Allahabad High Court
Rajan Yadav vs State Of U.P. on 18 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 506
Bench: Ramesh Sinha, Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 23.02.2021 Delivered on 18.03.2021 Court No. - 10 Case :- CRIMINAL APPEAL No. - 507 of 2010 Appellant :- Rajan Yadav Respondent :- State of U.P. Counsel for Appellant :- Subodh Kumar Shukla,Amrit Kumar Tiwari,Maya Ram Yadav,Santosh Kumar Srivastava Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 859 of 2010 Appellant :- Teja @ Tej Prakash Yadav Respondent :- State of U.P. Counsel for Appellant :- Shailesh Tiwari,Girish Kumar Pandey,Santosh Kumar Srivastava,Satya Prakash Pandey Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Rajeev Singh,J.
(Per: Ramesh Sinha, J. for the Bench)
1. Since both the appeals arise out of a common order, hence, with the consent of learned counsel for the parties, both the appeals are being decided by a common order.
2. The present two Criminal Appeals have been preferred by the appellants- Rajan Yadav & Teja @ Tej Prakash Yadav against the judgment and order dated 30.01.2010 passed by Special Judge, Gangster Court, Faizabad in Gangster Case No.211 of 2005 (State Vs. Teja alias Tej Prakash Yadav and Another),convicting and sentencing and appellants under Section 323/34 I.P.C. to 1 year R.I., under Section 364 I.P.C. to 10 years R.I. and fine of Rs.2000/- each and in default payment of fine, further 6 months R.I., under Section 302/34 I.P.C. to life imprisonment and fine of Rs.3000/- each and in default of payment of fine further 1 year R.I., under Section 201 I.P.C. to 5 years R.I. and fine of Rs.1000/- each and in default of payment of fine further imprisonment of 6 months R.I. and under Section 3(1) U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 to 4 years R.I. and fine of Rs.5000/- each and in default of payment of fine further imprisonment of 1 year R.I. Further, convicting and sentencing the appellant-Teja @ Tej Prakash Yadav under Section 3/25 Arms Act to 2 years imprisonment and fine of Rs.1000/- and in default of payment of fine 6 months further imprisonment. All the sentences were directed to run concurrently.
3. The prosecution case in brief is that a written report was lodged by the informant Jairaj Yadav, son of Sitaram, stating therein that his brother, namely, Sewaram who was a contractor and used to ply boat on rent in river and used to get the people crossed through the river on the either side. Two moths prior to the incident, his brother had some dispute with Teja @ Tej Prakash, son of Hari Ram and Rajan Yadav, son of Amrit Lal, resident of Ghasiyari Tola, Police Station Kotwali Tanda, District Ambekdarnagar regarding the money charged for the said purpose, on account of which Rajan Yadav and Teja @ Tej Prakash bore enmity with his brother. On 21.12.2004 at about 9:00 p.m. in the night, the informant along with his brother Sewaram and Lal Bahadur Yadav, son of Hari Prasad, resident of Phoolpur, were going to Duhia by passing Alibagh Ghat Kasba Tanda through Nagar Palika and near Nagar Palika, Rajan Yadav and Teja @ Tej Prakash who were armed with hockey, met them. Rajan Yadav and Teja @ Tej Prakash caught-hold his brother Sewaram and dragged him in the premises of Nagar Palika. Thereafter, the informant and Lal Bahadur rushed to save him, then both of the accused assaulted Lal Bahadur with hockey sticks and beaten him mercilessly and thereafter they ran towards him also to assault him, on which the informant along with Lal Bahadur ran to save their lives. Accused Rajan Yadav and Teja @ Tej Prakash dragged his brother Sewaram towards river after beating him. The informant and Lal Bahadur raised alarm, but none had came to rescue them.Thereafter, the informant and Lal Bahadur went on foot and reached the Village Duhia and informed about the incident to his family members as well as to the villagers. They searched Sewaram on both sides of the river, but his whereabouts could not be traced out. The informant had a strong belief that his brother Sewaram had been abducted by Rajan Yadav and Teja @ Tej Prakash with an intention to kill him. Since, the accused Rajan Yadav and Teja @ Tej Prakash are the men of criminal antecedents, hence, he submitted a report at the concerned police station against them for appropriate action.
4. On the basis of the written report submitted by the informant Jairaj Yadav, the F.I.R. of the incident was registered at Police Station Kotwali Tanda, District Ambedkarnagar on 22.12.2004 against the accused Rajan Yadav and Teja @ Tej Prakash which was registered as Case Crime No.350 of 2004, under Sections 323, 364 I.P.C.
5. The scribe of the F.I.R. is Vijay Kumar Yadav, son of Sri Ram Bahal Yadav, resident of Village Duhia, Police Station Kotwali Tanda, District Ambedkarnagar.
6. The investigation of the case commenced and during the course of investigation on 29.12.2004, an information about the recovery of the dead body of the deceased Sewaram from the river-bed was given by the informant Jairaj Yadav to the police station. During the course of investigation, it has come that the accused in order to get the pecuniary benefits and to terrorize the society used to commit the crime by making a gang of criminals. Hence, after investigation separate charge sheets for the offence under Sections 323, 364, 201 I.P.C. and 3(1) U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 were submitted against the appellants, namely, RajanYadav and Teja @ Tej PrakashYadav and also against the appellant Teja @ Tej Prakash under Section 3/25 Arms Act before the competent Court and the Court in pursuance of the same took cognizance of the offence.
7. The charges were framed against the appellants under Sections 323/34, 364, 302/34, 201 I.P.C. and 3(1) of U.P. Gangster Act and also the charge was framed against the appellant Teja @ Tej Prakash for the offence under Section 3/25 of the Arms Act. The appellants denied the charges and claimed their trial.
8. The prosecution in support of its case has examined PW1-Jairaj Yadav (informant), PW2-Lal Bahadur, PW3-Guddu, PW4-Rampal, PW5-Dr. Vivek Gupta, PW6- Constable 181 Virendra Yadav, PW7-Vinod Kumar Yadav, PW8-Dr. Atal Bihari Verma, PW9-Arvind Kumar Pandey, PW10 S.I. Ramesh Chandra Yadav, PW11-S.I. Rajendra Prasad Kannaujia & PW12 Constable Kailash Singh.
9. The statements of the accused were recorded under Section 313 Cr.P.C. in which they have stated that the informant in collusion with the local police and under the influence of their rivals, have lodged the F.I.R. for an incident which is a cooked-up story.
10. The accused in their defence has examined DW1-Suresh Kumar Srivastava.
11. PW1-Jairaj Yadav, in his deposition before the trial Court, has reiterated the prosecution case, as has been stated in the F.I.R. and submitted that on 22.12.2004 he lodged a report and when he had lodged the report, a day prior to the incident, his brother Sewaram was beaten by the accused Rajan Yadav and Teja @ Tej Prakash. About one month prior to the incident, some altercation took place between his brother Sewaram and Rajan Yadav and Teja @ Tej Prakash, on account of which the accused bore enmity with his brother. The incident had taken place at 9:00 p.m. in the night. When his brother Sewaram was passing through near Nagar Palika Tanda, then accused Rajan Yadav and Teja @ Tej Prakash met him, who were armed with hockey and after assaulting Sewaram they dragged him towards North. When this witness along with Lal Bahadur ran to save him, then the said accused also assaulted Lal Bahadur. Thereafter the informant fled away from there, came to his village and informed about the incident to the villagers. As this witness became afraid, hence, did not go to the police station and on the next day he got a report written by Vijay Kumar Yadav to whom he dictated about the incident. In pursuance of which, the First Information Report was registered at the concerned police station. He has proved the written report as Ext. Ka.1 and has identified his signature on the same.
12. The investigating Officer recorded his statement on the same day and thereafter the Investigating Officer had come to his village after 6-7 days and along with him there were 5-6 police constables also. The Investigating Officer had told him that the investigation has to be done and this witness was also told by the Investigating Officer that near pontoon bridge the dead body of his brother could be recovered and also there is possibility of the accused to be present there.
13. This witness and others along with the police team went near the pontoon bridge. Thereafter, the police went towards East to Karwari and near the Marahi the accused Rajan Yadav was found. He tried to flee after seeing the police but the police apprehended him. After being apprehended, the accused Rajan Yadav told that he along with Teja @ Tej Prakash carried Sewaram on a boat across the river and in the mids of the river his brother Sewaram was shot at by the accused Teja @ Tej Prakash with country-made pistol and killed. Thereafter, all the clothes of Sewaram were put off and his dead body was thrown in the river and his clothes were taken to Karia Ki Marahi and the same were burnt by them. Thereafter, accused Rajan Yadav had taken the police party at the place where the clothes were burnt, from where the remains of burnt bed sheet and clothes of his brother Sewaram (deceased) were also recovered by the police and the police sealed the same. The dead body of the deceased was recovered on the second day of recovery of remains of burning of the clothes of the deceased.
14. This witness further stated that he along with Pintoo of the village and 2-3 other persons had gone to search the dead body of his brother and when they reached the Ghat of Yam River, then he found the dead body of his brother lying on the riverbed. There was black thread found in the neck of his brother in which there were two keys. There were six fingers in the leg of the deceased, due to which he identified the dead body to be of his brother. Thereafter, he took the dead body to his house and had given a written information through the Gram Pradhan of the village. The said information which was given to the police about the recovery of the dead body, he has signed the same and proved the same as Ext. Ka.2
15. This witness further stated that on the information given, the police had arrived and conduced the panchayatnama of the dead body of the deceased and he had also signed the inquest report.
16. In his cross-examination,this witness has stated that there was no litigation going on with him or with his brother with the accused Rajan Yadav and no marpeet had taken place prior to the incident. He knew Rajan Yadav prior to 2 years of the incident and he did not use to go to his house and he had seen Rajan Yadav at Tanda Bazar.
17. This witness has denied the suggestion that he did not know Rajan Yadav. He further denied the suggestion that he did not know Rajan Yadav and at the instance of the police he has disclosed his name. He also did not know what the accused Rajan Yadav used to do, how much he is educated and what work he does. There was no money dispute between him and Rajan Yadav. He further stated that on the day of the incident, he had come along with his brother Sewaram at about 7:00-8:00 a.m. and looked-after the work near the river and returned at about 8:30-9:00 p.m. from there and prior to it they often used to return at about 4:00-5:00 p.m.
18. This witness further stated that he along with others did not carry lantern, torch, lathi danda or anything. The accused had met them at Nagar Palika road. On the road, there were people coming and going and vehicles were also passing through.When the accused reached to his brother, no conversation had taken place between them and because of fear he fled away from the place of occurrence. He further stated that his brother had not died in his presence. He went to his house and informed that his brother was being beaten. From the house no one had come in the night and had come on the next day. On the next day at 7:00-8:00 a.m. many persons of the village had come to the place of occurrence and he informed that it was the place where the quarrel took place. After he had fled from the place of occurrence on the said date, in the night he did not inform at the police station about the incident and on the next day while he was coming to the place of occurrence he did not remember how much time it took to search his brother. The dead boy of his brother was recovered near Ghaghra river outside the area of Nagar Palika and it was not recovered in the area of Nagar Palika. After the recovery of the dead body, he informed the police station Kotwali and lodged a report. From the place where the dead body was recovered, he took the same to his house and on the said day only the police had come. The panchayatnama of the deceased was conducted.
19. In his cross examination, he further stated that his brother was beaten by the accused by hockey and he had seen the accused beating his brother 2-4 times with hockey but because of fear he fled away from the place of occurrence. He did not see who had arrived at the place of occurrence and how the incident had taken place.
20. He denied the suggestion that he was deliberately telling lie and he was not with his brother on the day of the incident. He further denied the suggestion that he did not see any incident and at the instance of the police he lodged a false F.I.R. He also denied the suggestion that he, at the instance of police, is falsely deposing.
21. In his cross-examination made on behalf of the accused Teja alias Tej Prakash, this witness has stated that the incident had taken place 3-4 years prior. In the year of the incident it was winter and it was dark night. The deceased Sewaram, his brother, was addictive and drunkered and he had no enmity with anyone. Since how long he was doing the work of contractor he did not know. He was also unaware of the reason due to which there was quarrel of his brother with accused Teja @ Tej Prakash. He had seen the accused Teja @ Tej Prakash many times and since when he knew him, he does not know. How long the 'marpeet' took place between the accused and his brother, he was unaware of the same. He further stated that he does not know the reason due to which the dispute took place between his brother and the said accused.
22. He further stated that the medical examination of injured Lal Bahadur was not conducted at any place. The injuries which have been sustained by Lal Bahadur was not caused by fall but because of the assault made by the accused on him.
23. The dead body of the deceased was recovered after 5-6 days of the incident and the dead body was recovered by this witness and others and not by the police, which was lying in the river with face underneath and he had identified the dead body of the deceased to be of his brother because of six fingers on his leg. The case property and the weapon of assault were produced in the Court during the evidence. At the time of the post mortem of the deceased, he was present and till what time the post mortem proceedings went on, he had no knowledge. The blood stained clothes were given to the Investigating Officer at the police station by the witness and Investigating Officer went to the place of occurrence to see the same and he was with the Investigating Officer continuously for about 1-2 days. The Investigating Officer further recorded the statements of the witnesses in his presence and after how many days of the incident the Investigating Officer had recorded their statements, he has no knowledge. He is also unaware of the fact that the accused Teja @ Tej Prakash is a respectable citizen. He denied the suggestion that because of the dark night and dense fog he had not seen the incident. He further denied the suggestion that he disclosed the name of the accused at the instance of the villagers and further denied the suggestion that he got the report written at the police station.
24. PW2-Lal Bahadur who is an injured witness, has deposed before the trial Court that he had not seen the accused Rajan Yadav and Teja @ Tej Prakash dragging the deceased Sewaram or assaulting him. On the day of the incident, some person had also assaulted him with hockey but he could not identify them. At this stage this witness was declared hostile and Public Prosecutor was given opportunity to cross-examine him.
25. On cross-examination, this witness has stated that he was assaulted near Nagar Palika when he had gone to hand over boat and Jai Raj was not with him. The Investigating Officer had not recorded his statement under Section 161 Cr.P.C. and stated that he has no knowledge that how it was written. This witness denied the suggestion that he had won over by the accused and he has been deposing falsely.
26. He was again cross-examined by the accused and stated that he was beaten towards the road coming from Nagar Palika Tehsil to Kotwali and from there Kotwali is 250 meters. He had not met Jairaj Yadav and Sewaram on the said date and in the night he used to come from Tanda to his house and on the said date he had gone at about 11:00 p.m. It was dark and foggy night, on account of which he did not identify the accused.
27. PW3-Guddu who is witness of arrest of accused Teja @ Tej Prakash and also is a witness of recovery of country-made pistol from the pointing of the accused Teja @ Tej Prakash, has deposed before the trial Court that the incident had taken place on 01.01.2005. On the said date, SHO, Tanda Kotwali along with police personnel had taken him along with witness Rampal for the arrest of the accused Teja @ Tej Prakash near Karia Ki Marahi and after the arrest of accused Teja @ Tej Prakash, who also accompanied with the police party, got recovered a countrymade pistol and four live cartridges from jute bag and stated that he had committed the murder of the deceased Sewaram with the said country-made pistol. The SHO of Police Station Kotwali Tanda had sealed the country-made pistol and live cartridges at the said place and prepared a recovery memo of the same. On which this witness along with other witness and the accused had put their thumb impression on the same. He proved the recovery memo which was read over to him. He stated that the same was written by the Investigating Officer, on which his thumb impression is affixed. The recovered country-made pistol and live cartridges were opened before the Court which he identified to be the same which the accused Teja @ Tej Prakash had got recovered and the same was marked as material Ext.1 & 2 to 5. and empty cartridge is material Ext. 6. The accused had also got empty cartridge recovered along with country-made pistol and live cartridges. The Investigating Officer recorded his statement under Section 161 Cr.P.C..
28. This witness in his cross examination has stated that the incident had taken place 5 years ago near Karia Ki Marahi. He is an illiterate person and used to do the work of welding. He stated that he is seeing the accused Teja @ Tej Prakash for the first time in the Court. The police had taken this witness from his house. The jeep on which he was taken, there were 5-6 persons and he does not know the number of the jeep. The police personnel did not prepare any paper in his presence nor read over the same to him and when they had taken him from his house they got his thumb impression on a blank paper. He further stated that the distance of Karia Ki Marahi from his house which is in North direction is 20-25 kms. and he had gone in the afternoon to Karia Ki Marahi and it was about 11:00 a.m. and from Karia Ki Marai illegal weapon of assault of 12 bore country-made pistol was recovered and the same was in running condition. When the recovery was made, 40-50 people were arrived there. Live cartridges were also recovered which were in running condition. In preparing the recovery memo, the Investigating Officer took 4-5 hours and after the said date he did not meet the Investigating Officer.
29. He denied the suggestion that the country-made pistol and cartridges were not recovered in his presence. He further denied the suggestion that under the influence of police he is falsely deposing. He also denied the suggestion that under the influence of Jairraj Yadav he is falsely deposing. At the time of his evidence, informant Jairaj Yadav was present in the Court.
30. PW4-Rampal has deposed before the trial Court that on 01.01.2005 he and Guddu were taken by the SHO of Kotwali Tanda along with other police personnel telling them about the purpose for arresting the accused Teja @ Tej Prakesh near Karia KI Marahi, where Teja @ Tej Prakesh had got recovered a countrymade pistol, four live cartridges and one empty cartridge and recovery memo of the same was prepared by the Investigating Officer at the place from where it was recovered. The country-made pistol and other articles which were recovered, were sealed there only. The recovery memo was read over to him and he along with other witness and accused signed the same and put their thumb impression on the same. He also identified the recovery memo in the Court which is stated to have been written by the Investigating Officer at the spot and he had affixed his thumb impression. When the articles recovered were shown to him, he stated that the accused Teja @ Tej Prakesh had got recovered the same and his statement under Section 161 Cr.P.C. was recorded. He denied the suggestion that at the instance of police he has affixed his thumb impression and further denied that he has falsely deposed.
31. PW5- Dr. Vivek Gupta in his examination before the trial Court has stated that on 22.12.2004 he was posted at Community Health Centre at Tanda on the post of Medical Officer. On the said date, he had examined the injured Lal Bahadur who was brought by Homeguard at 2:45 p.m. from Kotwali Tanda, District Ambedkarnagar and during his examination he found the following injuries on his person:-
"Injuries
1. L/W 1.0 cm. x 0.3 cm. on Lt side of scalp, 5.0 cm. above Lt. eyebrow. Injury Muscle deep. C/o pain Rt. shoulder, Rt. knee, but no external mark of injury present."
32. In the opinion of the doctor all the injuries were found to be simple in nature and were caused by hard and blunt object. The duration of injury was one day old. He stated that the injury could be caused to the injured on 21.12.2004 at 9:00 p.m. in the night. He has proved the said medical examination report of the said injured as Ext. Ka.2 in his hand writing and signature.
33. In his cross-examination, this witness has stated that during the course of the evidence, the injured is not present in the Court. He stated that the injury no.1 which was a lacerated wound could be caused by fall while running on a pointed stone and when he was examining the injury no.1 it was not bleeding and injury no.2 was mentioned by him as was told by the injured.The duration of the injury which he had mentioned, was not at the instance of the injured. The rest of the injury etc. could be caused due to running on account of fall, is possible.
34. The working hours of PHC is from 8:00 a.m. to 2:00 p.m.. The injured was medically examined on 22.12.2004 at 2:45 p.m. and it took 10 minutes to examine his injuries.
35. PW6-Constable 181 Virendra Yadav in his deposition before the trial Court has stated that on 01.01.2005 he was posted as Constable at Police Station Kotwali Tanda and on the said date the Inspector Sri Vinod Kumar Yadav had submitted a recovery memo, on the basis of which Chick FIR No.1of 2005, arising out of Case Crime No.1 of 2005, under the Arms Act was registered at 10:30 against the accused Teja @ Tej Prakesh. Accused Teja @ Tej Prakesh was wanted in Case Crime No.350 of 2004 and Chick FIR of the said case was prepared by this witness under his hand writing which he has proved and which has been marked as Ext. Ka.3. He also proved the G.D. Entry vide G.D. No.16 at 10:30 dated 01.01.2005 for endorsing the registration of the F.I.R. under the Arms Act and carbon copy of which is on record, was prepared from the original one, was singed by him, which he proved as Ext. Ka.4.
36. In his cross-examination made on behalf of accused Teja @ Tej Prakash, this witness has stated that the original G.D. is not before him and on the carbon copy of the G.D. there is his carbon signature, he identified his signature.
37. The material exhibits of the case was not before the witness when he was deposing in the Court. While registering the F.I.R. of the crime in question, the Inspector of Police Station Kotwali was present in his office. He has not mentioned in the G.D. about the same because on his written report the F.I.R. was registered. As the original G.D. was not before him, hence, it was not possible for him to state whether any cognizable offence or non-cognizable report about the offence was earlier registered before the said case or not. He stated that it is wrong to state that the time mentioned in the G.D. was anti-time. He further stated that it is wrong to state that he under the influence of the Inspector is giving evidence. After meeting the Investigating Officer at the concerned police station he did not meet him again.
38. PW7-Vinod Kumar Yadav in his deposition before the trial Court has stated that on 22.12.2006 he was posted as In-charge Inspector of Kotwali Tanda, Case Crime No.350 of 2004, under Sections 323, 364 I.P.C. was registered during his tenure and investigation of the same was entrusted to the Investigation Officer Sri Bandhan Ram Ghusia, S.I. who commenced the investigation. Sri Bandan Ram went on long leave, on account of which on 28.12.2004 he took the investigation of the present case. He arrested the accused Rajan Yadav on 28.12.2004 and recorded his statement and at the pointing out of the accused Rajan Yadav he recovered the remains of burnt clothes of the deceased Sewaram and prepared its recovery memo and sealed the same.The recovery memo was written by Head Constable Ramesh Chandra on his dictation. On the fard recovery memo there are signatures of Head Constable Manoj Yadav, Constable Ram Saware, accused Rajan Yadav and Zilajeet also put his thumb impression on the same. On the recovery memo this witness has also put his signature and proved the same as Ext. Ka.5 which is on record.
39. This witness further stated that on 29.12.2004, he conducted the panchayatnama on the dead body of the deceased Sewaram which was prepared by the Head Constable Ramesh Chandra and the same was copied by him in the case diary and he recorded the statements of witnesses of fard and witnesses of panch, namely, Jairaj Yadav and Zilajeet under Section 161 Cr.P.C. On 01.01.2005, he arrested the accused Teja Yadav @ Tej Pakash and recorded his statement. The accused confessed his guilt and told for getting the countrymade pistol, live cartridges recovered. On the pointing out of the accused, in the presence of Head Constable Ramesh Chand Yadav, Constable Radhey Shyam Maurya, Constable Om Prakash, Constable Ram Sabad Yadav, witness Rampal and Guddu Yadav, a countrymade pistol of 12 bore, four live cartridges of 12 bore and one empty cartridge of 312 bore were recovered near Karia Ki Marahi from a bag which was taken out by the accused Teja @ Tej Prakash and given to him. This witness has identified the recovered countrymade pistol and cartridges in the Court and stated that the same were recovered from the spot at the pointing out of the accused Teja @ Tej Prakash. He proved the recovered countrymade pistol as material Ext.1, live cartridges as material Ext. 2 to 5 and empty cartridge as material Ext.6.
40. On the basis of fard recovery memo, Case Crime No.1 of 2005, under Section 25 of the Arms Act was registered at Police Station Kotwali Tanda against the accused Teja @ Tej Prakash and recovery memo of the same was prepared by Head Constable Ramesh Chandra on his dictation and he had got the signature of the accused and other witnesses and thumb impression affixed on the same and proved the said recovery memo as Ext. Ka.6.
41. In his cross-examination,he stated that he is the informant of the said case registered under the Arms Act and investigation of the said was carried on by his subordinate Sub Inspector. The case property was not before him. On the alleged day of the incident, he had left the police station for supervising the law and order situation but as to when he had left the police station he has no knowledge. The original G.D. of the police station was not available in the Court. After leaving the police station he had no knowledge about the distance of village Duhia and further it is at a distance of 3 Kms. and for supervising the area he had used the government vehicle and after leaving the police station for the said purpose he stopped at the kasba for an hour and for what purpose and was he was doing, he does not remember. While his stay at Kasba Duhia for an hour he had taken two witnesses of the said village and he does not remember their names and after perusing the case diary he would remember the same. After taking the two witnesses he went in search of the two accused of case crime No.350 of 2004, under Sections 323, 364, 302, 201 I.P.C. and it took about 1/2 an hour or 45 minutes for taking witness from village Duhia and to trace out the accused of Case Crime No.350 of 2004.
42. The police informer met him in Kasba Tanda. The meeting of the police informer and the place where the accused were hiding, the distance was told by the informer, which he did not remember. Karia Ki Marahi is in Majha area which is across the river and for going across the river a help of vehicle is to be taken. Pontoon bridge is constructed on which heavy vehicle were being used by plying from one ghat to another.
43. On the spot there was water in the river. The Kotwali Tanda is at a distance of 3-4 kms. away from Karia Ki Marahi and through Pontoon bridge it can be reached and on which direction, he does not remember. Prior to the arrest of the accused, the accompanying persons in the team were searched and after the arrest of the accused he did not give an opportunity to get the accused his personal search. He had given an information to the higher authorities regarding arrest of the accused and articles recovered and he had given the said information after coming to the police station. He had seen the accused Teja @ Tej Prakash for the first time and he came to know about his name on the information given by the police informer and the witnesses. At the spot it took about 1-1/2 to 2:00 hours for Head Constable to prepare the fard recovery memo which was dictated to him by this witness,thereafter the accused was arrested and taken to the police station and the accused was first arrested by the witness and his other police personnel who were with him.
44. At the pointing out out of the accused, recovery was made near Karia Ki Marahi which the accused himself had taken out and given. The recovered articles were not placed before him during the course of trial, hence, he could tell that on the material exhibits whether there is signature of the accused or not. The place where the accused was arrested it was Majha area and there only police personnel were the witness and there were no person. The place where the recovery was made, a Marahi was constructed and there was no person present or not and whether there was any person present or not he could not tell. The day on which he had arrested the accused, it was cold and not dense fog but there was fog or not he cannot tell. At the place of recovery, there were two huts and field situated. Near the place of occurrence, there were no one person available, hence, he could not made them witness and only a police team was present there and how many police personnel were there he did not know and thereafter the accused was arrested and brought to Kotwali Tanda. The ballistic report of the recovered articles of the case and the report of Armour, the Investigating Officer can tell about it or he may tell the same after perusal of the case diary. After bringing the accused to the police station, on the basis of fard recovery memo, a case was registered and the accused was challaned and was produced before the concerned Court and the papers with respect to the arrest of the accused was submitted to the competent court. On whose pointing out, the spot inspection of the place of recovery was done by the Investigating Officer, he does not remember and stated that he would peruse the case diary and tell about the same.
45. In cross-examination made on behalf of the accused Teja @ Tej Prakash Yadav, this witness has denied the suggestion that he arrested the accused Teja @ Tej Prakash from his house and got a false recovery shown and have falsely challaned him in a case under the Arms Act. He further denied the suggestion that on 01.01.2005, no such incident had taken place at Karia Ki Marahi within the police station of Kotwali Tanda, District Ambedkarnagar. The F.I.R. of the case was registered in his presence in which accused Teja @ Tej Prakash, son of Hari Ram and Rajan son of Amrit Lal were named.
46. The site plan of the case and proceedings conducted by the earlier Investigating Officer was not before him and after he had taken over the investigation, the earlier investigation done by the earlier Investigating Officer was made part in the case diary and it was not verified and again the spot inspection was not conducted nor the site plan was prepared. The earlier Investigating Officer was a subordinate Sub Inspector.
47. In this cross-examination on behalf of the accsued Rajan Yadav, this witness has stated that accused Rajan Yadav was arrested on the way of Kalwari on the Pontoon birdge. He further denied the suggestion that accused Rajan Yadav was called from his house and challaned in the present case. Rajan Yadav confessed his guilt after he was arrested. He denied the suggestion that accused Rajan Yadav has not confessed his guilt. He moved an application before the competent court for recording the statement of accused Rajan Yadav under Section 164 Cr.P.C. but the same was not recorded. Ext. Ka.5 was prepared by him on the spot which was a recovery memo of the remains of the burnt clothes of the deceased and the same was taken by the police, but is not before him while he was deposing in the Court.
48. He further denied the suggestion that at the pointing out of the accused Rajan Yadav no articles were recovered and Ext. Ka.5 was a concocted and fabricated one just to make out a case. He also denied the suggestion that because of the contract of riverbed etc., he with the enemies of accused Rajan Yadav has falsely challaned him. During the course of investigation, he had not got recovered the hockey from the possession of accused Teja @ Tej Prakash. Near the place of occurrence,i.e., Nagar Palika premises Tanda, Ambedkarnagar, there are several shops and houses but he had not made any person residing there as a witness of the case as he did not think it to be necessary as during the course of investigation he had got the criminal antecedents of the accused Teja @ Tej Prakash. The gang chart was prepared which was approved by the District Magistrate, Ambekdarnagar and the cases shown in the gang chart were pending till that time or not, he cannot tell. The gang chart which he has prepared and submitted, he had named both the accused.
49. The informant had told this witness about the incident taken place at 9:00 p.m. in the Nagar Palika Area Tanda and after registration of the case, subordinate Sub Inspector of this witness had gone to the police station on the same day. The panchayatnama of the dead body of the deceased was prepared by HCP Ramesh Chandra. He denied the suggestion that the accused Teja @ Tej Prakash was arrested from his house and named in the present case. It is correct to state that the accused Teja @ Tej Prakash was involved in the incident dated 21.12.2004.
50. This witness further stated that on 01.01.2005 when he was busy in maintaining law and order situation in Kasba Tanda, he received an information that the accused wanted in Case Crime No.350 of 2004 namely, Teja @ Tej Prakash is sleeping in Majha near Karia Ki Marahi and if prompt action is taken, he would be found there. On the said information, he took witnesses Rampal, Guddu Yadav and proceeded towards the said place from where the accused Teja @ Tej Prakash was arrested and he disclosed his name while was interrogated about the incident of Case Crime No.50 of 2004. He confessed his guilt and stated that the countrymade pistol by which he had shot at the deceased Sewaram and the dead body was thrown in the river, he had concealed the same and he would also recover the same. On which the accused got the same recovered and the recovery memo of the same was also prepared. He further stated that he recorded the statement of the witness, namely, Lal Bahadur, Pintoo, Brajlal and Rakesh on 17.3.2005 under Section 161 Cr.P.C. and on 18.3.2005 he prepared the gang chart and got the same approved by the S.P. Ambedkarnagar and District Magistrate, Ambedkarnagar and added offence under Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) act, 1986 in Case Crime No.350 of 2004, under Section 323, 364, 302, 201 I.P.C. and the gang chart which he had prepared under is signature and hand writing, he proved the same as Ext. Ka.7. After the offence Section 3(1) of U.P. Gangster Act was added, the accused was produced before the Special Judge, for remand. The site plan was prepared of the recovery of weapon of assault under his hand writing and signature, which has been proved and marked as Ext. Ka.8. He submitted the charge sheet against the accused Teja @ Tej Prakash and Rajan Yadav and proved the same as Ext. Ka.9 for the offences in question.
51. PW8-Dr. Atal Bihari Verma has stated before the trial Court that on 30.12.2004, he was posted as Medical Officer in Community Health Centre Tanda and on the said date he received a dead body in a sealed condition from the Inspector of Kotwali Tanda through Constable Anand Prakash and Constable Ram Chandra Verma at 11:30 a.m. being handed over for post mortem and he found the following ante mortem injuries on the person of the deceased Sewaram, which are as follows:-
"External Examination
1. Condition of body as regards muscularity, stoutness, emaciation, rigor mortis and decomposition. Average built body swollen skin, peeling all over body sign of decomposition present maggot present in ear. mud and sand present all over body. Hairs and nails are peeling off . Left eye and mouth closed. Rt. eye ball absent.
2. Marks of Identification especially in the case of body of an unknown person
3. Eyes.
4. State of Natural Orifices, ears, nostrils, mouth, anus, urethra and vagina.
5. Injuries Nature, exact position and measurement mentioning direction specially incised wound.
6. Bones
7. External Organs of generation
8. Additional Remarks.
ANTE MORTEM INJURIES
1. Firearm injury present. Wound of entry present over forehead 4 cm. above Rt. eyebrow size 4 cm. x 3 cm. Wound of exit Rt. cheek 5 cm. below Rt. eye pillets and cogweb present underneath the wound of exit.
INTERNAL EXAMINATION
1. Head & Neck
1. Neck NAD
2. Scalp and Skull As in injury no.1
3. Membrances As in injury no.1
4. Brain Lacerated & Putrifying
5. Base NAD
6. Vertebrae NAD
7. Spinal Cord Not opened
8. Additional Remark Nil THORAX
1. Walls ribs, cartilages NAD
2. Pleura NAD
3. Larynx, trachea and bronchi NAD
4. Right lungs NAD
5. Left Lungs NAD
6. Pericardium NAD
7. Heart Both Chamber Empty
8. Vessels
9. Additional Remarks ABDOMEN
1. Walls
2. Peritoneum NAD
3. Cavity NAD
4. Buccal (cavity) teeth, Tongue and Pharynx 16/6
5. Oesophagus NAD
6. Stomach and its contents Semidigested 50 gms. food material
7. Small Intestine and its contents Stool gas
8. Large Intestine and its contents Stool gas
9. Liver with weight and Gall Bladder G.B. partially filled.
10. Pancreas NAD
11. Spleen with weight NAD
12. Kidneys with weight Pale
13. Urinary Bladder NAD
14. Generation organs NAD Cause of Death:- The cause of death of the deceased is shock and hemorrhage due to ante-mortem firearm injury."
52. The post mortem of the deceased has been proved and marked as Ext. Ka.10.
53. On the cross-examination on behalf of the accused Teja @ Tej Prakash it was stated by him that in the abdomen of the deceased Sewaram there was semi-digested food and to get the food digested it took 2 hours and the deceased Sewaram had taken food 2 hours prior to his death.
54. On the cross-examination by the witness, it is stated that as per the report of the informant, the injuries which were caused to the deceased was by hockey whereas in the post mortem of the deceased it is stated to be caused by firearm injury. He stated that as the post mortem of the deceased was conducted after one week, hence, he cannot tell the reason whether the death of the deceased was caused by the injuries caused to him by hockey or by firearm.
55. He further stated that it it correct to say that the death of the deceased Sewaram was not caused by firearm but by some other thing as he had conducted the post mortem after one week and pellet and cogweb were found and on the body, wound of entry and wound of exit was present, which were sufficient to cause death of the deceased. He further stated that the death of the deceased could be caused by shock and hemorrhage due to marpeet and the same can also be the root cause of death of the deceased.
56. On the cross-examination made on behalf of the accused Rajan Yadav, this witness has stated that the dead body started decomposing on the third day and complete decomposition is within the period between 7-14 days. At the time of post mortem, the decomposition has started and the decomposition would start between 4-5 days from the date on which the post mortem was conducted and the body would start giving foul smell after 24 hours. At the time of post mortem, no clothes were found on the dead body of the deceased and only iron and brass metal was found in thread, which was tied around the neck. The injuries which have been received by the deceased on his person, its duration at the time of post mortem he cannot tell. At the time of post mortem he did not found any injury of blunt object on the person of the deceased.
57. PW9-Arvind Kumar Pandey in his deposition before the trial Court has stated that on 22.12.2004 he was posted as Head Constable at Police Station Kotwali Tanda and on the said date the informant Jairaj Yadav has submitted a written report, on the basis of which, Chick FIR of Case Crime No.350 of 2004 for the offence under Section 323, 364 I.P.C. was registered against the accused Teje @ Tej Prakash and Rajan Yadav and proved the Chick FIr in his hand writing and signature as Ext. Ka.11 and further endorsement regarding the F.I.R in the G.D. has been proved by him as Ext. Ka.12 being G.D. No.31 time 13:30 dated 22.12.2004.
58. On the cross-examination made on behalf of the accused Rajan Yadav, this witness has stated that the original G.D. is not before him. In the Chick report there is no signature of the Circle Officer nor any date is mentioned. In the chick report the endorsement is 'See CJM' is seen at the bottom on 4.1.2005. At the police station along with the informant Lal Bahadurl, village Pradhan Sitaram had come.
59. This witness has denied the suggestion that under the influence of the informant he had registered the F.I.R of the present case as anti-timed.
60. On behalf of the accused Teje @ Tej Prakash, this witness was further cross-examined. The G.D. of the concerned police station with respect to the endorsement of the FIR was filed by the witness under his signature and carbon copy of the same was not on record and original was not before the Court and without seeing the original he is unable to tell that prior to the present case any other case crime number or NCR was registered or not. He denied the suggestion that G.D. of the police station was not according to the time. It is correct to state that at the time of the incident G.D. of the police station was anti time but later on it was corrected.
61. PW10- S.I. Ramesh Chandra Yadav in his deposition before the trial Court has deposed that on 28.12.2004 he was posted as Head Constable at Police Station Kotwali Tanda and on the said date he along with In-charge Inspector, namely, Sri Vinod Kumar Yadav of the said police station and other police personnel have left the same for arresting the wanted accused to village Duhia, their they came to know that the accused of Case Crime No.350 of 2004, under Sections 323, 364 I.P.C. had been seen near pontoon bridge. On believing the said information they took two witnesses from village Duhia, namely, Jairaj and Zilajeet and went from pontoon bridge to Police Station Kalwari, District Basti and they met the accused Rajan Yadav near a thatch (chappar) on the way of Kalwari towards East, who after seeing them tried to flee, but with the help of witnesses and police force, he was arrested at about 2:00 p.m. in the afternoon. On the interrogation made, he disclosed his name as Rajan Yadav and stated that on 22.12.2004 he along with accused Teja @ Tej Prakash was standing near Nagar Palika Tanda and were waiting for Sewaram and at about 9:00 p.m. in the night Sewaram, Lal Bahadur and Jairaj were going on foot in front of gate of Nagar Palika. Thereafter, he along with Teja @ Tej Prakash apprehended Sewaram and after beating him, dragged him in the premises of Nagar Palika. Sewaram had heavily consumed liquor and when they assaulted him, he had fallen on the ground. On which the persons accompanying Sewaram, namely, Lal Bahadur and Jairaj ran to his rescue but they had also beaten Lal Bahadur, on account of which he had also fallen and when Jairaj was about to be assaulted then he fled away. Both the accused carried Sewaram on a boat and took him across the river to Karia Ki Marahi and as Sewaram had not died, hence, Teja @ Tej Prakash had shot on his head by a countrymade pistol and he died. Thereafter, both of them put off all the clothes of the deceased Sewaram and thrown his dead body in a naked condition in the mids of the river, his clothes were taken and burnt and thereafter they went to Majha. He further stated that he can show the place where the incident had taken place. The witness further stated that thereafter he along with witnesses, namely, Jai Raj and Zilajeet and other police personnel went near Karia Ki Marahi and on the pointing out of the accused, got recovered remains of burnt woolen shawl and underwear of the deceased and handed over the same to the police. The brother of the deceased, namely, Jairaj identified the same to be of his brother Sewaram. The accused further told that from there only they had thrown the dead body of the deceased in the river. The remains of the recovered bed sheet (woolen shawl) and underwear were sealed in a white clothe and he prepared the recovery memo of the same in his hand writing. The said recovery memo was signed by the In-charge Inspector and two witnesses and accused also signed the same. He proved the same as Ext. Ka.5.
62. The information regarding the dead body of the deceased being recovered on 29.12.2004 at 18:30 hrs, this witness along with other police personnel had come to the house of the deceased in Village Duhia where the body was kept. He prepared the panchayatnama on the dead body of the deceased and got the signature of the panch witnesses and their thumb impression also. On the neck of the body of the deceased there was a black thread in which two keys of iron were found. He proved the panchayatnama as Ext. Ka.13. The dead body was sealed in white cloth and he prepared the police papers, such as photo-lash, letter to C.M.O., letter to R.I. in his hand writing and signature and proved the same as Ext. Ka.14 to 17 and he also proved the sample seal of the dead body and proved the same as Ext. Ka.18. He also endorsed the information for the recovery of the dead body in G.D. No.13 at 18:00 hours on 29.12.2004.
63. The information about the recovery of the dead body was also endorsed in the G.D. by Constable Ramkesh on the application given by Jairaj, on the basis of which offence under Sections 302, 201 I.P.C. was added by him and he identified the hand writing and signature of the Constable Ramkesh whom he had seen working during service. He has also proved the carbon copy of the same as Ext. Ka.19. The woolen shawl and underwear which were recovered in burnt condition, its seal was opened before the Court and the witness after seeing the same has stated that the said woolen shawl and underwear were taken in possession by the police. He also after seeing the two keys in the black thread, which was opened before the Court, identified the same to be found on the neck of the deceased and proved the same as material Ext.7 & 12. The recovery memo of one countrymade pistol of 12 bore and four live cartridges and arrest memo which was prepared by him, was on record, which was in his hand writing and the same was signed by the In-charge Inspector Vinod Kumar Yadav. He stated that there is signature of the said witness along with the witnesses and the accused Teja @ Tej Prakash and also thumb impression on the same and proved the same as Ext. Ka.6.
64. In his cross-examination made on behalf of the accused Teja @ Tej Prakash, this witness has stated a case under Section 3/25 of the Arms Act against the accused was registered by the In-charge Inspector Kotwali Tanda. The investigation of the case under the Arms Act was conducted by Sub Inspector Sri R.K.Kannaojia who was his subordinate and the witness was also subordinate to the said Inspector.The incident had taken place in day light and they had left the police station in the morning and he did not remember the exact time and he can tell the same after seeing it. The original G.D. was not present during the trial when his evidence was being recorded. After leaving the police station firstly they went to village Duhia. The distance of village Duhia from police station is 6 kms. It took about 1 hour in village Duhia searching the accused persons. During the said period they did not make search of any person. In village Duhia they received an information that the accused Rajan Yadav is present near pontoon bridge at Kalwari. The said information was received by the In-charge Inspector Tanda Ambedkarnagar by the informer, which was given by him in his presence.The informer after giving the said information had left the place. It was about 1:00 p.m. when they reached village Duhia along with two witnesses. On the telling of the witnesses and after enquiring the name and address, the police came to know that the accused was Rajan Yadav. The accused Rajan Yadav was arrested by all the police personnel who were on the jeep, who after alighting from the jeep suddenly apprehended the said accused. He further stated prior to the arrest of the accused, the witness along with all police personnel made search of each other,but before arresting the accused, police personnel had not given search to the accused person.
65. A suggestion was given to the witness that the deceased was a drunker which he denied. On the day of the incident the deceased was in a heavy drunken state, which this witness state that he has no knowledge about the same.
66. This witness further stated that that the accused have not committed any incident in his presence and whatever information was given to the witness, the said information was given by the accused themselves, which he came to know.The brother of the deceased Sewaram was told by Lal Bahadur that the the deceased died on account of injuries caused by hockey. He further stated that the recovery of the dead body of the deceased Sewaram was made on the 9th day of the incident, for which an information was given at the police station by his brother, namely, Jairaj Yadav and on the basis of the said information, the offences under Section 302, 201 I.P.C. were added in the case. He was not aware of the fact as to how and from where the dead body of the deceased Sewaram was recovered as the informant had given an application about the same and on his written information he came to know about the said fact. He cannot tell as to how many persons had come to the police station when the brother of the deceased had come to lodge the report. He did not remember as to who was the scribe of the report. The recovery memo which was prepared by him, was under the instructions of In-charge Inspector, Kotwali Tanda, District Ambedkarnagar. At that time he was a subordinate staff posted under him. He prepared the recovery memo on the spot word to word on the instructions of the In-charge Inspector and it took about 2 hours for preparing the same. When the recovery memo was being prepared, besides the witness In-charge Inspector Sri Vinod Kumar Yadav, four Constables namely, Shailenda Pandey, Manoj Yadav, Ram Sawre and one more Constable whose name he did not remember and two witnesses, namely, Jairaj and Zilajeet and accused Rajan Yadav were present. Two public witnesses, namely, Zilajeet and Jairaj were also present at the time when the recovery was made. The remains of burnt clothes of the deceased was recovered at the pointing out of the accused Rajan Yadav and the same were recovered after 9 days, i.e., 28.12.2004 and the said burnt clothes were recovered near Karia Ki Marahi near bushes. The remains of burnt clothes which was recovered, was not recovered near South of Karia Ki Marahi, but towards East there is field of Raja Ram and on the West there is Thatch (chhapar) of baba. At the time of recovery of burnt clothes, there were no other public witness except the aforesaid persons, hence, there is no mention of any independent witness in the fard recovery memo. Ext. Ka.13 is the printed format of the panchayatnama.
67. He denied the suggestion that he prepared the panchayatnama and he filled up the panchayatnama on the direction of the In-charge Inspector. Jairaj is the witness of the panchayatnama, who is also the witness of the recovery memo of the burnt clothes.He has prepared the panchayatnama on 29.12.2004 and it took about 3 hours. There are in all five witnesses of the panchayatama and he along with the police constables are the police witnesses.
68. This witness denied the suggestion that the injuries found during the panchayatnama, has not been mentioned on the telling of the informant, but on his own. After completing the inquest proceeding he met the Investigating Officer at the police station who recorded his statement and the said Investigating Officer is Inspector Vinod Kumar Yadav and the second Investigating Officer was Sri R.P. Kannaojia who had recorded his statement.
69. He denied the suggestion that he did not inform the higher authorities regarding the arrest of the accused and recovery made from them. He also denied the suggestion that the accused was not informed about the reason of his arrest nor his family members were informed about the same. He did not mentioned in the fard recovery memo and arrest recovery memo about the information being given to the family members of the accused. He stated that the same is mentioned in G.D. and not in the fard recovery memo, hence, he did not mention the same in the fard recovery memo.The case property, i.e., countrymade pistol and cartridges, were not produced before the witness during his examination.The recovery memo of the countrymade pistol and cartridges which were prepared by him, were prepared on the dictation of the In-charge Inspector Kotwali Tanda, Ambedkarnagar.
70. He denied the suggestion that the accused was arrested from his house and after showing a false recovery he has been challaned in the present case. He further denied the suggestion that he being subordinate employee of the In-charge Inspector, he is falsely deposing in the Court.
71. PW11-S.I.Rajendra Prasad has stated before the trial Court that on 01.01.2005 he was posted as Sub Inspector, Police Station Kotwali Tanda, Ambedkarnagar and on the said date he has started investigation of Case Crime No.01 of 2005. On the said date he had prepared the Chick FIR and G.D. and also recorded the statement of the accused in which he confessed his guilt and he had also given an application for recording statement under Section 164 Cr.P.C. on 02.01.2005. He recorded the statement of SHO Vinod Kumar Yadav and Head Constable Ramesh Chandra Yadav, Constable Radhey Shyam Maurya, Constable Om Prakash and Constable Ram Sabad Yadav and scribe of the F.I.R. Constable Moharrir Virendra Singh and prepared the site plan of the place of occurrence and proved the same as Ext. Ka.19. He recorded the statement of the eye witnesses, namely, Rampal and Guddu on 07.02.2005 and had drawn the proceedings of taking remand for accused Teja @ Tej Prakash. He took the orders of the District Magistrate for sanction for prosecution of the accused Teje @ Tej Prakash under the Arms Act which was given by the District Magistrate Sri Mohan Swaroop. The sanction granted in his hand writing, is on record and he has identified the signature of District Magistrate as he was acquainted with is signature while working. The prosecution for sanction he has proved as Ext. Ka.20. He submitted charge sheet against the accused Taja @ Tej Prakash being Charge Sheet No.22/05 which was in his hand writing and signature and proved the same as Ext. Ka.21.
72. This witness in his cross-examination has admitted that he was subordinate officer under the SHO Kotwali Tanda Sri Vinod Kumar Yadav. He in his case diary did not mention of starting time of investigation nor closing of the same.The date of the spot inspection of the place is mentioned but no time has been mentioned. The spot inspection of the place of occurrence was an open place which was accessible to any person. Near the place of occurrence there was a Marahi and a field and at some distance there was a way. At the place of occurrence there was frequent movement of the persons he cannot tell. He had prepared site plan at the pointing out of the informant. He has shown the distance between place "A" to "B" as one step. The place where the eye witnesses, namely, Rampal and Guddu Yadav had seen the incident and were standing, has not been shown in the site plan as they were with the police party and had seen the incident. The Ghaghra river is towards the Kacchi Sadak going through the village and at the time of the incident whether there was water in it or not he has not mentioned the same in the site plan. The sanction for prosecution is on a printed format. He is unaware of the same. On a question being put by the Court to the witness that the sanction for prosecution letter is typed one, on which the name of the District Magistrate, Ambedkarnagar Sri Mohan Swaroop is type and seal of District Magistrate, Ambedkarnagar is affixed and the signature of the District Magistrae is illegible one.
73. On his cross examination, this witness further stated that the sanction for prosecution was received under the Arms Act on 08.02.2005 at the office of police station and after receiving the sanction for prosecution he mentioned the same in the case diary. The case property was not placed before the Court when his evidence was being recorded and the original G.D. was also not there. He had recorded the statements of eye witnesses, namely, Rampal and Guddu Yadav in village Duhia and the same was recorded on the next day and the distance of the place where the said two witnesses were residing from the place of recovery, he has not mentioned the same in the case diary. The statements of other witnesses relating to the incident was taken by him at the police station. He denied the suggestion that he being the subordinate staff of the informant, he is falsely deposing in the Court. He also denied the suggestion that under the influence of the informant he is falsely deposing against the accused. He has submitted charge sheet against the accused in the Court.
74. PW12-Constable Kailash Singh has stated in his examination before the trial Court that he was posted as Constable Moharrir at Police Station Tanda, District Ambedkarnagar on 29.12.2004 and he registered a Case Crime No.350 of 2004, under Section 323, 364 I.P.C. and he had mentioned the same in G.D. No.35 at 18:30 hours on 29.01.2004 and prepared the original G.D. in his hand writing and signature in which he added offence under Sections 302, 201 I.P.C. and recovery of the dead body and proved the G.D. as Ext. Ka.22 which is carbon copy of the original one available on record. Sub Inspector Bandhan Ram Ghuria was posted at police station Kotwali Tanda at that point of time and he had seen him writing and signging the documents, hence, he has identified his hand writing and signature and proved the site plan available on record of Case Crime No.350 of 2004 dated 22.12.2004 which was prepared and signed by S.I Bandhan Ram Ghusia.
75. In his cross-examination by the defence, this witness has stated that when and where Ext. Ka.23 was prepared he has no knowledge.The original G.D. no.22 by which sections were added, was not before him in the Court. He was not aware of the fact that the earlier Investigating Officer Bandhan Ram Ghusia was in police service or not, he is not aware of the said fact.
76. DW1-Suresh Kumar Srivastava in his deposition before the trial Court has submitted that he was a Class-IVth employee of Nagar Palika Parishad. On 01.01.2004 he was posted as Chaukidar and his duty hours was from 2:00 p.m. till 10:00 p.m. in the night. The office of Nagar Palika closes by 5:00 p.m. in the evening and after office hours of the Nagar Palika is over, the main gate etc. are closed. The boundaries of of the office of Nagar Parishad is surrounded by high walls and for entering in the premises there is only one gate and after the gate is closed, he on duty does not permit any person to enter. On 21.12.2004 his duty was in Nagar Palika Parishad as Chaukidar and his duty was up to 10 O'clock and on the said date after closing of the office and closing of the gate as per his knowledge, no one enter in the premises till 10:00 p.m. and no marpeet had taken place inside the premises of Nagar Palika Parishad at 10:00 p.m. till his duty.
77. In his cross-examination by the Prosecuting Officer on behalf of the prosecution, he has stated that the Nagar Palika Tanda closes at 5:00 p.m. in the evening and he used to remain at the gate after the office is closed. On 22.12.2004, it was winter and he used to sit under the porch and at the time when he was sitting, fire was burning and beside him there was no other person and outside the gate he could not see anything. When he was sitting, the gate was closed. On 21.12.2004 there was fog. He knew Taja @ Tej Prakash and Rajan Yadav from before. He did not knew them by name. They used to come in Nagar Palika Tanda as per his knowledge. After the gate was closed, if he wishes to go to have tea, then he used to lock the gate and then go, when any official used to come at the door he knock the same and he used to open the gate, for attaining the nature call he used the toilet inside the premises and distance between the river Ghaghra from the Nagar Palika is about 1 Bigha and his house is situated at about 6-7 kms. away from the Nagar Palika premises and he used to come to his house by bicycle. After performing his duties he used to go by 10:15 p.m.-10:30 p.m. to his house and he used to reach to his house by 11:00-11:30 p.m.He did not go to his house before 10:00 p.m. He denied the suggestion that on 21.12.2004 he went to his house after closing the door before 10:00 p.m. in the night. He further denied the suggestion that the accused Teja @ Tej Prakash and Rajan Yadav are history sheeter and because of the fear he is not disclosing the correct fact.
78. The accused in their statements under Sections 313 Cr.P.C. have categorically denied the prosecution case and submitted that they have been falsely implicated in the present case and the present case has been registered against them in collusion between the informant and the local police on account of enmity. In their defence, documentary evidence filed by them are the true copy of the judgment and order of the trial Court dated 22.5.2004 passed in S.T. No. 933 of 1995 (State Vs. Tanuj Khanna and others) and true copy of the judgement and order dated 15.3.2008 passed by F.T.C. No.1, Ambedkarnagar in S.T. No.18 of 2003 (State Vs. Rajan Yadav), under Section 8/21 of NDPS Act, P.S. Kotwali Tanda, District Ambedkarnagar and further in their defence they have also examined DW1-Suresh Kumar Srivastava, whose evidence has been referred above.
79. The trial Court after examining the evidence led by the parties during the course of trial, found the two accused appellants to be guilty of the offences for which they have been charged and has convicted and sentenced them for the same by the impugned judgment and order.
80. Being aggrieved by the same, the accused appellants have preferred the instant appeals.
81. Heard Sri Santosh Kumar Srivastava, learned counsel for the appellants, Ms. Nand Prabha Shukla, learned A.G.A. appearing for the State and perused the lower court record.
82. The learned counsel for the appellants argued that the appellants did not have any motive to commit the murder of the deceased and the police after the recovery of the dead body of the deceased, at the instance of the informant just to show its good work, has falsely implicated the appellants in the present case though there is no cogent evidence against them that they had abducted the deceased in the presence of PW1 and PW2 and further, committed his murder.
83. It was next argued that the presence of the two eye witnesses, namely, PW1-Jairaj Yadav and PW2-Lal Bahadur at the place of occurrence is doubtful and PW2 who claims himself to be an injured witness, has turned hostile and has not supported the prosecution case but the trial Court committed error in believing their evidence and recorded finding of conviction and sentenced the appellants without there being any cogent evidence against them.
84. It is urged by the learned counsel for the appellants that the recovery of remains of the burning clothes of the deceased at the pointing out of the accused appellant Rajan Yadav, who was arrested by the police on 28.12.2004, is also a false recovery as out of the two independent witnesses, namely, Jairaj Yadav and Zilajeet and one witness Jairaj Yadav is the informant PW1 and brother of the deceased who is highly interested and partisan witness whereas the other independent witness has not been produced by the prosecution and other persons of the recovery and arrest of the said accused who are police personnel, their evidence cannot be relied upon for the conviction and sentence of the appellants.
85. The confessional statement made by the appellant Rajan Yadav before the police is also not admissible under Section 27 of the Evidence Act. The clothes which have been recovered of the deceased, i.e., woolen bed sheet and underwear had already burnt and only ashes and remains of the said two articles were not such that they could be identified by the informant to be the clothes of this brother Sewaram. Similarly, it was argued that the arrest and recovery made from the appellant Teja @ Tej Prakash on 1.1.2005 and his confessional statement recorded by the police is not reliable one and recovery of country made pistol of 12 bore and four live cartridges, is also not reliable one and cannot be read in evidence in view of Section 27 of the Evidence Act.
86. He urged that the confessional statements of the two accused appellants which have been recorded by the police to show that they in verbatim have recorded their confessional statements in order to make out a case and prove the prosecution case as has been set up in the F.I.R. and also in the evidence of PW1 and PW2. The accused appellant Rajan Yadav was having criminal antecedents of 9 cases, whereas the accused appellant Teje @ Tej Prakash was having criminal antecedents of three cases as per the the Gang Chart and in case being S.T.No.18 of 2003 (Case Crime No.122 of 2003), under Section 8.21 of N.D.P.S. Act, P.S. Kotwali Tanda, District Ambedkarnagar appellant Rajan Yadav has been acquitted by the competent court and accused Teja @ Tej Prakash has also been acquitted in S.T. No. 933 of 1995 (Case Crime No.210 of 1995) under Sections 307/34 and S.T. No. 930 of 1994, under Section 25 Arms Act, but the trial Court has observed that the said cases were not the part of the gang chart which was filed on record.
87. Learned counsel for the appellants has lastly argued that that though initially the FIR was registered under Sections 323, 364 I.P.C. but after recovery of the dead body of the deceased was made after 9 days of the incident from an open place, the offence under Sections 302, 201 I.P.C. were added in the present case and from the post mortem report of the deceased it transpires that the deceased died on account of firearm injuries sustained by him, whereas the appellants are said to have been armed with hockey but no injury of of hard and blunt object was found on the dead body of the deceased and only on the basis of confessionals statements of the accused it has been stated by the prosecution that the appellant Teje @ Tej Prakash fired on the head of the deceased by country-made pistol and the dead body of the deceased was thrown in the mids of the river after putting off all his clothes in a naked condition and his clothes were burnt but there appears to be no eye witness account or evidence to show that the deceased was done to death by the appellant Teje @ Tej Prakash by firearm weapon and his dead body was thrown in the river by the two accused appellants and the trial court on the basis of the circumstantial evidence with respect to the murder of the deceased, has convicted the appellants under Section 302 I.P.C. and sentenced for life imprisonment. He submitted that the appellants are in jail for the last 11 years and they have already served out the sentence awarded to them for the offence under Sections 323, 364, 201 I.P.C. & under Section 3(1) of U.P. Gangster Act and under Section 3/25 of the Arms Act. Thus, they may be released by setting aside the conviction under Section 302 I.P.C.
88. Learned A.G.A. on the other hand, has vehemently opposed the arguments advanced by the learned counsel for the appellants and submitted that from the prosecution case it is evident that the deceased was abducted by the two appellants with an intention to murder him and they also disposed of his dead body, which is evident from the evidence of PW1 Jairaj Yadav who is brother of the deceased who along with Lal Bahadur had witnessed the incident of abduction of the deceased. She further argued that the manner in which the deceased was firstly assaulted by the two appellants with hockey and thereafter was dragged in the Nagar Palika premises in the night on 21.12.2004 at 9:00 p.m. in the night and when Lal Bahadur tried to rescue him, they also assaulted him by hockey and an attempt for assault was also made by the appellants on PW1, he managed his escape good and he tried to ran away to save his life which goes to show that the deceased was abducted in the presence of the said two witnesses and further the deceased was carried away by the appellants on boat towards river and when the informant and others tried to trace the whereabouts of the deceased, he could not be traced out and his dead body was recovered after 9 days of the incident on 29.12.2004 from the riverbed, which goes to show that he was abducted by the appellants with an intention to murder him, hence the trial Court has rightly convicted and sentenced the appellants for the offences in question.
89. She further argued that at the instance of the appellant Rajan Yadav on 28.12.2004 the remains of the burnt clothes of the deceased was recovered at his pointing out and his confessional statement was recorded by the police who admitted his guilt and narrated the entire incident.
90. Similarly, the appellant Teja @ Tej Prakash who was arrested on 1.1.2005 and on his pointing out a country-made pistol of 312 bore and four live cartridges were recovered, which he had concealed and further his confessional statement too was recorded in which he admitted his guilt for the commission of the murder of the deceased along with the co-accused Rajan Yadav. She further argued that the recoveries made from the two accused appellants have been proved by the two independents witnesses and also by the police personnel who have signed the recovery memo prepared of the recovered articles from the two appellants.
91. Learned A.G.A. in support her arguments has placed reliance upon the judgment of the Apex Court reported in (1999) 8 SCC 624, Koli Lakshmanbhai Chanabhai Vs. State of Gujarat, (2019) 8 SCC 359, Mallikarjun & Others Vs. State of Karnataka, (2014) 5 SCC 509, Dharam Deo Yadav Vs. State of U.P. & (2011) 11 SCC 111 Rameshbhai Mohanbhai Koli and Others Vs. State of Gujarat.
92. We have considered the rival submissions of learned counsel for the parties and have given thoughtful consideration for the same.
93. It is an admitted fact that the incident had taken place on 21.12.2004 at about 9:00 p.m. in the night and FIR of the same was registered on 22.12.2004 for the offence under Sections 323, 364 I.P.C. at Police Station Kotwali Tanda, District Ambedkarnagar by PW1 Jairaj Yadav, who is brother of the deceased Sewaram. On the information given by PW1 about the recovery of the dead body of the deceased at the concerned police station,Sections 302, 201 I.P.C. were added in the present case.
94. From the evidence of PW1 it is evident that he is the witness of the abduction of the deceased by the two appellants as in his presence his brother Sewaram was taken away by the appellants by dragging him after assaulting with hockey. PW2 Lal Bahadur who was also a witness of abduction has turned hostile and has stated that he did not see the two accused appellants dragging the deceased or assaulting him, though he admitted the fact that he received injuries at the hands of some persons on the day of the incident but he could not identify them. He has further denied in his cross examination that his statement under Section 161 Cr.P.C. was not recorded by the Investigating Officer and how the same has been written, he cannot tell.
95. The evidence of PW2-Lal Bahadur shows that though he was assaulted by some one at the place of occurrence on the day of incident but he failed to identify the persons who had actually assaulted him and has ruled out the involvement of the two appellants in the present case.
96. The factum of abduction of victim Sewaram has been proved by the prosecution by cogent evidence and the trial Court relying upon the evidence of PW1 has rightly convicted the appellants for the offence under Sections 323, 364 I.P.C. and further taking into account the criminal antecedents of the appellants they were also charged and prosecuted for the offence under Section 3(1) of U.P. Gangster Act which also appears to be correct one. But so far as the conviction and sentence of the appellants for the offence under Section 302 I.P.C. for life imprisonment for the murder of the deceased is concerned, the same does not seem to be a correct one as from the evidence led by the prosecution in this regard is based on the circumstantial evidence. In this regard the prosecution has relied upon the motive to the accused appellants with regard to the plying of the boat in the river and the amount charged for the same.
97. So far the motive which has been assigned to the appellants for committing the murder of the deceased by the prosecution, it is apparent from the FIR itself which was lodged by PW1 Jairaj Yadav, brother of the deceased, that two months prior to the incident there was some dispute between the appellants and the accused for the rent being charged by the deceased who was a contractor, for getting the persons to cross the river through boat. Here it would be relevant to note that the present two appellants were not the rival contractor of the deceased which may cause them any annoyance for the charges taken by the deceased for plying the boat across the river for getting the persons cross the river and no such complaint was ever made by the deceased either to the police or any other person regarding any such dispute ever had taken place between him and the appellants. Moreover, PW1 Jairaj Yadav in his cross-examination has categorically admitted that there was no litigation or marpeet with him or with his brother Sewaram (the deceased) with the appellants. There was also no dispute of money with him or of his brother Sewaram (the deceased) with the appellants. Thus, the motive which has been suggested by the prosecution for the murder of the deceased by the appellants appears to be a weak one for the murder of the deceased Sewaram.
98. So far as the evidence of recovery which were made on the pointing out of the appellant Rajan Yadav after his arrest on 28.12.2004 and his confessional statement made before the police in which he confessed his guilt is concerned, it appears from the arrest memo which is Ext. Ka.5 that the SHO Sri Vinod Kumar Yadav (PW7) who along with other police personnel on the information received by him when he was in village Duria about the accused involved in the present case, he took PW1 Jairaj Yadav, the informant and brother of the deceased and one Zilajeet son of Thakurdeen along with other police personnel and arrested the accused Rajan Yadav who confessed his guilt and narrated the prosecution case which had taken place on 21.12.2004 and further got recovered the remains of burnt woolen bed sheet and underwear which were identified by PW1 to be of his brother. The said arrest and recovery which was made by the Investigating Officer (PW7) goes to show that he got the said confessional statement of the said accused recorded in such a manner in verbatim to make out a case in order to prove the prosecution case. It is highly improbable and beyond imagination that the accused would make such a statement without there being influenced and under the pressure of the police to confess his guilt. The independent witness of the said recovery, namely, Zilajeet has not been produced by the prosecution and no reason given by the prosecution to withhold the said witness.
99. Similarly, the arrest of the appellant Teja @ Tej Prakash on 1.1.2005 and the recovery of country-made pistol of 12 bore and four live cartridges made at his pointing out (which is Ext. Ka.6) goes to show that he was also arrested on the information given by the informer that he was sleeping at a place which is North to Marahi and on the said on the said information the Investigating Officer along with two witnesses of the village, namely, Rampal son of Sita Ram and Guddu son of Mewa Lal, arrested the accused Teja @ Tej Prakash on 1.1.2005 at 6:00 a.m. in the morning who was sleeping by wrapping a blanket and his confessional statement was also recorded in verbatim in the same manner as of the accused Rajan yadav and at his pointing out a country-made pistol of 312 bore and four live cartridges were recovered. Thus, the confessional statement of the accused and recovery which had been made from the pointing out of the said appellant also appears to be a good work of the police to work out the murder of the deceased Sewaram and the confessional statement which has been made by the appellant Teja @ Tej Prakash also appears to be highly improbable and beyond imagination that he would confess his guilt without there being undue influence and pressure of the police for confessing the guilt.
100. It is not out of place to mention here that the statement of witness of recovery of country-made pistol, namely, Guddu Yadav (PW3) goes to show that he admitted in his cross-examination that the police had not prepared or written any papers with respect to the recovery in his presence nor had read over the same to him and when he was taken from his house, his thumb impression was also taken on a blank paper. The distance of his house from the place of recovery is about 20-25 kms., i.e., Karia Ki Marahi. So far as the other witness, namely Rampal is concerned, though in his cross-examination he has supported the recovery of countrymade pistol at the pointing out of the accused Teja @ Tej Prakash but the same does not appears to be a reliable one in the light of the evidence of PW3-Guddu Yadav as the role of the police in making false recovery from the accused Teja @ Tej Prakash in clandestine manner cannot be ruled out.
101. So far as the case which was registered under Section 3/25 of the Arms act on 1.1.2005, which was lodged by PW7 Vinod Kumar Yadav against the appellant Teja @ Tej Prakash after the recovery of countrymade pistol and four live cartridges also appears to be a foul play on the part of the In-charge Inspector of the police station Kotwali Tanda, District Ambedkarnagar to workout the murder of the deceased.
102. A suggestion was also made to the PW7 that the appellant Teja @ Tej Prakash was arrested from his house and a false recovery has been shown against him and a false FIR was also registered against him, he denied the same. He was also given a suggestion that no incident had taken place on 01.01.2005 near Karia Ki Marahi, Police Station Kotwali Tanda, District Ambedkarnagar, but he denied the same. Similarly, a suggestion was also made on behalf of the appellant Rajan Yadav that he too was arrested from his house and his confessional statement was recorded which he has also denied. But simply denial of the said suggestions could not prove the recovery made from the accused appellant free from all doubts and suspicion.
103. The confessional statements made by the two accused appellants also appears to be under the influence of the police as from perusal of the same it is evident that after abduction of the deceased, on the day of the incident, he was dragged and taken on a boat by the two appellants across the river and when they reached in the mid of the river, the deceased was shot dead by the accused Teja @ Tej Prakash by country-made pistol on his head and thereafter his clothes were put off by the appellants and his dead body was thrown in the naked condition in the mid of the river, thereafter remains of his clothes, i.e., woolen sheet and underwear were found. It appears to be highly improbable as it was a winter night and in the dark night it would not have been possible for the two appellants to carry the deceased on a boat in the river and commit such an incident. Moreover, the deceased was initially said to be mercilessly beaten by the appellants with hockey and thereafter as per the confessional statement of the appellants the deceased was shot on his head by the appellant Teja @ Tej Prakash, but neither the informant nor the witness Lal Bahadur have stated that the appellant Teje @ Tej Prakash was ever armed with countrymade pistol or appellant Rajan was carrying any such deadly weapon with him, which further raises doubt about the incident in the manner in which it has actually taken place as being confessed by the accused appellants and coupled with the evidence of PW1.
104. The appellants no doubt are having criminal antecedents as it appears from the material available on record that they have also been tried and convicted for the offence unde Section 3(1) of the Gangster Act by the trial Court and possibility of their false implication in the present case for the murder of the deceased in the second part of the incident, cannot be ruled out as the police had an advantage of implicating them in the present case for the murder of the deceased. The conduct of the PW1 also appears to be suspicious one as he has recovered the dead body of the deceased after 9 days of the incident from the riverbed and information about the same was given to the police on 29.04.2004 which is a day after the arrest of the accused Rajan Yadav and recovery made from him on 28.4.2004 and thereafter the police just to show its good work, has manipulated the things and fabricated the evidence with respect to offence under Sections 302, 201 I.P.C. against the appellants because of their criminal antecedents as the actual assailants for the murder of the deceased could not be traced out.
105. In view of the same, the factum of the deceased being murdered by the two appellants on the basis of circumstantial evidence has not been proved beyond reasonable doubt by the prosecution.
106. As regards the evidence of last seen of PW1 Jairaj Yadav is concerned, it is relevant to point out here that the victim was abducted and taken away by the two appellants on 21.12.2004 and his dead body was found after 9 days of the incident on 29.12.2004 by the PW1 who informed the police about the same and further his belief that the victim was done to death by the appellants, the same cannot be a reliable piece of evidence as there is no proximity between the point when the accused appellants and deceased were seen together and when the deceased was found dead.
107. It would not be out of place to mention here that paragraph no.14 of the judgement of the Apex Court reported in 2020 (1) SCC 537, Shailendra Rajdev Pasvan and Ors. Vs. State of Gujarat and Ors. on this aspect of the matter is relevant one, which is reproduced here as under:-
"14. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening eent involving the death at the hands of some other person. In the case of Bodh Raj Alias Bodha v. State of Jammu and Kashmir MANU/SC/0723/2002: (2002) 8 SCC 45, Rambraksh v. State of Chhattisgarh MANU/SC/0656/2017:(2017) (6) SCALE 556 following principle of law, in this regard, has been enunciated:-
"The last seen theory comes into play where the time gap between the point of time when the Accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the Accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
108. In the instant case, from the evidence of PW1 Jairaj Yadav whether the deceased was with the appellants or not from 21.12.2004 till his dead body was recovered from a river-bed on 29.12.2004 has not been established by the prosecution. Moreover, it appears that when the dead body of the deceased was recovered on 29.12.2004 from river-bed and firearm injury was found on the person of the deceased, the recovery of countrymade pistol along with four live cartridges from the pointing out of the accused Teja @ Tej Prakash Yadav was made to strengthen the prosecution case along with his confessional statement. The said recovery made at the pointing out of the appellant Teja @ Tej Prakash Yadav cannot be admissible under Section 27 of the Evidence Act as it appears to be a false one and afterthought just to improve the prosecution case against the appellant Teja @ Tej Prakash Yadav.The recovery of remains of burnt clothes of the deceased Sewaram at the pointing out of the accused appellant Rajan Yadav from an open place which is accessible to all along with his confessional statement also appears to be doubtful.
109. The law regarding Section 27 of the Evidence Act, as has been pronounced by the Apex Court in its catena of decisions and in the case of Mukesh and Ors. Vs. State of NCT of Delhi and Ors. reported in (2017) 6 SCC1 regarding appreciation of the statement of the statement of disclosure has to be appreciated, has been laid down in paragraph nos. 128 & 129 which is reproduced here-under:-
"128. Having reproduced the chart, now we shall refer to certain authorities on how a statement of disclosure is to be appreciated. In Pulukuri Kottaya v. Emperor, it has been observed:
"I]t is fallacious to treat the ''fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ''I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ''with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
129. In Delhi Administration v. Bal Krishan and other. MANU/SC/0093/1971: (1972) 4 SCC 659, the Court, analyzing the concept, use and evidentiary value of recovered articles, expressed thus:
"7. ... Section 27 of the Evidence Act permits proof of so much of the information which is given by persons accused of an offence when in the custody of a police officer as relates distinctly to the fact thereby discovered, irrespective of whether such information amounts to a confession or not. Under Sections 25 and 26 of the Evidence Act, no confession made to a police officer whether in custody or not can be proved as against the accused. But Section 27 is by way of a proviso to these sections and a statement, even by way of confession, which distinctly relates to the fact discovered is admissible as evidence against the accused in the circumstances stated in Section 27...."
110. There is another judgment of the Apex Court reported in (2018) 16 SCC 161, Navaneethakrishnan Vs. The State by the Inspector of Police on this aspect, relevant paragraph nos.20 & 22 which are quoted here-under:-
"20. In this view, the information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible under Section 27 of the Evidence Act, 1872. Further, in Selvi (supra), this Court held as under:-
"264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872."
22. Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance is limited as relates distinctly to the fact thereby discovered. In the case at hand, the Yashika Camera which was recovered at the instance of Accused No. 3 was not identified by the father as well as the mother of the deceased. In fact, the prosecution is unable to prove that the said camera actually belongs to the deceased-John Bosco. Though the mobile phone is recovered from A-1, but there is no evidence on record establishing the fact that the cell phone belongs to the deceased-John Bosco or to PW-8 as the same was not purchased in their name. Further, the prosecution failed to examine the person on whose name the cell phone was purchased to show that it originally belongs to PW-8 to prove the theory of PW-8 that he had purchased and given it to the deceased John-Bosco. Further, the material objects, viz., Nokia phone and Motor Bike do not have any bearing on the case itself. The Nokia phone was recovered from Accused No. 1 and it is not the case that it was used for the commission of crime and similarly the motor cycle so recovered was of the father of Accused No. 3 and no evidence has been adduced or produced by the prosecution as to how these objects have a bearing on the case. In fact, none of the witnesses have identified the camera or stated the belongings of John Bosco. The said statements are inadmissible in spite of the mandate contained inSection 27 for the simple reason that it cannot be stated to have resulted in the discovery of some new fact. The material objects which the police is claimed to have recovered from the accused may well have been planted by the police. Hence, in the absence of any connecting link between the crime and the things recovered, there recovery on the behest of accused will not have any material bearing on the facts of the case."
111. The law in cases which rests on the circumstantial evidence is well settled as each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to Rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt. The Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes,unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. The Court in mindful of caution by the settled principles of law and the decisions rendered by the Apex Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence, which in the present case, the prosecution has failed to prove.
112. Thus, in view of the foregoing discussions, the conviction and sentence of the appellants under Sections 323/34, 364 I.P.C. and 3(1) of the U.P. Gangster and Antisocial Activities (Prevention) Act, 1986 by the trial Court is hereby upheld. But so far as the conviction and sentence of the appellants under Sections 302/34 and 201 I.PC. is concerned, the same is not sustainable as it is against the evidence on record. The appellants are entitled for the benefit of doubt for the murder of the deceased, hence, the conviction and sentence of the appellants under Sections 302/34 and 201 I.P.C. are hereby set aside.
113. The appellants are stated to be in jail since 2011.They shall be released forthwith, unless otherwise wanted in any other criminal case.
114. It is further directed that the accused appellants shall furnish bail bond with surety to the satisfaction of the Court concerned in terms of the provision of Section 437-A of Cr.P.C.
115. Let the lower court record be transmitted to the trial Court concerned for its information and compliance forthwith.
116. The appeal stands partly allowed.
(Rajeev Singh, J.) (Ramesh Sinha,J.)
Order Date :- 18.03.2021/NS/Shiraz