gangadhar, Umashankar and Ramesh.
In cross-examination, P.W.1- Shyam Lal deposed that apart from the injuries on neck, he also noticed other injuries on the body of his daughter. He further deposed that he could not say, till now as to how many injuries were present on the body of the deceased in total, as he did not see the injuries on the body of the deceased because after completion of ''panchayatnama', the dead body was taken away. His wife Dhanawati (P.W.2) and Milana also did not tell him about the injuries. He was upset, so he did not try to see the injuries on the body of the deceased till cremation.
P.W.1 had further deposed that on 07.02.2008, the Inspector had recorded his statement and in that statement he had stated that his daughter, while playing, went missing on 05.02.2008. After the murder of Avadhesh, the women and children of his house and the women and children of the house of Vrindavan did not use to go to the house of each other. His wife did not stop his daughter to go to the house of Urmila when Urmila called his daughter.
P.W.1 had further deposed that fire in the thatch of Vrindavan broke out on the second day of the incident i.e. on 8.2.2008 when the dead body of his daughter was found. The day when the fire broke out, the police came. The police had seen fire on the thatch of Vrindavan. He did not know whether the police had put off the fire or not. He did not even see whether the policemen collected the ashes and remains of the burnt thatch. He further deposed that the policeman brought the dead body of the deceased at police station between 11-12 A.M. and he, Dev Narayan, Ganga Prasad, Shiv Lal and other villagers were also accompanied. He further deposed that the police did not take his signature on the place where the dead body of the deceased was found nor the police took signature of anyone there, nor the police took signature at police station in his presence of anyone.
P.W.1 had further deposed that the police did not bring any sealed items from the place of recovery of the dead body of the deceased. He did not tell who had set ablaze the thatch of the accused. The fire broke out after recovery of the dead body of the deceased and at that time, two patrolling policemen were in the village. On being thrashed by crowd, Gangadhar sustained injuries and he saw those injuries on the person of Gangadhar but he did not know, whether the police took Gangadhar for medical examination or not. He further deposed that there was no knife or weapon in the sack. The sack was of fertilizer, white in colour. He saw the sack. During investigation, he did not bring the Inspector to the house of Urmila but he brought the Inspector to the place where the dead body of the deceased was found. When the dead body of the deceased was found in the house of Prabhudei (D.W.1), Prabhudei (D.W.1) was at her house. He had no enmity with Pradbhudei (D.W.1). He further deposed that the house of Gaya Prasad was adjacent to the place where the dead body of the deceased was found. His house was on northern side of the house of Gaya Prasad and the house of Prem Chandra was on the eastern side of the house of Gaya Prasad. The house of Vrindavan was on the western side of the house of Gaya Prasad. There was no house on the southern direction of the house of Vrindavan but the field of Gaya Prasad was there on the southern direction of the house of Vrindavan. The under constructed house of Prabudei (D.W.1) was on the eastern direction of the house of Vrindavan. The house of Prabhudei (D.W.1) was situated in south-north direction and in the middle there was a gallery.
(23) P.W.2- Smt. Dhanawati, who is the wife of P.W.1 and mother of the deceased, deposed in her examination-in-chief that she knew the accused Vrindavan (convict/appellant no.2), Heeralal (convict/appellant no.1), Urmila, Anil, Reshu, Umashankar, Ramesh and Gangadhar. Umashankar is a resident of Thakurain Kheda, whereas Ramesh is from Tekhar and the rest of the accused are of her village Durgin ka Purva and her neighbours. The deceased was her daughter, who was about 5 years old at the time of the incident. On the date of the incident at about 03-3:30 P.M., her daughter (victim ''x') was playing at her door and she (P.W.2) was feeding her animals there. There was a plum tree in front of her house. Urmila, who is daughter of accused Vrindavan, came with a long stick (laggi) and plucked the plums from the tree and went towards her house with the plums and from there, she called her daughter after showing the plums. When her daughter moved, she asked her not to go, but her daughter said that she would come in a while and went to the house of Urmila. After 20-25 minutes, when her daughter did not return, she went to house of Urmila while searching her daughter. However, father of Urmila, namely, Vrindavan (convict/appellant no.2) met at his door. She asked him about her daughter, then, Vrindavan started scolding her and told her that her daughter did not come there and after that Vrindavan picked up a danda, on this, she came back. She deposed that on that day, her husband (P.W.1) was not at home but in Lalganj. After getting the information, he (P.W.1) came home at 5-5:30 in the evening, then she told the whole factum to her husband. Thereafter, she and her husband (P.W.1) went to the door of Vrindavan to inquire about their daughter, then, they found accused Vrindavan, Urmila, Ganga Dhar and mother of Urmila at their door and when they asked about their daughter (victim ''x') then, they all started fighting and picked up lathi-danda and asked them to get lost from there, and they came back. Thereafter, they searched their daughter in the field, orchard, well, pond but her daughter could not be traced.
On the next day, her husband went to the police station Khiro to inform about the incident, however, in the way, he found two policemen on the Raula-Sahajaura road. When her husband told those policemen about the girl, policemen said that they would give information to the police station and asked them to go and search their daughter. When on search, from 5th to 7th her daughter could not be traced then on 7th her husband, nephew Gyanendra and relative Devnarayan (P.W.3) went to police station and told the whole factum of the incident to the Inspector at the police station. Her husband got written a report and gave to the Inspector. Thereafter, the policemen asked them to go to their village and they (policemen) would come there. On the next day at 6-6:30 A.M., when she was returning after defecation, then, she saw that Heeralal (convict/appellant no.1), Vrindavan (convict/appellant no.2), Anil, Reshu and Urmila were dragging a heavy white sack from the house of Vrindavan (convict/appellant no.2) towards half-built house of Prabhudei (D.W.1). Thereafter, she rushed from there and told everything to her brother-in-law, husband, nephew, Devendra Kumar etc. On this, they all reached at half-built house of Prabhudei (D.W.1) and saw that all the five persons were keeping the same sack in the house of Prabhudei. On seeing them, the accused were taken aback and tried to run away. However, they caught Vrindavan (convict/appellant no.2), Heeralal (convict/appellant no.1), Urmila, whereas other two people, Reshu and Anil, managed to ran away. At the same time, when they opened the sack, they saw the body of her daughter in the sack. On their noise, some people of village and two policemen had also come on the spot. Her husband went to the police station, leaving the body of her daughter and three arrested accused under the custody of both the constables. About two and a half hours later, the Inspector came on the spot. The ''panchayatnama' of the body of the deceased was conducted by policemen. The Inspector took his statement twice; firstly, before the body was found; and secondly, after the body was found. She had shown both the places to the police i.e. where Urmila had called her daughter and the place where the body of her daughter was found. Her daughter had injuries on her neck, head and legs.
P.W.2 further deposed in her examination-in-chief that a year ahead of the incident, Vrindavan (convict/appellant no.2), Anil, Sushil and Prem Chandra had murdered the son of her brother-in-law Avadesh. Her husband used to do 'pairvi' of that case and was also a witness. For the said reason, accused had enmity with them and on account of the said enmity, the accused killed her daughter. He deposed that Umashankar and Ramesh often sitting at the chaupal of Gangadhar Yadav used to ask not to do 'pairvi' of Awadhesh's case and not to spend money and her husband should not do 'pairvi' of the case, otherwise, they will teach her a lesson soon, when she used to pass from there.
In cross-examination, P.W.2 had deposed that the Inspector had recorded her statement on the next date of missing of her daughter. Her husband (P.W.1) came after 1-1½ hours of the missing of her daughter. Before coming of her husband, no report of missing of her daughter was lodged. He had apprehension that accused persons were involved in missing of her daughter. She did not see her daughter going to the house of Urmila but she only saw her daughter going near to Urmila. She did not ask Urmila as to why she called her daughter. Her daughter used to play there everyday.
P.W.2 had further deposed that after lodging the report, Inspector came at the place of occurrence. The ''panchayatnama' of the dead body of her daughter was not conducted in her presence. The sack in which dead body of the deceased was found, was taken away by the Inspector but she was never called by the Inspector at police station regarding any proceeding related to the said sack.
(24) P.W.3- Devnarayan deposed in his examination-in-chief that he is the brother-in-law of Shyam Lal (P.W.1). The daughter of Shyam Lal (P.W.1) was kidnapped about 6 years ago. He also went to the house of Shyam Lal (P.W.1) after getting information about the kidnapping of victim ''x'. Other relatives also came to his house. He got information about kidnapping on telephone on 06.02.2008 and then he went to the house of Shyam Lal (P.W.1). On 08.02.2008, he was present at the house of Shyam Lal. On the same day at 6-6:15 A.M., Dhanawati (P.W.2) and Milana told that Vrindavan, Heeralal, Anil Kumar, Kumari Reshu and Urmila were going towards under construction house of Prabhudei (D.W.1) carrying a white sack. On this information, when Shyam Lal (P.W.1), Ganga Prasad, Shri Lal, Dhanawati (P.W.2), Avadhpal reached the house of Prabhudei (D.W.1), the aforesaid accused were hiding the sack there. Thereafter, they caught three people, namely, Heeralal (convict/appellant no.1), Vrindavan (convict/appellant no.2) and Urmila on the spot. Anil and Kumari Reshu fled away from there. When they opened the sack, they saw dead body of daughter of Shayam Lal (P.W.1) in it. When they made hue and cry, the villagers and two policemen also came to the spot. The three people whom they had caught were handed over to the villagers and the policemen. He and Shyam Lal (P.W.1) went to the police station Khiro on a motorcycle. Shyam Lal (P.W.1) had lodged a report about the incident at police station Khiro. By the time they came back from the police station, the police had also arrived on the spot. Accused persons were taken into custody by the police. The police had conducted the ''panchayatnama' proceeding of corpse of deceased in front of ''Panchan'. He was also one of the ''Panchan'. The Inspector had prepared the ''panchayatnama' (Ext Ka-3). The deceased (victim ''x') had a head injury, a slit throat, injury on her cheek, knees, feet and back. The blood was there on injuries. After the proceeding of ''panchayatnama', the dead body of the deceased was sealed in a cloth and sent for post-mortem examination. The Inspector collected the blood soaked and plain soil in two separate containers from half-constructed house of Prabhudei (D.W.1) in his presence. His statement was recorded by the Inspector about two and a half to three months after the incident.
P.W.3-Devnarayan, in cross-examination, had deposed that on 06.02.2008, he got the information of kidnapping on mobile through his relative Shyam Lal (P.W.1) and on this information, he went to the house of Shyam Lal (P.W.1) on 06.02.2008 and during that time, two policemen of the village were present. When the thatch of the accused caught fire, he was not present there as he had gone to the police station. He did not know as to when and how the fire broke up.
(25) D.W.1- Prabhudei w/o Gaya Prasad, in her examination-in-chief, deposed that she had a complete built house and another a half-built house. There is difference of twenty five steps between her two houses. On 07.02.2008, when she went towards the half-built house in order to get fire wood around eight o'clock in the evening, he saw a hand protruding from a sack. Thereafter, she came outside the said house and made noise, then, Shyam Lal (P.W.1) and women of his house came there by running. Thereafter, Shyam Lal (P.W.1) and his women opened the sack and saw that it was the dead body of their daughter. On the next day, around four o'clock in the morning, the police came and took away the sack and the body from the spot. The Inspector did not ask anything from her.
In her cross-examination, D.W.1- Prabhudei deposed that Heeralal (convict/appellant no.1) and Vrindavan (convict/appellant no.2) were their brothers-in-law. Heeralal, Gaya Prasad, Vrindavan, Gangadhar are the sons of Triloki. She did not know whether Heeralal, Gaya Prasad, Vrindavan and Gangadhar had bequeathed Lala's land or not. She did not even know that Shyam Lal (P.W.1), Ganga Prasad, Srilal had filed a suit in Tehsil for their father's land. When she went to bring wood from under constructed house, then, she saw in the light of a torch a hand protruding from a sack. She denied that she saw the dead body on the next morning at 08:00 O'clock and not in the night. She also denied that when she went to her half-built house at 08:00 O'clock in the morning, she saw the dead body and five men standing near a sack. She also denied that one boy and a girl ran away when the villagers came. He also denied that Heera Lal (convict/appellant no.1), Vrindavan (convict/appellant no.2) and Urmila were caught by Shyam Lal (P.W.1) and his relatives near the sack on the spot.
(26) The learned trial Court believed the evidence of prosecution witnesses and found the appellants, Heera Lal and Vrindavan guilty for the offences punishable under Sections 302 read with Section 149, 364, 201 and 147 I.P.C., and accordingly, convicted and sentenced the appellants in the manner stated in paragraph-2. However, the appellants were acquitted for the offences punishable under Sections 2/3 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986.
(27) Hence the instant appeal.
(28) Heard Shri Maneesh Kumar Singh, learned counsel for appellant No.1/Heera Lal and Shri Arunendra, learned A.G.A. for the State-respondents. However, Shri Amitabh Tripathi, learned counsel for complainant is not present.
(29) Challenging the impugned judgment and order, the learned counsel for appellant No.1 has argued that:-
(I) There was delay in lodging and sending the FIR to the Magistrate concerned. According to him, it has been alleged in the F.I.R. that the daughter of the informant, P.W.1- Shyam Lal was missing from 05.02.2008 but the F.I.R. of the incident was lodged on 07.02.2008 i.e. after two days from the date of the incident. His submission is that the F.I.R. of the alleged incident was lodged after due deliberations just to implicate the convict/appellant, hence the benefit of doubt in lodging the F.I.R. belatedly ought to be granted to the convict/appellant.
(II) There is no eyewitness of the alleged occurrence and the case rests on circumstantial evidence. His submission is that the circumstances relied on, would not establish continuity in the links of the chain of circumstances to lead to an irresistible conclusion regarding the guilt of the convict/appellant. Thus, the convict/appellant is entitled to get the benefit of doubt in view of such circumstances and as such, the conviction and sentence awarded is liable to be set aside and he is entitled to be acquitted.
(III) P.W.1- Shyam Lal, P.W.2- Smt. Dhanawati and P.W.3- Devnarayan are highly interested and partisan witnesses as they are father, mother and uncle (fufa), respectively, of the deceased (victim ''x'). His submission is that the family members of the deceased were examined as witnesses and they being interested witnesses cannot be relied upon. Furthermore, the prosecution did not examine any independent witness and, therefore, the prosecution has failed to establish its case beyond reasonable doubt.
(IV) The evidence of ''last seen' the convict/appellant together with the victim has not been properly appreciated by the trial Court.
(V) The evidence of defense witness D.W.1-Prabhudei has not been properly dealt with by the trial Court and the trial Court erred in disbelieving the evidence of D.W.1- Prabhudei.
(V) The investigation of the case was tainted and the convict/appellant has falsely been implicated in the instant case.
(VI) There was no motive on the part of the convict/appellant to commit the murder of the deceased (victim ''x') and the convict/appellant was falsely implicated in the instant case on account of old enmity.
(30) On the other hand, learned Additional Government Advocate while supporting the impugned judgment had argued that (I) There is no delay in lodging the F.I.R., as the P.W.1- Shyam Lal (informant) has categorically deposed before the trial Court that on the date of the incident i.e. 05.02.2008, he was informed by his wife Smt. Dhanawati (P.W.2) at 5 P.M. that his daughter (victim ''x') was not traceable, therefore, he searched his daughter. Inspite of all his efforts, his daughter could not be traced, therefore, on the next day of the incident, he went towards police station Khiro but on the way he met with a policeman, who asked that he should first search his daughter. He searched his daughter again but his daughter could not be traced. Thereafter, on 07.02.2008 he went to the police station again and informed the Inspector. The Inspector asked him to come with proper application. Thereafter he went outside the police station and after getting scribed the written report from his nephew Gyanendra, who after scribing the report read it over to him, put his (complainant's) signature thereon and thereafter lodged the F.I.R. of the incident. Thus delay, if any, in lodging the F.I.R. has properly been explained by the P.W.1- Shyam Lal, therefore, it cannot be said that this ground is fatal one to the prosecution case.
(II) The motive on the part of the convict/appellant has been established as it comes out from the evidence on record that before a year of the incident, nephew of the informant was murdered by the family of the convict/appellant in which the informant was one of the witness and doing pairvi of the case. This fact has also been supported by P.W.2- Smt. Dhanawati, therefore, it cannot be said that there was no motive to the convict/appellant to commit the murder of the victim ''x'.
(III) The present case is based on circumstantial evidence and the prosecution has succeeded in establishing every circumstance of the chain of events that would fully support the view that the convict/appellant is guilty of the offence. The trial court has passed the judgment under appeal, after proper appreciation of evidence, and has come to the right conclusion by means of the impugned judgment and order.
(IV) The plea of the convict/appellant that P.W.1, P.W.2 and P.W.3 are highly interested and partisan witnesses as they are the family members of the deceased victim ''x', is not sustainable because these witnesses have proved their presence. Moreso, the convict/appellant was arrested on spot along with sack, from which dead body of the daughter of the informant (victim ''x') was recovered.
(V) The medical evidence also corroborates the prosecution case.
(VI) The trial Court, after appreciating the evidence on record, has rightly convicted the appellant by means of the impugned judgment and order. Thus, the instant appeal is liable to be dismissed.
(31) We have considered the arguments of Shri Maneesh Kumar Singh, learned counsel for appellant No.1/Heera Lal and Shri Arunendra, learned A.G.A. for the State-respondents and have carefully gone through the impugned judgment and order of conviction and sentence awarded by the learned trial Court by means of the impugned judgment as well as the lower Court record.
(32) It would become manifest from the aforesaid that the learned trial Court has based the conviction of convict/appellant on testimonies of the informant Shyam Lal (P.W.1), his wife Smt. Dhanawati (PW-2) and Devnarayan (P.W.3), who are the father, mother and uncle (fufa), respectively, of the deceased.
(33) The first issue relates to the credibility of the F.I.R. So far as the credibility of the FIR in this case is concerned, learned counsel for the appellants has questioned its reliability on the ground that there was inordinate and unexplained delay of two days in lodging of the F.I.R. which has rendered the entire prosecution liable to be rejected. The issue whether prosecution case is liable to be thrown out merely on the ground of delay itself or not has been considered and examined by the Apex Court in several decisions, and it will be useful to refer to some of the authorities on the issue.
(34) The Hon'ble Apex Court in Tara Singh and others Vs. State of Punjab : AIR 1991 SC 63, in paragraph 4 of its judgment has observed as hereunder:-
"4. It is well-settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the" report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case. In the instant case there are three eye-witnesses. They have consistently deposed that the two appellants inflicted injuries on the neck with kirpans. The medical evidence amply supports the same. In these circumstances we are unable to agree with the learned Counsel that the entire case should be thrown out on the mere ground there was some delay in the FIR reaching the local Magistrate. In the report given by P.W.2 to the police all the necessary details are mentioned. It is particularly mentioned that these two appellants inflicted injuries with kirpans on the neck of the deceased. This report according to the prosecution, was given at about 8.45 P.M. and on the basis of the report the Investigating Officer prepared copies of the FIR and dispatched the same to all the concerned officers including the local Magistrate who received the same at about 2.45 A.M. Therefore we are unable to say that there was inordinate and unexplained delay. There is no ground to doubt the presence of the eye-witnesses at the scene of occurrence. We have perused their evidence and they have withstood the cross- examination. There are no material contradictions or omissions which in any manner throw a doubt on their varasity. The High Court by way of an abundant caution gave the benefit of doubt to the other three accused since the allegation against them is an omnibus one. Though we are unable to fully agree with this finding but since there is no appeal against their acquittal we need not further proceed to consider the legality or propriety of the findings of the High Court in acquitting them. So far as the appellants are concerned, the evidence against them is cogent and convincing and specific over tacts are attributed to them as mentioned above. Therefore we see absolutely no grounds to interfere. The appeal is, therefore, dismissed."
(35) In State of Himanchal Pradesh Vs. Gian Chand reported in AIR 2001(1) SC 2075, the Hon'ble Apex Court has held that :-
"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."
(36) Thus the legal position which emerges after going through the aforesaid dictum of the Apex Court referred to herein above is that it is settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in the given circumstances of the case delay in lodging the FIR can be one of the factors which may corrode the credibility of the prosecution version but delay in lodging the FIR cannot be a ground itself for throwing away the entire prosecution version as given in the FIR and later substantiated by the evidence, unless there are indications of fabrication. The Court has to further seek explanation for delay and check the truthfulness of the version to inquire and if the court is satisfied then the case of prosecution cannot fall on this ground alone.
(37) In the present case, the offence is said to have been committed on 05.02.2008 at 03:00 P.M., whereas the F.I.R. of the incident was lodged on 07.02.2008 at 08.00 P.M. at police station Khiro, district Raebareli, which is situated at a distance of 15 Kms. from the village of the informant P.W.1. It transpires from the record that on 07.02.2008, informant P.W.1 had submitted a written report (Ext. Ka.2) at Police Station Khiro, District Raebareli, stating therein that on 05.02.2008, at 03:00 P.M., his daughter, victim ''x', aged about 05 years, while playing, went towards the house of Vrindavan (convict/ appellant no.2) and thereafter, his daughter, victim ''x', could not be traced, even after search in the village and nearby areas. It was also alleged in the F.I.R. that Avadhesh, who was the son of his brother Ganga Prasad, was murdered one year ago by the family members of Gangadhar and an F.I.R. was lodged against them, therefore, he had apprehension that due to the said enmity, these people have picked up his daughter (victim ''x') and hid her somewhere. On the basis of the aforesaid written report (Ext. Ka.2), an F.I.R., bearing Case Crime No. 20 of 2008, was registered on 07.02.2008, at 08:00 P.M. under Section 364 I.P.C. against the family members of Gangadhar. P.W.1-Shyam Lal, in his examination-in-chief, has stated before the trial Court that on the date and time of the incident i.e. on 05.02.2008 at 03:00 P.M., he was at Lalganj. His wife, Dhanawati (P.W.2), had telephonically informed him that when she was feeding bullocks at the door, Urmila called their daughter (victim ''x') by showing plumps, on this, their daughter (victim ''x') went towards the house of Urmila but when she did not return, she went to the house of Urmila at 03:30 P.M. to enquire, then, the father of Urmila told her that victim ''x' did not come to his house. On receipt of this information, he came to his house at 05:00 P.M. and immediately thereafter went to the house of Urmila along with his wife Dhanawati (P.W.2) and his brother and asked the father of Urmila, namely, Vrindavan (convict/appellant no.2) about their daughter, then, Vrindavan told them that their daughter (victim ''x') did not come to his house and thereafter, Vrindavan, Hira Lal and Urmila picked up lathi and asked them to leave the place. On the next day i.e. on 06.02.2008, he again searched his daughter (victim ''x') but he could not find her. Thereafter, he proceeded to the police station for lodging report of missing of his daughter, however, in the way at Sahjaura Hotel, policemen met him and he told whole factum of the incident to the policemen, who, in turn, asked him to search his daughter (victim ''x') and they would inform to the Inspector. On this assurance, he returned to his house and searched his daughter (victim ''x') but could not find her. On the next date i.e. on 07.02.2008, he went to the police station Khiro, district Raebareli, wherein he stated whole factum of the incident of missing of his daughter to the Inspector, who, in turn, asked him to write down an application in this regard. Thereafter, he came outside the police station Khiro, wherein he got scribed a written report from his nephew Gyanendra, who after scribing it read over to him and thereafter he signed thereon and lodged it at the police station Khiro. On 08.02.2008, the informant P.W.1-Shyam Lal had submitted another written report (Ext. Ka.1) scribed by his nephew Gyanendra at police station Khiro in furtherance of the aforesaid incident and stated therein that on 08.02.2008, at 06:00-06:15 A.M., his wife Dhanawati (P.W.2) and his niece Milana, who went to attend the call of nature, came and informed him, his family members and his relatives that his neighbours Hira Lal Yadav, Anil Kumar Yadav, Reshu, Urmila and Vrindavan carrying a loaded white-sack from their house, went towards under construction house of Prabhudei (D.W.1). On this information, they all went towards the under construction house of Prabhudei and when they reached there, they saw that Hira Lal Yadav, Anil Kumar Yadav, Reshu, Urmila and Vrindavan were hiding a loaded white-sack in a under construction house of Prabhudei (D.W.1). Thereafter, Hiralal Yadav, Vrindavan and Urmila were caught on the spot along with the white-sack, whereas Anil Kumar Yadav and Reshu fled away. After that, when they opened the white sack, they found the dead body of his daughter (victim ''x'). The informant P.W.1-Shyam Lal had proved Ext.Ka.1 and Ext. Ka.2. P.W.2-Dhanawati had supported the testimony of P.W.1. In these backgrounds, this Court is of the view that the delay, if any, in lodging the F.I.R. stands explained by the prosecution and is, in no way, fatal to the case of the prosecution.
(38) Now, this Court would deal with the contention of the learned Counsel for the appellant No.1 that there was delay in sending the F.I.R. to the Magistrate, therefore, the benefit of the same be accorded to the convict/appellant.
(39) It is pertinent to mention that Section 157 of the Cr.P.C. and its legal impact on the trial has been examined by the Apex Court in Ombir Singh v. State of Uttar Pradesh and Anr. (Criminal Appeal No.982 of 2011, decided on 26.05.2020), wherein the Apex Court had reiterated that mere delay in sending the FIR to the Magistrate in compliance of Section 157 of Cr.P.C cannot be a good ground for acquittal of the accused. Therefore, submission of the convict/appellant in this regard cannot be sustained.
(40) The next argument of the learned Counsel for the appellant No.1 is that there is no eye witness of the incident and the case rests on circumstantial evidence and the circumstances relied on would not establish continuity in the links of the chain of circumstances to lead to an irresistible conclusion regarding guilt of the convict/appellant, hence the convict/appellant is entitled to get the benefit of doubt.
(41) It is true that the present case rests on circumstantial evidence and the convict/appellant has been convicted for the murder of the daughter of the informant P.W.1 (victim ''x') vide impugned judgment. In respect to convict the person in a case of circumstantial evidence, the Apex Court in the celebrated case of Sharad Birdhichand Sarda v. State of Maharashtra: AIR 1984 SC 1622, has held that the following conditions must be fulfilled before a case against an accused can be said to be fully established :-
"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;
2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of a conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
(42) The aforesaid principles of law, which have been laid down by the Apex Court, show that while dealing with circumstantial evidence, the onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea.
(43) In a case of circumstantial evidence, conditions precedent, before conviction could be based on circumstantial evidence, must be fully established such as (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must' or ''should' and not ''may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(44) Keeping in mind the aforesaid principles of law, we proceed to examine the instant case whether the prosecution has been able to establish a chain of circumstances so as not to leave any reasonable ground for the conclusion that the allegations brought against the accused persons are sufficiently proved and established.
(45) This Court has gone through the evidence of P.W.1-Shyam Lal and P.W.2-Dhanawati and have no hesitation in observing that their testimonies are wholly credible and reliable. It is true that there is no evidence of any witness who might have seen the convict/appellant causing death of the daughter of the informant Shyam Lal (P.W.1) and the prosecution case is based on circumstantial evidence of "last seen together" and P.W.2-Dhanawati has been examined to prove this fact. The statement of PW-2-Dhanawati is significant as an evidence of the circumstance of last seen. The last seen evidence is very important circumstantial evidence and if proved and found trustworthy, it can singularly lead to the inference of guilt.
(46) At this juncture, it would be apt to mention that in Ravi v State of Karnataka : AIR 2018 SC 2744, reversing the conviction based on "last seen together" where there was a time gap of four days between last seen and recovery of dead body and as per postmortem report, the death must have occurred 30 hours ago, the Apex Court held that the time gap was considerably large and no corroboration was forthcoming, and therefore, in absence of any other circumstance which could connect the accused with crime, reasonable doubt as to involvement of accused is created and in such situation, the burden would not shift under section 106 of the Evidence Act. Following the judgments in Mohibur Rahman vs State of Assam : (2002) 6 SCC 715 and Malleshappa vs State of Karnataka : (2007) 13 SCC 399, the Hon'ble Apex Court held as under:
"Last seen together' is certainly a strong piece of circumstantial evidence against an accused. However, as it has been held in numerous pronouncements of this Court, the time lag between the occurrence of the death and when the accused was last seen in the company of the deceased has to be reasonably close to permit an inference of guilt to be drawn. When the time lag is considerably large,....., it would be safer for the court to look for corroboration."
(47) In the instant case, P.W.2-Dhanawati is the mother of the deceased victim ''x'. She deposed before the trial Court that on the date of the incident i.e. on 05.02.2008, at 03:00-03:30 P.M., her daughter was playing in front of her door and she was also feeding her animals there. There was a plum tree in front of her house. Urmila (daughter of convict/appellant No.2, Vrindavan) came with a long stick (laggi) and plucked the plums from the tree and went towards her house with the plums and from there, she called her daughter, showing the plums. Thereafter, when her daughter started to go there, she tried to stop her, however, her daughter told her that she would come in a while and she went to the house of Urmila. After 20-25 minutes, when her daughter did not return, she went to the house of Urmila in search of her daughter. However, father of Urmila, namely, Vrindavan (convict/appellant no.2) met at his door and when she asked him about her daughter, then, Vrindavan told her that her daughter did not come there and after that Vrindavan took a danda, on this, she returned back. From the aforesaid, it is crystal clear that P.W.2-Dhanawati is the witness of ''last seen' of her daughter going towards the house of Vrindavan. Appellant/convict has not disputed the fact that they were not arrested on spot along with loaded white sack, from which dead body of the deceased victim ''x' was recovered. After a close scrutiny of the evidence given by P.W.1, P.W.2 and PW-3 and medical evidence, the learned trial Court has rightly concluded that the appellants committed the murder of the daughter of informant (victim ''x').
(48) Furthermore, once it is established that Urmila, who was the daughter of convict/appellant Vrindavan, called the daughter of the informant (victim ''x') by showing plums and on this, daughter of informant (victim ''x') went towards the house of Urmila (i.e. Vrindavan house), it was on the convict/appellant to explain what happened thereafter. In view of Section 106 of the Evidence Act, the burden was on the convict/appellant to explain as to how injuries were found on the body of the deceased which could not have been caused. The learned trial Court has rightly convicted the convict/appellant for the murder of the daughter of the informant (victim ''x').
(49) The next argument of the learned Counsel for the appellant No.1 that appellants were falsely implicated, but, there appears to be no reason for their false implication. Had it been so as alleged by appellants, any of the villagers would definitely come to adduce evidence in support of the appellants. This Court find that there is no force in the argument of the appellants regarding their false implication. If read in conjunction with the statement of last seen given by PW-2 Dhanawati, medical evidence as well as spot arrest conclusively indicate the hypothesis that it was they and they only, who have committed murder of the deceased.
(50) In view of the above discussion, this Court find that the conclusion of the learned trial court that the prosecution has successfully established that the convicts/appellants committed murder of the victim is based on unimpeachable evidence of ''last seen' supported by medical evidence and the conduct of the appellants themselves prior to and soon after the incident.
(51) Learned Counsel for the appellant has next argued that though P.W.1- Shyam Lal, P.W.2- Dhanawati and P.W.3-Devnarayan are father, mother and 'fufa' (uncle) respectively, of the deceased (victim ''x'), therefore, their testimonies cannot be relied upon as they are interested and partisan witnesses.
(52) It cannot be ignored that presence of P.W.1, P.W.2 and P.W.3 at the time of the arrest of the convict/appellant along with loaded white-sack is well established and there appears to be no inconsistency in the evidence to show that their evidence is not a reliable one and the trial Court has also examined their evidence and did not find anything contrary on record to disbelieve their evidence.
(53) The criminal law jurisprudence makes a clear distinction between a related and interested witness. A witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. The witness may be called "interested" only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished as held by the Hon'ble Apex Court in Sudhakar Vs. State : (2018) 5 SCC 435. Thus, from the facts and circumstances of the case, it cannot be said that the testimonies of P.W.1, P.W.2 and P.W.3 are not trustworthy and are not reliable.
(54) The medical evidence also corroborates the testimonies of the prosecution witnesses. The P.W.4- Dr. Arvind Kumar, who conducted the post-mortem of the deceased (victim ''x') has opined the cause of death of the deceased (victim ''x') due to shock and haemorrhage as a result of ante-mortem injuries. P.W.4- Dr. Arvind Kumar had also opined that the death of the deceased (victim ''x') was attributable on 05.02.2008 between 3 to 3:30 P.M. and the age of the deceased at the time of death was five years.
(55) So far as the submission of the learned Counsel for the convict/appellant that there was no motive on the part of the convict/appellant to commit the murder of the daughter of the informant P.W.1 is concerned, it transpires from the record that Avadhesh, who was son of the brother of the informant, was murdered before one year from the date of the incident by the family members of convict/appellant. The informant P.W.1 was one of the witness of that case and also doing pairvi of that case. Thus, the enmity between the family members of the convict/appellant and family members of P.W.1 and P.W.2 is well established. Thus, the contention of the convict/appellant is not sustainable in this regard.
(56) So far as the contention of the learned Counsel for the convict/appellant that the testimonies of defense witness i.e. D.W.1 Prabhudei has wrongly been discarded by the trial Court, is concerned, it transpires from the record that Section 39 of Cr.P.C. deals with the duty of the public to give information forthwith related to commission of certain offences if they became aware of such commission or of the intention of any other person to commit such offence. In absence of any reasonable excuse, since it is the duty of public to forthwith give information to the nearest Magistrate or police officer relating to the commission of offences or of the intention of any other person to commit any offence as specified under section 39 of Cr.P.C., if a person takes a plea of any reasonable excuse for not giving such information then the burden of proving such excuse shall lie on him. The evidence of D.W.1-Prabhudei shows that on 07.02.2008 at 08:00 P.M., when she had gone to her under construction house for picking up wood, she saw a hand protruding outside a sack and thereafter she came outside the under construction house and made noise, upon which Shyam Lal (P.W.1) and other family members came there. It is not in dispute that when D.W.1 Prabhudei saw a hand protruding outside a sack on 07.02.2008 at 08:00 P.M., she did not inform the police in terms of Section 39 of the Cr.P.C. but instead in her statement, she herself had stated before the trial Court that the police came on the next day at 04:00 A.M. In these backgrounds, this Court is of the view that the trial Court has rightly disbelieved the testimony of D.W.1 Prabhudei.
(57) Thus, from the evidence led by the prosecution it is well established that it was the convict/appellant, who was involved in the present case and has murdered the daughter of informant P.W.1-Shyam Lal. The prosecution has proved its case beyond reasonable doubt against the convict/appellant and the trial Court after scanning the entire prosecution evidence has rightly convicted and sentenced the convict/appellant for the offence in question.
(58) In view of the above and for the reasons stated hereinabove, no interference of this Court is called for in the instant appeal as the learned trial Court has rightly convicted and sentenced the convict/appellant by the impugned judgment and order.
(59) The instant appeal on behalf of appellant no.1- Heera Lal fails and deserves to be dismissed and is accordingly dismissed.
(60) The appellant no.1-Heera Lal, who is in jail, shall serve the sentence as awarded by the trial Court.
(61) Let a certified copy of this order as well as Lower Court Record be transmitted to the Court concerned for necessary information and compliance forthwith.
[Mrs. Saroj Yadav, J.] [Ramesh Sinha, J.]
Order Date :- 25.07.2022
Shubhankar