Allahabad High Court
Km. Seema Azad vs State Of U.P. on 22 April, 2013
Bench: Rajiv Sharma, Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. RESERVED CRIMINAL APPEAL NO.1055 OF 2011 Km. Seema Azad ......... Appellant (in jail) Versus State of U.P. .......... Respondent along with CRIMINAL APPEAL NO. 1061 OF 2011 Anand Sen Yadav .......... Appellant (in jail) Versus State of U.P. ........... Respondent along with CRIMINAL APPEAL NO. 1707 OF 2011 Vijai Sen Yadav ............ Appellant (in jail) Versus The State of U.P. ............ Respondent ------------- Hon'ble Rajiv Sharma, J., Hon'ble Devendra Kumar Arora, J.
Heard Sri I.B. Singh, Senior Advocate, assisted by Sri R.B.S.Rathore, K. K. Singh and Nisar Ahmad, Counsel for the appellants-Seema Azad and Anand Sen, Sri Atul Verma appearing for appellant Vijai Sen Yadav and Sri R.B.S. Yadav, Additional Advocate General, assisted by Sri Umesh Verma, Additional Government Advocate, appearing on behalf of the State as also Sri Mahmood Alam, Counsel for the complainant.
These criminal appeals have been preferred against the judgment and order dated 17.05.2011 passed by the learned Special Judge (SC/ST Act), Faizabad in Sessions Trial No. 11 of 2008 and Sessions Trial No. 358 of 2008 under Sections 364, 201, 302/120-B IPC and 3 (2) (V) The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 PS Kotwali Ayodhaya, District Faizabad convicting and sentencing the appellants as below:
Appellant Km. Seema Azad (Appellant of Criminal Appeal No. 1055 of 2011) has been convicted and sentenced:
(i) Under Section 364 IPC read with Section 120-B IPC for ten years' R.I. with a fine of Rs. 5,000/-;
(ii) Under Section 302 IPC read with Section 120-B IPC to life imprisonment with a fine of Rs.10,000/-; and,
(iii) Under Section 201 IPC read with Section 120-B IPC to two years' R.I. with a fine of Rs. 2,000/-.
In default of payment of fine, appellant has been directed to further undergo two years' R.I. The sentences have been directed to run concurrently.
Appellant Anand Sen (Appellant of Criminal Appeal No. 1061 of 2011) has been convicted and sentenced:
(i) Under Section 364 IPC read with Section 120-B IPC for ten years' R.I. with a fine of Rs. 5,000/-;
(ii) Under Section 302 IPC read with Section 120-B IPC to life imprisonment;
(iii) Under Section 201 IPC read with Section 120-B IPC to two years' R.I. with a fine of Rs. 2,000/-; and
(iv) Under Section 3 (2) (V) of the The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 to life imprisonment and a fine of Rs. 5,000/-.
In default of payment of fine, appellant has been directed to further undergo two years' R.I. The sentences have been directed to run concurrently.
Appellant Vijai Sen Yadav (Appellant of Criminal Appeal No. 1707 of 2011) has been convicted and sentenced:
(i) Under Section 364 IPC for ten years' R.I. with a fine of Rs.5,000/-;
(ii) Under Section 302 IPC to life imprisonment with a fine of Rs.10,000/-;
(iii) Under Section 201 IPC to two years' R.I. with a fine of Rs.2,000/-;
(iv) Under Section 3 (2) (V) of the The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 to life imprisonment and a fine of Rs. 5,000/-;
In default of payment of fine, appellant has been directed to further undergo two years' R.I. The sentences have been directed to run concurrently.
Since the aforecaptioned three appeals have been preferred against a common judgment and order dated 17.05.2011 passed in the above mentioned Sessions Trials, all the appeals were heard together and we propose to decide these appeals with this common judgment.
Draped in brevity, the prosecution case is that a written information was given by informant Yogendra Prasad on 23.10.2007 at PS Ayodhya stating therein that his daughter Km. Shashi, aged about 24 years is a student of LL.B. III year in Saket Post Graduate College, Ayodhya. On account of Dussehra holidays, though the college was closed but on 22.10.2007, at about 9 AM, she has gone to the Allahabad Bank, situated in College building, for withdrawal of money. She reached the house of her friend Arpita Srivastava at about 11.30 AM and left her house at 11.40 AM but she did not reach house and her whereabouts are not known. The informant requested for necessary action in the matter.
On 31.10.2007, said Yogendra Prasad gave another information in writing that he belongs to Scheduled Caste and is 'Pasi' by caste. On 22.10.2007, his daughter Km. Shashi aged about 24 years, a student of LLB third year in Saket Post Graduate College, left the house at 9 AM for withdrawing money from the Allahabad Bank situated in the College Campus. On the same day, she went to the house of her friend Arpita Srivastava daughter of B.P. Srivastava resident of Ranopali, Ayodhya and after drinking water etc. she told that she is going with 'Bhaiya', but she has not reached the house till date. He has searched his daughter at the places of his relations but her whereabouts could not be ascertained. On inquiry, he came to know that his daughter had withdrawn money from her Allahabad Bank's account. In connection with the missing of his daughter, he had reported the matter to the police earlier. Now, he has come to know that Vijai Sen Yadav, who drives the car of Anand Sen Yadav, Minister, has enticed away his daughter on the pretext of providing her job with the help of Seema Azad, who lives in Faizabad City. Vijai Sen Yadav used to visit his house earlier and had introduced himself to be relative of the Minister. Both of them are workers of BASPA. Mobile Numbers of Vijai Sen Yadav are 9452170094, 9451966828 and 9452051139, whereas Mobile Number of Seema Azad is 9450564360. He requested for lodging the FIR against Vijai Sen Yadav and Seema Azad and prayed that his daughter be recovered.
On the basis of the aforesaid written report, a case on crime number 1674/07 under Section 366 IPC and Section 3(2)(v) the The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was registered against accused Vijai Sen Yadav and Seema Azad on 31.10.2007. The investigation in the aforesaid case was conducted by Sharad Chandra Pandey, the then Circle Officer. During the course of investigation he recorded the statement of the complainant on the same date. He also recorded the statement of scribe of Chik FIR as also the statement of Sub-Inspector R.D. Singh and Shamsher Singh, who were conducting investigation with respect to missing of the girl. Accused Vijai Sen Yadav surrendered himself in S.T.No. 184/2007 on 30.10.2007 and was detained in District Jail. Sub-Inspector Shamsher Singh obtained the call details of Mobile No. 9452170094, 9451966828 and 9452051135 belonging to accused Vijai Sen Yadav and Mobile No. 94505564360 belonging to accused Seema Azad, which revealed that Mobile No. 9452170094, which was used by accused Vijai Sen Yadav, was in the name of one Amravati. Mobile No. 9451966828 was in the name of accused Vijai Sen Yadav. Mobile No. 9450564360, which was being used by Seema Azad, was in the name of her brother Hriday Ram Azad. The call details of complainant's mobile no. 9415720315 from 22.10.2007 to 25.10.2007 were also obtained and entered in the case diary.
The call details revealed that before disappearance of Km. Shashi, on 22.10.2007, between 7 to 9 PM, there were several lengthy talks between accused Vijai Sen Yadav and Km. Shashi from which it comes out that Vijai Sen Yadav had taken away Km. Shashi by enticing or pressurizing her. According to prosecution, from Mobile No. 9452170094, which was in the name of Amravati and was being used by accused Vijai Sen Yadav, calls were made several times at Mobile No. 9415720315 in between 1.10.2007 and 16.10.2007. Similarly, Seema Azad and Vijai Sen Yadav had long talks on their mobile, from which it stood established that Vijai Sen Yadav and Seema Azad were very closed friends.
On 5.11.2007, the Investigating Officer went to District Jail, Faizabad and recorded the statement of Vijai Sen Yadav. He told that on 22.10.2007 he took Km. Shashi on his motor-cycle and had extensive talks in the way. She became very much annoyed and at about 9.30 PM when they reached 'Aamghat' bridge near Jagdishpur-Haliyapur, Km. Shashi asked to stop the motorcycle and she jumped in river Gomti. He silently came to his house. On 6.11.2007, accused Vijai Sen Yadav was again taken on police remand and his statement was recorded by a team constituted by Senior Superintendent of Police. In his statement, the accused admitted that he had taken Km. Shashi in a Car and after strangulation has thrown her body in river Gomti at Aamghat bridge. The owner of the car, namely, Sunderlal was also interrogated and it came to light that accused Vijai Sen Yadav had taken the car on rent on a number of occasions. On the pointing out of accused Vijai Sen Yadav, site-map was prepared by the Investigating Officer. The statement of S.I. Sidhnath Katiyar and Constable Ramanuj Mishra was also recorded by the Investigating Officer. S.I. Sidhnath Katiyar told that on 22/23.10.2007, a phone call of a person claiming himself to be the brother of the Minister was received regarding the vehicle going out of order. S.I. Sidhnath Katiyar directed Constable Ramanuj Mishra and Home Guard to reach 'Aamghat' Bridge and help him. Constable Ramanuj Mishra in his statement before the Investigating Officer told that when he reached at Aamghat bridge, he saw one person and a girl sitting in the Car. Seeing on police personnel, the girl closed windscreen of the Car. The vehicle was given a push and it started and was driven towards Milkipur. On being confronted with Vijai Sen Yadav, Constable Ramnuj Mishra informed the Investigating Officer that he is the same person who was in the company of the girl in the night of the incident.
As there were contradictions in the statement of accused Vijai Sen Yadav, his third statement was recorded by the Investigating Officer. In his third statement, Vijai Sen Yadav stated that Km. Shashi, accused Anand Sen and Km. Seema Azad had close relations with each other. He also stated about his close relations with Km. Shashi and Seema Azad. The Investigating Officer also recorded the statement of Branch Manager, Allahabad Bank, Arpita Srivastava (friend of Km. Shashi) and owner of car Ram Prakash Yadav. The Investigating Officer further proceeded to record the statement of complainant Yogendra Prasad, daughter Anita, son Rajnish and wife Suman. During the course of investigation, the complainant also gave two letters to the Investigating Officer and informed that these letters are in the hand writing of Km. Shashi.
Further, the prosecution story is that an information was given by an Informer on 27.10.2007, that a dead body of a girl like Km. Shashi having gold colour wrist watch was seen, which was taken away by one Babbu @ Babbu Pasi and was kept by Shiv Kumar Singh. On 19.11.2007, it came to the notice of the Investigating Agency that the wrist-watch has been recovered by the police of P.S. Musafirkhana. The Investigating Officer recorded the statements of Babbu Pasi and Shiv Kumar Singh. Statement of Krishna Mehra and Hanuman was also recorded. All the three supported the recovery of wrist-watch from the dead body and when they were shown the photograph of Shashi, it was informed that from the dead body having similar structure, the wrist-watch was taken away. On 22.11.2007, offence under Section 302/201 IPC was added.
On 24.12.2007, the complainant, his daughter Anita and Manoj Kumar reached P.S.Musafirkhana, district Sultanpur and identified the wrist-watch. Recovery memo was prepared on which signatures of the witnesses were also obtained. The Investigating Officer moved an application before the Chief Judicial Magistrate, Faizabad for granting permission to conduct Polygraph, Brain Mapping and Narco Test of accused Vijai Sen Yadav and on 17.12.2007, permission was granted. On 9.12.2007, the statement of Former Minister Anand Sen Yadav was recorded. On 28.12.2007, the complainant handed over the warranty card of the wrist-watch to the Investigating Officer. Statement of the watch seller was also recorded. Narco Test of Vijai Sen Yadav was conducted at Forensic Science Laboratory, Bangalore and the test report was reproduced in the case diary. On the basis of the evidence collected during the course of investigation, charge sheet was submitted against accused Vijai Sen Yadav on 28.1.2008. In view of the report of Narco Test, Alto Car bearing registration no. U.P. 44 K/3400 belonging to Raj Kumar Yadav was taken into possession and accused Seema Azad and Anand Sen were arrested and ultimately charge sheet was submitted also against them on 7.8.2008.
Accused persons were committed to the court of Sessions where the accused persons denied the charges levelled against them and claimed to be tried.
The trial court on an appraisal of the evidence, recorded findings of guilt against the appellants and convicted and sentenced as mentioned in the opening part of this order.
Before endeavoring a critical analysis of the rival contentions made by the learned counsel for the parties, we feel it apposite to have a glance on the prosecution evidence on record.
The prosecution in support of its case examined P.W.1 Yogendra Prasad (complainant), P.W. 2 Km. Anita (daughter of the complainant), P.W. 3 Jaggannath Tiwari (Home guard posted at P.S.Haliyapur, District Sultanpur) P.W.4 Ramanuj Mishra (Constable posted at P.S.Haliyapur, District Sultanpur), P.W.5 S.I.Siddhnath Katiyar (Station Officer PS Haliyapur, District Sultanpur), P.W. 6 B.N.Srivastava, P.W. 7 Babbu alias Babu Pasi, P.W.8 Krishna alias Krishnalal, P.W.9 Hanuman Pasi, P.W. 10 Smt. Arpita Srivastava (friend of missing girl), P.W. 11 Nagendra Singh Sub-Inspector, P.W. 12 Constable Vijay Kumar Mishra, P.W. 13 Amrawati, PW.14 Ram Autar, P.W. 15 Ashok Kumar Singh, P.W. 16 Raj Kumar Yadav, P.W. 17 Ram Naresh Yadav, P.W. 18 Hiralal Dubey, P.W. 19 Raj Kumar Pandey, P.W. 20 Umesh Kumar Yadav, P.W. 21 Umesh Bahadur Yadav, P.W. 22 Smt. Ram Piyari, P.W. 23 Gulab Chandra Arya, the then Circle Officer, P.W. 24 Sohan Pal Singh Tomar, Circle Officer, P.W. 25 Head Constable Jai Singh, P.W. 26 Constable Salamuddin, P.W. 27 Sharad Chandra Pandey, Circle Officer, P.W. 28 Dr.R.P.Singh, P.W. 29 H.D.Tripathi, P.W. 30 Girja Prasad, P.W. 31 Praveen Bari Girath and P.W. 32 Head Constable Suresh Kumar.
Apart from above prosecution witnesses, the prosecution produced materials and documents to prove its case.
Yogendra Prasad (P.W.1), the complainant of the case, in his statement, deposed that he belongs to Scheduled Caste community (Pasi) and was the President of BAMSEF, a non-political organization of Bahujan Samaj Party. Political leaders and Ministers of Bahujan Samaj Party used to visit his house. Accused Anand Sen and Mitra Sen Yadav also used to visit his house oftenly. His daughter Km. Shashi, who used to participate eagerly in political matters, was also in touch with them. Shashi had passed B.A. from Saket Post-Graduate College and had taken admission in LL.B. At the time of incident, she was a student of LL.B. (Third Year). His second daughter's name is Anita and his son's name is Rajnish Kumar. Km. Shashi when sufferred with Hepatitis and for her admission in the hospital, he had taken help of Anand Sen. Thereafter Anand Sen used to visit his house to inquire about the health of Shashi. His driver Vijai Sen Yadav had also accompanied Anand Sen. After about six months, Shashi was declared medically fit. Elections were declared and Anand Sen was a contestant for MLA seat from BASPA. In connection with his election campaign, Shashi delivered speeches in the election meetings. Anand Sen was declared elected and also was appointed as Minister of Food Processing Department. Whenever Anand Sen visited his Assembly Constituency, he used to halt at his house. His daughter always nurtured wish to become a leader. She had also filled-in Forms of IAS and PCS for which Anand Sen used to motivate her and had told to her that whenever a vacancy will occur in his department, she will be recruited. Anand Sen had called for her all educational certificates. After Anand Sen became Minister, whenever he visited Faizabad, accused Vijai Sen Yadav used to park his old vehicle at his residence and after ascertaining the location, he used to move out. Sometimes Shashi also accompanied him on the vehicle. Whenever, she was called by Anand Sen, she also visited his place. His Mobile Number is 9415720315, which was also being used by Shashi and from this mobile she used to make long calls during night hours. My daughter Km.Anita whenever at home, had the knowledge of conversation made by Km. Shashi. Shashi used to write couplets (Sher-o-Shayari) which were written in her diary, book and copies, and she narrated couplets (Sher-o-Shayari) in her speeches.
This witness further stated in his examination-in-chief that on 22.10.2007, his daughter had left the house in the morning at about 9-9:30 AM saying that she after purchasing medicines, will go to her friend Arpita's house to give her the Cassette and then will withdraw money from the Bank. When she had left the house, she was wearing red flowery blue suit and as well as a Sonata wrist-watch. Apart from it, she was wearing a finger ring of Alloy Metal and red colour thread in her hand. He waited till 9 PM in the night but when she did not return to the house, he contacted his relatives on phone. Arpita Srivastava informed that Shashi had come to her house at about 11-11.30 AM and returned the cassette. After drinking a glass of water, she left saying that her 'bhaiya' is waiting outside. The complainant had rang Anand Sen and on the next day i.e. 23rd October, 2007, he went to the Circuit House to meet Anand Sen personally. Anand Sen told him that he will help him. Anand Sen also asked him to go to the Superintendent of Police (City) and lodge a report regarding missing of Shashi. On 23rd October, 2007 in between 6.30-7.00 PM., on the instructions of the Superintendent of Police (City), he reached Police Station Ayodhya with a report and on the lodging of the report at Police Station, police personnel asked for a photograph, which he gave to them. He searched Km. Shashi till 30th October, 2007. Meanwhile, he found a slip kept in the diary of Shashi, in which phone numbers of Vijai Sen Yadav and Seema Azad were mentioned. His daughter Anita, one day, in a state of fear, told that one girl Seema Azad residing in Faizabad used to extend threats to Shashi that she should not speak with Anand Sen on phone; lest, she would invite dire consequences. Seema Azad was not known to her earlier. On coming to know from Anita about the threats being extended by Seema Azad to Km. Shashi and after finding the slip bearing mobile numbers, he lodged a report against them on 31.10.2007. This witness proved the FIR (Exhibit Ka-1), report of missing (Exhibit Ka-2) and material Exhibit-1 i.e. photograph affixed on the said report.
Aforesaid witness, Yogendra Prasad (PW 1) also stated that the Investigating Officer Sharad Chandra Pandey inquired from him on a number of occasions. In the morning of 28.10.2007, Anand Sen reached at his house and assured that his missing daughter would be recovered. He also said that whatever had happened, it had happened. He further told that vacancies for the post of Driver and Conductor have been advertised and instructed him to get his son's application form filled-in and further assured him a job. On 31.10.2007, Mitra Sen Yadav, Member of Parliament, alongwith his companion Ram Prakash Yadav also visited him. When he asked for the recovery of his daughter, he furiously retorted that several girls have left their homes and are also being abducted. This witness further deposed that his talks with the police personnel fell on deaf ear. Mitra Sen Yadav is father of Anand Sen. After lodging of the FIR, he received telephonic threats from Ghaziabad, Delhi, Noida, etc. to keep mum, otherwise his family will be annihilated.
Yogendra Prasad (P.W.1) also deposed before the Court that he came to know about the mobile numbers of Vijai Sen Yadav, Anand Sen and Seema Azad from the slip found in the diary of Km. Shashi. His younger daughter Anita had told him that Seema Azad had asked Km. Shashi not to speak with Anand Sen. Anita had also told that one day Shashi spoke with Anand Sen in a harsh tone on phone whether he did not feel ashame in talking in this manner; she knew a number of high profile persons and she will get removed his red beacon light. Vijai Sen Yadav used to drive vehicle of Anand Sen since long and he is a person having criminal bent of mind. Anand Sen and Mitra Sen used Vijai Sen Yadav in defeating their opponents. He also knew that Shashi and Anand Sen used to talk with each other on phone.
Yogendra Prasad (PW1) further stated in his statement before the Court that while the investigation was going-on, he found two letters; one in Hindi and the other in English, photocopies whereof were given to the Investigating Officer. This witness proved the handwritten letters of Shashi written in Hindi and English (Ext.Ka-3 and Ka-4). This witness further proved his signature on the recovery memo (Ex.Ka-5). He also stated that the warranty card of the wrist-watch which Shashi was wearing when she left the house on the last occasion, was given to the Circle Officer. This witness proved the signature on the warranty card (Ex.Ka.6) He also stated that he had gone to the Police Station Musafir Khana alongwith his younger daughter Anita and nephew Manoj Kumar. When they reached Musafir Khana, the Station House Officer had shown him a wrist-watch after breaking the seal. The watch was identified by him, his daughter Anita and nephew Manoj Kumar. This witness proved his signature over Ex.Ka.7, which is an application given in respect of identification of wrist-watch as also the wrist-watch, which is material Ex.2. P.W.1 further stated that Ram Autar and Hausla had told him that they had seen Shashi going with Seema Azad and Vijai Sen Yadav to meet Anand Sen at the Circuit House on 22.10.2007. They had asked Shashi to get their work done by Anand Sen on which Shashi asked them to sit and wait. When Shashi did not return, they left the place. Seema Azad had close relations with Anand Sen and Vijai Sen Yadav. This witness further deposed that his younger daughter Anita was told by Shashi that she had developed illicit relationships with Anand Sen. Shashi had also told that she is vomiting and feeling pain in her stomach, and she suspected of bearing pregnancy. Since on an earlier occasion, harsh words were exchanged between Shashi and Anand, as such, he genuinely suspected that Anand Sen on coming to know about all the facts, had got Shashi killed. Initially, he had not told all these facts to the police because Anand Sen was the Minister in BSP Government and Mitra Sen Yadav was a Member of Parliament of BSP and both of them not only were having high influence but were also persons of criminal background. On account of fear that he would also be done away with, he, instead of telling all these facts to the police, told these facts to the Media persons. After coming of all these facts in the media, he received telephonic threats including from abroad and was asked not to name Anand Sen.
Km. Anita (P.W.2) is the daughter of the complainant and younger sister of victim Shashi. She in her statement on oath deposed that she and Shashi had studied together from primary to Intermediate. The difference of age between her and Shashi would be about 1½ years. She was given one class promotion and as such both studied together. She and Shashi had appeared in the Intermediate Examination together. Shashi had passed but she couldn't. After Intermediate, Shashi had taken admission in B.A. in Saket Post Graduate College while she took admission in B.Sc.(Home Science) in Narendra Dev Agriculture University. She had completed B.Sc. in June, 2007. While pursuing B.Sc. Course, she was living in the hostel. She used to live in the Hostel for 2-3 days. Her father is an Accountant in the University and oftenly, she used to come with him to home. On Saturday and Sunday, she used to stay at home. In June 2007, she had left the Hostel permanently and stayed at the home. She and her elder sister since had studied together, therefore, Shashi used to talk intimately and shared everything between them. Her father was associated with BAMSEF. She and her sister were staying together in a single room and shared all the talks like a friend.
When Anand Sen joined BSP, he frequently visited her house. In the Assembly Election, her family members and her sister Shashi campaigned for Bahujan Samaj Party. Anand Sen was the candidate from her constituency. Her sister Shashi attended election meetings of Anand Sen. Prior to Assembly Elections in the year 2006, her sister Shashi had fallen seriously ill and her brother had taken her to District Hospital, where Anand Sen met her and inquired about her health and after consulting the Doctors got her admitted. Shashi remained in hospital for about 15 days and Anand Sen used to come hospital to meet Shashi every day and when her sister became medically fit, then he started coming to the house. When Anand Sen could not come, he used to send his car alongiwth Driver Vijai Sen Yadav. Anand Sen used to talk with Shashi on telephone. Whenever Shashi had a talk with Anand Sen, she used to tell her about the entire conversation.
Anita (P.W.2) further stated in her statement when there were lengthy conversations between Shashi and Anand Sen, then, she asked Shashi as to what should be inferred from such long talks, then Shashi told her that she and Anand Sen loved each other and for this reason they talk with each other. She further stated that she had seen one letter. One month prior to the incident, she felt her sister much perturbed, so she made queries from her, who started weeping and told that Anand Sen had deceived her and she would take revenge even by taking help of law. So she inferred that relations between these two were strained. On repeated requests, her elder sister told that she has become pregnant with Anand Sen and had made her to promise not to disclose it to anyone. Shashi had told about pregnancy, about 1-2 days before the incident. When Shashi was very much perturbed, the phone calls of Anand Sen had increased. Whenever anyone was at house, she moved away alongwith phone.
P.W.3 Jagannath Tiwari stated in his examination-in-chief that he is Home Guard since 1989 and in October, 2007, his duty was at P.S. Haliyapur and on 22.10.2007, he was on patrol duty with Constable Ramanuj Misra. When they were at Kakarkola crossing, Ramanuj Misra received a call from the Station Officer Haliyapur-Shiv Nath Katiyar, informing that the vehicle of the Minister's brother has developed some defect and he was ordered to extend help to him. On receiving this information, he and Ramanuj Misra went to 'Aamghat' bridge at about 11.00 PM. When they reached at the bridge, they found one car parked there and the Driver of the vehicle standing nearby. They saw a woman sitting on the front seat of the car. On seeing us, she closed the window glass. The driver said that the vehicle has gone out of order but when they pushed the car, it started and the vehicle went towards Milkipur. When he had a talk with the driver, he could not recognize his face and even today, he cannot recognize him. The prosecution declared this witness hostile but was cross examined by the prosecution as well as the defence.
In his cross-examination on behalf of the defence, this witness in unequivocal terms stated that no identification was done by him in respect of any person; it is wrong to say that he has refused to recognize the accused on account of pressure of the accused persons; he had not given a push to the car; and, he has given the statement under the pressure of Circle Officer, Ayodhya.
P.W.4, Ramanuj Misra was the Constable posted at P.S. Haliyapur in the month of October, 2007. He deposed that in the intervening night of 22/23.10.2007, he was on Cheetah Mobile duty alongwith Home Guard Jagannath Tiwari (PW3). At about 11 PM he was at Kakarkola turn, when he received a call from Station Officer, who said that Minister Anand Sen's brother's vehicle had gone out of oder at Aamghat Bridge and was asked to reach the spot and help him. On receiving this information, he alongwith Home Guard-Jaganath Tiwari went to Aaamghat, where they saw that a car, which was either Indica or Maruti, was parked there and the driver was standing outside the Car. The driver told him that he had made a phone call to the Station Officer for help. This witness further stated that a woman was sitting inside the car, who closed the glasses on seeing them. The driver sat on the driving seat while he and Jagannath Tiwari gave a push to the vehicle and it started. After the vehicle got started, the driver thanked Station Officer on mobile and went towards Faizabad. Thereafter, they also came to their area. On seeing the accused Vijai Sen Yadav, he said that he is the same person in whose vehicle they had given a push.
In his cross-examination, PW4- Ramanuj Mishra stated that no identification parade of the driver was ever conducted in presence of a Magistrate. He also stated that the accused was brought before him and his face was open. It is wrong to say that on being tutored he has said that the person standing in the witness box is the same driver on the date of incident.
Siddhnath Katiyar (P.W.5) was the Station Officer at P.S.Haliyapur, District Sultanpur at the relevant time. He in his statement before the Court stated that in the intervening night of 22/23.10.2007 at about 11 PM, he received a phone call from Mobile No. 9452051139 on his CUG Mobile No. 9415904142. The person who called on the mobile told that he is brother of Minister Anand Sen and was going by a car with his family but his vehicle had gone out of order at Aamghat bridge of river Gomti. The passing vehicles are not stopping. He requested for help. When asked as to which type of help, he said that if one or two police personnel are sent, who can get the vehicle started by push. Thereafter, he rang on mobile No.9415424681 from his personal mobile No.94155774541 and asked Ramanuj Mishra to give all the possible help after reaching Aamghat Bridge, where the vehicle of the brother of Minister Anand Sen had gone out of order. At about 11.15 p.m. one phone call was received from mobile No.9452051139 on CUG mobile No.9415904142 and the person who rang extended thanks. In his statement before the Court, he further deposed that when the C.O. Faizabad had inspected Aamghat Bridge, he was called. This witness further deposed that he alongwith Ramanuj Mishra reached there and saw a handcuffed person. Ramanuj Mishra told him that he is the same person whose vehicle was given a push on 22/23.10.2007.
In his cross-examination, he admitted that he has not disclosed about pushing of the vehicle by Constable Ramanuj Mishra and Home Guard to the Circle Officer. However, he said that it is wrong to say that this was not disclosed as such incident had not happened. He further stated that he does not know Anand Sen and had no relation with him. He also had no relation with Vijai Sen Yadav. He had neither given his personal mobile number to Anand Sen nor to Vijai Sen Yadav.
B.N. Srivastava (P.W.6) was the Branch Manager, Allahabad Bank's Branch at Saket College, Faizabad. He in his statement deposed before the Court that Account No.24912 was in the name of Km. Shashi and on 22.10.2007, she had withdrawn Rs.700/- from her account through withdrawal form. He produced the photocopy of statement of account and withdrawal form.
In his cross-examination, he admitted that on the withdrawal form, time of payment is not mentioned. Looking to the withdrawal form, in which Sl. No.12 is mentioned, he said that payment would have been done before lunch. He further stated that in completion of one transaction, 10-15 minutes are consumed. It is wrong to say that after obtaining two signatures on the withdrawal form of the account holder, payment is made. It is also wrong to say that he is concealing the correct facts that two signatures of Km. Shashi were taken simultaneously and thereafter, payment was made.
Babbu alias Babu Pasi (P.W.7), aged about 60 years, stated in his statement before the Court that he had not seen any dead body of girl floating on the water. He further stated that he had not gone with Mr.Krishna Mehra near the dead body by sailing boat and stripped off the watch. After this statement, the prosecution declared this witness as hostile.
In his cross-examination, he stated that it is wrong to say that he stripped off the watch from the wrist of the dead body and concealed the same in his 'chappar' of his thatched house. It is wrong to say that after taking his permission, his son Hanuman had given the watch to Shiv Kumar Singh, who in his turn had deposited the same at the police station. During the course of his examination-in-chief, he stated that he had no knowledge that in which case he was detained about 2-2½ years ago. In his cross-examination, he stated that it is wrong to say that as a case for removal of watch from the dead body had been registered against him and as such, he is not telling the correct facts. It is also wrong to say that Circle Officer had interrogated him and also shown him a photograph of a girl and thereafter, he had told that this is the girl from whose wrist, he had removed the watch.
Krishna Mehra (P.W.8), aged about 26 years stated in his statement that he had not gone to the river Gomti by boat for fishing. He further stated that he had not seen Babu Pasi going near the dead body and removing the watch. At this stage, the prosecution sought permission for declaring him hostile, which was granted. In his cross-examination, he stated that it is wrong to say that he had seen Babu Pasi removing the watch from the wrist of dead body.
Hanuman Pasi (P.W.9) is son of Babu Pasi (P.W.7). He in his statement stated that he had not told Shiv Kumar Singh about a Watch having been kept by his father. He further stated that he never on the direction of his father had given the Watch to Shiv Kumar Singh for taking it to the Police Station. At this stage, the Prosecution sought permission for declaring this Witness to be hostile, which was granted. However, permission was granted for cross-examination. In his cross-examination, the witness deposed that it is wrong to say that Shiv Kumar Singh had come to his house 2-2½ years earlier, and told him that his father had stripped off a Watch from the dead body of a girl found by him in the river Gomti.
Smt. Arpita Srivastava (P.W.10), friend of Km. Shashi, in her statement stated that in the year 2007 she was pursuing LL.B., IV Semester from K.N.I. Degree College, Sultanpur. She did not go to the Institution daily and had taken permission from one Rajnish Srivastava, a Teacher of Saket Degree College for attending classes. She knew Km. Shashi since LL.B 1st Semester when she was introduced in Saket Degree College. She had taken "Devigeet" C.D. and notes which she came to return on 22.10.2007 at about 11 AM. After drinking water and giving C.D. and notes, she left the house saying that his 'bhaiya' is waiting outside. On 22.10.2007, in the evening, she received a telephone call of Shashi's sister who inquired whether Shashi had come to her house, on which she said yes. Next day, father of Shashi had rang and inquired about Shashi. In her cross-examination she sated that it is wrong to say that Shashi had not come to her house on 22.10.2007 and she had given the statement on being tutored. She further stated that Shashi was neither her School fellow nor Class-fellow and she had never visited her house. She further stated that Circle Officer had come to her house on 8th November.
Nagendra Singh (P.W.11) was the Station Officer of PS Kotwali Musafirkhana, District Sultanpur at the relevant time. In his examination-in-Chief, he stated that the police of district Sultanpur was also involved alongwith the police of district Faizabad for searching the dead body of Km. Shashi. He had engaged certain persons of public to know about the dead body of Shashi including Shiv Kumar Singh resident of Gajanpur. On 19.11.2007, Shiv Kumar Singh came with one Babu Pasi and gave an application in writing in connection with removing of lady's watch from an unknown dead body by Babu Pasi and keeping him in his possession. On this written report, a case under Section 404 IPC was registered against Babbu Pasi. The watch was kept in a sealed cover in the 'Maalkhana'. On 24.11.2007, C.O.Ayodhya, district Faizabad came alongwith Yogendra Prasad, his daughter and one Manoj Kumar. The Circle Officer asked for identification of the watch. The seal was opened in presence of the Circle Officer and witnesses. On seeing the watch, Yogendra Prasad, his daughter and Manoj Kumar identified the watch and stated that this is the watch of Shashi. The identification memo of the watch was prepared by Circle Officer, Ayodhya on which P.W.10, SSI Umakant Upadhyaya, S.I. D.D. Mishra, Anita, Manoj Kumar and Yogendra Prasad put their signatures.
In his cross-examination, Nagendra Singh, Station Officer (P.W.11) stated that he had received information from Circle Officer, Ayodhya about disappearance of Shashi in November, 2007 from district Faizabad. On this information, he had deputed Shiv Kumar Singh, whom he knew since before. Shiv Kumar Singh had come with Babbu Pasi alongwith watch on 19.11.2007 and had told that the watch was found from a dead body. Shiv Kumar Singh also said that he had not seen the dead body. In his cross-examination, he admitted that when the watch was taken out from the sealed envelope for identification, there was no Magistrate. However, he said that it is wrong to say that recovery of watch has been fabricated.
P.W.12, Constable 63 Vijay Kumar Mishra is the Constable Clerk posted at P.S.Musafirkhana, District Sultanpur.
P.W. 13 Amravati stated in her statement that she does not know Member of Parliament Mitra Sen Yadav and MLA Anand Sen and had no concern with the political party they belong to. She further stated that she owned one mobile phone which was bought by her mother-in-law and she does not know the complete mobile number of the phone but the last digits are 95. She further stated that Mobile No. 9451270094 was not purchased on her identity card and she does not know Vijai Sen Yadav. This witness was declared hostile.
Ram Autar (P.W.14) in his statement stated that a case was registered in connection with a dispute with his brother. He further stated that he never went to the Circuit House to meet local MLA Anand Sen for fair investigation of his case. At the time, when the case was registered against him, Anand Sen was not the Minister. He further stated that he is an illiterate person. When the photograph affixed on the affidavit was shown, this witness stated that it was his photograph, but he had not given any affidavit to the D.I.G. Exhibit 6/118, the affidavit, was also not given by him in the the Court of Chief Judicial Magistrate. This witness was declared hostile. In his cross-examination, he stated that it is wrong to say that he is disowning the contents of the affidavit since he has colluded with the accused persons. He further stated that neither his statement was ever taken by the Circle Officer nor had he given any statement to the Circle Officer stating that the episode of kidnapping and murder of Km. Shashi is a very dangerous happening having connection with high profile persons. In his cross-examination made on behalf of appellant Vijai Sen, this witness further stated that he has no acquaintance with Seema Azad and Shashi. He has also stated in his statement that Hausla Prasad is not alive.
Ashok Kumar Singh, SI (PW) 15 is a formal witness and has recovered the Alto Car having registration No. UP 44 K - 3400 from the house of owner of the car Raj Kumar Yadav, who has been produced by the prosecution as PW 16. The prosecution case is that his four wheeler was used for the commission of the crime. This witness has also prepared the recovery memo of the recovered vehicle which was exhibited as Exhibit Ka-17. This witness in his examination-in-chief has specifically stated that he did not obtain signatures of any witness on the recovery memo (Exhibit Ka-17), but in the same breath stated that the uncle of the owner of the car refused to sign the recovery memo. In his cross examination made on behalf of appellant Seema Azad stated that the Circle Officer had provided him the address of Raj Kumar Yadav and had directed him to get recovered the car. He further stated that he had also taken possession of yet another vehicle bearing registration No. UP. 42 K-5616 on the direction of the Investigating Officer on 27.05.2008. This vehicle was kept in the police station premises and was also parked at the police station, when Alto Car No. 44 K- 3400 was recovered and brought at the police station. He further stated that on the direction of the Investigating Officer, he had released vehicle No. UO 42 K-5616 without there being any application for release of this car being produced before him. In his cross examination, this witness stated that he did not issue any notice under Section 100 (4) Cr.P.C on refusal for signing the recovery memo by the uncle of Raj Kumar Yadav.
Raj Kumar Yadav,(P.W.16) is the owner of the Alto Car bearing registration no. UP 44 K/3400. He stated that the car was neither taken by Vijai Sen Yadav in the evening of 21.10.2007 nor was it taken by Vijai Sen Yadav earlier. This witness was also declared hostile.
In his cross-examination made by the prosecution, this witness stated that he knows Mitra Sen Yadav and is in touch with him since last 7-8 years. Vijai Sen Yadav is a driver who drives the vehicle of Mitra Sen Yadav. It is wrong to say that accused Vijai Sen Yadav had borrowed his Alto car on 21.10.2007 on the pretext that his wife is ill. It is also wrong to say that prior to 21.10.2007, Vijai Sen Yadav had taken the car. It is also wrong to say that he had given any affidavit on 11.6.2008 to the pairokar Constable Pankaj Rai of Circle Officer, Ayodhya. On seeing the photograph on the affidavit (paper no. 88/70) he admitted that it is his photograph but denied his signatures. He further stated that Circle Officer, Ayodhya had taken three photographs, 4 stamp papers and on 12 blank sheets of paper had obtained his signatures, but he had not lodged any complaint in the Court or before any authority in this connection.
Ram Naresh Yadav (PW17) was the Pharmacist at C.H.C., Milkipur at the relevant time. He proved entries made in the OPD Registration Register and Patient Admissions Register and stated that there is no entry in Patient Admissions Register regarding admission of wife of Vijai Sen Yadav on 22.10.2007 and 23.10.2007. In his cross-examination, he stated that PHC Harinteenganj is about 15 kms. which is close to Dihbharthi.
Hiralal Dubey (PW18) is resident of the village to which appellant Vijai Sen Yadav belongs. He denied that during search made by the police, broken pieces of mobile and clothes were recovered from the house of Vijai Sen Yadav. The prosecution declared him hostile and while being cross examined by the prosecution, this witness denied that he had put his thumb impression on the recovery memo of Nokia mobile. This witness also denied his statement recorded under Section 161 Cr.P.C. and also denied the suggestion of the prosecution that he was not deposing the true facts since he belongs to the village to which appellant Vijai Sen Yadav belongs.
Raj Kumar Pandey (PW19) is also a witness of recovery of Nokia mobile. He admitted his signatures on the recovery memo, but in the same breath stated that he had appended his signature on blank paper. He also denied that any mobile and broken pieces of mobile phone were recovered from the house of appellant Vijai Sen Yadav. Consequently, this witness was also declared hostile and in his cross-examination made by the prosecution he denied all the suggestions made by the prosecution including the fact that his statement under Section 161 Cr.P.C. was recorded by the investigating officer.
Umesh Kumar Yadav (PW20) stated that he did not own any mobile till date and also refused that BSNL Sim bearing No. 9452051139 belonged to him or was in use by him. He denied having acquaintance with appellant Vijai Sen Yadav or Mitra Sen Yadav. He also denied the fact of any statement having been recorded by the investigating officer. In his cross-examination by the appellants, he stated that he has given his evidence without any fear or favour.
PW 21 Umesh Bahadur Yadav has also stated in similar terms with that of the evidence of PW 20 Umesh Kumar Yadav which needs no mention.
PW 22 Smt. Ram Pyari was the Pradhan of village Palia Mafi. She stated that there are two persons named Umesh Bahadur Yadav in the village. In the year 2008, one of them was residing in Lucknow and pursuing his B.A. studies. She admitted to have given the certificate exhibited as Exhibit Ka-19. In her cross-examination she admitted that she is an illiterate person and was unable to read the certificate (Exhibit Ka-19) or the date affixed underneath this exhibit. In her cross-examination on behalf of appellant Anand Sen, she denied that she has issued certificate (Exhibit Ka-19). At this stage, she was declared hostile by the prosecution. She denied the suggestion of the prosecution that she is in league with the accused persons and thus is denying her signatures on the certificate (Exhibit Ka-19).
PW 23 Gulab Chandra Arya, retired Deputy Superintendent of Police stated that according to the confession of Vijai Sen Yadav, he (Vijai Sen Yadav) had murdered Km Shashi and had thrown her dead body in river Gomti. On this information supplied by Vijai Sen Yadav, he along with other police personnel, had made a frantic search of the dead body on 07.11.2007 and 11.11.2007, but could not find it. He admitted to have raided the house of Vijai Sen Yadav on 08.11.2007 but could not find any letter or any other article in the house relating to crime. He submitted his report to the Superintendent of Police on 12.11.2007, which was proved by him and was exhibited as Exhibit Ka-20. In his cross-examination, he admitted to have not recorded daily-notings date-wise and had submitted his integrated report dated 12.11.2007. He submitted that Vijai Sen had not made any confession in his presence. This witness admitted that his statement was recorded by the Investigating Officer on 12.11.2007 and he had stated in his statement that he had told the Investigating Officer about throwing dead body of abducted girl Shashi by accused Vijai Sen Yadav but he could not suggest any reason as to why this fact did not find mention in his statement given before the Investigating Officer. He denied the defence suggestion that he was stating wrong facts just to give a chronological detail of events under pressure of the authorities.
PW-24 was a member of the team constituted for interrogating Vijai Sen Yadav. On 18.11.2007, he inquired about staying of Anand Sen Yadav in the Circuit House from the records. He had also interrogated certain employees of the Circuit House. He stated that from the record it was found that on 22.10.2007 at 4.00 P.M. Anand Sen Yadav had arrived at the Circuit House and after staying in the night, on 23.10.2007 at 5.00 P.M. he had left for Lucknow. He proved the tour programmes of Anand Sen Yadav (paper nos 11Aa/56 & 11Aa/55). He stated that he had gone for search at the house of Vijai Sen Yadav and his father (Keshav Raj Yadav), in the presence of Hira Lal Dubey and Raj Kumar Pandey, had given one black Nokia mobile having EMI No. 353228011803855 in which SIM No. 9451966828 was being used. He also stated that from an eastern room of the house, broken pieces of mobile phone kept in a plastic bag, were recovered and recovery memo was prepared. He could not remember whether he was on duty at the Circuit House on 22.10.2007. Paramdev Tiwari had informed him that on 22.10.2007 he was not present in the Dak Bungalow.
PW.25 Head Constable Jaisingh was posted at Police Station Ramjanma Bhoomi, Faizabad. He deposed that on 23.07.2007, at 06.20 P.M. complainant Yogendra Prasad came to the police station with a typed written report regarding missing of the girl. On the direction of Assistant Sub-Inspector, he made entry in G.D at Rapat No. 31 at 06.20 P.M. He proved the original typed report which was exhibited as Exhibit-Ka-31.
PW 26 Constable Salamuddin Shah at the relevant time was also posted at Police Station Ramjanma Bhoomi, Faizabad. He lodged chik FIR at crime no. 164 of 2007 under Section 366 IPC read with Section 3 (2) (V) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and made mention of it in G.D. Entry No. 20 at 11.30 P.M. He proved the original chik FIR which was exhibited as Exhibit Ka-20. In his cross examination, this witness stated that he is ignorant how and why there was delayed submission of the Chik FIR in the Court of Chief Judicial Magistrate concerned.
PW.27 Sri Sharad Chandra Pandey was posted as Circle Officer, Ayodhya at the relevant time. He was entrusted with the investigation of the crime on 31.10.2007 and after completing investigation, had submitted charge sheet against accused persons. During the course of investigation, he recorded the statement of the complainant and certain other police personnel. He made a vain effort to trace Arpita, class mate of Km.Shashi. He obtained the call details of the mobile phones of appellant Vijai Sen Yadav as well as of the complainant. He deposed that several calls were made from Mobile No. 9452051139 which belonged to appellant Vijai Sen Yadav to Mobile No. 9415720315 belonging to the complainant. From the call details made on 22.10.2007 in between 7 AM to 9 AM, it was inferred that Vijai Sen Yadav had pressurized, deceived or coerced Km. Shashi to accompany him. This witness further stated that from Mobile No. 9452170094 which belonged to one Amrawati, but was being used by Vijai Sen Yadav, several long duration calls were made at the mobile phone of the complainant. He deposed that during investigation, it came into light that the mobile phone of the complainant was being used by Km. Shashi and from the call details it was also inferred that there was affinity between Km. Shashi and Vijai Sen Yadav. Statement of Vijai Sen Yadav was recorded by this witness thrice. In his first statement, Vijai Sen Yadav confessed that he had taken Km. Shashi on his motorcycle; Km. Shashi became annoyed and asked him to stop the motorcycle on 'Aamghat' bridge and jumped into river Gomti. This witness further stated that during second interrogation, Vijai Sen Yadav again confessed that he had throttled Km. Shashi and threw her body in river Gomti. This witness further deposed that during the third interrogation, Vijai Sen Yadav disclosed personal relationships between Km. Shashi, appellant Seema Azad and Anand Sen Yadav and further disclosed that he borrowed Wagon-R vehicle from Ram Prakash Yadav and took Km Shashi and Seema Azad and at Aamghat, he choked Km.Shashi to death and disposed of her body in river Gomti. He recorded the statements of Branch Manager, Allahabad Bank, Arpita and the owner of the Wagon-R vehicle. This witness in his examination-in-chief further deposed that he received an information that on 27.10.2007 one dead body of the description of Km Shashi was found floating in river Gomti and one Babbu Pasi had stripped the golden wrist watch from the wrist of the dead body and from him one Shiv Kumar Singh had taken the wrist watch. Even PW27 Investigating Officer had stated in his statement that there was affinity between Km.Shashi and Vijai Sen Yadav. On 19.11.2007, it came to his notice that the wrist watch has been recovered. He recorded the statements of said Babbu Pasi and Shiv Kumar Singh. He also recorded the statements of Krishna Mehra and Hanuman Pasi who supported the fact that a wrist watch was stripped off from the dead body of a girl. The photograph of Km. Shashi was shown to them and they admitted that it precisely matched with the dead body of the girl.
This witness was extensively cross-examined by the defence. He admitted of not having taken the mobile phone of father of Km. Shashi as well as of Hriday Ram Azad, brother of appellant Seema Azad. He further admitted that Mobile phone having SIM No. 9415720315 was not taken into possession by the Investigating Officer and remained with Yogendra Prasad. He deposed that while scrutinizing the call-details, it was revealed that on 22.10.2007, call was made from Mobile No. 9415720315 to Mobile No. 9452051139 at about 01.10 pm the duration of which was 20 seconds; Mobile No. 9452051139 was being used by Vijai Sen Yadav. He stated that during investigation, the complainant had handed over certain letters and register informing that the inscriptions were in the hand-writing of Km. Shashi. He admitted of not having sent the letters and the register to the hand-writing expert for opinion. Neither the complainant nor his wife or his second daughter Anita disclosed that Km. Shashi was pregnant. He deposed that no identification parade of Vijai Sen Yadav was conducted; and, the wrist-watch was also not produced before the Court to be identified. In the cross-examination, this witness had to accept that against Vijai Sen Yadav, except for the circumstantial evidence, there was no ocular evidence. He stated that complainant Yogendra Prasad along with his daughter Anita and wife had gone to Lucknow and staged a Dharna (demonstration) near Darulsafa and in the demonstration, former Member of Legislative Assembly Ram Chandra Yadav had played an active role.
PW28 Dr.R.P. Singh was In-charge Principal of Saket Post-Graduate College, Ayodhya, Faizabad. He has stated that on being asked by Circle Officer Sharad Chadra Pandey, he supplied the certificates relating to study of Km. Shashi and Km. Seema. Km. Seema in the year 2000-01 was the private student of M.A. Part - I in Ancient History. In 2001-02, she had not studied. In 2002-03, she was the private student of M.A. Part -II. Km. Seema in the year 2006-07 passed B.Ed., as a regular student.
PW.29 Sri H.D. Tripathi was the Sub-Divisional Engineer, Mobile Services, BSNL, Faizabad. This witness in his examination-in-chief stated that on the request of the then Senior Superintendent of Police, Faizabad he had issued confidential letter on the basis of record. He proved the letter exhibited as Exhibit Ka-29. He stated that as per the record, SIM No. 9450564360 was in the name of Hriday Ram Azad; SIM No. 9415056302 belonged to Anand Sen Yadav; SIM No. 9415607752 belonged to the Joint Secretary, U.P. Civil Secretariat ADM-2; SIM No.9452051139 belonged to Umesh Bahadur, SIM No. 9452170094 belonged to Amrawati; SIM No. 9415720315 belonged to Yogendra Prasad; SIM No. 9452196697 belonged to Ajay Raj; SIM No. 94522169707 belonged to Ajay Ram Yadav; SIM No. 9451966828 belonged to Vijai Sen Yadav. He proved copies of the applications and certain other documents related to issuance of the SIM cards which were marked as Exhibit Ka-30 to Exhibit Ka-45. This witness further deposed that no application was on record of Seema Azad for issuing SIM card and no SIM was issued in her name from his office. In the BSNL Mobile, no such technique exists which may identify that a person doing voice call is either a male or a female. He further deposed that ID proof given by a customer is sent to the allied agency for verification and on the basis of Customer Profile Data made available by them, further proceedings take place.
PW.30 Girija Prasad was SDE (MS) RTTC, MSC., and was posted as Sub-Divisional Engineer, Mobile Services at Mahanagar Telephone Exchange, Lucknow. He in his deposition stated that pursuant to letter sent by the Senior Superintendent of Police, Faizabad to Chief General Manager, Mobile Services, Lucknow seeking certain information, he wrote the name of SIM (Mobile) owners and their addresses. For making available call details from 01/10.2007, Sri V.K. Ayodhya, SDE was authorized. He specifically stated that he had not given the print outs of the call details. He certified that required informations on Exhibit Ka-46 are in his handwriting and bear his signature. As per record, Mobile No 9415056302 was issued in the name of Anand Sen Yadav and probably the call details would have been made through CD (call disc) which was supplied by his colleague and not by him.
P.W.31 Pravin Bari Girath, Assistant Scientist was posted at Forensic Science Laboratory, Mandewala, Bangalore. He in his statement stated that Dr. S. Malini was the Assistant Director of the FSL, Mandewala, Bangalore and he had worked as Assistant Scientist with her in the Laboratory. As regards the Polygraph Test, he stated that this test is conducted to ascertain falseness and truthfulness. Thereafter, Brain Mapping Test is conducted, which gives knowledge of a particular event stored in the memory of brain. Thereafter, Narcotics Test is conducted in which person is injected Sodium Pentothal to ascertain about the special event stored in the memory of a person. Polygraph, Brain Mapping and Narco test of Vijai Sen Yadav were conducted by Dr. S. Malini and he had assisted her. Dr. S. Malini conducted the test in his presence and a C.D. of Narco Test was also prepared. He verified the signature of Dr. S. Malini on the Polygraph Examination dated 7.2.2008, Brain Mapping Examination Report dated 7.2.008 and Narco Analysis Examination Report dated 16.5.2008. The report of Narco Test was prepared by Dr. S. Malini. In his cross-examination, he stated that he has not brought material exhibit Ka-7, Ka-5 and the CD which had been brought by the Pairokar of the investigation. He further stated that he has no role to play to prepare the questions which are supposed to be asked. He further stated that in interrogation-room, only Dr. S. Malini and concerned person remain and no other person is allowed. For the purposes of Videography, a separate person is authorized. The District Hospital where the medicine was administered to Vijai Sen Yadav is about 30 kms. from his centre. He would not be able to tell what quantity of the medicine had been administered to Vijai Sen Yadav and the concerned doctor only can give the definite quantity of medicine. Medicine for semi-consciousness is given for Narco Test. How long the effect of the medicine would remain can be informed by the doctor. Narco Test was not conducted at his centre; rather, it was conducted at the Operation Theater of Hospital.
In his cross-examination, he further stated that the police officer had visited the Institutions regarding the enquiry and examination of Vijai Sen Yadav. This witness further stated that he could not remember as to whether any written consent had been taken from Vijai Sen Yadav or not to conduct the test. When the injection for unconsciousness was injected to Vijai Sen Yadav, none of his family members or his Advocate were present there. So far as his knowledge goes, before or after the test, Vijai Sen Yadav was not produced before any Magistrate or Judge. Questionnaire was not prepared in English language. He do not have information whether Vijai Sen Yadav knows English or not. The reply to the questions in Polygraphs is written negative. It is not known to him that what reply Vijai Sen Yadav had given in Polygraph Test.
In Polygraph Examination, whatever opinion Dr. Malini has expressed, it is her personal opinion. He cannot tell as to what was the basis for writing the opinion. Polygraph Test was conducted from 17.1.2008 to 19.1.2008. Brain Mapping was conducted on 17.1.2008 and on next day, Narco Test was conducted. The reports of Polygraph, Braining Mapping and Narco Test were prepared on 7.2.2008, 7.2.2008 and 16.5.2008 respectively. It is correct to say that after so many days of Polygraph Examination, Narco Test Report was prepared. After knowing the outcome of Polygraph and Brain Mapping, Narco Test is conducted. It is wrong to say that false report was prepared under the pressure of police and he had shown his presence just to prove the report. However, he admitted his presence not being mentioned in any of the reports.
P.W.32 Head Constable Suresh Kumar, Computer Surveillance Cell in his statement stated that he had taken out the prints from the computer of the CD which was given by the Senior Superintendent of Police in presence of the then Circle Officer, Sharad Chandra Pandey. He further stated that the said CD could not be traced inspite of best efforts.
The defence examined Adarsh Shukla (DW 1), who was the Bureau Chief of district Faizabad of daily Hindi News Paper 'Hindustan' and Ram Sharan Awasthi as (D.W.2), who was the Bureau Chief of Newspaper 'Dainik Jagran'.
Adarsh Shukla (D.W.1), in his statement stated that at page 17 of aforesaid newspaper three news were published having titles "BS-4 Adhyaksha Aaj se denge dharna" (BS-4 President will start dharna from today), "poorva Sapa (SP) vidhayak ne lagaya police par saanth-gaanth ka aarop" (former SP MLA levelled allegation of collusion against the police) and "gayab hain Shashi ke sare shaikshik praman-patra" (all the academic documents of Shashi being missing) respectively. The third news-item was published on the basis of conversation with Anita, the younger sister of Shashi, in which she had claimed that Shashi was not pregnant. He further stated that the title of the news-item was made on the basis whatever was said by the former MLA Ram Chandra Yadav during the Press Conference. In his cross- examination, he stated that no voice recording of the interview was done. He further stated that it is wrong to say that Anita had not given statement to him that Shashi was not pregnant.
Rama Sharan Awasthi (D.W.2) stated that he was Bureau Chief of 'Dainik Jagaran' in November, 2007. He stated that various news-items in connection with the incident were published in his newspaper. He stated that family members of Shashi and political leaders had levelled allegations against the police for not taking interest. In Exhibit Kha-9, a news-item was published that Samajwadi Party has made up mind to agitate in the high profile incident.
On a scrutiny of the prosecution evidence on record, the excerpts of which, we have made in detail hereinabove, it is revealed that the prosecution has attempted to bring home the guilt of the appellants on three grounds:
(i) Circumstantial evidence leading to the recovery of the wrist watch from a dead body of a girl found floating in river Gomti around which the prosecution has woven the hypothesis of abduction and murder of Km. Shashi.
(ii) The alleged confession of Vijai Sen Yadav before the police authorities admitting his guilt of having murdered Km Shashi and having thrown the dead body in river Gomti.
(iii) The report of the Forensic Science Laboratory regarding Polygraph Examination , Brain Mapping Test and Narco Test of appellant Vijai Sen Yadav.
Before embarking upon the above salient features of the case, we propose to notice the submissions made by the learned Counsel for the appellants as well as the learned counsel appearing for the State.
Sri I.B. Singh, Senior Advocate and Sri R.B.S. Rathore, Advocate appearing for the appellants Seema Azad and Anand Sen had vehemently argued that all the appellants have been implicated on account of political vendetta. Clarifying the picture, he submitted that the appellant Anand Sen Yadav is son of Mitra Sen Yadav. Anand Sen and his father were active members of Samajwadi Party and had contested elections under its banner on several occasions. For some reasons, in Assembly Elections-2007, appellant Anand Sen left Samajwadi Party and joined Bahujan Samajvadi Party and won the Assembly Elections inspite of rallies of Mulayam Singh Yadav. He was also appointed as Minister, which could not be digested by his political opponents and when Km. Shashi was missing, they colluded with the father of Shashi to implicate appellant Anand Sen. As regards the testimony of the PW1 Yogendra Prasad-complainant is concerned, the trial Court has committed serious error in giving too much weightage to his testimony, overlooking the fact that there are serious contradictions and major discrepancies, apart from omissions, which are fatal for the prosecution story. In his statement, he has stated that when his daughter did not return home, even after nine days, he contacted Anand Sen and thereafter met him at the Circuit House on next day, i.e. 23.10.2007. In the latter part of statement, he has stated that he waited for the whole night but Shashi did not return. Thereafter, he had rung his relatives to know her whereabouts. Thus it creates doubt about the veracity of the statement.
Sri I.B. Singh inviting our attention towards the cross-examination of PW1 stated that this witness has changed his statement and tried to fill the lacunae in the prosecution story. It is very surprising that the complainant, who cannot remember the name of his earlier wife, the name of the person, who wrote the FIR, has been able to remember the make of the watch, which his daughter was wearing and was purchased a long ago. He was also even not sure about the dress of his daughter, which she was wearing when she left her house.
It has been contended that instant case rests on circumstantial evidence, therefore, he invited our attention towards the settled position of law on this subject. Referring to a decision of the Apex Court rendered in (1984) SCC 116; Sharad Birdhichand Sarda vs. State of Maharashtra, Sri Singh contended that the prosecution cannot derive any strength from the weakness of the defence and all the links in the chain must be complete and do not suffer from any infirmity. As much emphasis has been laid on para 152 of the reports, we deem it appropriate to reproduce the same here-in-under:-
"152 Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court in Hanumant v. State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (alias) Simmi v. State of Uttar Pradesh and Ramgopal v. State of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Haumant case:
" 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. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
It has been argued on behalf of the appellants that in order to connect the accused persons, i.e. Seema Azad and Anand Sen with the commission of crime beyond all shadow of doubt, the paramount requirement for the prosecution was to prove kidnapping or abduction. There is not an iota of allegation in the statements of PW1 and PW2 about abduction and murder of Km. Shashi and they have only expressed their suspicion that Km. Shashi has been murdered. This apprehension of the said prosecution witnesses is based on the hypothesis of recovery of the wrist watch. Only on the basis of unfounded presumptions, the prosecution has made a futile attempt to rope in the appellants. He submitted that on presumptive but unproved facts, devoid of clinching evidence to unerringly connect the accused with the crime, it cannot be presumed that the offence has been committed by the accused persons. Taking us through the statements of PW1 and PW2, he submitted that both these prosecution witnesses in their statements have stated that Seema Azad had spoken with Km. Shashi on mobile phone, but the documentary evidence in the shape of call details of Seema Azad do not prove this fact to be correct.
He submitted that the motive for committing the crime as setup by the prosecution was that since Km.Shashi had become pregnant on account of her affinity with Anand Sen Yadav and was threatening to disclose this fact, she was done away with, but it is quite surprising that the fact of Km. Shashi bearing pregnancy does not find mention in any of the two FIRs lodged by the complainant. It is equally surprising that the complainant also did not disclose this fact to the Investigating Officer. His submission is that a false story about abduction and murder of Km Shashi has been fabricated implicating the appellants on account of political vendetta and media trial resulting in serious miscarriage of justice. It was argued that Km. Anita (PW2) remained conspicuously silent regarding threats being extended by Seema Azad; love affair of Km Shashi with Anand Sen and her pregnancy. She did not tell this fact either to her family members nor when the FIR dated 22.10.2007 and 31.10.2007 were lodged, or to the Investigating Officer when her statement under Section 161 CrPC was recorded. He submitted that PW-2 Anita in her statement recorded during trial has indicated appellant Anand Sen Yadav to be the main culprit of the crime, which runs contrary to the statement of PW.1 Yogendra Narain and is also not in consonance with her statement given in the press conference that Km Shashi was not pregnant.
All the above facts have come to light for the first time in her statement, which was recorded in the court. The essence of the submission of learned counsel is that the statements of these two prosecution witnesses, who are highly interested and partisan, go to show that they are tutored-witnesses and their evidence is of no credence to prove the guilt of the appellants to the hilt.
Assailing the judgment of the Trial Court, Counsel for the appellant contended that the Trial Court committed a grave error in law by giving too much weightage to the report of Narco Test overlooking the fact that his report is equivalent to a statement recorded under Section 161 CrPC. The Trial Court has observed that on the basis of report of Narco Test, the Alto car was recovered and such recovery will be admissible under Section 27 of the Evidence Act. Learned counsel for the appellants vehemently argued that the Santro Car was already recovered and fact relating to use of Alto Car had also come during the course of investigation, thus, by no stretch of imagination it can be held that there was discovery of a new fact. The Trial Court has fell into a grave error by placing much reliance on the report of the Narco analysis test and the statement of P.W.31 Praveen Bari Girath, Assistant Scientist of FSL, Bangalore overlooking the material fact that he was not present at the time of Narco Test and in fact, the Narco test was conducted by Dr S.Malini who was not examined by the prosecution. Moreover, this witness was not conversant with the facts. He further submitted that a fatal error was committed by conducting Narco Test without obtaining consent of the appellant Vijai Sen Yadav which is mandatory before conducting such test. Inviting our attention towards Section 293 CrPC, learned Counsel for the appellants submitted that though Section 293 CrPC deals with the report of the Scientific Expert which may be used as evidence in an inquiry, trial or other proceeding, but it does not include reports of Brain Mapping, Narco Analysis and BEP Test. His submission was that placing absolute reliance on the Narco test report by the trial Court is wholly erroneous and the findings recorded by it are perverse. Apart from above, the reports of these tests are liable to be discarded as the Expert, who conducted these tests, has not been produced by the prosecution. Moreover, it is an admitted fact as would be evident from the statement of Dr.Girath (PW31) that Dr Malini herself was removed from service on account of committing misconduct. He added that non-production of Dr.Malini deprived the defence an opportunity to cross examine her on the point as to what type of questions were framed. Even P.W.31 Dr.Girath was unable to disclose in his deposition about the nature of questions framed while conducting the tests. He further submitted that the questions were framed in English language even without knowing whether appellant Vijai Sen Yadav was conversant with the language or not.
According to Sri I.B.Singh, the test results can be admitted as evidence within the four corners of Section 27 of the Evidence Act which lays down certain conditions i.e. firstly the accused must be in police custody and leads to a discovery of a new fact in consequence of the information received from a person accused of any offence. In the instant case, the police has already taken into possession one Santro Car on the basis of statement of the accused Vijai Sen Yadav and thereafter two Alto cars were taken into possession after the Narco Test. Thus, there was no new recovery.
Sri Singh contended that before the Trial Court it was argued that placing reliance on Narco analysis report is contrary to the dictum of the Apex Court laid down in Selvi v. State of Karnataka SCC (201) 7 SCC. According to him, the narco-analysis, polygraph and BEAP tests are not only violative of personal liberty, right of privacy, right of fair trial but it lacks confidence and there are chances of extracting untrue statement. Reliance on these tests cannot be placed on account of following reasons:-
(i) Access to legal advice, which is an essential component of right to fair trail, is rendered meaningless because test subject has no control over his verbal or physiological responses;
(ii)Test subject may not be able to defend himself effectively because results of tests may be used against him but may not be communicated to him in time.
(iii)Reliability of these tests is questionable and therefore proof beyond reasonable doubt, which is an essential feature of criminal trial may not be possible through these tests.
(iv)Credibility of so-called experts who administer these tests, is also doubtful.
(v)Test results, in some cases have result in public pressure, particularly when test results are inculpatory, which is not desirable in the interest of fair trial.
Referring to various paragraphs of the aforesaid decision, learned Counsel also invited our attention towards the conclusions arrived at by the Apex Court and especially towards paragraph 264 of the Selvi's case (supra), which reads as under:-
"In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question. Whether in the context of investigation in criminal cases or otherwise. Doing so would amount to any unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test result by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872."
According to him, the Court granted permission for conducting Narco Test of accused Vijai Sen Yadav though it was seriously objected by him. Thus the test was conducted against the wish of the accused-appellant and as such it cannot be utilized against the accused appellant.
Lastly, it has been argued that appellants Anand Sen and Seema Azad have been convicted under Section 364/302/201 IPC and Section 3 (ii)(v) of the SC/ST Act but in order to arrive conviction, it is the paramount duty of the prosecution to bring the guilt under these sections and then to proceed with the evidence. Thus, prosecution has first to prove the kidnapping and murder of Km. Shashi. The State has presumed the death which is too different from actual death. To prove death there has to be some concrete evidence on record clearly establishing the occurrence of death. On the basis of presumption, whosoever it may be strong, it cannot takes the position of proof. In the instant case, even the ingredients of Section 299 and 364 IPC have not been proved to prove the forcible kidnapping and death or any circumstances resulting the death of deceased. As regard conviction under Section 3 (2) (v) of the SC/ST Act, it has been contended that a person can be convicted under this section only when there is evidence that offence has been committed with a premeditated mind on the ground that such person is a member of a Schedule Caste or a Schedule Tribe. In the instant case, there is no evidence that kidnapping and murder was done on the ground that the deceased is a Scheduled Caste. What to say of other evidence, there is no last seen evidence of accused being seen together with the deceased at any point of time. Therefore, the findings of conviction recorded by the Trial Court are perverse and cannot be sustained.
Sri Atul Verma, Advocate appearing for the accused-appellant Vijai Sen Yadav while adopting the arguments advanced by Sri I.B.Singh submitted that in totality it is a case of circumstantial evidence in which it is mandatory that links must be clubbed to connect the accused persons with the commission of offence. In the event, if the chain is broken at any place, it will always give benefit to the accused persons. The entire prosecution case is based on presumptions and assumptions and there is no clinching evidence to connect the appellant with the conviction of crime. Initially, an FIR of missing was registered by the complainant and after 9 days, he lodged a second FIR against Vijai Sen Yadav and Seema Azad. There is no description of dress and watch in any of the FIR. The Sim Card which is alleged to be used by the accused-appellant is wholly incorrect as it was in the name of some other person. The prosecution has improved its case and tried to fill the lacunae through the statement of the complainant and his daughter. Thus the second FIR was lodged with due consultation and is motivated one. It is highly improbable that the girl will roam with the accused without any resistance and to an unknown place for about 12 hrs. If the accused-appellant had any intention to kill, then he will not use so much time in roaming and taking help of the police at 'Aamghat'. In other words, if he had any intention to kill Km.Shashi, he would not roam and will utilize the first opportunity to kill her. Recovery of watch and lodging of FIR under Section 404 IPC against Babbu Pasi has been fabricated by the prosecution to give its colour and create evidence against the appellant-Vijai Sen Yadav. The prosecution itself is not definite as to by which Car, Km. Shashi was taken by the appellant. Initially one Wagon-R car was taken into possession and after the Narco Test, two Alto Cars were taken into possession by the police. Later on, one Alto Car was released. There is no definite last seen evidence to show that Km. Shashi had gone with the appellant and it was the appellant, who committed murder of the girl.
It has further been contended that the prosecution has failed to produce any independent eyewitness to establish that the girl was seen with the accused-appellant. The friend of Km. Shashi in her statement has stated that she left her house saying that her brother is waiting outside. She had not seen accused-appellant. Similarly, the prosecution has come with the story that the girl was seen by Ram Autar and Hausla at the circuit house where Seema Azad, Anand Sen and appellant-Vijai Sen Yadav were present. These two witnesses had requested Km. Shashi to get her work done from the Minister-Anand Sen Yadav. Ram Autar did not support the prosecution story and stated that neither he knew Km. Shashi nor Seema Azad. He further stated that he had not gone to the Circuit House. Further, no definite motive has been assigned to the appellant-accused to commit the murder of the girl. As regard the pregnancy, there is no concrete evidence that Km. Shashi was pregnant and she was building pressure upon the Minister and for this reason, she was done to death. Even if, prosecution story is presumed to be correct that the girl (Km. Shashi) went with the accused appellant at Aamghat Bridge, then also there is no evidence of commission of crime by the appellant. Moreover, it is highly unbelievable that after committing murder, the accused will seek the help of the police and create evidence against himself. Constable Ramanuj Mishra has only fixed the identity of accused Vijai Sen Yadav but no where in his statement he has stated that he had seen the accused while committing the murder or throwing the dead body of Km. Shashi in the river at Aamghat bridge.
Sri Raj Bahadur Yadav, Additional Advocate General assisted by Sri Umesh Verma, Additional Government Advocate appearing for the State argued that the Trial Court has convicted accused persons after analyzing the testimonies of various witnesses which is corroborated by the documentary evidence. Therefore, it is wrong to say that conviction is based on perverse findings.
On 22.10.2007, when Km. Shashi did not return, the complainant/father of the girl gave a fair version to the police and did not show any suspicion or doubt against any one. When after best efforts, whereabouts of Km. Shashi could not be known and when certain facts came to his knowledge, he lodged the second FIR against the two accused persons. Again a fair and natural version without any concoction was presented by the complainant. The innocence of P.W.1 is established from the fact that after lodging the report of missing of his girl, he waited for about 8 days and when only he gathered some information about the involvement of the Minister and other accused persons, he lodged a second FIR. This itself proves that the accused persons were not falsely implicated and they were named in the FIR when he had strong suspicion against them. The oral evidence of P.W.1-Yogendra to the effect that he has inquired about whereabouts of her daughter from other persons and even contacted Anand Sen, is proved from the call details.
As regard the motive, Yogendra Prasad (P.W.1) and Km. Anita (P.W.2) in their statement have clearly stated that accused appellant Anand Sen had strong motive to eliminate the girl. Km. Anita (P.W.2) had stated in her statement that accused Seema Azad had also threatened the girl with serious consequences. The frequency of call details before and after the incident of accused Anand Sen, Seema Azad and Vijai Sen Yadav also establish about the conspiracy. A number of calls were made by the accused persons to each other before the incident and after 22.10.2007, there was no call amongst the accused persons, which creates suspicion and makes the prosecution version strong. As regard the assertion made on behalf of accused Seema Azad that Mobile No. 9450564560 was not being used by Seema Azad and infact was in the name of Hriday Ram Azad, who is brother of Seema Azad. The defence has not examined Hriday Ram Azad to prove that the same was being used by him. The timing of call details, its duration and frequency will also establish that the said sim card was being used by Seema Azad and not by Hriday Ram Azad.
As regard Mobile No. 9452170094, it is in the name of Amravati (P.W.13). The prosecution has come with the case that though the Mobile No. 9452170094 was in the name of Amravati (P.W.13) but it was being used by accused Vijai Sen Yadav. The said witness in her statement before the Court has stated that she could not remember her mobile number but its last digits are 95 and was given by her mother-in-law. She had not purchased Sim Card No. 9452170094 at her identity card. She further stated that she does not know Vijai Sen Yadav. The Additional Advocate General has argued that this witness has not stated correct facts before the Court and concealed the material facts. The Form submitted by Amravati contains her signature. Further Amravati (P.W.13) had made call from her mobile to Vijai Sen Yadav and this documentary evidence establishes beyond doubt that she has good relations with Vijai Sen Yadav and gave a false statement.
It has also come in evidence that Mobile No. 9452051139 was also being used accused Vijai Sen Yadav, which was in the name of Umesh Bahadur. Smt. Ram Piyari (P.W.22) in her statement before the Court has deposed that Umesh Bahadur is relative of accused Anand Sen Yadav and a certificate, in this regard, was also issued by her. But during her cross-examination, which was recorded after lunch, she declined of having issued any certificate, which according to State Counsel was due to pressure exerted by the accused persons.
The Additional Advocate General has submitted that the statement of P.W.5 Siddhnath Katiyar is to be seen in the above background and then it would be established that from cell no. 9452051139, accused Vijai Sen Yadav had made a call to Siddhnath Katiyar on his cell no. 9415904142 and about 11.15 PM on 22/23.10.2007 and from the location of accused Vijai Sen Yadav, as established from the mobile tower, it is established that the accused Vijai Sen Yadav was present at the place of incident i.e. Aamghat Bridge of river Gomti.
No doubt, the instant case rests purely on circumstantial evidence but there is ample evidence to prove the charge of conspiracy and circumstances against accused Anand Sen and Seema Azad and the prosecution is not under an obligation to prove any overt act committed by them as suggested by the defence neither their physical presence at the spot during commission of crime, which was the object of conspiracy, was at all required in law. The details of mobile call in the shape of documentary evidence have been filed and proved by the witnesses of police and official of BSNL, which clearly show and establish the connectivity and close relations inter se amongst the deceased Shashi and accused Anand Sen and Vijai Sen Yadav on one hand and between accused Seema Azad and accused Anand Sen and Vijai Sen Yadav on the other. These call details are well proved as per law and are admissible in evidence in view of law laid down in State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru; 2005(11) SCC 600.
Elaborating his arguments, learned Counsel for the State submitted that the letters written by Km. Shashi (Ext. Ka-3 and Ext. Ka-4) show that there was love affair between Shashi and Anand Sen Yadav. Yogendra Prasad (PW1), who is the father of the girl has proved the hand writing of Km. Shashi. It is not challenged by the defence that "A. Sen" does not mean Anand Sen. From these letters, it is also established that relations between the two had become strained. Km. Anita (PW2) in her statement has stated that one month prior to the incident, she felt that her sister was much perturbed, so she made queries from her, who started weeping and told that Anand Sen had deceived her and as such she would take revenge even by taking help of law. There were hard talks also between accused Anand Sen and Km. Shashi. Thus it is proved by the evidence that the accused had strong motive to eliminate the accused persons.
As regard the motive, it has been vehemently argued that evidence of Km. Anita (PW2), the sister of the deceased Shashi who used to reside with her in the same room and was like her friend, clearly establish beyond doubt that there was a love triangle between deceased Shashi and Anand Sen on one side and between accused Seema Azad and Anand Sen on the other for which Seema Azad had threated the deceased Shashi to withdraw her from the company of accused Anand Sen otherwise to face dire consequences. The argument raised from the side of defence that alleged threatening call from Seema Azad is not supported from the documentary evidence of call details as no such call has been indicated to be ever made from the so called mobile of Seema Azad which infact is in the name of his brother Hriday Ram Azad. In this regard, it has been argued that it was never the case of the prosecution that threatening call was made by Seema Azad from her mobile. Hence this argument of defence has no legs to stand is not enough to reject the evidence of Km. Anita (PW2), which otherwise inspires confidence. It is also the case of the prosecution that Shashi was pregnant and was carrying two months pregnancy from Anand Sen, whereas Anand Sen was avoiding her for which once the deceased Shashi just some days prior to incident rebuked him in a very strong words on phone and scolded him to expose him before the public.
As regard the recovery of watch, learned Additional Advocate General Stated that when the watch was recovered, it was identified by P.W.1 and P.W.2, who stated that this is the same watch, which Km. Shashi was wearing. During the trial, the prosecution witness proved the recovery of watch. The defence was having ample opportunity to prove that the recovery of watch is a planted story and it has been fabricated just to establish that the dead body was of Km. Shashi but no such effort was made and as such it will give credence to the prosecution story.
It has also been argued on behalf of the State that there was ample evidence before the Trial Court to hold the accused persons guilty of the offences, which they were charged. The prosecution version becomes stronger in view of Section 32(1) of the Evidence Act and dictum of the Privy Council in the case of Pakala Narayana Swami vs. Emperor; AIR 1939 PC 47 as the statement given by the deceased to her sister (P.W.2) Km. Anita shall be treated as Dying Declaration. The statement given by the deceased to Km. Anita, prior to the date of incident, stands on much better footing than the case of Pakala Narayana Swami (supra). The assertion of the defence that whatever was said by P.W.2 before the Court, was not told to the Investigating Officer, the Additional Advocate General has stated that P.W. 2 in her cross-examination has clearly stated that she has told all the facts to the Circle Officer but as the police was very much influenced by the accused Anand Sen, who was MLA and Minister, the correct facts were not written. The statement of P.W.2 is supported by P.W.1-Yogendra.
As regard the Narco Test of accused Vijai Sen Yadav is concerned, State Counsel stated that though the accused raised an objection against the Test but the same was rejected by the competent Court and only then the test was conducted. The necessity for conducting Brain Mapping and Narco Test arose as the accused Vijai Sen Yadav, who is of criminal mind, was changing his statement with a view to create doubt in the mind of the Investigating Officer. The judgment rendered in Smt. Sailvi vs. State of Karnataka; 2010(2) SCCR 936 on the subject of Narco Test was not in existence when Narco Test of the accused Vijai Sen Yadav was conducted. In this case also, the Apex Court has propounded that any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872.
Elaborating his submissions, State Counsel submitted that recovery of actual vehicle [Alto Car] used in the commission of the crime consequent to the disclosure statement made by the accused during Narco Analysis Test is also an important circumstance and is relevant in terms of Section 27 of the Evidence Act. Further the conduct of accused giving misleading information in earlier statements regarding the different vehicles used in the commission of crime is additional link in the chain of circumstance and establish the complicity of the accused in committing the crime. Placing reliance on Paramjeet Singh @ Pamma vs. state of Uttranchal; 2011 Crl.L.J. 663 SC, Manjit Singh @ Mange vs. CBI; 2011(1) JIC 912 SC and Himanshu vs State (NCT of Delhi); 2011 (2) SCC 36, it has been argued that evidence of a hostile witness cannot be rejected en masse merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found dependable after a careful scrutiny. Further in the case of Bhagwan Das vs. state (NCT of Delhi); 2011 Crl. LJ 2903 SC, it has been propounded that in the case of a hostile witness even the statement of the witness to the police can be taken into consideration in view of the proviso to Section 162(1) Cr.P.C. and his subsequent denial in trial court may be treated as not believable.
As regard the murder of Shashi, State Counsel while admitting that there is no last seen evidence of deceased Shashi in the company of accused Vijai Sen Yadav, submitted that the defence has commented much upon the principle of "corpus delicti" overlooking the fact the requirement of "corpus delicti" is not the' 'rule of law' but a mere 'rule of prudence' and the prosecution is at liberty to prove the factum of death of the deceased like any other fact by other evidence. Reliance in this regard can be had on Ramjee Rai vs State of Bihar-2007(2) SCC (Crl) 626, Badshah vs. state of U.P.; 2008(2) SCC (Crl) 712; Ram Gulam Chowdhry vs State of Bihar-2001; SCC (Crl) 1546; and Ramanand vs. State of Himanchal Pradesh-1981 SCC (Crl.) 197.
Before dealing with the rival submissions, we would first like to mention that in view of the principles laid down in Sharad Birdhichand Sarda[supra], Shivaji Sahebrao vs. State of Maharashtra AIR 1973 SC 2622, Balwinder Singh vs. State of Punjab, AIR 1996 SC 607 and Padal Veera Reddy vs. State of A.P. AIR 1990 SC 79, it is eminently clear that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-
(i)The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii)Those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii)The circumstances, taken cumulatively, should form a chain so complete that there escape from the conclusion that with all human probability the crime was committed by the accused and none else; and
(iv)The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
There is no doubt that the instant case purely rests on circumstantial evidence. In order to sustain conviction, circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard-and-fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case.
The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists an eyewitness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. In cases where 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. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic one on one hand and inference of facts to be drawn from them on the other hand. In regard to proof of primary facts, the Court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that facts lead to an inference of guilt of the accused person should be considered.
It would be significant to add that while dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering in the mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof.
There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistence with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete. The present case, which undoubtedly, is a case of circumstantial evidence, is to be looked into in the backdrop of the aforesaid legal principle.
Admittedly, it is a matter of circumstantial evidence, where law provides chain of events in all probability with the alleged offence. There is no quarrel that the body of missing Shashi has not yet been recovered and prosecution has failed to explain that why the body has not been recovered. There is no direct evidence of murder of the missing girl, i.e. Shashi by any of the accused directly or indirectly. The circumstantial evidences gathered are insufficient to have any nexus amongst Anand Sen, Seema Azad and Vijai Sen Yadav, before commission of offence, under Section 120-B IPC. For conspiracy, there must be prior meeting of mind and an agreement to commit a crime. The existence of an agreement is sine qua non for the proof of conspiracy. Here, the prosecution has failed to establish agreement by prosecution evidence and merely on the basis of Narco Test and Brain Mapping of Vijai Sen Yadav and mobile connectivity of all three accused, prosecution has tried to bring them under the aforesaid offence. The mobile call details did not correlate any conversation or relationship of accused Anand Sen and Seema Azad regarding kidnapping and killing of Shashi. The prosecution has failed to establish from documentary evidence that Anand Sen closed his mobiles after the incident and as such, assertion of the State Counsel in this regard is misconceived. Initial FIR lodged was a merely missing report and nobody was named in that report. In the 2nd FIR, only Seema Azad and Vijai Sen Yadav were named and the complainant made specific allegations against Vijai Sen Yadav. Name of appellant Anand Sen does not find place in the said FIR. Thus, implication of accused Anand Sen and Seema Azad is nothing but an afterthought and appears to be on the advice of someone behind PW1, who was putting ideas in his mind. It is strange that PW1 in his statement has nowhere disclosed the name of scribe of FIR dated 31.10.2007 (Ex.Ka.23). It is alleged that Seema Azad threatened Km. Shashi on phone but the prosecution has failed to establish any phone call between Shashi and Seema Azad. It appears that name of Anad Sen Yadav was introduced under the political and media pressure and the Trial Court was also very much swayed with the media. The facts narrated in the foregoing paragraphs create a reasonable doubt that involvement of Anand Sen was introduced as an afterthought with a view to politically destabilize him, which would be evident from the fact that in his answer to a question under Section 313 CrPC, he has stated that in Assembly Elections 2007 even after being in jail and several meetings of Mulayam Singhji, he defeated the S.P. candidate Ram Chandra Yadav and was elected as an MLA from Baspa. Owing to this political rivalry and conspiracy he has been implicated. Similarly, Seema Azad has also denied her involvement in any manner and there is no evidence to establish her nexus between the two or to negate the assertion of above appellant.
In an attempt to establish murder of Km. Shashi, prosecution has tried to establish that a watch was stripped off from the body of one girl by one Babbu Pasi and that watch was proved by Yogendra (PW1), Km. Anita (PW2) and one Manoj Kumar alleged to be the cousin of missing girl for which a case on crime No.976/07 under Section 404 IPC was registered at P.S. Musafirkhana, District Sultanpur against Babbu Pasi. This case is pending in the Court of Additional Chief Judicial Magistrate, Sultanpur, hence it cannot be treated that recovery is proved beyond doubt. Even if, it is presumed that some watch was recovered, but that is not proved beyond doubt that it belonged to Shashi. We are unable to understand as to how the case was converted into Section 302/201 IPC on 22.11.2007 when the identification of the watch was made by the aforesaid persons, later on, i.e., 24.11.2007. No plausible and cogent explanation has been offered by the prosecution in this regard, which creates suspicion about the fair investigation. It may be noted that the delay explained by the informant Shiv Kumar Singh in lodging the FIR with respect to watch is also very strange and it is very hard to accept it. The only evidence which prosecution wanted to establish regarding death of Shashi is nothing but by recovery of watch. However, there is no other independent witness to prove the recovery, as Babbu Pasi has denied the prosecution version and was declared hostile. Shiv Kumar Singh, who is the informant of Case Crime No.976/07 under Section 404 IPC was not examined by the prosecution. As averred above, the case under Section 404 IPC is still pending and stripping off watch by Babbu Pasi is yet to be established.
We would like to add that prosecution in an attempt to establish affinity and affair of Shashi with Anand Sen Yadav has relied upon two letters found in the note book of LL.B. Part I of Km. Shashi. The alleged letters written by deceased Shashi cannot be termed as letters in true sense as these letters remained undelivered. Moreover, it is the case of prosecution that deceased Shashi was the student of LL.B III year at the relevant time, but surprisingly the alleged letters were found written in LL.B. First year copy. One letter is written in an unknown language and one cannot understand the meaning of that letter. The prosecution has not proved these letters by the Hand Writing Expert. The Trial Court has believed that these letters were written by deceased Shashi only on the basis of statement of P.W.1 Yogendra, who undoubtedly is an interested witness without corroboration by other independent witness. It is important to mention that a glance of the note book as well as letters would show that there is a difference in handwriting which can easily be decipherable with naked eyes and no expert report has been obtained regarding hand-writing of Shashi. If she really should have written that letters, then these letters could have been easily sent to the addressee. This theory is purely concocted and not acceptable.
It has also been argued by the State Counsel that on account of long affinity and political ambition of Km. Shashi, she used to frequently participate in the election campaign of Anand Sen which has been accepted by the Trial Court, but it overlooked the vital aspect of the matter that the father and accused Anand Sen Yadav were the old members of Samajwadi Party and just prior to the Assembly Elections-2007 they resigned from Samajwadi Party and joined Bahujan Samaj Party and on the BSP ticket accused Anand Sen contested elections and won it. P.W.1 and P.W.2 have stated in their statements that deceased Shashi was having a keen interest in politics and campaigned for Anand Sen and even both of them gave speeches together at different places during elections. This version has been believed by the Trial Court to establish that accused Anand Sen and deceased Shashi were very friendly overlooking the very material fact that the appellant Anand Sen, who was a new entrant in BSP, was in jail, prior to the date on which elections were notified till the date of declaration of results. Giving specific date of appellant being in jail, learned Counsel for appellant has pointed out that appellant Anand Sen was in jail from 6.4.2007 to 19.5.2007 in connection with another case. Elections were notified on 13.4.2007 and counting took place on 11.5.2007. This fact belies the entire prosecution story that there was long standing friendship between the two or they went together for election campaign.
It is the definite case of the prosecution that Seema Azad had no mobile of her own, but she was using mobile no. 9450564360 of her brother Hriday Ram Azad, who is an Officer and posted at Education Department, but prosecution has not examined him. It was incumbent on prosecution to prove by supporting documents that Hriday Ram Azad's mobile was used by his sister and it is wrong to say that it is the duty of defence to establish this fact. This assertion of the State is wholly misconceived as it is well settled law that the prosecution must stand on its own legs and it cannot derive any strength from the weakness of the defence. The Apex Court in Sharad Birdhichand Sarda (supra) reminded us in paragraph 15 as follows:-
"151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court."
In the instant case, the prosecution could have easily proved by getting information from the Education Department to prove that Hriday Ram Azad, who, admittedly, is an Officer in Education Department, was using another mobile number in his official capacity and particular mobile No.9450564360 was being used by Seema Azad. Even otherwise, there are contradictions in this regard. It is the own case of prosecution that the girl sitting in the car at the place of occurrence was non-else but Seema Azad. If this prosecution version is to be believed that accused Vijai Sen Yadav and Seema Azad were seen together at the place of occurrence i.e. Aamghat, then the mobile tower tells a different location of Seema Azad i.e. Faizabad proper. Thus, the story as developed by the prosecution falsifies its own version.
Even otherwise, as per mobile record and evidence and proved by H. D. Tripathi (PW29) and Girja Prasad (PW30), it cannot be accepted that there is any nexus between Seema Azad and Anand Sen, prior to commission of offence as alleged by the prosecution. Only offence which prosecution could establish against these two persons is extended form of Section 120-B IPC, i.e. criminal conspiracy and for that, prior agreement amongst three accused and motive too is essential to be proved, which we have already discussed in foregoing paragraphs.
The prosecution has relied on Munish Mubar versus State of Haryana [2013 CrLJ 56 SC] and emphasized on para 22 as under:-
"In a case of circumstantial evidence, motive assumes great significance and importance, for the reason that the absence of motive would put the Court on its guard and cause it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place of proof. However, the evidence regarding existence of motive which operates in the mind of the assassin is very often, not within the reach of others. The said motive, may not even be known to the victim of the crime. The motive may be known to the assassin and no one else may know what gave birth to such evil thought, in the mind of the assassin. In a case of circumstantial evidence, the evidence indicating the guilt of the accused becomes untrustworthy and unreliable, because most often it is only the perpetrator of the crime alone, who has knowledge of the circumstances that prompted him to adopt a certain course of action, leading to the commission of the crime. Therefore, if the evidence on record suggest sufficient/necessary motive to commit a crime, it may be convicted that the accused has committed the same. See. Subedar Tewari v. State of U.P. and others - AIR 1989 SC 733; Suresh Chandra Bahri vs State of Bihar - AIR 1994 SC 2420:1994 AIR SCW 3420; and Dr. Sunil Clifford Daniel vs State of Punjab JT 2012 (8) SC 639)."
At this juncture, it would be useful to reproduce paragraph 17 of the recent decision rendered in Rukia Begum and others versus versus State of Karnataka [2011 (4) SCC 779] where the Apex Court emphasized that there is no hard and fast rule prescribing that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case. Paragraph 17 reads as under:-
"17.In order to sustain conviction, circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard-and-fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case."
As already stated above, the case rests solely on the basis of circumstantial evidence and as such, the involvement of other two accused need to be established by prosecution evidence to hold them responsible under Section 120-B IPC, but on evaluation of evidence of fact, i.e. Yogendra (PW1), Km. Anita (PW2) and Smt. Arpita Srivastava (PW10), the prosecution has failed to establish any relationship or nexus in between Seema Azad and Anand Sen, although the prosecution has stressed that statement of PW2 is admissible and conclusive within the meaning of Section 32 (1) of Evidence Act, but this has to be established that actually Shashi has given such statement to her sister prior to her missing.
As regards statement of PW2, much emphasis has been given to the observations of Privy Council in the case of Pakala Narayana Swami (supra) by the State Counsel. After perusing the judgment and the facts and circumstances of the present case, we are of the decisive opinion that this case law is of no help and cannot be applied to the instant case as the facts and circumstances are entirely different. In the case of Pakala Narayana Swami (supra), the deceased gave statement to his wife while going for collection of money and later on, his body was recovered, whereas in the instant case, the missing person's body or corpus is not yet recovered and Km. Anita (PW2) has merely stated that while going out, Shashi told her that she is going to deliver a casette to her friend Smt. Arpita Srivstava (PW10) and from where she will go to the bank, who in turn, stated that Shashi told her that she is going with Bhaiyya, who is waiting for her outside. This statement cannot be treated as evidence under Section 32 (1) of the Evidence Act that too when it is not corroborated by any other reliable evidence.
It appears that whatever Km.Anita (PW2) has stated is nothing but development of evidence, being highly interested witness. She has stated that Shashi was pregnant and was having love affair, but there is no other evidence except this fact. There were other members in the family and they too must have known about two months' pregnancy as Shashi was living together in the family. It is important to mention that the Investigating Officer (PW27) in his statement stated that the fact regarding pregnancy was not disclosed by the complainant Yogendra Kumar (PW1), his daughter Anita (PW2) and his wife Kusum. Further, this fact does not find place in either of the two FIRs lodged by Yogendra (PW1). It is relevant to add that during interview with media persons, Km. Anita (PW2) has denied the factum of pregnancy, which fact is supported by the statement of DW1 and DW2. Moreover, neither any medical test report of pregnancy or medical prescription was produced to establish the factum of pregnancy. Thus, the prosecution has utterly failed to establish the relationship or conspiracy of Seema Azad by any other evidence except the statements of highly interested witnesses, i.e. PW2 and PW1 (father), who, undisputedly, has given hear say evidence.
To establish offence under Section 120-B, prosecution has given much stress on Narco test and Brain Mapping as well as mobile connectivity amongst the three accused, but Dr. S. Malini, the Director, who has conducted the Narco test of accused Vijai Sen Yadav, was not produced and she is the only person, who can answer in the Court during trial. Instead of Dr. S.Malini, prosecution has examined Parvin Bari Girath (PW31), who was working at Forensic Science Laboratory, Bangalore at the relevant time as an Assistant Scientist. It is also significant to mention that the prosecution has relied very much on the Narco Test, but even in Selvi's case (supra), it has been stated that individual should not be forcibly subjected to any of the techniques in question. There must be voluntary administration of impugned techniques. However, in the instant case, evidence is material only for recovery of the vehicle [Alto Car] used in the commission of offence consequent to the disclosure statement made by the accused during Narco Analysis and is relevant in terms of Section 27 of the Evidence Act. Moreover, Jaggannath Tiwari (PW3), Ramanuj Mishra (PW4) and S.I. Siddhnath Katiyar (PW5) have already stated on oath that on the basis of mobile calls, these two witnesses Jaggannath Tiwari (PW3) and Ramanuj Mishra (PW4) were present to extend help for pushing the car at Aamghat Bridge. Though Jagganath Tiwari (PW3) has not identified the accused Vijai Sen Yadav in the Court, but accepted the presence of one person in car at that relevant time alongwith one girl, whose face could not be seen, whereas Ramanuj Mishra (PW4) has identified the accused Vijai Sen Yadav in Court, thereby the presence and involvement of Vijai Sen Yadav is proved that he took Km. Shashi from her house on some pretext on 22.10.2007 and this fact is proved by the statement of Km. Anita (PW2) and Smt.Arpita Srivastava (PW10). Thus, the participation of accused Vijai Sen Yadav in missing of Km. Shashi is established beyond doubt by his presence which is supported by several witnesses and different statements made time to time. Moreover, kidnapping of Shashi is further established by the location of Vijai Sen Yadav through his mobile on 22.10.2007 from 9 to 11 A.M. The call details of the mobiles which were being used by Vijai Sen Yadav have been proved by the prosecution, show that in the morning location of mobile of Vijai Sen Yadav is around Ayodhya, District Faizabad, whereas on the same day, in the night, his location is at District Sultanpur. Thus, the involvement of accused Vijai Sen Yadav is established beyond doubt and supported with Narco and Brain Mapping Test.
Since the question of death of Shashi has been raised, we have to see what is the proof of death of Shashi. In other words, the question relates to the proof of 'corpus delicti'. The term 'corpus delicti' generally means, when applied to any particular offence, the actual commission by some one of the particular offence. All corpus delicti requires at a minimum (1) the occurrence of the specific injury; and (2) some criminal acts as the source of the injury. For example in homicide, firstly, an individual has died and secondly as a result of action (or inaction) by another person. This is a fact that in the instant case, the body of Shashi has yet not been recovered and as regards corpus delicti, there are different views of Hon'ble Court. In Ashok Yadav versus State of M.P. [(1996) 11 SCC 618], Hon'ble Supreme Court observed that even when the evidence of 'last seen together' is found to be conclusive so far as the kidnapping is concerned but there is no sufficient evidence to prove the charge of murder, the accused cannot be convicted under Section 302 IC, but only under Section 363 IPC.
In V.Ashraf v. State [1994 CrLJ 555 (ker)] wherein it was observed that the accused had motive for murder of the victim as the accused borrowed money from the victim and false plea of repayment took him to a distant place, killed him and caused disappearance of the dead body. He gave false information about the crime. He, thereafter, made confession subsequently. The circumstantial evidence and the confession of the accused clearly proves the guilt of the accused and he is liable to be convicted under Section 364 and 201 IPC.
In another case, on similar facts, i.e. Jhaspa Kabari and others versus State of Bihar [AIR 2002 SC 312], when the accused kidnapped three year old child, after snatching from her mother's lap and the child was murdered, the Apex Court held that the accused was rightly convicted under Section 364 IPC.
The principle of corpus delicti has been discussed in Ram Chandra v. State of U.P. [AIR 1957 SC 381]. In the said case, it was held that recovery of corpus delicti of murder is not essential when the person alleged to be murdered is in fact dead. In the instant case, the murder has not yet been proved and as such, the conviction under Section 302 IPC is not justified. Our view is strengthened by the decision of the Apex Court in Raghav Papanna versus State of U.P. [AIR 1963 SC 74].
Since the legal position with regard to corpus delicti is quite clear from the above referred cases, we are unable to accept the assertion of the State Counsel that corpus delicti is 'not the rule of law' but a mere 'rule of prudence' and the prosecution is at liberty to prove the factum of death of the deceased like any other fact by other evidence. In Ram Gulam's case (supra) and other cases relied upon by the prosecution, there was direct and reliable evidence. In Badshah's case (supra), the accused was charged for commission of the offence of kidnapping and murder of one Suraj Pal Singh. The family never heard about Suraj Pal Singh after the incident and even his body was not found. The trial Court found the appellant guilty of commission of the offence under section 364 IPC only. This judgment was upheld by the High Court and was confirmed by the Supreme Court. In these circumstances, the case laws, viz., Ramjee Rai vs State of Bihar-2007(2) SCC (Crl) 626, Badshah vs. state of U.P.; 2008(2) SCC (Crl) 712; Ram Gulam Chowdhry vs State of Bihar-2001; SCC (Crl) 1546; and Ramanand vs. State of Himanchal Pradesh-1981 SCC (Crl.) 197 relied by the prosecution are of no avail to it as in the instant case, there is no tangible evidence, either of a direct or of a circumstantial nature, in support of the fact that the murder has been committed.
As held by Hon'ble Supreme Court in Ram Chandra v. State of U.P. (supra) that conviction for murder on the confession of accused alone which confession is open to a good deal of doubt and criticism is not safe. In view of the legal proposition enumerated hereinabove, it will not be safe to convict the accused Vijai Sen Yadav under Section 302 IPC, where the body has not been recovered and the factum of recovery of watch is yet to be established as the case under Section 404 IPC is still pending. The presence of other accused appears to be on evaluation of evidence is nothing but due to political rivalry as specifically stated by the accused Anand Sen in his statement under Section 313 CrPC. Accordingly, it will not be just and proper, rather safe, to convict the accused Vijai Sen Yadav under Section 302 IPC, but his conviction under Section 364 read with Section 201 IPC deserves to be confirmed.
Taking the holistic view and totality of the circumstances of the case, we are of the decisive opinion that the trial Court has erred in drawing the conclusion that all the three accused are involved in the alleged crime in the manner as alleged. As discussed above, appellants Anand Sen and Seema Azad are not held guilty of any offence as the prosecution has failed to prove their involvement in the alleged crime. The case in hand is totally based on circumstantial evidence and it would not be safe to convict these two accused persons even under Section 120-B IPC in absence of clinching and tangible evidence to complete the chain of events as required under law.
In view of the aforesaid detailed discussions, we hold that prosecution has failed to establish the guilt of the accused Km.Seema Azad and Anand Sen Yadav beyond all shadow of doubts. Both the accused are entitled for the benefit of doubt. Accordingly, appeals of Seema Azad and Anand Sen Yadav are allowed and their conviction is set aside. They shall be released forthwith unless wanted in any other case. Sureties are discharged.
As far as accused Vijai Sen Yadav is concerned, we have already held in preceding paragraphs that by his conduct, his presence on the date of occurrence, i.e. 22.10.2007 established by call details in the morning at Faizabad and in the night at Aamghat, District Sultanpur, statements of PW3, PW4 and PW5; his half-hearted confession coupled with Narco Test and recovery of Alto car used in the commission of offence establishes his involvement in the crime and kidnapping of Km. Shashi and as such the Trial Court rightly held him guilty under Section 364 read with Section 201 IPC and 3 (2) (V) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, but we are unable to accept his conviction under Section 302 IPC in view of the legal position enumerated in Jhaspa Kabari and others; Ram Chandra v. State of U.P and Ashok Yadav versus State of M.P.(supra). Therefore, his conviction under Section 302 IPC, for the reasons aforesaid, is set aside.
Accordingly, the appeal of Vijay Sen Yadav is allowed in part. His conviction under section 364/201 IPC and 3 (2) (V) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is confirmed and is awarded following modified sentences:-
(i) Under Section 364 IPC for ten years' R.I. with a fine of Rs.10,000/-;
(ii) Under Section 201 IPC to two years' R.I. with a fine of Rs.2,000/-;
(iii) Under Section 3 (2) (V) The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 for ten years' R.I. and a fine of Rs. 5,000/-;
In default of payment of fine, appellant-Vijay Sen Yadav is directed to further undergo two years' R.I. Sentences shall run concurrently.
Registry is directed to transmit the lower Court's record to the Court concerned forthwith.
Dt.22.4.2013 HM/lakshman/Ajit