Allahabad High Court
Shiv Shankar vs State Of U.P. on 24 November, 2017
Author: Prashant Kumar
Bench: Prashant Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED AFR Case :- CRIMINAL APPEAL No. - 341 of 2013 Shiv Shankar, son of Sukhram, aged about 22 years, r/o Indrapuri, P.S. Krishna Nagar, District - Lucknow. ........ Appellant (in jail) Versus State of U.P. .......... Respondent Counsel for Appellant :- M.L. Syal,Mohammad Abid Ali,Shashi Kiran Arya Counsel for Respondent :- Govt. Advocate,Shailendra Kr. Singh AND Case :- CRIMINAL APPEAL No. - 295 of 2013 Ramendra alias Munna (Age 23 year) S/o Sri Uma Shanker, R/o Village- Mehmoodpur, P.S. Purwa, District Unnao, Present Address- Kanausi FAtak ke Samne Indrapuri Bhola Khera, P.S. Krishna Nagar, District Lucknow. ............ Appellant (in jail) Versus The State of U.P. ........... Opposite party Counsel for Appellant :- Atul Verma,Raj Kumar Pandey,Saurabh Kumar Srivastava Counsel for Respondent :- Govt. Advocate,M.L.Syal,Shailendra Kr. Singh AND Case :- CRIMINAL APPEAL No. - 297 of 2013 Ankit Sharma son of Sulkhe Sharma resident of Khailamau alias Hatelamau P.S. Ajgain, Unnao presently residing at Indrapuri Indian Convent Ke bagal me, P.S. Krishna Nagar, Distt Lucknow. ............. Appellant (in jail) Versus State of U.P. ........... Opposite party Counsel for Appellant :- M.L. Syal,Shashi Kiran Arya Counsel for Respondent :- Govt. Advocate,Shailendra Kr. Singh AND Case :- CRIMINAL APPEAL No. - 342 of 2013 1. Sonu Saini son of Shivlal Saini, aged about 21 years, R/o 554 Ga/316, Damodar Nagar, P.S. Krishna Nagar, District- Lucknow. 2. Nizamuddin, aged about 20 years son of Anwar R.o Birbat Kanwalia, P.S. Taraiyaa, District Kushinagar, presently R/o Murdahia, P.S. Krishnanagar, Distt Lucknow. ........... Appellants (in jail) Versus State of U.P. ........... Respondents Counsel for Appellant :- M.L. Syal,Arun Sinha,Shashi Kiran Arya Counsel for Respondent :- Govt. Advocate,Shailendra Kr. Singh Hon'ble Prashant Kumar,J.
Hon'ble Anil Kumar Srivastava-II,J.
(Delivered by Hon'ble Anil Kumar Srivastava-II, J.)
1. Instant appeals have arisen against the judgment and order dated 19.02.2013, passed by learned Additional Sessions Judge/ Special Judge, (E.C. Act) Unnao in S.T. No.466/2009, arising out of case crime no.204 of 2009, Police Station Asoha, District Unnao wherein the accused-appellants were convicted under section 147 IPC and sentenced to two years rigorous imprisonment, 302 IPC read with section 149 IPC and sentenced to imprisonment for life and fine of Rs.10000/- each with default stipulation of six months imprisonment, under section 364 A IPC and sentenced to imprisonment for life and fine of Rs.10000/- each with default stipulation of six months imprisonment, under section 201 IPC and sentenced to three years' rigorous imprisonment and fine of Rs.3000/- with default stipulation of three months imprisonment. All the sentences were directed to run concurrently. Accused were acquitted under section 364 IPC. All the appeals have arisen out of one judgment, hence, are being decided simultaneously.
2. According to the prosecution case, a first information report was lodged at Case Crime No.204/2009, under section 364 IPC by Siya Ram on 22.02.2009 at Police Station Asoha, District Unnao. It was stated that on 20.02.2009 there was 'tilak' ceremony of Guddu son of Devicharan, nephew of the complainant. After the ceremony Ramendra alias Munna alongwith Shiv Shankar, Ankit, Nizamuddin and Sonu Saini kidnapped Raghvendra Yadav son of the complainant aged about 10 years by Maruti Car No. UP 32 BB 2470 at about 10:20 PM. Ramendra alias Munna is son in law of Devi Charan. Devi Charan is real brother of complainant. Complainant alongwith Sunil Kumar Shukla and Atma Ram saw the incident. On 22.02.2009, when complainant Siya Ram asked Ramendra alias Munna about the whereabout of his son then he told that he did not know about his son. Thereafter, first information report was lodged. Investigation was handed over to SI Prem Bahadur Singh. On 23.02.2009, the dead body of the deceased was recovered from a well. Inquest proceedings were conducted which begin on 23.02.2009 at 08:30 AM and concluded at 10:00 AM. Dead body was sent for postmortem which was conducted on 23.02.2009 at 02:10 PM wherein the cause of death was found as ante-mortem throttling. On 24.02.2009 on the pointing out of accused Ramendra alias Munna a sweater of the deceased was recovered by the police from a bush in village Buliganj, Police Station Masauli, near a water, tank. Awadh Ram and Sita Ram were present at the time of recovery. Complainant himself identified the sweater that it is the sweater of his son Raghvendra. After concluding the investigation, chargesheet was submitted against the accused persons under section 147, 364, 302, 201 IPC.
3. Accused were charged under section 147, 364 read with section 149 IPC, 302 read with section 149 IPC, 201 read with section 149 IPC and 364 A read with Section 149 IPC.
4. In order to prove its case prosecution has produced PW-1 Siya Ram complainant and father of the deceased, PW-2 Sunil Kumar, witness of last seen, PW-3 SI Jai Prakash Misra, who has prepared the inquest report, PW-4 Dr. Vidya Bhushan Pathak, who has conducted the postmortem of the dead body of the deceased. Cause of death was found as asphyxia due to throttling. According to the opinion of the doctor, death could have occurred in the night of 21.9.2009. PW-5 SI Santosh Kumar Kushwaha, Investigating Officer who has conducted the investigation and also recovered the sweater of the deceased, PW-6 SI Indra Narain Misra Investigating Officer of SIS who was entrusted with the investigation on 11.8.2009, PW-7 Constable Ram Sahai Kannaujia, scribe of chik FIR, PW-8 SI Brij Kishore Misra second Investigating Officer of SIS.
5. Accused in their statement have denied the allegations levelled against them by the witnesses.
6. After appreciating the evidence on record, learned trial court has recorded the finding of conviction and sentenced the accused.
7. We have heard Shri Abid Ali, Shri M.L. Syal, Shri Atul Verma, Shri Arun Sinha for the appellants and Shri Umesh Verma learned A.G.A for the respondent.
8. Learned counsel for the appellants submits that the prosecution has failed to prove the charges against the accused beyond reasonable doubt. It is submitted that the accused have been convicted under section 364 A IPC while there is no allegation about demand of ransom by the accused. As per the prosecution version ransom was demanded by Uma Shankar father of accused Ramendra on 21.02.2009 while FIR was lodged on 22.02.2009, but this fact was not mentioned in the FIR. It is further submitted that even no chargesheet against the accused Uma Shankar and Pradeep who are father and brother of Ramendra, is filed by the prosecution. It is further submitted that in the absence of any evidence against the accused to prove the charges under section 364 A IPC, learned trial court has misappreciated the evidence on record and erroneously convicted and sentenced the accused-appellants.
9. It is further submitted that it is a case of circumstantial evidence wherein the chain of circumstances is not complete. Statement of PW-1 Siya Ram and PW-2 Sunil Kumar is not believable. Presence of accused Shiv Shankar, Ankit Sharma, Sonu Saini and Nizamuddin could not be proved. Even the presence and charge of kidnapping against Ramendra alias Munna could not be proved. There was no motive for kidnapping. It is further submitted that the recovery of sweater under section 27 of the Indian Evidence Act could not be legally proved by the prosecution.
10. It is further submitted that the first information report was lodged with considerable delay. It is a case of last seen only. Merely on the basis of the statement of PW-1 Siya Ram and PW-2 Sunil Kumar, the statement of last seen, accused-appellants could not be convicted. It is further submitted that the chain of circumstances could not be completed by the prosecution.
11. Per contra, learned A.G.A. submits that the prosecution has successfully proved the charges against the accused beyond reasonable doubt. Statement of PW-1 Siya Ram and PW-2 Sunil Kumar are fully reliable. They have seen the accused taking away the deceased Raghvendra in the Maruti car. They have named all the accused persons. Accused Ramendra alias Munna is the son in law of Devi Charan, who is brother of complainant Siya Ram, who had enmity with the complainant regarding some dispute in his marriage with Rachna, daughter of Devi Charan.
12. Learned A.G.A. has further submitted that although the demand of ransom could not be proved but the evidence on record is sufficient to convict the accused persons under section 364 and 302 IPC. Learned A.G.A. has placed reliance upon Paramasivam and Others vs. State through Inspector of Police, (2015) 13 SCC 300 and Dilip Mallick vs. State of West Bengal, (2017) 1 JIC 1004 (SC).
13. Now, it is to be seen as to whether the prosecution has successfully proved the charges against the accused beyond reasonable doubt ?
14. At the very outset accused were charged under section 147 IPC, 364 read with section 149 IPC, 302 read with section 149 IPC and 201 read with section 149 IPC on 12.10.2009. Accused were charged under section 364 A read with section 149 IPC subsequently on 20.02.2011. Learned trial court has convicted the accused under section 147, 302 read with section 149 IPC, 364 A read with section 149 IPC, 201 read with section 149 IPC. All the accused were acquitted under section 364 IPC for the charge framed under section 364 IPC. It is also relevant that state has not preferred any appeal against the order of acquittal passed by the learned trial court under section 364 IPC.
15. Section 364 IPC reads as under :-
364. Kidnapping or abducting in order to murder.--Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with 1[imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Illustrations.
(a)A kidnaps Z from 2[India], intending or knowing it to be likely that Z may be sacrificed to an idol. A has committed the offence defined in this section.
(b) A forcibly carries or entices B away from his home in order that B may be murdered. A has committed the offence defined in this section.
16. Section 364 A IPC reads as under :-
[364A. Kidnapping for ransom, etc.--Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or 1[any foreign State or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.]
17. Learned trial court has acquitted the accused persons under section 364 IPC which means that the charge for kidnapping of Raghvendra in order to murder him is not proved against the accused, rather, the trial court has convicted the accused under section 364 A IPC wherein there should be a demand of ransom.
18. PW-1 Siya Ram has stated that a telephonic call was received by him on 21.02.2009 in the morning from Uma Shankar, father of accused Ramendra, who was demanding a ransom of Rs.2200000/- to release the abductee, i.e. Raghvendra. Pradeep son of Uma Shankar was also involved in it. First information report was lodged on 22.02.2009 but there was no mention of the demand of ransom in the first information report. It could very well be understood that when young son of ten years of complainant was kidnapped and he received ransom call then he was afraid to inform the police with a fear that if he will inform the police, life of his son could be in danger. It is also mentioned in the FIR that he suspects that accused persons may kill his son then what was the reason which prevented the complainant to mention this fact in the first information report that he received a telephonic call for ransom which could not be fulfilled by him. PW-1 Siya Ram has not be able to give any explanation as to why the fact of demand of ransom was neither mentioned in the first information report nor told to the police. Even the Investigating Officer has stated that he was not informed about the demand of ransom by Uma Shankar father of the accused Ramendra. On the application of PW-1 Siya Ram investigation was transferred to SIS branch wherein PW-6 S.I. Indra Narain Misra conducted the investigation. It is stated by him that name of Uma Shankar and Pradeep Yadav came into light in his investigation. He also collected the call details of the phone of complainant but the same is not produced before the court. Even it was not verified that the number from which the call was received at the mobile phone of Siya Ram was registered in whose name. PW-8 S.I. Brij Kishore Misra is another Investigating Officer who has stated that the phone call of Siya Ram was made from a PCO of one Sanju but he could not verify as to who had made the call. Statement of Sanju and her husband were also recorded. It is also admitted by him that the mobile phone was not used for making call to Siya Ram. Neither Uma Shankar nor Pradeep Yadav were chargesheeted by the Investigating Officer as no sufficient evidence was found against them for their prosecution. In the absence of any material on record to show that the calls for ransom was made by the accused persons it could not be said that the kidnapping was done for ransom. Investigating agency has not chargesheeted Uma Shankar and Pradeep Yadav. PW-1 Siya Ram has specifically stated that he has received call on 21.02.2009 from the mobile of Uma Shankar. He identified him on the basis of his voice but this fact could also not be proved.
19. Hence, there is no evidence on record which could connect the accused Ramendra alias Pappu or his father Uma Shankar and brother Pradeep in kidnapping of Raghvendra for ransom.
20. Now, we have to see as to whether the prosecution has been able to prove the charge of 302 IPC against the accused-appellants. At this stage, it is very relevant that the accused persons have been acquitted under section 364 IPC against which no appeal has been preferred by the State.
21. PW-1 Siya Ram is father of the deceased Raghvendra, PW-2 Sunil Kumar is a witness who happens to be present at the spot to attend the 'tilak' ceremony. Both of them have given the statement of last seen. Now, it becomes a case of last seen as well as circumstantial evidence.
22. It was held by the Hon'ble Apex Court in Satish Nirankari vs. State of Rajasthan, (2017) 8 SCC 497 that :-
"29. It is now well established, by a catena of judgments of the Hon'ble Apex Court, that circumstantial evidence of the following character needs to be fully established:
(i) Circumstances should be fully proved.
(ii) Circumstances should be conclusive in nature.
(iii) All the facts established should be consistent only with the hypothesis of guilt.
(iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused (see State of U.P. v. Ravindra Prakash Mittal, (1992) 3 SCC 300) ; (Chandrakant Chimanlal Desai v. State of Gujarat, (1992) 1 SCC 473 ). It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence, the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person.
30. The following tests laid down in Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 also need to be kept in mind: (SCC pp. 710-11, para 10) "10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
31. Sir Alfred Wills in his book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits;
(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
23. In para 13 of Ujjagar Singh vs. State of Punjab, (2007) 13 SCC 90, it was held by the Hon'ble Apex Court that :-
"13. In Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, this Court discussed the ratio of the judgments in Hanumant Govind Nargundkar vs. State of M.P., AIR 1952 SC 43, Tufail vs. State of U.P., (1696) 3 SCC 198, Ram Gopal vs. State of Maharashtra, (1972) 4 SCC 625 and Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 and observed thus :
(Sharad Birdhichand case, SCC p.185, para 153) "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made : [SCC p.807, para 19 : SCC (Cri) p.1047] '19.. ... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance betweem "may be" and "must be" is long and divides vague conjectures from sure conclusions.' (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
(emphasis in original)
24. It is held by the Hon'ble Apex Court that merely on the basis of evidence of last seen conviction could not be based unless and until the chain of circumstances is complete. Paramasivam (supra) would be applicable only when it is shown that deceased was abducted by the accused then they have to explain how they dealt with the abducted victim.
25. In the case of Paramasivam (supra) the Hon'ble Apex Court has referred the decision of State of West Bengal vs. Mir Mohd. Omar, (2000) 8 SCC 382 wherein it was held that :-
"34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at lease until he was in their custody."
26. Further in Sucha Singh vs. State of Punjab, (2001)4 SCC 375 in para 19 it was held by the Hon'ble Apex Court that :-
19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.
27. In Dilip Mallick vs. State of West Bengal, (2017) 1 JIC 1004(SC) Hon'ble the Apex Court has placed reliance upon Sharadbirdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, wherein it was held that the chain of evidence should be complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
28. In the backdrop of the above legal propositions now we have to examine the veracity of the testimony of the witnesses.
29. It is alleged that the accused Ramendra alias Munna alongwith co-accused, who were his friends, kidnapped the deceased Raghvendra. There is no mention of any motive either in the first information report or in the statement of PW-1 Siya Ram. Admittedly, Ramendra alias Munna was the son in law of Devi Charan, who is the real brother of complainant Siya Ram. It means that Raghvendra (deceased) was brother-in-law (sala) of the accused Ramendra alias Munna. There should have been a motive to kidnap Raghvendra. In the case of circumstantial evidence motive plays a very important and vital role.
30. It was held by the Hon'ble Apex Court in Surinder Pal Jain vs. Delhi Administration, 1993 Supp (3) SCC 681 that :-
"11. ..........In a case based on circumstantial evidence motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof."
31. It was held by the Hon'ble Apex Court in Ujjagar Singh vs. State of Punjab, (2007) 13 SCC 90 that :-
" 17................. It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the cliche) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy."
32. It has been held by the Hon'ble Apex Court in Ganpat Singh vs. The State of Madhya Pradesh, 2017 (4) Crimes 55 (SC) that :-
"10. Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows :
"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". [See Bodh Raj alias Bodha vs. State of Jammu and Kashmir, (2002) 8 SCC 45: [2002] 6 Supreme 154/[2002] 4 Crimes (SC) 182; Jaswant Gir vs. State of Punjab (2005) 12 SCC 438; Tipparam Prabhakar vs. State of Andhra Pradesh, (2009) 13 SCC 534; Rishi Pal vs. State of Uttarakhand, (2013) 12 SCC 551: [2013] 1 Supreme 409; Krishnan vs. State of Tamil Nadu, (2014) 12 SCC 279: [2014] 6 Supreme 618; Kirti Pal vs. State of West Bengal, (2015) 11 SCC 178; State of Karnataka vs. Chand Basha, (2016) 1 SCC 501; Rambraksh vs. State of Chhattisgarh, (2016) 12 SCC 251; Anjan Kumar Sharma vs. State of Assam (2017) (6) SCALE 556."
33. In the first information report it is mentioned that Raghvendra has been kidnapped with an intention to commit his murder. In the statement of PW-1 Siya Ram an improvement is made that the kidnapping was done for ransom. Prosecution itself has not been able to prove the charge of ransom, rather Uma Shankar, father of accused Ramendra, who has made a telephonic call to Siya Ram has not been made an accused in the chargesheet. Even during trial no effort was made by the prosecution to summon him under section 319 CrPC. It is further stated by the PW-1 Siya Ram that when he saw Raghvendra sitting in the Maruti Car alongwith accused Ramendra his father Uma Shankar and brother Pradeep came and whispered in the ear of Ramendra. Thereafter, Ramendra left the place with Raghvendra and the co-accused. This statement itself is against the settled story of the prosecution. There is no other motive for the incident. It is stated by PW-1 that in the marriage of Ramendra with Rachna, daughter of Devi Charan, there was some altercation between him and father of Ramendra. It is admitted by PW-1 Siya Ram that he was having cordial relations with Ramendra. Even if it is admitted that there were some altercations in the marriage of Ramendra with Rachna, who is the daughter of Devi Charan, then Ramendra could have developed an animosity with Devi Charan and not with the Siya Ram. Hence, there was no motive for kidnapping the deceased by Ramendra.
34. Statement of PW-1 Siya Ram did not inspire confidence. It is stated by PW-1 Siya Ram that on the date of incident there was 'tilak' ceremony of Guddu alias Rajendra who is the real nephew of PW-1 Siya Ram. There was a dinner party. At about 10:30 PM he saw that deceased Raghvendra was sitting with accused in the Maruti car. Uma Shankar and Pradeep whispered something to Ramendra, thereafter, car left the place. Thereafter, when PW-1 Siya Ram did not found the deceased then he made a search for him who could not be traced out then he lodged the first information report on 22.02.2009. It was well within the knowledge of PW-1 Siya Ram that Raghvendra (deceased) was sitting in the car with Ramendra and co-accused. PW-1 Siya Ram made an attempt to search Raghvendra. When he could not search him then in the night he left the place of incident and went to his house. Till 22.02.2009 continuously he was searching Ramendra-accused and he lodged FIR on 22.02.2009. Thereafter, he informed the police but no such information has been brought on record. Dead body of the deceased was recovered from a well on 23.02.2009 within the precincts of police station Masauli which are about 100 Kms from his residence. The conduct of PW-1 itself creates a suspicion about the genuineness of his statement. When he was knowing that the deceased has gone with Ramendra then he did not ask Ramendra in the night about Raghvendra. Next day he went to the house of Ramendra but he did not met there. Even then he did not inform the police. Moreso when a call for ransom was also received by him on 21.02.2009.
35. During the night nobody was sent to the house of Ramendra to find out about the well being of the deceased. This conduct of PW-1 Siya Ram itself shows that his statement is not trustworthy. He has further stated that when accused Ramendra took Raghvendra with him PW-1 Siya Ram thought that he must have taken Raghvendra for some outing. Incident occurred at 10:30 PM. It was not a time for outing, that too in a village which itself creates a doubt about the prosecution version.
36. PW-2 Sunil Kumar is a chance witness who was present in the 'tilak' ceremony. He was an invitee. He is a resident of a village about 50 Kms away from the village of incident. After the ceremonies PW-2 Sunil Kumar left for his house. Next day he received an information about the disappearance of Raghvendra from the 'Arhat' of Siya Ram, who was not present there. This witness is a friend of PW-1 Siya Ram but he did not made any effort to trace Raghvendra (deceased). According to PW-2 Sunil Kumar after the 'tilak' ceremony he met Siya Ram near the dead body while the name of Sunil Kumar is written in the first information report as a witness of fact. PW-2 Sunil Kumar is also a witness of inquest. He is a chance witness. PW-2 Sunil Kumar further stated that he received the information about the dead body on 22.02.2009 while the inquest proceedings were conducted on 23.02.2009. According to PW-1 Siya Ram the dead body was recovered on 23.02.2009. Sunil Kumar is also a witness of inquest but he did not utter even a single word about the demand of ransom. Conduct of PW-2 Sunil Kumar is also very much doubtful. He met the accused Nizamuddin at the 'Arhat' of Siya Ram. Even he met Sonu Saini at the 'Arhat' of Siya Ram. He knows Ankit Sharma after the marriage of Ramendra which took place about a year back from the date of incident. It has nowhere been brought on record that all the accused persons were famliar with the witness PW-2 Sunil Kumar. He met them for once only but he identified them by name in the 'tilak' ceremony. While PW-2 Sunil Kumar himself did not know as to how many persons are working at the 'Arhat' of Siya Ram. He is simply a friend of Siya Ram then how at every occasion when any of the accused is present at the 'Arhat' of Siya Ram this witness also reaches there. PW-2 Sunil Kumar is not a friend of Devi Charan or Rajendra alias Guddu. 'Tilak' ceremony of Rajendra alias Guddu was performed but PW-2 Sunil Kumar was invited by Siya Ram. This fact attains importance because of the fact that accused Ramendra alias Munna is real son in law of Devi Charan. Devi Charan and Siya Ram had cordial relations. Then what was the occasion for Sunil Kumar to remain present in the 'tilak' ceremony. He saw the car in the night at 10:30 PM on a handpump where he went to wash the hands after dinner. The Investigating Officer has not shown the place from where PW-2 Sunil Kumar has seen the deceased sitting in the car. Presence of PW-2 Sunil Kumar could not be established by the prosecution.
37. There is a recovery of a sweater on 24.02.1990 on the pointing out of the accused Ramendra alias Munna. Recovery memo exhibit ka-11 reads as under :-
QnZ ysus dCtk ,d vnn LosVj o jax usoh Cyw lEcfU/kr e`rd jk?kosUnz ;kno lEcfU/kr eq0v0la0 204@09 /kkjk 302] 201] 364] 120 ch vkbZ ih lh Fkkuk vlksgk ftyk mUuko vkt fnukad 24-2-2009 eSa ,l vks lUrks"k dqekj dq'kokgk e; gejkgh ,l vkbZ Jh izse cgknqj flag e; dk0 jktflag] dk0 278 fnyhi dqekj e; thi ljdkjh ds e; vfHk;qDr jkesUnz mQZ eqUuk iq= mek'kadj fuoklh egeniqj iqjok mUuko gyk irk d`".kk uxj y[kum vnn gokykr ls fudykdj ckn yxokdj gFkdM+h o mEehn cjkenxh vig`rk A e`rd jk?kosUnz ;kno ds diM+k LosVj gsrq e; eqdnek oknh Jh fl;kjke ;kno iq= Lo0 fcUnk izlkn fuoklh ojok[kqnZ Fkkuk vlksgk gky dLck iqjok ftyk mUuko ds jokuk gksdj xzke Hkwyhxat Fkkuk elkSyh {ks= esa vk;k tgka e`rd dh yk'k cjken gqbZ gS A ls dqN nwj thi [kM+h dj vfHk;qDr dks thi ls mrkjdj vfHk;qDr vkxs&vkxs pydj dqvk ls djhc 30 dne nwjh fLFkr ikuh ds gkSnk cxy fLFkr >kM+h ds uhps ls Lo;a fudkydj ,sd vnn LosVj muh iwjh vkLrhu o jax usohCyw fn;k ftls ekSds ds xokg 1- loZJh vo/k jke iq= xq:nhu xzke Hkwyhxat] 2- lhrkjke S/o Hkxokunhu xzke Hkwyhxat Fkkuk elkSyh ds le{k dCtk iqfyl fy;k x;k ftls ekSds ij gh oknh us ns[kdj igpkuk vkSj crk;k fd ;g cjken LosVj mlds yM+ds e`rd jk?kosUnz dk gS A LosVj esa fLVdj vaxzsth esa vksloky 32 uEcj 100% I;kjs o lQsn /kkxs ls ck;s lhus ij Cm. Ps d<+k gS A cjken LosVj dks ,d diM+s esa j[kdj loZeqgj dj uewuk eksgj rS;kj fd;k x;k 1 QnZ ekSds ij fy[kdj i<+dj lqukdj xokgh xokgku cuok;h tkrh gS A
38. On the point of recovery under section 27 of the Indian Evidence Act it was held by the Hon'ble Apex Court in Anter Singh v. State of Rajasthan (2004) 10 Supreme Court Cases 657 on Pulukuri Kotayya v. Emperor (AIR 1947 PC 67) wherein the scope and ambit of Section 27 of the Indian Evidence Act has been discussed as under:
"[I] It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which stabbed A.', these words are inadmissible since they do not related to the discovery of the knife in the house of the informant."
12. The aforesaid position was again highlighted in Prabhoo v. State of Uttar Pradesh (AIR 1963 SC 1113).
13. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases in the background events proved therein is not always free from difficulty. It will, therefore, be worthwhile at the outset, to have a short and swift glance at Section 27 and be reminded of its requirements. The Section says :
"27. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved."
14. The expression "provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Section 25 and 26. It is not necessary in this case to consider if this Section qualifies, to any extent, Section 24 , also. It will be seen that the first condition necessary for bringing this Section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly" relates "to the fact thereby discovered" and is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. (See Mohammed Inayuthillah v. The State of Maharashtra) AIR 1976 SC 483.
15. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya case (supra) and in Udai Bhan v. State of Uttar Pradesh AIR 1962 SC 1116.
16. The various requirements of the Section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by accused's own act.
(4) The person giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
17. As observed in Palukuri Kotayya's case (supra) it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the chain of proof and the other links must be forged in manner allowed by law. To similar effect was the view expressed in K. Chinnaswamy Reddy v. State of A.P AIR 1962 SC 1788.
39. If we examine recovery under section 27 Indian Evidence Act we found that the recovery memo or the recovery itself is not proved in accordance with law. PW-5 SI Santosh Kumar Kushwaha is a witness of recovery as well as the Investigating Officer. Accused Ramendra alias Munna alongwith co-accused was arrested on 24.02.2009 at 05:30 PM in a case of police encounter. According to PW-5 Santosh Kumar Kushwaha statement of the accused were recorded wherein accused Ramendra disclosed the fact that he can get the sweater recovered. Thereafter recovery was made. No time of recovery is mentioned in the recovery memo. At the most it could be accepted that accused was arrested in some other case of police encounter but whether he was an accused in this case? Whether any judicial remand was taken by the Investigating Officer? All these facts could not be proved by the prosecution. What was the statement given by the accused Ramendra regarding recovery of the sweater is also not brought on record. It is also not mentioned in the recovery memo that any statement was given by the accused Ramendra while in the custody of the Investigating Officer PW-5 SI Santosh Kumar Kushwaha, hence, the recovery of sweater under sectin 27 Indian Evidence Act is not legally proved.
40. PW-1 Siya Ram has stated that he had handed over the photographs of the ceremony to the Investigating Officer. There is a difference in the photographs given by him as well as the photographs which were obtained from DVD and CD. Ankit Sharma is a resident of village Khailamau which is under the police station Ajgain. Ankit Sharma has no relationship in the village of PW-1 Siya Ram. There is no photograph of Ankit Sharma which was taken in the ceremony. He had no enmity that Ankit Sharma. No identification was done. No invitation card was given to Nizamuddin. Only, once he had been to his house. This witness could not state the residence of Nizamuddin. Even Sonu was not known to this witness. None of the accused accept Ramendra were known to PW-1 Siya Ram. None of them had any animosity either with the complainant or his son. The only ground as put forth by the prosecution is that since they were Ramendra's friends, hence, they came in the function. They were not put for identification parade. There was no reason for them to kidnap the son of the complainant. Their presence at the spot is also doubtful.
41. Since the prosecution has failed to prove that the Raghvendra was last seen in the company of the accused, hence, the burden to explain the whereabouts of the deceased could not be shifted upon the accused persons as has been held by the Hon'ble Apex Court in Sucha Singh (supra). Chain of the circumstances is also not complete.
42. On the basis of the discussion made above we are of the considered view that the learned trial court has erred in appreciating the evidence on record and recording finding of conviction against the accused-appellants. Prosecution has utterly failed to prove the case against the accused-appellants. Accordingly, appeals are allowed. Judgment of conviction and order of sentence passed by the learned trial court is set-aside. Accused Ramendra, Shiv Shankar, Ankit Sharma, Nizamuddin, Sonu Saini are acquitted for the offence punishable under section 147, 302 read with section 149 IPC, 364 A IPC and 201 IPC. They are in jail. They shall be released forthwith if not wanted in any other case. Fine, if deposited, be refunded.
43. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.
Date :- 24.11.2017 mks (Prashant Kumar, J.) (Anil Kumar Srivastava-II, J.)