Allahabad High Court
Gudda @ Rajman @ Raj Kumar @ Jhalla @ Guddu ... vs State Of U.P. on 22 December, 2022
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD 1 A.F.R. Court No. - 48 Case :- CRIMINAL APPEAL No. - 5070 of 2013 Appellant :- Gudda @ Rajman @ Raj Kumar @ Jhalla @ Guddu Kol And 3 Others Respondent :- State of U.P. Counsel for Appellant :- D.P. Singh,Daya Nand Pandey,I.K.Chaturvedi,Muktesh Singh,Neeraj Kumar Pandey,P.K. Singh,Rajendra Prasad Tiwari,Rajrshi Gupta,Smt Usha Srivastava,Sushil Kumar Dwivedi Counsel for Respondent :- Govt. Advocate Hon'ble Suneet Kumar,J.
Hon'ble Syed Waiz Mian,J.
Per Hon'ble Syed Waiz Mian, J.
1. This Appeal has been directed against the impugned judgment and order dated 18.10.2013, passed by Special Judge, D.A. Act/Additional Sessions Judge, Court No. 1 Chitrakoot, in connection with Session Trial No. 147 of 2007, State vs. Gudda @ Rajman @ Raj Kumar @ Jhalla @ Guddu Kol and others, whereby, the learned trial Court has convicted the appellants/ accused with multiple sentences, for offences under Sections-147, 148, 149, 364, 302, 201 I.P.C. and Section 14 of D.A. Act, Police Station-Raipura, District-Chitrakoot.
2. It has also been directed that all sentences shall run concurrently.
3. Heard Shri Rajrshi Gupta assisted by Shri Rijvaan Ahmad, Ms. Shambhavi Shukla, Shri D.P. Singh, learned counsels for the 2 appellants and Shri Om Prakash Mishra, learned A.G.A. for the State and perused the record.
4. Brief facts of the prosecution story unfolds as under:
5. Informant Raghunandan Pathak, along with Ram Khilawan, came to village Hanumanganj, to purchase wheat. They came at the gate of Kamla in Kol Basti. In the village Hanumanganj, Daya Shankar Kol met them; Shankar Kol was also present, who made some conversation with Raghunandan. After a while, informant's brother, Rajjan Mishra, had also reached there and seen that Shankar Kol, Raghunandan, had some talk with him, Gudda Kol had also reached there and Shankar Kol, Gudda Kol and Jiya Lal caught the hand of his bother and took his brother towards Jungle; at some distance, 15-20 people were spotted sitting in two black four wheelers; Shankar Kol, Gudda and Jiya Lal took his brother near the persons who were sitting in two four wheeler vehicles and leaving their vehicles on spot, they all took his brother towards Jungle and after some time, both vehicles returned towards Lalta Road.
6. It is further alleged in the written First Information Report, Exhibit Ka 3 that on 22.05.2007 at around 10 p.m. Shankar Kol, Gudda Kol and Jiya Lal had visited his village and had forbidden to pluck Tendu leaves.
7. It is also alleged in the written First Information Report that on 23.05.2007 at around 4 a.m. wife of Gopi, and Rajjan had also went in the northern side of Jungle to pluck Tendu leaves, where Shankar, Gudda Kol and Jiya Lal were also present and all of them had forbidden the aforementioned women to pluck Tendu leaves. 3 They had returned to their village; since then his brother Rajjan Mishra was missing. Shankar Kol, Gudda Kol, Jiya Lal and their 15-20 associates to whom he had, no acquaintance, kidnapped his brother with intention to kill him, from village-Hanumanganj. He and others made search of Rajjan Mishra, but could not get any information. Since the next day of the incident Raghunandan had also gone to an undisclosed place.
8. On the basis of written First Information Report, Exhibit Ka- 13, a criminal case at Crime No. 46 of 2007 under Sections-147, 148, 149, 364, 302, 201 I.P.C. and 14 of D.A.A. Act, on 05.06.2007 at 13.30 p.m. was lodged against accused Shankar Kol, Gudda Kol and Jiya Lal and their 15-20 associates. Substance of the First Information Report was entered into G.D. No. 27 on 05.06.2007 at 1:30 p.m. and matter was investigated.
9. During investigation, accused Radhe @ Subedar was arrested. Investigating Officer took him on police remand for 48 hours and on his interrogation he stated that he can get recovered the voter I.D. and Ration card of Rajjan Mishra and the investigating officer, along with police team on 15.05.2008, accused Raju Kol, Sukhnandan, along with public witnesses, Dharmendra Pandey and Rajjan Mishra, went towards Giduraha (Bandhak) Jungle, at Hanuman Chauk. Accused Radhe @ Subdear Singh, took them in the east of Hanuman Mandir, Manikpur Range, near a deserted Kothri and accused Radhe informed them that near the roof of said Kothri in the heap of bricks he had concealed the I.D. card and ration card. Accused Radhe @ Subedar, entered into the deserted Kothri and from heap of bricks, lying near the roof, one polythene 4 packet got recovered and the same was handed over to him. On opening this packet one voter identity card bearing No. CYQ 1410752, having been issued by the Indian Election Commission, in the name of Rajendra S/o Ram Pratap, male age 37 (on 01.01.2001) and on the back of the identity card House No. 144, Gram-Khandeha, Police Station-Mau, District-Chitrakoot, constituency No. 315, Manikpur, was marked. This identity card was having been issued on 14.10.2001, photo of Rajendra was also pasted thereon. From the said polythene packet, one ration card no. 45585 in the name of Rajednra Prasad Mishra, S/o Ram Pratap Mishra, village Kandaila, Post Singwa, Police Station-Manikpur, District-Chitrakoot was also got recovered. In the ration card name of three members of his family were noted. Both the papers were connected to Rajjan Mishra, therefore, both these papers were taken in possession by Investigating Officer and his team and these two papers were put in a polythene packet and the said packet was wrapped up in a piece of cloth which was sealed on the place of recovery in the presence of all the witnesses and a memo of recovery of aforesaid papers was written; after reading over the same to the witnesses, it was got signed by them.
10. During investigation the Investigating Officer also took Raju Kol in police custody for 48 hours on 14.05.2008 and on his interrogation, he had informed that they had killed Rajjan Mishra by assaulting him with axe. On 15.05.2008, the Investigating Officer with police personnel and also with other co-accused Sukhnandan and Radhe @ Subedar came to their camp office situated at town-Manikpur. Investigating Officer with police team along with above noted accused proceeded from their office in the 5 hope of recovery of axe (weapon of offence); they along with the co-accused, as well as, public witnesses Dharmendra Pandey and Rajal Mishra reached near Garhit Nala (Channel) situated in the Jungle. Raju Kol pointed out that in east-west side of the channel he and co-accused Jiya Lal had killed the deceased Rajjan Mishra assaulting him with two axes and after killing him they washed the blood stained axes in the running water of the channel. They thereafter concealed both the axes beneath the stones in the bushes. Accused Raju Kol, got recovered an axe from the said place and handed over the axe to Investigating Officer in the presence of Police personnel and public witnesses. The recovered weapon ''axe' was sealed in a piece of cloth. Memo of recovery of axe, Exhibit-Ka-3 was prepared by the Investigating Officer in the presence of the witnesses and the same was also signed by them.
11. During investigation, the officer incharge of Police Station- Raipura, District-Chitrakoot, in the presence of the witnesses Pradhumn Lal Kol, Chunni Lal, in connection with the incident, the belongings of deceased Rajjan Mishra i.e. (1) Saafi (Tericot cotton mix) green checked colour, border black (2) a torn red black yellow checked full slieve shirt (3) one white sandow vest, (Amul gold, 85 c.m.) (4) Green Colour torn pant of Tericot (5) one brown colour brief, were also recovered.
12. All the aforementioned belongings of the deceased were blood stained. One pair of white colour fibre slippers was also taken in possession by the police and all the belongings of the deceased were put in a piece of cloth; memo of recovery of the said articles 6 was prepared by Hari vansh Singh, Sub Inspector, on the dictation of Sachindra Prasad Shukla, incharge of the police station.
13. During investigation accused Radhe @ Subedar was again taken in police custody on 13.05.2008 and on the following date i.e. 14.05.2008, Station House Officer, Rishikesh Yadav, with police personnel came at Rampuriya under the territorial jurisdiction of police Station Manikpur, District-Chitrakoot. At the instance of accused Radhe @ Subedar, they reached at the house of Shiv Poojan @ Dilli, who was not found at his house however, in the presence of public witnesses and Daya Ram, house of Shiv Poojan @ Dilli, was got searched but no contraband was found. Memo, exhibit Ka-15 was accordingly prepared and the same was got signed by Smt. Sunita w/o Shiv Poojan @ Dilli and other witnesses.
14. Informant Ram Gopal Mishra, also reached at the police station on 16.07.2007 and presented an application paper no. 18- Ka, the informant averred in the application that the skeleton of his brother Rajjan Mishra was lying in the bushes grown in the channel. In the presence of informant, noted in application no. 18 Ka; the Investigating Officer with police force, along with the informant and others, reached at the said place where Skelton, clothes and slippers of the deceased were lying. Investigating Officer Sachindra Prasad Shukla, inspected the place and prepared a site plan, paper no. 20 Ka, Exhibit Ka11; people were present on the said place had apprised him that these articles were the belongings of Rajjan Mishra because on that date deceased had 7 worned them. In the front of head of the skelton his hairs had disappeared.
15. Investigating Officer Sachindra Prasad Shukla, in the presence of Panchan, an inquest report of the skelton was prepared and skelton, pair of slipper, blood stained Safi, full sleeves checked shirt, one sandow west, one torned green colour pant and one brown colour brief, were took in the possession and memo Exhibit Ka -12 and other necessary papers on the spot were prepared by the Investigating Officer, Sachindra Prasad Shukla.
16. During investigation, Gudda @ Rajman was arrested on 22.07.2007 who disclosed to Investigating Officer that the deceased was taken in Thick Jungle and near Garhit Nala (Channel), Rajjan Mishra, was done to death by the blows of axe.
17. During investigation, the present case was transferred to A.T.S. Lucknow. Investigating Officer, Abhay Kant Singh, took up the remaining investigation on 29.07.2007, he recorded the statements of accused and witnesses and during investigation names of accused Shankar Kol, V.M. Lal, Gotar @ Rajam @ Halla @ Raj Kumar @ Gudda Kol came in the light. Statements of Santosh Kumar Vishwakarma, Satyanarayan, Abhilash, Umesh Dwivedi, and other witnesses were also recorded. Investigating Officer collected the incriminating evidence for the offences under Section 147, 148, 149, 364, 302 and 201 I.P.C.
18. During investigation, the Investigating Officer, Abhay Kant Singh, also recorded the statements of Smt. Meena, Jamindar, and Jhadi @ Bhola @ Kamru and on the basis of evidence Section 14 of D.A. Act was also added.
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19. During the course of investigation statement of Aditya Nath Tiwari, and additional statement of Santosh, Satya Narayan, and accused were also recorded.
20. During investigation to ascertain real cause of death the skelton of the deceased, inquest report and other necessary papers were forwarded to District Mortuary through police constables.
21. Dr. R.K. Rao, had conducted the autopsy over the skelton on 16.06.2007 at 3.30 p.m. and he prepared post mortem report, in his writing, Exhibit-Ka1.
22. On medical examination of the skelton Dr. R.K. Rao, could not ascertain the cause of death of the deceased. He could also not ascertain the nature of weapon by which deceased was killed. He also failed to note the approximate time of the death of the deceased.
23. After due deliberations and completion of investigation charge sheet was filed before the competent Court of criminal jurisdiction; since the matter was under the jurisdiction of Sessions Court, same has committed to it. In the District and Sessions Court Criminal case was registered as S.T. No. 148 of 2007.
24. Charges were framed, vide order dated 27.11.2007, by the Special Court, under Sections 147, 148, 364, 302, 201 read with Section 14 D.A. Act, against accused Gudda Kol and 14 others.
25. Trial Court vide its order dated 13.08.2008 also has framed charges against co-accused Subedar @ Radhe and Jiya Lal under Sections 147, 148, 364, 302 read with Sections 149, 201, 302, 364 I.P.C. and also Section 14 D.A.Act.
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26. All the accused absurd their guilt and claimed complete innocence.
27. In order to prove the charges against the accused, the prosecution examined, P.W.-1 Anil Kumar Shukla, P.W.-2 Jagdish Prasad, P.W.-3 Satya Narayan, P.W.-4 Santosh Kumar Vishwakarma, P.W.-5 Umesh Chandra Dwivedi, P.W.-6-Jhari Lal, P.W.-7 Chunni Lal, P.W.8-Dr. R.K. Rao, P.W.-9/C.W.9 Rajul, P.W.10 C.P. Narendra Singh, P.W.-11 Babbu Ram, P.W.-12 Smt. Nirasha Devi, P.W.-13 Smt. Sunita, P.W.-14 Shachindra Prasad Shukla, P.W.15-Ram Gopal, P.W.-16 Smt. Meena Devi, P.W.17- Abhay Kant Singh, P.W.-18-Rishikesh Yadav, Police Inspector, posted in S.T.F. on 30.01.2008, P.W. 19-|Ram Abhilash P.W.-20 Aditya Tiwari, P.W.-21, Ram Dayal Tiwari, P.W.-22 Dharmendra Pandey, P.W.-23-Ram Sewak, and P.W.-24-Constable Kamlesh Kumar.
28. Statements of the accused under Section 313 Cr.P.C. were recorded in which they have denied the charges and evidence against them and they have said that they have been falsely implicated due to animosity.
29. Accused in their statements under Section 313 Cr.P.C. have also stated that they shall adduce evidence in their favour. However, they have not examined any witnesses.
30. Learned trial Court after appreciating and analyzing the evidence of the witnesses and other materials available on record has convicted the appellants for aforesaid offences and also awarded punishment as mentioned in para no. 35 and 36 of the impugned judgment and order.
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31. By means of instant appeal, appellants/accused have assailed the impugned judgment inter alia on the grounds that the judgment and order is illegal arbitrary and against the evidence on record; there is no direct evidence against the appellants; instant case rests upon circumstantial evidence but the chain is missing; dead body of the deceased was not recovered; as per prosecution case the skelton was recovered which was not of a human being; D.N.A. test report was found negative; recovery of axe, voter I.D. card, Ration Card etc. were false and the witnesses have turned hostile as they have not supported the prosecution case. There is also inordinate delay in lodging the First Information Report; statement of P.W-15, informant is categorical that he has not moved any application to the higher authority; he has not disclosed the name of any accused to the police; he has also stated that he has no fear of any one; his brother was a man of criminal activities and also was inimical to several persons; he was also a member of a gang and an award of 3,000/- was imposed upon him; appellants/accused have been falsely implicated at the behest of Daddu Prasad, the then Minister of the ruling party as the appellants were supporters of Samajwadi Party. It is prayed that the impugned order dated 18.10.2013, passed by the learned trial Court in connection with trial No. 148 of 2007 State vs. Gudda @ Rajman @ Raj Kumar @ Jhalla @ Guddu Kol and others under Sections-147, 148, 149, 364, 302, 201 I.P.C. and 14 D.A. Act, Police Station-Raipura, District-Chitrakoot, be set aside.
32. Informant-P.W.-15, Ram Gopal has stated in his deposition that the deceased Rajjan Mishra was his brother. On 23.05.2007 at about 9 to 9.15, he was abducted while he was in front of the 11 house of Kamla at Hanumanganj by Shankar Kol and his two associates. One of the accused Raghunandan had suggested him and his brother to purchase wheat from Hanumanganj, in pursuance thereof he and Raghunandan departed from his house to Hanumanganj; his brother had told him that after having meal he would reach there; at the time of abduction of the deceased he (P.W.-15), Raghunandan Pathak had just reached at the house of Kamla Pokhariya, at Hanumanganj; they saw that three miscreants Shankar and his two associates, were sitting there; Raghunandan had some conversation with all three miscreants; at this stage his brother, deceased-Rajjan Mishra also had reached there and all three miscreants abducted him towards forest. Thereafter, his brother did not return; his report at the police station was not lodged; police had lifted him from his house and also kept him in the police station lock up for five days.
33. On the request of prosecution, -P.W.15 Ram Gopal was declared hostile; he has denied his statement under Section 161 Cr.P.C. and has also feigned ignorance as to how it came to be recorded by the Investigating Officer. He has further stated that he did not disclose the name of the accused to the investigating officer and how such statement came to be recorded is not known to him.
34. In cross examination-P.W.-15, Ram Gopal, brother of the deceased has not supported the allegations made in the First Information Report and with regard to accused Shakar Kol, he has contradicted in his cross examination that he had not disclosed his name to the investigating officer.
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35. P.W.-16, Smt. Meena, wife of the deceased Rajjan Mishra has stated in her examination in chief that when her husband had gone to Hanumanganj to purchase wheat, he was having Rs. 100/-, betel nut, Batua and Kuraula. In the evening, her Jeth and Raghunandan Pathak had come at her house, but her husband did not return.
36. A day earlier her husband had gone to Hanumanganj, three miscreants came along with Raghunandan Pathak; she had come to know that her husband has been done to death. It is her belief that her husband Rajjan Mishra was killed at the instance of Dadua Gang, by Shankar Kol, Jiya Lal Kol and Gudda Kol. No person was coming forward to disclose the name of the miscreants due to fear.
37. In the cross examination, P.W.-16, has stated that on the date of occurrence, Raghunandan and her Jeth Ram Gopal had departed and on the same day both had returned to their house, on their way to Hanumanganj, miscreants had met and her husband was caught and abducted. After four to six days on her visit to village Hanumanganj, wherein, she was apprised that three miscreants had abducted her husband and took him towards the forest.
38. It is the case of the prosecution that deceased had departed from his house all alone and the statement of P.W.16 Smt. Meena is based on hear-say which needs corroboration but her Jeth, P.W.- 15, Ram Gopal has not supported the allegations made in the First Information Report, nor, his statement under Section 161 Cr.P.C., 13 therefore, her indirect evidence has not been corroborated by her Jeth, P.W.-15-Ram Gopal.
39. P.W.16, Smt. Meena Devi, has also stated in her examination in chief that on the date of occurrence her brother Ram Abhilash and nephew Umesh had visited her house and after taking meal they had departed.
40. P.W.19 Ram Abhilash, has stated in his examination in chief that on 23.05.2017, he had not visited the house of her brother in law at village Kota Kadaila and he knew that his brother-in-law was killed but he has not witnessed the incident. P.W.19 Ram Abhilash has also been declared hostile and he has not supported the prosecution case in his cross examination also.
41. P.W.-20, Aditya Tiwari has deposed on 27.04.2013 stating that incident had occurred 6-7 years earlier. He along with his uncle Ram Lal Tiwari, Jimindar and Jhari Kol from village Kota Kadaila were going to their village through forest; they had heard the sound of 1-2 fire arm shots, but he has not seen the incident, nor, he had seen as to who had murdered deceased Rajjan Mishra.
42. P.W.-20, Aditya Tiwari has also been declared hostile as he has not supported the prosecution story, nor, statement under Section 161 Cr.P.C. attributed to him.
43. This witness has also admitted in his cross examination that his house from village Kota Kadaila is situated at the distance of 15 Kilometers.
44. P.W.-21 Ram Dayal Tiwari, has deposed on 27.04.2013, that the incident had occurred 6-7 years before at 10 to 10.30 A.M. when he along with Jimindar, Jhadi Kol and Aadil, were returning 14 from village Kota Kadaila to their house at Mau Gurdari, they heard the sound of fire shots and out of fear they had hidden themselves but they did not see the incident.
45. P.W.-21 Ram Dayal Tiwari, has also been declared hostile and he has not supported his statement under Section 161 Cr.P.C. nor, the prosecution story.
46. P.W.-22 Dharmendra Pandey, deposed in his examination in chief that on 13.05.2008 police had taken Raju Kol, Radhy and Jiya Lal in their custody but he had not accompanied the police.
47. P.W.-1 Anil Kumar Shukla, stated in his testimony that Raghunandan Pathak and Jagdish were known to him. He and Jagdish, while sitting in their house, in the morning, were talking to each other, in the meantime, Raghunandan Pathak, came and said to him that he wants to speak to him in isolation to which he said that since Jagdish is his friend, therefore, he can speak in his presence, whereupon, Raghunandan Pathak had told him that in the murder of Rajjan Mishra, police were implicating him; he requested him, since police were familiar to him, therefore, to save him; he had asked Raghunandan Pahtak about the incident to which he had told him that Rajjan Mishra, has been murdered.
48. P.W. 19 Ram Abhilash, P.W. 20 Aditya Tiwari, P.W.-21 Ram Dayal Tiwari, P.W. 22 Dharmendra Pandey, in their testimonies have not whispered against the appellants/accused, nor, have supported the allegations against them. On the contrary, they have denied prosecution story and also their statements recorded under Section 161 Cr.P.C., by the investigating officer, during investigation.
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49. P.W.-1, Anil Kumar Shukla has not stated in his statement that accused Raghunandan Pathak had confessed to have killed the deceased or participated in the alleged incident.
50. P.W.-2 Jagdish Prasad, in his examination in chief has stated that appellant/accused Ankaj Kumar, Ramashankar Singh and Surajpal, were known to him but rest of the accused were not known to him. He also knew Anil Kumar Shukla but he does not know the accused Raghunandan nor he has ever seen him. He further stated that he also does not know the deceased Rajjan Mishra. This witness has also denied the statement recorded under Section 161 Cr.P.C. and has expressed his ignorance as to how his statement came to be recorded by the investigating officer.
51. P.W. 3-Satya Narayan has stated that he does not know all the accused who were present in the Court during his deposition. He has also stated that Phool Chandra was also not known to him. He refuted his statement recorded under Section 161 Cr.P.C. and deposed his ignorance as to how his statement came to be recorded by the Investigating Officer.
52. P.W.-4 Santosh Kumar Vishwakarma has also stated in his examination in chief that Rajjan Mishra, the deceased, Balkumar, Veer Singh, Radhe @ Subedar, Sotu Patel, Munna Singh, Kuldeep, Ramshankar Patel, Mahesh Kumar Narayan, Sharban Patel, Ramlal Patel, Surajbhan Patel, Girja Shankar, Munshi and Raju Kol were not known to him. On 23.05.2007 he had not seen Rajjan Mishra surrounded and was being abducted. On the contrary, he has stated that on the said date he was not present in his village as he was present in Ahmedabad.
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53. P.W.-5 Umesh Chandra Dwivedi, has also stated in his examination that he knew Rajjan Mishra and he has heard about his murder but he does not know the killers. This witness has also denied his statement under Section 161 Cr.P.C.
54. P.W.-6-Jhadi Lal has also stated in his examination in chief that he knew Rajjan Mishra who was native of his village but he does not know as to how he came to be killed.
55. P.W.-7 Chunni Lal has stated in his examination in chief that he knew Rajjan Mishra, who was native of his village but he does not know as to how he came to be killed.
56. P.W.-7 Chunni Lal has stated in his examination in chief that since deceased Rajjan Mishra was a native of his village, therefore, he was known to him. In rest of his deposition he has not supported the prosecution case.
57. P.Ws.-2 to 7 have been declared hostile and also were put to cross examination on behalf of the prosecution but the sequence of denial of prosecution story has also continued in their cross examinations and thus they have not given any evidence in their respective statements in support of the prosecution story.
58. P.W.-11 Babbu Ram has stated in his examination in chief that deceased Rajjan Mishra was his brother; he was abducted on 23.05.2007 but he does not know the date of his killing. Further he has stated that his brother was killed by dacoit Dadua @ Shiv Kumar who was known to him. Dadua @ Shiv Kumar was killed in police encounter.
59. P.W.-12 Nirasha Devi, has stated in her examination in chief that on 21.02.2009, she had gone in the jungle to pluck beetle 17 leaves; since Shankar Kol used to visit her village, hence, he was known to her but he had not met her, nor, he had forbidden her from plucking beetle leaves.
60. P.W.-13 Sunita has stated in her examination in chief, recorded on 21.02.2009 in the Court that about 4-8 months earlier, while she was plucking beetle leaves in the forest, Shankar Kol and his two associates had not prevented her from doing so. She has also expressed her ignorance about the character of deceased Rajjan Mishra.
61. It is manifested from the testimonies of P.W.-2 to P.W.-7 and P.W.-11 to 13 that neither they have supported the prosecution story nor their statements recorded under Section 161 Cr.P.C., therefore, these witnesses P.W.-1 to P.W.-7 have been declared hostile but in their cross examinations too there is no iota of evidence against the appellants/accused.
62. P.W.-1 Anil Kumar Shukla has also denied his affidavit, paper no. 83 Ka/17, however, he has identified his photo thereon but he has stated in his testimony that he had told the investigating officer that he did not know who had killed Rajjan Mishra.
63. P.W.-2 Jagdish, has also denied paper no. 83 Ka 10 and 11 83 Ka 10-13, however, he has admitted signature on this piece of paper but, he has stated that he did not appear before the police officers to submit his affidavit.
64. P.W. 4, Santosh Kumar Vishwakarma, has also stated in his cross examination that STF personnel had got his signature on plain papers and he had not stated anything with regard to the incident.
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65. P.W.-6 Jhadi Lal, has also stated in his cross examination that affidavit 83/Ka/22 on the record was not having been sworn by him. S.T.F. personnel had got his signatures on blank papers, therefore, there is no evidence on record to show the involvement of the appellants/ accused in the incident.
66. It is also the case of the prosecution that the voter identity card, ration card, one pair slipper, blood stained clothes of the deceased were recovered on 13.05.2008 and 16.07.2008 in the presence of public witnesses, Dharmendra Pandey, Rajal Mishra. They have not supported the alleged recovery of aforementioned belongings of the deceased.
67. P.W.-22 Dharmendra Pandey, has stated in his examination in chief that on 13.05.2008 police had not taken him into their custody, nor, he was taken to jungle. He did not see whether voter identity card and ration card were recovered at the instance of the accused. Further, he has stated that he was not shown Voter I.D. card and ration card.
68. Weapon of the offence is also stated to have been recovered by the police party in connection with the instant case on 15.05.2008 at the instance of the Raju Kol @ Raghunandan. It is also the case of prosecution that accused Raju Kol @ Raghunandan had also made disclosure statement with regard to the weapon of crime and also stated that he had killed the deceased by the recovered blood stained axe.
69. Accused Raju Kol @ Raghunandan, in his statement under Section 313 Cr.P.C has denied his admission and disclosure statement before the police. P.W.-22 Dharmendra Pandey has 19 denied the recovery of blood stained axe at the instance of accused Raju Kol. Further, he has stated that recovery memo paper no. 34 Ka-3 (Exhibit-Ka-3) was not having been signed by him. On the contrary, his signature by the police was taken on piece of plain paper.
70. It is specifically denied that no writing, in his presence was made on the said paper, therefore, witness P.W.-22 has also not supported the recovery of weapon of crime i.e. blood stained axe and has also denied the recovery of other belongings of the deceased in his presence.
71. P.W. 9 Rajul, has stated in his examination in chief that he had visited police station-Manikpur on 15.05.2008, with regard to his missing vehicle. At the police station his signature was taken on plain paper and due to fear of the police he had signed the paper. Further, he has deposed that neither the axe, nor Voter I.D. Card or ration card was recovered in his presence, nor he has any knowledge of its recovery.
72. P.W.-9, Rajul, like P.W.22 Dharmendra Pandey, was declared hostile but both these witnesses have not only denied the statements under Section 161 Cr.P.C. but also expressed their ignorance about the papers 134Ka/2 and 134 Ka/3 as to how they came to be written.
73. It is evident from the above analysis that the incident came to be registered on the basis of written First Information Report, paper no. 5Ka/Exhibit Ka-13. In this connection P.W.-15 Ram Gopal, who happens to be elder brother of the deceased has stated in his examination in chief that the case, at the police station was 20 not registered as per his account of the incident, but the police, at the police station, had given him a written draft of the First Information Report and he was asked to sign the same and as such he had signed the written First Information Report, paper no. 5 Ka.
74. P.W. 15, Ram Gopal was also been declared hostile and he has stated in his examination against the police, at whose instance, he had signed the draft First Information Report, has not made any complaint to any higher police officer against them. As such P.W.- 15 Ram Gopal has also not supported the allegations in the First Information Report. It is also evident that any of the public witnesses who were examined before the trial Court has not adduced evidence against the appellants/accused. Moreover, the recovery of the belongings of the deceased and weapon of the crime has also been denied by all the aforestated witnesses and since they have not supported the prosecution case, therefore, they were declared hostile on behalf of the prosecution, but in their cross examination, they have further denied their statements recorded by the investigating officer under Section 161 Cr.P.C.
75. P.W.-15 Ram Gopal/ informant has stated in his examination in chief that inquest of the Skelton was conducted in his presence. In view of scattered clothes, he had identified the Skelton of deceased. He has further stated that his brother deceased Rajjan Mishra, was a criminal and he was associated with Dasyu gang but was not its active member. Due to enmity of the deceased with the miscreants of the area, he was killed. As such, the brother of the deceased, P.W.-15 Ram Gopal has shifted the killing of his brother 21 from the appellants/accused to the miscreants of the area who were inimical to the deceased.
76. P.W.-16, Smt. Meena W/o deceased Rajjan Mishra, has stated in her examination in chief that after two months of the incident in the by-lane of Garihan hill, Skelton of her husband was found and near the Skelton, shirt, vest, and slipper and other belongings of the deceased were recovered and in view of the belongings she had identified Skelton being that of her husband.
77. P.W.8-Dr. R.K. Rao, has stated in his examination in chief that on 16.07.2007 at 3.30 p.m. he had conducted autopsy over the skelton of the deceased. On the basis skull, liver, Scapula, spine bone, humerus, wrist, he could not come to any conclusion about the cause of death of the deceased; he had recommended for Forensic Science Examination of the skeleton, by Forensic Science Laboratory. He has also stated that on the basis of the skull, identification of the deceased was not possible.
78. P.W.-8 Dr. R.K. Rao, in his cross examination stated that from the study of the post mortem during autopsy, it was difficult to specify the age of the deceased and it was also not possible to say with certainty that the skeleton was of a male or female; it could have been established only by D.N.A. test, but D.N.A. report is negative. However, Smt. Meena, P.W.-16 has identified the skelton as being that of her husband on the basis of the head of deceased and his other belongings recovered. We have no reasonable ground to disbelieve her.
79. P.W. 8-Dr. R.K. Rao, has also stated in his examination in chief that he was not in a position to opine as to how the 22 deceased came to be killed. He also stated that he was unable to say by which weapon the deceased was killed. Further, he has deposed that he cannot express his opinion about the time of death.
80. Therefore, P.W.-8, Dr. R.K. Rao, would not ascertain the cause of death of the deceased nor it could be established, by his deposition, the weapon used in killing the deceased, and also it could not be ascertained as to how many days before the autopsy, he was killed.
81. P.W.10- C.P. Narendra Singh Sengar, has proved First Information Report Chik No. 4K/5, Exhibit Ka-4, and he has proved the copy of the G.D. No. 17 as Exhibit-Ka5. Initially a criminal case at Crime No. 46 of 2007 had been registered under Section 307 I.P.C. but on the basis of paper No. 18-Ka, it was altered to Sections 147, 148, 149, 364, 302 and 201 I.P.C. and in this connection P.W.10 Narendra Singh Sengar, has made entry to this effect in the G.D. No. 11 on 23.07.2007 at 8.00 a.m.. He has also proved the said G.D. as Exhibit Ka-7 and further he has also proved paper no. 135 Ka/ 2, G.D. No. 20 dated 15.05.2008 at 13.30 by his secondary evidence because the entry in the said G.D. was having been made by constable 240 Amar Nath.
82. P.W.14, S.O. Shri Sachindra Prasad Shukla, has stated in his examination in chief that initially he had conducted the investigation and at the instance of the informant he had sketched the map of the spot, which is paper no. 15-Ka, Exhibit-Ka-10. During investigation he had also recorded the statements of the 23 witnesses and had recovered the skeleton and other belongings of the deceased in the presence of public witnesses.
83. During investigation, P.W.-14, Shri Sachindra Prasad Shukla, has also stated that on 16.07.2007, he had appointed Panchan Ram Gopal, Durga Prasad, Kaushal Kishor, Dinesh Chandra Tiwari, Pradhumn Lal Kol, including, Chuuni Lal and others as Panchan and at his direction S.I. Harbansh Singh had prepared the inquest report of the skeleton of the deceased and also belonging of the deceased were taken into custody; these were sealed and brought to the police station and were kept in the record room, thereafter, the investigation was transferred to C.D.F.D.
84. P.W.-18, Inspector Rishikesh Yadav, has stated in his examination in chief that on 30.01.2008, he was posted as Inspector in S.T.F.
85. P.W.-23, Ram Sewak, has stated in his examination in chief that on 16.07.2007 he was posted as Home guard at Police Station- Mau, Chitrokoot. On 16.07.2007 Constable Kamlesh Yadav was also accompanying him. S.P. Shukla had prepared inquest report and inquest report along with other necessary papers and also with skeleton he and constable Kamlesh Yadav took the same to mortuary for post mortem of the deceased.
86. P.W. 24, Constable Kamlesh, in his statement corroborated the statement of P.W.-3 Ram Sewak Home guard.
87. P.W.18, Rishikesh Yadav, has also stated that after transfer of investigating officer, Abhay Pratap, he had taken over the remaining investigation of this matter. During investigation names of accused Radhe and other had come into light, consequently, 24 Radhe and Raju Kol were apprehended by the Satna Police on 19.02.2008. In the lock up, he had recorded the statement of accused Jiya Lal Radhe, Raju, Kol and Subedar @ Radhe. Accused Subedar @ Radhe had admitted that he had killed Rajjan Mishra. He had also recorded the statement of Raju Kol during his incarceration in jail.
88. P.W.-18 Rishikesh Yadav, Investigating Officer has admitted in his examination in chief that black colour Scorpio, which was used in the commission of crime could not be recovered. However, at the instance of Raju Kol, axe, weapon of crime with handle was recovered. He has next stated that gun could not be recovered, however, in the presence of public witnesses Dharmendra Pandey and Rajul, Voter Identity Card and Ration Card of the deceased, at the instance of accused Radhe & Raju Kol had been recovered on 15.05.2008. These witnesses has also deposed about the recovery of other belongings of the deceased.
89. It is evident from the above discussions that public witnesses Dharmendra Pandey and Rajul, have not supported the recovery of the belongings of the deceased at the instance of accused Radhe and Raju Kol, however, about recovery of Voter Identity Card and ration card, clothes; slippers etc. and other belongings of the deceased, there is other evidence on record. It has been denied that the said recovery was made at the instance of the accused, therefore, ration card or voter identity card and other belongings of the deceased has not been linked to the accused. 25
90. P.W.-18, Rishi Kesh Yadav, has also stated that the Investigating Officer, Abhai Pratap Inspector, S.T.F. Lucknow, has forwarded the charge sheet against the accused on 22.10.2007.
91. In view of the above discussions, it is evident that in support of charges against the appellants/ accused, P.W.-15, Ram Gopal, who is elder brother of the deceased has not supported the written First Information Report, and has also admitted in his testimony that the deceased himself was a criminal and has also expressed his suspicion that his brother could have been murdered by miscreants who were inimical to the deceased.
92. P.W.-16, Smt. Meena Devi, wife of the deceased, her brother and nephew, have not given any trustworthy evidence against the appellants/accused. Confession alleged to have been made before police officer/ investigating officer, in presence of the witnesses, by one of the accused does also not find support. Further, witnesses of recovery of weapon of crime i.e. blood stained axe with handle, Voter Identity Card, Ration Card, clothes and other belongings have also not been supported by the witnesses.
93. P.W.-8, Dr. R.K. Rao, could not tell the approximate time of death of the deceased. As per P.W.-16, Meena Devi, the skeleton and other belongings of the deceased were recovered after more than two months of his abduction, but there is no credible evidence to prove that the deceased was abducted by the appellants/accused, nor, there is any evidence on record to show that any of the witnesses had seen the appellants/ accused abducting and killing the deceased.
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94. Home guard/ Police Constable, and Investigating Officers have supported formalities they had completed but the same has not been corroborated by the public witnesses.
95. Even if, on face value, recovery of the axe and other belongings on the pointing out of the appellants/ accused is accepted, even then on that strength, appellants/ accused cannot be convicted for want of substantial evidence.
96. Apex Court in Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra; 2022 Live Law (SC) 596 has outlined the conditions necessary for applicability of Section 27 of the Evidence Act:
"that the appellant stated before the panch witnesses to the effect that "I will show you the weapon concealed adjacent the shoe shop at Parle". This statement does not suggest that the appellant indicated anything about his involvement in the concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence."
97. Appellants have denied in their statements under Section 313 Cr.P.C to have made disclosure statement to the investigating officer. Even if, it is accepted, that after their arrest they had made discloser statement to the arresting police officer yet in the event of their denial before the Court such disclosure statement cannot be relied and accepted.
98. In view of above referred judicial pronouncement, Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra; merely, on 27 the strength of the discovery of the skelton, weapon of offence axe with handle, clothes and other belongings of the deceased at the pointing out of Raju Kol, it cannot be suggested that he had done any act of concealment of the weapon of offence and body etc., and it is not sufficient to infer authorship of concealment by Raju Kol, who got discovered assault weapon and dead body of the deceased. This case rests upon circumstantial evidence.
99. Supreme Court in Hanumant vs The State Of Madhya Pradesh, reported in 1975 AIR 1083, has held that ;
"In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson to the jury in Reg v. Hodge (1) where he said :--
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to over- reach and mislead itself, to supply some little link that 'is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved."
100. Supreme Court in Jaharlal Das vs State Of Orissa, reported in 1991 AIR 1388, has held that ;
"It may not be necessary to refer to other decisions of this Court except to bear in mind a caution that in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to 28 rule out a reasonable likelihood of the innocence of the accused. Bearing these principles in mind we shall now consider the reasoning of the courts below in coming to the conclusion that the accused along has committed the offence."
101. Having regard to the facts and circumstances of the case, and for reasons stated herein above, we find that there is no cogent and clinching evidence against the appellants to hold them guilty.
102. In our opinion the impugned judgment and order dated 18.10.2013, passed by the Special Judge (D.A.A. Act)/ Additional Session Judge, Court No. 1-, Chitrakoot in Special Session Trial No. 148 of 2007, State vs. Gudda @ Ramman @ Raj kumar @ Jhalla @ Guddu Kol & Ors., under Sections- 147, 148, 149, 364, 302, 201 I.P.C. & 14 of D.A.A. Act, Police Station-Raipura, District-Chitrakoot, deserves to be set aside and is hereby set aside, accordingly, all the accused/appellants are acquitted of the charges levelled against them.
103. Appeal is allowed.
104. Appellants/accused No. 1 and 2, namely Gudda @Rajam @Raj Kumar @ Jhalla @ Guddu Kol and Raghunandan Pathak, who are on bail need not surrender. Their bail bonds and sureties are discharged.
105. The appellants no. 3 and 4, namely, Jiya Lal Kol and Subedar Singh @ Radhey, who are in jail stand acquitted of the charges against them and shall be released forthwith, if not wanted in any other case.
106. In view the provisions of Section 347-A Cr.P.C. the appellants no. 3 and 4, namely Jiya Lal Kol and Subedar Singh @ Radhey, are directed to forthwith furnish personal bonds in the sum of 29 Rupees Twenty Five Thousand and two reliable sureties each in the like amount before the trial Court (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellants on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
106. Let a copy of this judgment along with lower court record be sent back to the court concerned for immediate compliance.
107. Office to inform the concerned Jail Superintendent through C.J.M. concerned to ensure compliance of the order. Date:-22.12.2022 Deepak (Syed Waiz Mian,J.) (Suneet Kumar,J.)