Allahabad High Court
Gyanendra vs State Of U.P. on 11 February, 2019
Bench: Bala Krishna Narayana, Ghandikota Sri Devi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 4 Case :- CRIMINAL APPEAL No. - 4905 of 2015 Appellant :- Gyanendra Respondent :- State Of U.P. Counsel for Appellant :- Kashif Gilani,Dhirendra Kumar Srivastava,Gopal Das Srivastava,Rajiv Lochan Shukla,Sartaj Ahmad Gilani Counsel for Respondent :- G.A. with Case :- CRIMINAL APPEAL No. - 4908 of 2015 Appellant :- Satveer Singh Respondent :- State Of U.P. Counsel for Appellant :- Kashif Gilani,Akhilesh Kumar Singh,Dhirendra Kumar Srivastava,Gopal Das Srivastava,Mahesh Prasad Yadav,Rajiv Lochan Shukla,Sartaj Ahmad Gilani Counsel for Respondent :- G.A. with Case :- CRIMINAL APPEAL No. - 5651 of 2015 Appellant :- Sonu Respondent :- State Of U.P. Counsel for Appellant :- Ravindra Nath Yadav Counsel for Respondent :- G.A. Hon'ble Bala Krishna Narayana,J.
Hon'ble Ghandikota Sri Devi,J.
(Per Hon'ble Ghandikota Sri Devi, J.)
1. The argument of this case was concluded on 11.02..2019. We then made the following order :-
"Heard Sri Kamal Krishna, Senior Advocate assisted by Sri Rajesh Kishore Srivastava and Sri Akhilesh Kumar Singh, learned counsel for the appellants for all the three appeals and Sri H. M. B. Sinha, learned A.G.A.-I for the State.
We will give reasons later. But we make the operative order here and now.
The Criminal Appeal Nos. 4905 of 2015, 4908 of 2015 and 5651 of 2015 preferred by appellants Gyanendra, Satveer Singh and Sonu respectively against the judgement and order dated 03.09.2015 passed by Additional Sessions Judge, Court No. 1, Ghaziabad in Sessions Trial No. 1429 of 2011 (State Vs. Gyanendra) u/s 147, 148, 504, 506, 302/149, 201 I.P.C., Sessions Trial No. 1564 of 2012 (State Vs. Satveer Singh) u/s 147, 148, 504, 506, 302/149, 201 I.P.C. and Session Trial No. 659 of 2013 (State Vs. Satveer Singh) u/s 174-A I.P.C., Sessions Trial No. 1429 of 2011 (State Vs. Gyanendra and another) u/s 147, 148, 504, 506, 302/149, 201 I.P.C. and Session Trial No. 1430 of 2011 (State Vs. Sonu) u/s 25 of Arms Act, are hereby allowed. The impugned judgement and order is set-aside. The appellants are acquitted of all the charges framed against them.
Appellant Sonu in Criminal Appeal No. 5651 of 2015 and appellant Satveer Singh in Criminal Appeal No. 4908 of 2015 are in jail. They shall be released forthwith, unless they are in wanted in some other case.
As far as appellant Gyanendra in Criminal Appeal No. 4905 of 2015 is concerned, he is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.
There shall however, be no order as to costs.
All the appellants shall comply with the provisions of Section 437-A Cr.P.C. within a week from their release."
Here are the reasons :-
2. The accused appellants, Gyanendra, Sonu and Satveer in the aforesaid appeals have challenged the impugned judgment and order dated 03.09.2015 passed by learned Additional District and Sessions Judge, Court No- 1, Ghaziabad in Sessions Trial No. 1429 of 2011, Case Crime No. 842 of 2011 (State vs. Gyanendra and others), Sessions Trial No. 1564 of 2012, Case Crime No. 842 of 2011 (State vs. Satveer Singh), whereby they were convicted for the offence under Sections 147, 148, 504, 506, 302/149 and 201 I.P.C., P.S.- Loni, District- Ghaziabad. The accused-appellant, Satveer further challenged the judgment and order of the learned Additional Sessions Judge, Court No. 1, Ghaziabad whereby he was convicted for the offence under Section 174-A I.P.C. in Sessions Trial No. 659 of 2013, Case Crime No. 1160 of 2011 (State vs. Satveer Singh), P.S.- Loni, District- Ghaziabad. The accused-appellant, Sonu also challenged the aforesaid judgment and order, whereby he was convicted for the offence under Section 25 Arms Act in Sessions Trial No. 1430 of 2011, Case Crime No. 891 of 2011 (State vs. Sonu ), P.S.- Loni, District- Ghaziabad.
3. In the aforesaid appeals, the accused-appellants, Gyanendra and Sonu were convicted in Sessions Trial No. 1429 of 2011 (Case Crime No. 842 of 2011) and accused-appellant, Satveer Singh was convicted in Sessions Trial No. 1564 of 2012 (Case Crime No. 842 of 2011), for the offence under Section 147 I.P.C. and all the three appellants were sentenced to undergo rigorous imprisonment of 2 years and the fine of Rs. 1,000/- each, in default of payment of fine, all the three accused-appellants were directed to undergo further period of rigorous imprisonment of three months each. The accused-appellant, Gyanendra, Sonu and Satveer Singh were further convicted in Sessions Trial No. 1429 of 2011 (Case Crime No. 842 of 2011) and 1564 of 2012 (Case Crime No. 842 of 2011) respectively, for the offence under Section 148 I.P.C. and they were sentenced to undergo rigorous imprisonment of 3 years' and the fine of Rs. 1,000/- each, in default of payment of fine they were directed to undergo further period of rigorous imprisonment of three months each. The accused-appellants were also convicted in Sessions Trial No. 1429 of 2011 (Case Crime No. 842 of 2011) and 1564 of 2012 (Case Crime No. 842 of 2011) for the offence under Section 504 I.P.C. and they were sentenced to imprisonment of two years' and the fine of Rs. 1,000/- each, in default of payment of fine, they were directed to undergo rigorous imprisonment of three months' each. The accused-appellants were convicted in Sessions Trial No. 1429 of 2011 (Case Crime No. 842 of 2011) and 1564 of 2012 (Case Crime No. 842 of 2011) for the offence under Section 506 I.P.C. and were sentenced to rigorous imprisonment of three years' and the fine of Rs. 1,000/- each, in default of payment of fine, they were directed to undergo rigorous imprisonment of three months' each. The accused-appellants were also convicted in Sessions Trial No. 1429 of 2011 (Case Crime No. 842 of 2011) and 1564 of 2012 (Case Crime No. 842 of 2011) for the offence under Section 302/149 I.P.C. and were sentenced to life imprisonment and the fine of Rs. 10,000/- each, in default of payment of fine, the accused-appellants were directed to undergo the rigorous imprisonment of five years' each. The accused-appellants in Sessions Trial No. 1429 of 2011 (Case Crime No. 842 of 2011) and 1564 of 2012 (Case Crime No. 842 of 2011) were convicted for the offence under Section 201 I.P.C. and were sentenced to undergo seven years' rigorous imprisonment and the fine of Rs. 5,000/- each, in default of payment of fine, they were further directed to undergo two years' imprisonment each. The accused-appellant Sonu in Sessions Trial No. 1430 of 2011 (Case Crime No. 891 of 2011) was convicted for the offence under Section 25 Arms Act and was sentenced to three years' imprisonment and the fine of Rs. 5,000/-, in default of payment of fine, he was further directed to undergo rigorous imprisonment of two years. The accused-appellant Satveer Singh in Sessions Trial No. 659 of 2013 (Case Crime No. 1160 of 2011) was convicted for the offence under Section 174-A I.P.C. and was sentenced to three years' imprisonment and the fine of Rs. 1,000/-, in default of payment of fine, he was directed to undergo three months' rigorous imprisonment. However, all the sentences were directed to run concurrently.
4. Precursor to the incident stated concisely, as was mentioned in the written report are that the informant Sompal is the resident of Badshahpur Siroli. On 16.07.2011, his father Dharam Singh @ Dharmu son of Ratan Singh was called by Satveer son of Prem Singh and his son Atul of the same village, at 5 p.m. for making payment to Dharam Singh and he was taken by the aforesaid two persons to their brick kiln. The accused-appellant Satveer was to repay the loan of Rs. 2 lacs to his father. When his father did not return to his house, the informant and his cousin brother, Sanjay were searching for him and at about 9 p.m., they reached the brick kiln and saw that in front of the office of the said brick kiln, Satveer, the owner of the kiln, his son Atul Kumar, one Sonu of the same village, Annu @ Bahra @ Arun, Gyanendra and his father were sitting on the cots (char pai). His father was asked to go home, to which all the aforesaid persons have stated to him to leave his father, he will be following them taking the money. Thereafter, they have returned to their house but his father did not reach the house. Then the informant and his cousin brother again started searching his father. They reached the kiln at about 5 a.m. on the next day morning. The moment they reached the kiln they saw that Satveer fired and killed his father and the aforesaid persons dragged the dead body of his father and took it to the top of the kiln. When they obstructed, Satveer abused them, threatened them to kill and made firing with the fire arm, on which they were scared and ran away. After going some distance, they saw that the accused-appellants had thrown the dead body of his father into grid of kiln and burnt it. Then the informant and his cousin brother came to their house and informed about the incident to the other members of their family and other villagers and then went to the police chowki, Chirodi to report the matter.
5. Basing on the written report of the first informant, Case Crime No. 842 of 2011, under Sections 147, 148, 149, 504, 506, 302/201 I.P.C. was registered against the accused-appellants, Satveer, Atul Kumar, Sonu, Annu @ Bahra @ Arun and Gyanendra at P.S.- Loni, District- Ghaziabad. The check F.I.R. was prepared accordingly and relevant entries of the registration of the Case Crime No. etc. were made in the general diary.
6. The investigation of the case was taken up by S.S.I., Rajendra Singh Chauhan and he reached the place of occurrence. At the brick kiln, he got the remains and the bones of the deceased Dharam Singh, recovered from the grid, thereafter, prepared the inquest report. He also recovered the blood stained and simple soil from the place of occurrence and prepared the recovery memo to this effect. He further recovered the dhoti and empty cartridges from the place of occurrence. Accordingly prepared the recovery memos of the same. Thereafter, the investigation of the case was taken over by S.H.O. Ram Sen Singh on 15.09.2011. Thereafter, he recorded the statements of witnesses and also collected the affidavits of 35 persons of the village to prove that the accused-appellant Satveer was present in the village on the day of occurrence and according to the procedure, he prepared the memos of the witnesses and after completing the other formalities of investigation, he submitted charge-sheet against the accused-appellants, Gyanendra, Atul, Sonu and Annu @ Bahara @ Arun on 04.10.2011. However, in the said charge-sheet, the accused-appellant Satveer was shown as absconding. Basing on the documents and the pieces of bones and ashes which were sent to him, Dr. V. B. Dhaka conducted postmortem on 18.07.2011 at 3 p.m. and prepared the postmortem report.
7. Since the discussed offences were exclusively triable by the Court of Sessions, the Chief Judicial Magistrate has committed the aforesaid Sessions Trial of the accused-appellants to the Court of Sessions for a trial, wherein the Case Crime Nos. 842 of 2011, 891 of 2011 and 1160 of 2011 were registered as S.T. Nos. 1429 of 2011, 1564 of 2012, 1430 of 2011 and 659 of 2013 and the same were transferred to the Court of Additional Sessions Judge, Court No.- 15, Ghaziabad for a trial.
8. On the the strength of the submitted charge-sheets and basing on the primary evidence and after affording opportunity to the accused-appellants the learned Trial Judge framed charges against the appellants vide his order dated 03.09.2015. After being read over and explained the charges, the accused-appellants abjured the charges and claimed to be tried and thereafter the sessions trial procedure was resorted to establish the guilt of the accused-appellants.
9. The prosecution in order to establish the guilt against the accused has examined as many as 13 witnesses. Out of them 13 witnesses, PW-1, Sompal, PW-2, Sanjay and PW-3, Satveer were examined as witnesses to the fact. PW-4, Dr. V. B. Dhaka, PW-5, S.I. Indra Singh, PW-6, Rajendra Singh, PW-7, Yasweer Singh, PW-8, Ram Sen Singh, PW-9, constable no. 2344, Rahul Kumar, PW-10, constable no. 1090 Ram Khilari Yadav, PW-11, Sundar, PW-12, S.I. Shiv Raj Singh, PW-13, S.I. Surendra Mishra were examined as formal witnesses.
10. Apart from the aforesaid oral evidence, the prosecution has also rested its case on the documentary evidence which will be referred to in the following paragraphs as and when the said documentary evidence is required to be discussed.
11. After closure of the prosecution evidence, the statements of the accused-appellants were recorded under Section 313 Cr.P.C., in which all the accused-appellants have categorically stated about their false implication. It was also stated by the accused-appellants that even after the death, the deceased Dharam Singh was receiving BPL pension. The accused-appellant Satveer further stated that on 16.07.2011, he was not present at the place of occurrence. He was staying in the guest house/ lodge at Lucknow on 15.07.2011, from there with regard to the same matter pertaining to the labour, he went to Pratapgarh. On 16.07.2011, he has taken medical treatment at P.H.C., Kunda and on that day, there was a compromise with regard to the labour at Village, Ramdas Patti in the house of Village Pradhan because the laborers from the said village have fled away from the place of occurrence taking the money. In support of the case of the defence, the accused-appellants have examined as many as seven witnesses namely DW-1, Usha Kiran, DW-2, S.I. Anil Kumar, DW-3, Gyani, DW-4, Pappu, DW-5, Pravin Raj, DW-6, Dr. Satyen Rai, DW-7, Pramod Kumar Lekhpal.
12. Since PW-1, Sompal and PW-2, Sanjay both the witnesses of the same fact, therefore we take their evidence cumulatively.
13. PW-1, Sompal besides divulging the facts also stated in the written report, he further testified that on 16.07.2011 at about 5 p.m., the accused-appellant Satveer and Atul had gone to his house and they called his father and took him along with them. Satveer told to pay back the amount of Rs. 2 lacs to his father and to give that money, his father was called and he was taken to the kiln. When his father did not return home at about 9 p.m., he along with his cousin brother have reached the kiln of Satveer searching his father and saw that in front of the office of the kiln, his father, accused-appellants Satveer, Atul, Sonu, Annu and Gyanendra were sitting on the char pai. He and his cousin Sanjay asked his father that it has already become dark and to go home, to which all they have stated these two to go away and his father would be returning after taking money. They left their father and have gone to their house and slept but for the whole night, his father did not return home from the kiln, then he and his cousin, Sanjay on 17.07.2011 at 5 a.m. again reached the kiln and he saw that the accused, Satveer fired at his father who was lying on the cot (char pai) and his father was dragged to the brick kiln. When he objected to the same, the accused have fired at them. In order to save their lives, they ran from the place and at some distance they stopped and when they saw again, they found that the accused-appellants Satveer, Atul, Gyanendra, Sonu and Annu have thrown the body of his father into the burning brick kiln. They came back to their house and narrated the entire incident to their family members, so also to the villagers. Then they came to the Chirodi Chowki but they have been told at Chirodi to go to the police station. Accordingly, they went to the police station, got the report written by the Ravindra and submitted the written report in the police station. This witness proved the written report in the police station (Ex.Ka-1). This witness was further examined on 18.02.2013 in which he stated that the accused, Satveer and Atul asked his father to go to the kiln and to return back his Rs. 2 lacs and his father gone along with them. On the next day morning at 5 a.m., when he along with his cousin, Sanjay had gone to the kiln and he saw that Sonu and Satveer were having fire arms in their hands and both of them fired at their father and all the five have dragged the body of his father and taken to the grid of the kiln. When he opposed to the same, Satveer chased him with his fire arm and fired at him and he also abused him. However, he did not receive any fire arm injuries. When he reported the incident to the police at Chirodi Chowki, the constable told him that nothing will happen here and asked him to go to the police station. When he had gone to the police station and told to the daroga ji about the incident, daroga ji asked him to give in writing, to which he got the report written by his cousin brother, Ravindra, posted in the same police station. He further stated that his statement under Section 161 Cr.P.C. was recorded by the police Inspector. In the cross-examination, this witness stated that his father had given the sum of Rs. 2 lacs to Satveer about two years prior to the incident without interest. This amount was taken by Satveer to repay within a period of 1- 1½ years. The amount was given by his father from his house and not withdrawn from any bank, however, his father was having bank account in village, Ratoli. He denied to the suggestion that he was deposing falsehood regarding the loan given by his father. He further stated that Satveer was running brick kiln since 4-5 years before the incident, however, he was not aware whether Satveer was paying income tax or not. When the accused came to their house, he was also sitting along with his father, the accused did not sit at their home, they called and taken their father, however he did not mention this in the written report. He went on saying to the extent that when his examination-in-chief was recorded in the Court on 25.07.2012, he deposed this fact before the Court but he can not say the reason, as to how the Court did not record the facts stated by him. He did not put his signature on his examination-in-chief after being read over and explained to him, however, he denied to the suggestion that he was present in the village on 16.07.2011. He further stated that the grid of brick kiln is situated at a distance of 15 paces from the verandah of the office, having a width of about 25-30 paces. The chimney is placed at the center of the grid. On 16.07.2011, when he had gone to the kiln to call his father at 9 p.m., he stayed there for five minutes, however, he did not ask his father to go home and to take food, simply he called his father to go home. Before that his father never stayed away from the house during night. He returned back to his house, waited for his father for one hour and thereafter, he left. When in the morning, he had gone to the kiln, he saw his father from a distance of 20 paces and he saw that his father was lying on the cot and two accused were standing, having firearms in their hands and others were standing without any weapons. All the accused surrounded the cot. The accused, Sonu and Satveer who were having revolver in their hands were standing towards the head of his father. The cot where his father was lying was found at a distance of 25 paces from the kiln. The head of his father was lying towards the office and his legs were found towards the grid of the kiln. His father was wearing kurta and nikar at that time and his dhoti was kept on the floor of verandah at a distance of 1-2 feet from the cot. His father was wearing shoes and the shoes were kept near the char pai. His father was wearing the shoes when he left the house with the accused, however, when this witness returned to the place of occurrence after lodging the written report, he did not find the shoes of his father at that place, however, the char pai was lying in the same condition, when he saw at the time of leaving the brick kiln. The remaining two char pais were kept at a distance of 15 feet from the verandah and the public who came to the place were sitting on the two char pais (cots). He found the blood in the char pai, so also underneath the char pai. He also found the ashes of the kiln at the place where the blood was lying. The Investigating Officer lifted the blood stained ashes from the place of occurrence and he also cut the strings of the cot. The Investigating Officer also lifted the blood stained dhoti of his father. Satveer and Sonu fired at his father when his father was lying on the cot. Whatever was witnessed by him, the same was mentioned by him in the F.I.R. and he got also written the same in his report that Sonu and Satveer fired at his father, however, in the F.I.R. it was mentioned that only Satveer fired at his father. Without understanding, he put his signature. He further stated that at the time of occurrence when his father was dragged after he was fired, he raised alarm, he also raised alarm when the accused were firing at his father. After firing at his father, the accused dragged him on the floor for a distance of about 35 paces from the place where he was fired and the blood was ozzing from his body and has fallen on the ground. The grid of the kiln was about 8 feet high from the ground level. His father was not thrown in the grid which is situated in front of the office but he was thrown in the grid situated in the opposite direction, however, he has not seen whether the smoke was coming out from the chimney or not. When he reached the place of occurrence, the people were pouring water on the grid where his father was thrown, about 10-15 persons were pouring water with buckets. When he reached the kiln for the second time, there were about 500 to 700 people gathered at the kiln. Satveer fired at him after he climbed the grid and thereafter, he chased him for 15 to 20 feet and thereafter, he reached the place where his father's dead body was lying. He further stated that he ran about 50 feet and there he stopped for five minutes but he did not make any hue and cry. At the time of occurrence, the labourers were present at the kiln. Police Chaowki Chirodi is situated at about 2 and half kms. from his house and their Police Station- Loni situated at about 10 kms. He has gone to the Chirodi Chowki on foot along with Ajeet, Balbir, Chaman and others. He stayed at his house for five minutes and thereafter, reached the Chowki within 10-15 minutes. Thereafter, he has gone to the police station in an auto and reached the police station at about 8:30 a.m. in the morning. They stayed there for 15 minutes in the police station, thereafter, came back to Chirodi in an auto and thereafter, reached the kiln on foot. They reached the kiln at about 10:30 a.m., police also reached the kiln immediately after he reached. He has not shown the blood to the police where his father was dragged from the cot to the grid. He has also stated to the police that his father was wearing juta (shoes). It was not known to him, whether his father and mother were receiving the BPL pension or not. However, he denied to the suggestion that his father was receiving BPL pension and he was deposing falsehood knowingly. It was also not known to him that his parents were having the BPL account in the Indian Overseas Bank Chirodi and denied to the suggestion that he was knowingly deposing falsehood. He has also denied to the suggestion that the condition was not to the extent that his father would be able to give loan of Rs. 2 lacs and he also denied to the suggestion that his father was not murdered rather he was disappeared in order to falsely implicate Satveer, he has lodged the false report. He also denied to the suggestion that before the day of occurrence and on the day of occurrence, the accused-appellant, Satveer was not present at the village and he was present in District- Pratapgarh. His brother Raju, who has died on the next day of the occurrence was at Delhi on the date of occurrence, however, he came to the kiln after police reached the place of occurrence at about 11:30 a.m. in the morning. By the time, his brother, Raju reached at the kiln, the bones of his father were not extracted from the kiln and that is reason why he has mentioned that his brother has seen his father burning. Regarding the death of his brother, Raju, he has given application in the police on 19.07.2011 but in the said application, he has not mentioned that his brother, Raju has seen his father burning in the kiln and for which he died out of heart failure. Even in his examination-in-chief also, he has not mentioned this fact. He has also not stated to the Investigating Officer that his brother, Raju came from Delhi direct to the kiln on 17.07.2011, so also in his statement before the Court. However, he denied to the suggestion that his brother, Raju was not present at the place of occurrence on 17.07.2011 and he died at Delhi itself. He also denied to the suggestion that his younger brother, Jitendra also did not come to the kiln on 17.07.2011. He further stated that he remained present at the kiln on 17.07.2011 till about 2-2:30 p.m. JCB machine reached the place of occurrence in front of him, rent of the machine was paid by the police itself. When the accused dragged his father and thrown him in the grid, he fled from the place of occurrence. He denied to the suggestion that his father was not died at the place of occurrence as narrated by him and that he has not witnessed the occurrence. He also denied to the suggestion that he was deposing falsehood and that the accused, Sonu was not participated in the crime as narrated by him and he has falsely implicated the accused-appellant Sonu. He also denied to the suggestion that in order to extract the heavy sum from Satveer and out of greediness and grudge, he got the names of Satveer and his family members mentioned in the report by falsely implicating them.
14. Sanjay, PW-2, attour the testimony of informant PW-1, Sompal and he further deposed that on 16.07.2011, Sompal came to him at about 8:30- 9 p.m. and told him that his father Dharam Singh was taken by Satveer and Atul to their kiln with regard to the money transaction. He and Sompal had gone to the kiln and saw that Dharam Singh and all the accused-appellants were sitting on the cots. Sompal asked his father to go home, to which Satveer stated that somebody was coming and bringing the money and his father will be given the money and thereafter, he will be sent and asked him to go home, to which he and Sompal have gone to their homes. However, his tau did not return to his home for which early in the morning at 4:30, Sompal had gone to his house and told him that his father did not return. Again both went to the kiln about 5 a.m. and they saw that Satveer and Sonu fired at his tau in front of these two. Because they have witnessed the occurrence, hence Satveer fired at both of them also, to which both of them ran away from the place of occurrence and they have hidden themselves at some place. From there they saw that Satveer, Gyanendra, Atul, Arun and Sonu have dragged Dharam Singh, deceased and thrown him into the brick kiln. Thereafter, they returned home, narrated the entire incident to their family members. He further stated that his statement was recorded by the police officer. In his cross-examination, this witness has stated that they were enraged seeing the entire incident but directly without going to the police station, first they have gone to their house and after the discussions his brother, Sompal had gone to report in the police station. He remained present at home. Two, three persons have accompanied Sompal. After Sompal gone to the police station, he did not go to the brick kiln, thereafter, because of his ill health. However, police has recorded his statement on 17.07.2011 itself at the brick kiln at about 1 p.m. He further stated that when they reached the brick kiln in the previous night his uncle (tau) and accused were freely talking with each other without any disturbance or quarrel amonst them. When they reached in the morning at the brick kiln and they saw that two cots were lying in front of the office and two cots were lying in the same line towards the kiln. He further stated that the accused fired at his uncle when he was lying on the cot and they fired about 6-7 rounds, however, he did not raise alarm when the accused were firing at his tau. They were at a distance of 8-10 paces. The dhoti was kept on the pillar at a distance of about 1.5 feet from the cot. Blood was dripping from the cot on the floor, however, he had seen when he went to the brick kiln for second time and not at the time when his tau was fired at. He further stated that accused chased them for about 20-25 paces and they made one firing at them till they reached their house from the brick kiln. They had not raised any alarm that their uncle was murdered by the accused and he was thrown into the grid. They only came to the house, narrated the incident to the family members. Public had not gathered at their house, they had gone to the kiln. He was not aware of the proceedings at the place of occurrence till he reached there at 1 p.m. Chaman, Balbir, Ajeet etc. accompanied the informant to give the report written at the police station. He was not aware whether his uncle was issued the BPL card or not and that whether he was having any bank account in this regard.
15. Coming to the evidence of PW-3, Satveer, son of Kripal Singh, he had stated that the occurrence took place at about 2 years back at about 5:30-6 p.m. in the evening. He along with Sunil were going to their field and on the way, he had seen towards Dharam Singh @ Dharmu going along with Satveer and Atul, going towards the kiln of Satveer. Then he asked Dharam Singh, as to where he was going, to which Dharam Singh stated that he was going to the kiln of Satveer. About half an hour later, when he was returning from his field, he saw that Satveer, Dharam Singh, Atul, Gyanendra, Anu and Sonu were sitting at the kiln of Satveer. He along with Sunil gone back to their house. He heard in the morning that Dharam Singh was thrown into the kiln, however, who has thrown him into the kiln was not known to him. The accused-appellants belong to his villlage, being cross-examined by the counsel for the defence, he stated that they have gone to their field from their house through Chirodi road. He left for the field from his house at about 5:15 p.m. Sunil was not having any field nearby his fields. He had gone to the field by a boogie. The accused, Satveer and the deceased met him on the Dagarpur road, about half km. before the kiln. They met him on the road itself. Sunil was also sitting with him on the boogie. At about 6 p.m. he was returning to his home. He further stated that the police officer recorded his statement, however, he has not stated to the police that he along with Sunil have gone to the fields in a boogie. However, he stated to the police that they were going to the fields from the side of kiln of Satveer. He could come to know at about 5-5:30 a.m. in the morning that Dharam Singh was murdered. He received the information from his house. After hearing about the murder of Dharam Singh, he took the milk and went to Delhi. Neither he had gone to the house of Dharam Singh, nor gone to the kiln. He could could come to know that Dharam Singh was murdered during night. He returned back from Delhi at about 10:30 in the morning. Thereafter, he had gone to the kiln about 11:00 a.m. on that day, he did not say anything to the police. He also did not talk to Sompal at the kiln. He remained there at the kiln for about 20 minutes, however, on the same day, he told to Sompal in the evening that on 16.07.2011 evening, he has seen Dharam Singh going with Satveer and his son Atul and thereafter, saw them sitting at the kiln. Then, Sompal asked him to go to the police and to get his statement recorded, however, on that day he did not give any statement to the police. After the occurrence, police used to come to the village for the purposes of interrogation but they did not meet him. However, police recorded his statement after about one week. He did not go to the police, rather he was called by them to get his statement recorded. He denied to the suggestion that he did not witness any occurrence as narrated by him, he being the person of the same locality, was deposing falsehood. He also denied to the suggestion, since he had not witnessed anything and further reason his statement was recorded after eight days, after the day of occurrence.
16. The last fact witness in this case was PW-11, Sundar who was the witness to the recovery to the dhoti of the deceased, Dharam Singh and the blood stained and plain earth which was said to have been recovered from the place of occurrence, so also the strings of the cots were said to have been lying on at the time of occurrence and firing by the accused appellants- Satveer and Sonu. This witness had deposed before the Court that the occurrence took place on 17.07.2011. In this regard, he received information that Dharam Singh was murdered and his body was thrown into the grid of the kin. Receiving such information, he reached the place of occurrence at about 2 p.m. The police were coming down from the gate of the brick kiln. In front of the office of the kiln, the cot was lying and blood was found on the cot, so also underneath the cot, on the floor of the verandah, the dhoti of Dharam Singh was kept with the stains of blood. The police Inspector cut the strings of blood stained strings of the cot, taken into his possession and sealed the same, thereafter, he prepared the recovery memo to this extent. Thereafter, the dhoti was also sealed by the Police Inspector and thereafter, he kept the plain earth and blood stained earth in different tenes, sealed the same and prepared the recovery memos and the Police Inspector took his signatures in all the recovery memos. He further stated that while he was going towards the canal, the police jeep stopped near him. The police asked him whether Sonu was known to him or not, to which he stated that Sonu was known to him, to which Police stated to him that Sonu wanted to recover some items from the kiln and asked him to accompany them, to which he sat in the jeep and he went along with the police personnel. They met Chayan Pal on the way. The Police also took him along with them. Sonu took them to the brick kiln of Satveer and got the katta recovered from the place situate in between two jhuggis towards the north of the grid. Apart from the katta, one live cartridge and another empty cartridge was recovered. The Police sealed the same in his presence and prepared the recovery memo to this effect.
17. Apart from the aforesaid four witnesses of fact, prosecution had also examined nine formal witnesses out of whom Dr. V.B. Dhaka, who said to have conducted postmortem on the skeletal pieces and ashes received by him and said to him that the same belong to the deceased, Dharam Singh, had deposed in his examination-in-chief before the Court that on 18.07.2011 at about 3 p.m., some skeletal pieces and ashes were brought to him by Constable No. 478, Irfan Ali, P.S.- Loni and told to him that they belong to Dharam Singh son of Ratan Singh aged 68 years, resident of Village- Siroli, P.S.- Loni, Ghaziabad. Along with the said ashes and skeletal pieces, nine police papers were also handed over to him. The skeletal pieces which were received by him, in which none of the bones were complete and it was difficult to measure the length of the skeletal pieces. Some of the skeletal pieces were white colored. Some pieces were of black colour and the said skeletal pieces were appeared to be of the human skeletal and they might have been burnt one or two days before his examination. The cause of death was not possible to ascertain. He sealed the skeletal pieces and the ashes and handed over to the constable. Out of the nine papers, the First Information Report, Panchayatnama, copy of the General Diary, Form No. 13, letter to C.M.O., letter of R.I., sample seal, Form No. 33 etc. were received by him. Being cross-examined by the counsel for the accused-appellants, he stated that in his postmortem, he has not mentioned the papers received by him. He further stated that in the First Information Report, Paper No. 4, which was received by him during the postmortem examination, it was mentioned as "the deceased, Satveer son of Ram Swaroop resident of Harsh Vihar, Delhi 93, Age - 22 years. On the said paper, it was also mentioned 'evening 6 p.m'." He further stated that the sample seal, Paper No. 9 was not sealed. The skeletal pieces which were received by him, were seems to be the skeletal pieces of a human being but for confirmation of the same, he had handed over it to the constable to send to the forensic lab. He further stated that in his postmortem report, he has not mentioned that the skeletal pieces and ashes were seems to be of the human being because he was not fully satisfied that they belong to the human being. He also stated that the skeletal pieces which were received by him might have been burnt more than about two days before but not beyond 4-5 days. He further stated that it was not possible to determine the age on the basis of the ashes and the skeletal pieces. He simply mentioned the age basing on the police papers, so also the time of burning of the skeletal pieces. It was also not possible to determine the sex basing on the skeletal pieces. He had also categorically stated that he could not show whether the skeletal pieces pertaining to any animal or not.
18. The other formal witness, PW-5, S.I. Indra Singh had deposed that on 17.07.2011, on the basis of the Case Crime No. 842 of 2011, he along with S.O. Ram Sen Singh and other police force had reached the place of occurrence. At the instructions of the Investigating Officer, he conducted inquest on the bones of the deceased, Dharam Singh in presence of the panch witnesses and sealed the same. He prepared the Panchnama and got the signatures of the witnesses and sent the same through constable, Irfan Ali for postmortem examination. He also prepared the other papers such as challan lash, letter to C.M.O., report to R.I., sample of the seal etc. and send the said papers along with the copy of the Check F.I.R. He also recovered the dhoti of Dharam Singh from the place of occurrence and prepared the recovery memo to this effect, the blood stained strings of the cot and the blood stained and plain earth from the place of occurrence and prepared the recovery memos, accordingly. He also recovered three empty cartridges of 12 bore, six empty cartridges of 32 bore, which were found in the drawer of the table, kept in the verandah and prepared the recovery memo. During his cross-examination this witness had stated that they reached the place of occurrence at 10-10:30 a.m. He read the First Information Report before, he received the directions from the Investigating Officer. He received the Check F.I.R. and a copy of G.D. before preparation of the inquest report, however, he read the Check F.I.R. but not the G.D. He further stated that the names of the accused were mentioned in the Check F.I.R. but the names of the accused were not mentioned in the Exhibits, Ex. Ka- 3 to Ka-11. It took about one and half an hours to complete the inquest proceedings, thereafter, he completed the formalities of the recovery of dhoti, cartridges, strings of the cot etc. However, he did not mention the time of recovery or the time of preparation of the recovery memos. He admitted that the time of firing was mentioned in the Check F.I.R. but not throwing the body into the brick kiln. When they reached the place of occurrence, they found about 30-40 persons and they were not pouring any water on the kiln. They were not pouring the water where Dharam Singh was thrown into the kiln. About one hour after they reached the kiln, JCB machine was brought to the place. They did not try to pour water at the place where Dharam Singh was told to have been thrown into the kiln. Immediately after they reached the place of occurrence, they also did not verify the name of the driver of the JCB machine nor his signature was taken in the inquest report, however, he denied to the suggestion that no JCB was brought to the place of occurrence for which the name of its driver was not mentioned nor in the Panchayatnama. He also denied to the suggestion that no pieces of bones were recovered from the kiln and they have falsely shown some other material as the human bones. He further stated that the Investigating Officer gave him the dhoti, lifting the same from the verandah, which was kept near the pillar of the verandah. The office where the dhoti was kept and where the cot was lying is at a distance of 5-6 paces. The cartridges were also lifted from the drawer of the table kept in the verandah by the Investigating Officer and given to him. At first, he recovered the blood stained and simple soil, thereafter, the blood stained strings, thereafter, the dhoti and thereafter he prepared the recovery memo of the empty cartridges, however, he did not take into possession the chimta, where the dead body was thrown nor he prepared any recovery to this effect. He further stated that the informant did not accompany them from the police station, however, he did not know whether the informant reached the place of occurrence in another vehicle. He had seen the blood stains at the place of occurrence from the cot towards the kiln for a distance of about 7-8 paces, however, he did not mention this fact in his recovery memo. They stayed there at the place of occurrence till 5 p.m. in the evening.
19. PW-6, S.I. Rajendra Singh had deposed that on 17.07.2011, he has taken up the investigation of the Case Crime No. 842 of 2011 and immediately thereafter, he had recorded the copy of the Chick F.I.R., copy of the rapat, the statement of the informant Sompal and thereafter, he reached the place of occurrence and got the Panchayatnama of the skeletal pieces of the deceased, Dharam Singh and also got prepared the the recovery memos of blood stained and plain soil, blood stained strings etc. so also the empty cartridges. Thereafter, he recorded the statement of he witness, Sanjay and the statements of the witnesses of recovery memos, Sundar, Chayan Pal etc. so also S.I. Inder Singh, PW-5, thereafter, he arrested the accused-appellant, Gyanendra and Annu @ Bahara on 18.07.2011 and recorded the statements of witnesses, Satveer and Sunil on 25.07.2011 and he arrested the accused-appellant, Sonu on 02.08.2011 and at his pointing out, from the top of the kiln, he recovered the tamancha of 315 bore and the cartridges. He arrested the accused- Sonu from Tempo Stand, being informed by the informer, at 5 p.m. S.I. Shivraj and three constables also accompanied him. In his cross-examination, he deposed that informant reached the police station at 8:40- 45 a.m., he recorded the statement of the informant at police station itself. They started from the police station to the place of occurrence at 9:30 a.m. and reached at 10-10:30 a.m. and immediately they started investigation. The distance between the place of occurrence and police station was about 3-4 kms. They all accompanied the informant to the place of occurrence, the informant had gone with his vehicle, however, he accompanied them up to the place of occurrence in his vehicle. At first, he called for the JCB machine, removed the bricks from the kiln and recovered the burnt skeletal pieces of the deceased, Dharam Singh and the remains and initiated the proceedings on the inquest. Thereafter, they recovered the blood stained and plain soil from the place of occurrence, however, he could not say as to how many people were gathered at the place of occurrence. The place where the skeletal pieces and remains were recovered, there the people of the village have poured water with the buckets. After he reached the place of occurrence, the dhoti of the deceased was recovered from the floor of the office verandah. However, he denied to the suggestion that he did not reach the place of occurrence and his investigation was perfunctory for which reason he could not mention about the number of people gathered at the place of occurrence. He further stated that the distance between verandah and the place of occurrence was about 2-3 paces, however, he could not show the distance of the grid towards office from the place of occurrence. He even could not say the height of the grid. However, he stated that at that time kiln was not in running condition. He could not remember how many cots were lying at the place of occurrence. The informant saw the occurrence from distance of 30 paces at 5:00 o'clock in the morning. He has seen the occurrence of throwing the body into grid, from a distance of about 50 paces, however, he did not mention that place from where the informant had seen the occurrence. The distance between the place of occurrence and the grid where the deceased was thrown was about 50 meters. The JCB machine reached the place of occurrence after half an hour. It took two hours to complete the formalities of calling the JCB machine, recovering the skeletal pieces and preparing the Panchayatnama. He could not say as to who paid the rent of the JCB machine nor he could know the name of the owner of the JCB machine or the operator nor he mentioned the same in the case diary. He also did not mention the registration number of the JCB machine in the case diary, however, he denied to the suggestion that no JCB machine was brought to the place of occurrence and for this reason he did not mention the name of the driver or the owner or the rent of the JCB machine in the case diary. When this witness was confronted with the statement of the informant under Section 161 Cr.P.C., he stated that the informant Sompal did not state to him that when his father was called by the accused, he remained present at that time, rather the informant told to him that he reached the kiln of the Satveer searching his father and saw that they had fired at his father and murdered him and the fire arms were held by Sonu and Satveer. The informant also did not give the statement that Sonu and Satveer had fired and killed his father, in front of him.
20. The witness, Sanjay also did not state to him that "Sompal had come to him at 8:30- 9 p.m. and told him that his father was taken by Satveer and Atul to the brick kiln with respect to money transaction. Sanjay also did not tell him that after some time they had seen that Satveer and Sonu had fired at his tau ji and killed him in front of them. At the time of investigation, he did not look into the place where the body of Dharam Singh was dragged from the cot to the grid. He also did not verify about the status of the deceased. He also did not verify as to the deceased was in capacity to give two lacs to Satveer or not.
21. As stated in the opening paragraphs of this judgment, the learned Trial Judge believed only prosecution case and convicted the appellants of the framed charges and sentenced them accordingly vide order dated 03.09.2015, which decision has now been called in question in the aforesaid appeals.
22. On the above factual matrix, we have heard Sri Kamal Krishna, learned Senior Advocate assisted by Sri Rajesh Kishore Srivastava and Sri Akhilesh Kumar Singh, learned counsel for the appellants for all the three appeals and Sri H.M.B. Sinha, learned AGA-I for the State, for and against this judgment.
23. Assailing the impugned judgment and order, the learned Senior counsel strenuously urged that it is a case of no evidence. None of the fact witnesses, informant, PW-1, Sompal, PW-2, Sanjay and PW-3, Satveer who is witness of last seen, are trustworthy and reliable witnesses nor their testimonies are convincing and confidence inspiring. Discrepancies are galore in oral evidence with vital loopholes and therefore their testimonies cannot be relied upon. Both PW-1 and PW-2 have contradicted each other on most pivotal aspects about the incident signifying trustworthiness of their depositions. There is absolutely no evidence on record that anybody had seen the deceased going with the appellants, Satveer and Sonu, from the house of the deceased to the brick kiln of the accused-appellant, Satveer. No recovery whatsoever particularly the dhoti of the deceased, the empty cartridges and the strings of the cot were not recovered from the place of occurrence and all the recoveries and the entire story has been fabricated by the police. It is next urged that the evidence of PW-3 is absolutely false and his testimony only leaves an impression that he is a planted and tutored witness and he had never seen the deceased in the company of the accused-appellants. The death of Dharam Singh lies in a realm of uncertainty and consequently it cannot be concluded even for a moment that the deceased was murdered in the hands of the accused-appellants. It was further submitted that the submissions of the so-called eye-witnesses have not supported from the medical evidence. It was further submitted that the doctor who examined the skeletal pieces and the ashes sent to him for postmortem examination, did not give any specific opinion that the skeletal pieces belong to the human being. In fact, there is no evidence available on record that Dharam Singh was murdered on the date of occurrence. It was also submitted that the accused-appellants have been falsely implicated in the present case due to animosity with the police. It is also submitted that the informant and PW-2 were said to be present on the spot at the time of the incident, but they did not make any effort to save the deceased which shows that they were not present on the spot at the time of the incident and the prosecution has cooked up the story of murder of the deceased, Dharam Singh. Prosecution witnesses, both PW-1 and PW-2 have categorically admitted that on the way they did not say anything to the villagers or anybody else, rather they straight away had gone to the house and narrated the incident to the family members. It was further submitted that the F.I.R. is ante-timed, it was not in existence when the so-called inquest was held by PW-5, S.I. Indra Singh and it was prepared later on with the consultations and deliberations of the police personnel. All the documents were manipulated by the police by sitting in the police station. It was also submitted that there is no reliable evidence that the Dharam Singh made homicidal death at the hands of the appellants, hence in these circumstances, the impugned judgment and order suffers from infirmity and illegality warranting interference by this Court. It was also submitted that the learned trial Court has not appreciated the evidence in proper prospect, rather discarded the oral and documentary evidence furnished by the defence that the accused-appellant, Satveer was not present at the place of occurrence on the date and time as mentioned in the prosecution case which leaves no manner of doubt that the entire prosecution story is cooked up and fabricated. It is lastly urged that that learned trial judge completely ignored the significant evidence crumbling prosecution credence and has concentrated only on truncated version to convict the appellants and therefore the impugned judgment should not be sustained and the appeals filed by the appellants be allowed and they be acquitted of all the charges and be set at liberty.
24. Learned AGA, Sri H.M.B. Sinha, to the contrary submitted that the circumstances brought on record by the prosecution indicate that the deceased, Dharam Singh was taken away from his house on 16.07.2011 and subsequently on the next date i.e. 17.07.2011 at 5 a.m., he was fired by the accused-appellants Satveer and Sonu in presence of the informant, Sompal and his cousin, Sanjay and his carcass was disposed of by throwing the same in the grid of the brick kiln by all the accused-appellants. Thus, the prosecution case is fully supported by the eye-witnesses account. All the fact witnesses have fully supported the prosecution case, hence the findings of the learned trial court cannot be turned to be illegal, perverse or based on incorrect appreciation of facts evidence under law. The contradictions, laches and improvements as pointed out by the learned Senior Counsel for the appellants are of minor nature, they do not go to the root of the prosecution case and hence the learned trial court has rightly ignored the same and convicted the appellants. The time and date of the death of the deceased was also fully supported from the medical evidence. The F.I.R. in this case was promptly lodged within three hours of the occurrence and the charges leveled against the accused-appellants have been established by the prosecution beyond any shadow of reasonable doubt. Hence no interference is warranted in the matter by this Court. Thus, it was argued that the appeals of the appellants sans merit and they deserve to be dismissed.
25. We have pardon over rival submissions of learned counsel for the respective parties and have gone through the entire oral and documentary evidence exist on the record, carefully and searchingly.
26. In the present case, the offence is said to have been committed in phase wise. According to the prosecution version on 16.07.2011 at about 5 p.m. Dharam Singh @ Dharmu, father of PW-1, Sompal was called by the accused-appellants Satveer and his son Atul for making payment of his dues and he was taken by the two appellants to their brick kiln. When father did not return to his house, the informant and his cousin, Sanjay were searching for him and at about 9 p.m., they reached the brick kiln and saw that in front of the office of the said brick kiln, the accused-appellants and his father were sitting on the cots. When he asked his father to go home, all the accused-appellants asked him to leave his father for some time that he would be following them after taking the money. Thereafter, they had returned to their house, but when his father did not reach the house, PW-1 along with PW-2 gone searching his father reached the kiln at about 5 a.m. on the next day morning. The moment they reached the kiln, they saw that Satveer fired and killed his father and all the accused dragged the dead body of his father and were taking the body to the top of the kiln. When they raised objections, the accused-appellant, Satveer abused them, threatened them to kill and fired at them, to which they were scared and ran away. After going some distance, they saw that the accused-appellants thrown the dead body of his father into the grid of the kiln and burnt the body. Then informant and his cousin brother came to their house and informed the incident to other members of their family and the villagers and then they went to the police chowki, Chirodi to report the matter. However, the police chowki, Chirodi is situate at a distance of 2 furlong from the place of occurrence. The F.I.R. of the said incident was lodged at about 8.45 a.m. However, according to the evidence of PW-6, Rajendra Singh, the distance between the police station and the place of occurrence is about 3 and half kms. Since the F.I.R. was said to have been lodged at about 8:45 a.m. on P.S.- Loni without informing the same at the police chowki- Chirodi, at the first instance it is to be seen as to whether the F.I.R. is an ante-timed document and it was lodged after due consultations and deliberations with the police and the police papers were prepared in the matter prior to the registration of the F.I.R. It is also to be seen as to whether the statements of the eye-witnesses are supported by the medical evidence and other attending circumstances or not.
27. It is true that prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding the trustworthiness of its version but only on the ground of delay in lodging the F.I.R., the prosecution version cannot be discarded, in case the other facts and circumstances of the case and evidence inspire confidence in regard to the version of the prosecution. Thus, before dealing with this point, we proceed to ascertain the presence of the so-called eye-witnesses on the spot at the time of the incident. Before proceeding to evaluate the evidence of both eye-witnesses, PW-1 and PW-2, it would be convenient to look to the medical evidence. PW-4, Dr. V.B. Dhaka, who had conducted postmortem on the skeletal pieces and ashes received by him categorically deposed before the Court that it was told to him that the same belong to the deceased, Dharam Singh. In his cross-examination he has also categorically stated that he has not mentioned that the skeletal pieces and ashes were seems to be of the human being because he was not fully satisfied that they belong to the human being. He also stated that the skeletal pieces which were received by him might have been burnt more than 2 days but not beyond 4-5 days and it was not possible to determine the age on the basis of the ashes and skeletal pieces. He mentioned the age in his postmortem report basing on the police papers so also the time of burning of the skeletal pieces. It was also not possible to determine the sex basing on the skeletal pieces and he categorically stated that he could not say whether the skeletal pieces were pertaining to any animal or not. In this regard, the prosecution witness no. 8, Ram Sen Singh had deposed before the Court that during the course of investigation, the skeletal pieces and the ashes (of the deceased) which were collected from the kiln were not brought before him. During the course of investigation, he did not send the skeletal pieces and the ashes to the forensic laboratory for chemical examination, they were kept in mal khana. He categorically stated that the said skeletal pieces and the ashes were also not sent by his predecessors for examination to the forensic laboratory. He did not send the same for examination even before submitting the charge-sheet. Thus, according to the Investigating Officer, the skeletal pieces and the ashes which were collected from the kiln of the accused-appellant, Satveer were not sent to the forensic laboratory for chemical examination but from a perusal of the record, we find the order of Additional Sessions Judge, Court No. -15, Ghaziabad, dated 16.05.2015 at Page 212 of the paper-book, according to which the learned trial court has directed the S.S.P. Ghaziabad to send the samples of the recoveries, skeletal pieces and the ashes to the forensic laboratory, Agra for their chemical examination and to submit its report at an early date and also directed the S.S.P. Ghaziabad to submit a report as to which of the Investigating Officer had proceeded into investigation of the case with respect to the Parcha nos. 0889421 to 0889424 of the case diary. A perusal of the said order, it seems that earlier during the course of framing of charges also another application was moved by the accused-appellants to send the samples of skeletal pieces and ashes for their chemical examination which was rejected by the trial court stating that "Not part of investigation infructuous KOF". However, we find that the prosecution suppressed the material fact before the learned trial court at the time of passing the aforesaid order on 16.05.2015. While perusing the record, we find at Page 215 of the paper-book that the skeletal pieces and ashes were already sent by the Investigating Agency on 28.11.2013 and we found that the report dated 18.09.2014 stating therein that, "Basing on the material objects it could not be possible to express any opinion regarding the skeletal pieces and ashes". Thus, the doctor who conducted postmortem on the skeletal pieces and ashes and the authorities, Forensic Laboratory, Agra to whom, they were sent for chemical examination, have not given any specific opinion that the skeletal pieces and the ashes were belonging to human being. Thus, the medical evidence and report of the forensic laboratory does not corroborate with eye-witnesses, PW-1 and PW-2. Moreover, the conduct of PW-1 is very unnatural in this case because of the reason that according to him, his father Dharam Singh was taken by the accused-appellant, Satveer in the previous evening before the date of occurrence. When he along with PW-2, searching his father went to the kiln of Satveer, his father was found sitting on the cot chit-chatting with all the accused. There was no unusual attitude in the behaviour of the accused-appellants. Again when he went to the brick kiln along with PW-2 on the next day morning at 5 a.m. at a time, he found Satveer firing at his father. If at all it was the intention of the accused-appellants to kill Dharam Singh, they could have finished on the very same when they had met to their brick kiln. The incident must have not lasted for a long time waiting for the whole night. It must have been over a quick succession. Those assailants who had chosen to commit the murder will not wait for a very long time, much less to wait the whole night and for arrival of the son of the deceased to come to the place of occurrence, to witness the occurrence and to execute the incident.
28. Thus, in view of the aforesaid discussion, we are of the considered view that as rightly pointed out by the learned Senior Advocate, Sri Kamal Krishna, no such incident was happened as projected by the prosecution and both the eye-witnesses PW-1, Sompal and PW-2, Sanjay were planted by the Investigating Agency and cooked up a fabricated story to give colour to the prosecution case. Apart from the above, we also found that PW-3, Satveer also seems to have been planted by the prosecution for the reason that this witness during his examination has stated that he could come to know at about 5-5:30 a.m. in the morning that Dharam Singh was murdered. He received the information from his house after hearing about the murder of Dharam Singh. He took the milk and went to Delhi. Neither he had gone to the house of Dharam Singh nor gone to the kiln. He further deposed that he could come to know that Dharam Singh was murdered during night. Thereafter, he had gone to the kiln at about 11:00 a.m. on that day but he did not say anything to the police that he had seen Dharam Singh going with Satveer and his son Atul on 16.07.2011 evening. However, the statement under Section 161 Cr.P.C. of this witness was recorded by the police after 7-8 days of the alleged occurrence. In this regard, PW-1, Sompal and PW-2, Sanjay categorically deposed that after witnessing that Dharam Singh was thrown into the grid of the kiln by the accused-appellant, they simply gone away to their house without informing anybody on the way, even without informing at the Police Chowki, Chirodi. They informed to their family members and the other villagers at home. If the murder had taken place in front of the son and nephew of Dharam Singh in the early hours, it was not known as to how PW-3 come to know that Dharam Singh was murdered on the previous night, which shows that witness was planted by the prosecution to create an alibi that Dharam Singh was seen in the company of the accused, Satveer and his son Atul and subsequently in the company of all the accused on the previous night of the alleged occurrence.
29. It was the evidence of the prosecution witnesses, PW-1, Sompal PW-2, Sanjay PW-5, S.I. Indra Singh PW-6, Rajendra Singh and PW-11, Sundar that from the place of occurrence the dhoti containing the blood stains of Dharam Singh was recovered, taken into possession of PW-5, S.I. Indra Singh and accordingly recovery memos prepared in front of the witness PW-11, Sundar and Chayan Pal. PW-5 deposed that the Investigating Officer recovered the dhoti containing blood stains and handed over to him, to prepare the recovery memo. All the witnesses have stated that at the time of the incident the deceased was not wearing dhoti, the dhoti of the deceased was kept on the floor of the verandah. However, there were material contradictions regarding the distance between the place where so-called dhoti was recovered and the cot where the deceased was said to have been lying. The recovery memo and dhoti were exhibited and proved by the witnesses and during the course of their examination before the Court all the witnesses have categorically stated that the same dhoti which was being worn by the deceased, containing the blood stains was recovered from the place of occurrence. Apart from this all the aforesaid prosecution witnesses also stated about the collection of blood stained earth from the place of occurrence so also the blood stained strings of the cot recovered on the date of occurrence. All the three i.e., the blood stained and plain soil, dhoti and the strings of the cot were not sent Forensic Laboratory, Agra for their chemical examination and the chemical examination report dated 21.02.2012 at Page 217 of the paper-book, squarely shows that "Blood was not found on the material objects 1 to 3" which shows that all the aforesaid exhibits were manipulated to suit and to give a colourful version to the prosecution case. Apart from the above, another interesting feature in this case is that according to the so-called eye-witnesses PW-1, Sompal and PW-2, Sanjay, Satveer and Sonu fired at Dharam Singh and thereafter all the accused-appellants dragged him to the grid of the kiln and thrown him into the same. According to the prosecution case, immediately after receiving the written report from the informant, PW-1, the Investigating Agency reached the place of occurrence immediately at 10-10:30 a.m. and started investigation. They found the dhoti lying there on the floor of the verandah, cot was lying at the same place where Dharam Singh was murdered but interestingly the empty cartridges were recovered by the Investigating Officer from the drawer of the table kept in the verandah. There was no explanation from the prosecution side as to how and when and by whom the empty cartridges were recovered from the place of occurrence and kept in the drawer of the table. Another important aspect is that the empty cartridges so recovered were not sent for ballistic examination to prove that the said cartridges were used in the crime by the weapons which were recovered by the Investigating Agency at the time or after the arrest of the accused-appellants Satveer and Sonu. The recovery of the weapons of offence from the accused-appellant, Sonu is also doubtful because of the reason that according to PW-11, Sundar the said weapon of offence katta was recovered at the pointing of Sonu and the brick kiln of Satveer, from the plain area situate in between two jhuggies towards the north of grid. In this regard, PW-6, Rajendra Singh stated that Sonu was arrested on 02.08.2011 at 5 p.m. at Tempo Stand and recovered the tamancha of 315 bore, one live cartridge and the empty cartridges from the top of the grid of the brick kiln which indicates that there was no recovery of tamancha whatsoever was made at the pointing out of the accused-appellant, Sonu in presence of the witnesses. Only the so-called recovery was shown on the pen and paper and thereafter, the witnesses were planted to suit the prosecution case. Another interesting feature in this case is that the defence particularly the accused-appellant, Satveer during his statement under Section 313 Cr.P.C. categorically stated that on the date of occurrence i.e. 16.07.2011, he was not present at the place of occurrence, rather he was remained present at Baba Hotel, Char Bagh, Lucknow on 15.07.2011 at 9 p.m. and on 16.07.2011, he had undergone the treatment at Kunda and thereafter, he stayed at village, Ramdas Patti, District- Pratapgarh on the night of 16.07.2011 and entered into a compromise deal with one Vinod. In order to prove that the accused-appellant, Satveer was not present in the village or at the place of occurrence between 15.07.2011 to 17.07.2011, he had produced the witnesses, DW-3 to DW-7. In this regard, DW-3, Gyani had deposed that the accused-appellant, Satveer had talked to him from his mobile no. 9968268831 on his mobile no. 9911319059 on the evening/ night of 16.07.2011 and on the morning of 17.07.2011 and he also stated that he talked to Satveer from Pratapgarh and according to the call details it was found that the accused-appellant, Satveer was present at the eastern zone on 16/17.07.2011. DW-4, Pappu had adduced that there was a compromise between Satveer and Vinod and the said compromise was reduced into writing. He also deposed that Satveer was remained present on 16.07.2011 at Ramdas Patti, District- Pratapgarh and he had participated in the compromise discussions regarding the labour.
30. DW-5, Pravin Raj Gupta who was the Manager of Baba hotel, Char Bagh, Lucknow deposed that Satveer stayed at Baba Hotel on 15.07.2011 night. DW-6, Dr. Satyen Rai deposed that accused-appellant, Satveer was admitted before him on 16.07.2011 and received the treatment from him. DW-7, Pramod Kumar Lekhpal had deposed that the brick kiln of Satveer was situate in Khasara No. 693 and near the said Khasara no field of Satveer son of Kripal is available. The land of Kripal is available in Khasara No. 805, 844, 403 and 413 Ka. The aforesaid witnesses have also proved the presence of Satveer, the accused-appellant in District, Pratapgarh from 15.07.2011 to 17.07.2011 through their oral evidences and documentary evidences. The call details of mobile phone pertaining to the accused-appellant, Satveer also proved his presence in the eastern zone on the relevant dates which shows that the accused-appellant was apparently not present at the place of occurrence on the date/ dates as alleged by the prosecution. This witness was also fortified by the evidence adduced by PW-8, Ram Sen Singh who deposed in his examination-in-chief that on 15.09.2011. The investigation of the case was entrusted to him and thereafter on the same day between 12 noon to 1 p.m. He had received the affidavits of the villagers which were recorded by him in the diary. In all the affidavits they have stated that on the date of occurrence Satveer was remained present in his village in the morning. However, he categorically stated that in all the affidavits which was not stated on the date of occurrence and at the time of occurrence his presence was not mentioned at the place of occurrence, which mean that the accused-appellant, Satveer was not present at the place of occurrence on the alleged date of occurrence which proves from the prosecution evidence itself that Satveer was not present at the place of occurrence on the date of alleged occurrence. However, this aspect was not at all dealt by learned trial court while evaluating the evidence available on record rather the evidence was not properly evaluated by the learned trial court.
31. In order to substantiate that the accused-appellant was not remained present at the place of occurrence, the defence has produced the Sub-Inspector of Police Anil Kumar as DW-2. This witness deposed that during the course of investigation he has collected the evidence in this regard that on the date of occurrence, the accused-appellant, Satveer was not present in his village. A perusal of the record, it indicates that S.I. DW-2, Anil Kumar, was the second Investigating Officer in the case and he had investigated into the case up to Parcha No. 13. He had investigated into the case from Serial No. 0889421 to 0889424, in which he collected the evidence regarding the non presence of the accused-appellant, Satveer. However, specifically the investigation of the case was taken from him and handed over to PW-8, Ram Sen Singh who has started the investigation from the Parcha No. 13A and he categorically admitted that he started the investigation from 13 A after Parcha No. 10. However, to the queries of the defence, he did not give any logical answer as to where the Parcha No. 13 had gone and the serial number of the C.D. 0889421 to 0889424 were absent from the said C.D. In this regard as already stated earlier the learned Trial Court had directed the S.S.P. Ghaziabad to give report regarding the missing papers of the case diary from 0889421 to 0889424 which further fortifies that because the investigation of the case was being taken up by this witness in a right direction and it was supposed to submit the report that the accused-appellant was not present in the village at the time and date of occurrence. This witness was removed from the investigation of the case and it was handed over to PW-8. From a perusal of the aforesaid witness, it is crystal clear that despite knowing the very fact that the main accused-appellant, Satveer was not present in the village or at the place of occurrence at the time and on the date of occurrence, the Investigating Agency hushed up the same and hastily submitted that charge-sheet showing the accused-appellant absconding, which shows that the investigation of the case was perfunctory and not taken up in a right direction.
32. Last but not least the evidence arrived on record is that Dharam Singh @ Dharmu, father of the informant, Sompal was BPL card holder and he was receiving the BPL pension and he was not in position to give a loan of Rs. 2 lacs to the accused-appellant, Satveer. In this regard, the defence has adduced DW-1, Usha Kiran, who deposed that Dharam Singh @ Dharmu son of Ratan Singh resident of Village- Siroli, Block- Loni, Ghaziabad was receiving BPL pension of Rs. 300/- till September, 2013 and he was BPL card holder. According to the G.O. of 2009 only BPL card holders are entitle to receive the pension. According to the BPL card of Dharam Singh, he was receiving the pension from 2009 till September, 2013. Thus, from the evidence of this witness, it is crystal clear that Dharam Singh @ Dharmu was not dead on 17.07.2011 as alleged in the prosecution case. However, the prosecution has suppressed the material facts and come up with a cooked up story, knowing fully well that the accused-appellant, Satveer was present at his village on the date of occurrence since the said Satveer and all his family members were falsely implicated and the charge-sheet has been submitted against all the accused-appellants on the basis of cooked up and fabricated story.
33. Thus, taking into account the entire facts and circumstances of the case and considering the evidence available on record, we are of the considered view that the prosecution has not been able to establish the guilt of the accused-appellants beyond the reasonable doubt and to the satisfaction of the judicial conscience of the court. On our considered view, the findings of the trial court are not based on correct appreciation of evidence and the same are illegal and perverse. The learned trial court has reached the wrong conclusion holding all the accused-appellants guilty for committing the murder of Dharam Singh without appreciating the stand taken by the accused-appellant, Satveer regarding his non presence on the date of occurrence.
34. These are the reasons upon which we had allowed this appeal.
Order Date :- 11.2.2019 V.S.Singh