Vishambhar Singh And Others vs State Of U.P. on 9 January, 2017

[Cites 8, Cited by 1]

Allahabad High Court

Vishambhar Singh And Others vs State Of U.P. on 9 January, 2017

(Delivered by Hon'ble Arvind Kumar Mishra-I,J.) By way of instant criminal appeals, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 10.08.2011 passed by the Special Judge (DAA) Etawah, in Special Sessions Trial No.93 of 2008 State of U.P. Vs. Shri Narain @ Gullu and others, arising out of Case Crime No.25 of 1998, under Sections 302, 201, 364A IPC, Police Station- Bhareh, District- Etawah, whereby the appellants Vishambhar Singh, Ram Karan Chaubey, Shri Narain @ Gillu, Ramasrey @ Fakkad and Kusma Nain have been sentenced to life imprisonment coupled with fine Rs.15,000/- with default stipulation for two years' additional rigorous imprisonment, under Section 302 IPC, seven years' rigorous imprisonment coupled with fine Rs.10,000/- under Section 201 IPC, with default stipulation for one year's rigorous imprisonment. Appellants Ramasrey @ Fakkad and Kusma Nain have been further sentenced to life imprisonment coupled with fine Rs.10,000/- under Section 364-A IPC, with default stipulation for one year rigorous imprisonment, whereas, appellants Shri Narain @ Gillu, Ram Karan Chaubey and Vishambhar Singh have been acquitted under Section 364A IPC. All sentences shall run concurrently.

Since both the aforesaid appeals arise out of one and the same judgment dated 10.08.2011 passed by Special Judge (DAA), Etawah, therefore, both the appeals are being disposed of by way of a common judgment.

Heard Sri Brijesh Sahai, Advocate assisted by Sri Sharad Srivastava, learned counsel for the appellant nos.2 and 3, Sri Brij Raj Singh, learned counsel for appellant no.1 in Criminal Appeal No.5452 of 2011 and Sri Sarvesh Kumar Dubey, learned amicus curiae for the appellants in Criminal Appeal No.5871 of 2011 and Sri J.K. Upadhyay and Sri N.K.S. Yadav, learned AGAs for the State, and perused the record.

Stream of events pertaining to prosecution case in hand manifests itself in lodging of first information report by informant- Smt. Heera Devi PW-2 - wife of deceased- Adesh Tiwari regarding abduction of her husband for ransom by Fakkad Gang sometime on 8.3.1998 at village- Harauli within police circle- Bhareh, District- Etawah. Written report Exhibit Ka-2 was addressed to Commissioner of range Kanpur, District- Kanpur, wherein allegations were made to the effect that informant's husband was abducted on 8.3.1998 from village- Harauli within police circle- Bhareh of District- Etawah by notorious Fakkad Gang. Information regarding the same had already been given to the concerned police and administrative authorities of Etawah and Kanpur range- Kanpur but no worthy action has been taken so far.

They (member of Fakkad gang) took hostage Gram Pradhan of village- Harauli and forced his younger brother- Satbir to call Adesh Tiwari from his home by telling him that Fakkad Baba is calling him. Informant's husband went to Pradhan's house out of fear. After about a week, a letter was received at the house of informant purportedly send by Fakkad Gang, whereby, a ransom for Rs. 5 lakh was demanded for release of Adesh Tiwari. After a few days, informant's brother-in-law and old father-in-law were send to jail in connection with murder of younger brother of Ram Karan Chaubey who had intimate link with Fakkad Gang.Both are still in jail. Time and again, the members of Fakkad Gang extended threat to the informant's family due to which informant left her house and has taken shelter in Kanpur. Because of abduction of her husband and considering vicissitudes and uncertainty of life of little children of the family disturbed and due to arrest of his brother-in-law and father-in-law her life has become hell. After the informant gave information to the concerned police station, the concerned Station Officer came to her expressing his inability to do anything in the case and advised the informant to pay the demanded ransom. Her brother-in-law (devar) Vinay Shukla, resident of 109/88 Jawahar Nagar went to Etawah for engaging counsel but no advocate came forward for help because of terror and direction of Fakkad Gang.

After hectic efforts, service of an advocate was somehow availed when members of Fakkad Gang attacked both inside the Court campus and at the resident of Vinay Shukla, whereupon information was given to the concerned Police Station whereupon the Station Officer challaned both Ram Karan Chaubey and Vinay Shukla under Section 151 (of Criminal Procedure Code). Therefore, informant's case be considered sympathetically and her family be given protection of life and security and efforts be made for securing life and release of her husband from aforesaid gang so that informant's fundamental rights could be secured. This written application was purportedly signed by Heera Devi although no date has been mentioned in this report. Written report is Exhibit Ka-2. Since the application was moved to the Commissioner, it was duly channelised and after written instruction of SSP Etawah, report was entered in Check FIR at Police Station- Bhareh of District- Etawah at 7:35 a.m. on 1.10.1998 under Section 364-A IPC at Case Crime No. 25/1998. The check FIR is Exhibit Ka-3. The relevant GD whereby case was registered against accused persons was destroyed in the meanwhile and a report was obtained from the concerned police record room, which report is Exhibit Ka-4. But a carbon copy made in the same process of the concerned GD was proved, on the basis of which case was registered at aforesaid case crime number under aforesaid Section of IPC. The carbon copy of the relevant GD is Exhibit Ka-5.

After lodging of the case, Investigating Officer Lallu Ram Tyagi PW-8 was entrusted with investigation of the case, who took over the investigation at the initial stage and noted contents of written report, check FIR etc. and inquired about the incident from informant Heera Devi at her resident on 27.10.1998. He also recorded statement of various persons and also demanded letter send for demanding ransom from the informant and also prepared site plan of the place of occurrence- Exhibit Ka-9. He also took steps for attachment of property of accused persons. Later on the investigation was handed over to another Investigating Officer Chand Hussain PW-7 on 7.2.1999. He also took various steps for completing the investigation and also took note of the site plan Exhibit Ka-9. After completing investigation against Ramasrey @ Fakkad and Kusma Nain, charge-sheet was submitted against them in their abscondence. The charge-sheet is Exhibit Ka-10. During the course of investigation, he also arrested another co-accused Sri Narain @ Gillu. He also recorded his statement and statement of Shiv Shankar, eye witness of the occurrence on 6.9.1999. Record further reflects that the investigation was again transferred/taken over by Ram Nath Singh Yadav PW-6 on 26.6.1999. He took stock of the proceeding of previous investigation and took note of contents of affidavit of Shiv Shankar. He inquired from witness Shiv Shankar about his previous statement given by him to the previous Investigating Officer, which he confirmed. Investigating Officer claims that he prepared map of the place in jungle where the deceased was murdered. He also recorded statement of various other persons and took steps for attachment of property of accused and after completing investigation, he submitted charge-sheet against accused Sri Narain @ Gillu under Section 364-A, 201, 302 IPC- which is Exhibit Ka-7. He also searched for other co-accused, but did not succeed. Accused Ram Karan Chaubey and Vishambhar Singh surrendered in Court on 9.8.1999, whereupon, their statements were also recorded and charge-sheet was filed against co-accused Ram Karan Chaubey and Vishambhar Singh which charge-sheet is Exhibit Ka-8. Thereafter, case was committed to the Court of Sessions pursuant to committal proceeding from where the was transferred to the aforesaid Special Court (of Dacity Affected Areas Act) for conduction of trial and disposal of the case.

Consequently, accused and the prosecution both were heard by the Trial Court on the point of charge and after hearing them, the Trial Court was prima facie satisfied with the case under Sections 364-A, 302 and 201 IPC. Accordingly, charges under aforesaid sections of IPC were framed against accused persons and the same were read over and explained to them, who abjured charges and opted for trial.

Consequently, the prosecution was asked to adduce its testimony, whereupon, prosecution produced in all 8 witnesses. A brief sketch of the same is ut infra :-

(1) Shiv Shankar PW-1 is stated to be witness of fact and he claims to have been present on the spot at the house of Gram Pradhan, Village- Harauli on 8.3.1998 at the time of abduction of Adesh Kumar Tiwari and also claims to have witnessed murder of Adesh Tiwari.

(2) Heera Devi PW-2 is the informant and she has proved written report Exhibit Ka-2. She is witness of fact when her husband left home.

(3) Smt. Om Prabha PW-3 is the mother of the deceased. She came to know about abduction of her son by members of Fakkad Gang and has testified about the same fact.

(4) Satyaveer Singh PW-4 was claimed by the prosecution to have come to the house of deceased Adesh Tiwari on 8.3.1998 and told Adesh Tiwari that he has been called by Fakkad Baba. This witness has turned hostile and has not supported the prosecution version.

(5) Jagdish Prasad Gautam PW-5 has noted down contents of written report (Exhibit Ka-2) at Police Station- Bhareh on 1.10.1998 and has proved these entries made in check FIR and concerned GD as Exhibit Ka-3 and Exhibit Ka-5, besides proving Exhibit Ka-4.

(6) Ram Nath Singh Yadav, PW-6 is one of the three Investigating Officers and he was entrusted investigation of this case by order of SSP, Etawah on 26.6.1999. He has detailed the various steps he took in completing his part of investigation. He has also filed charge-sheet against accused Sri Narain @ Gillu as Exhibit Ka-7 and against accused Ram Karan Chaubey and Vishambhar Singh as Exhibit Ka-8.

(7) Chand Hussain PW-7 is also one of the three Investigating Officers and he has also described details of process adopted by him for completing his part of investigation. He took over investigation on 7.2.1999.

(8) Similarly, first Investigation Officer Lallu Ram Tyagi PW-8 was initially entrusted with the investigation of this case after registration of the case on 30.9.1998. Besides other steps, he prepared map of site plan Exhibit Ka-9.

Except as above, no other testimony whatsoever was adduced on behalf of the prosecution, therefore, evidence for the prosecution was closed and statement of accused recorded under Section 313 Cr.P.C., wherein, they claimed to have been falsely implicated on account of village 'partibandi' and enmity and their involvement was due to persisting rivalry among various groups of dacoit like Nirbhay Gang, Gujjar Gang, etc. The defence, in turn, did not lead any evidence. The learned trial court after hearing the case on its merit and after considering record and evaluating evidence and circumstances recorded conviction against the accused persons and passed sentence against them as aforesaid.

Consequently, the aforesaid two appeals have been preferred by the aforesaid appellants against the same judgment and order of the trial court dated 10.8.2011.

It has been vehemently urged by learned counsel for the appellant Sri Brijesh Kumar that the present case in hand is virtually a case of no evidence. Case in its entirety smacks of abysmal hollowness of prosecution claim and full of incongruous statement/evidence of prosecution witnesses; which if taken as a whole, will reflect nothing but innocence of the appellants. Factual ambit of the case set up by the prosecution indicates more or less a story like 'Alice in Wonderland'. One can hardly imagine such sketchy, inconsistent and contradictory testimony forthcoming in this case. Nothing has been established by vacillating testimony of the prosecution witnesses of fact. FIR is highly belated. The incident of abduction took place on 8.3.1998, whereas, FIR was lodged only on 1.10.1998. FIR also does not specify as to against whom it has been lodged, it does not name any accused person. The Investigating Officers have conducted investigation in a sloppy and perfunctory manner. The first informant Heera Devi says that she has, prior to the lodging of the report, given- one report to the administrative and police authorities of the region and the concerned police station, but no action was taken on that report. But the claim of previously lodged report is merely an imagination for the reason that no Investigating Officer has confirmed to such claim instead he has denied any such application being made to the concerned police station or higher authorities. One of the prosecution witnesses Satyabir has not supported the prosecution version that he came to the house of deceased- Adesh Tiwari and told him that Fakkad Baba is calling him. The another so-called witness Shiv Shankar, though claims to be an eye-witness of the incident of fact of death and abduction of Adesh Tiwari, is not believable. He could not tell the very place or topography of the place where death of Adesh Tiwari occurred or was caused. He did not point out the place to the Investigating Officer where Adesh Tiwari was murdered and his statement regarding his claim that he saw the incident stands in utter contrast to what he stated to the Investigating Officer under Section 161 Cr.P.C. Apart from Satyabir, there is no any other clinching evidence against the appellants. It was upto the prosecution to have come out with specific cogent testimony to establish its case beyond reasonable doubt. However, nothing such has surfaced. The statement of prosecution witnesses of fact is full of embellishments, improvement and result of deliberation with the police. In fact, involvement of the appellants in this case was outcome of internecine struggle/dissension among rival gangs of dacoits operating in the area. Prosecution has failed to prove its charges against the appellants beyond reasonable doubt. The trial court overlooked the widespread evidenciary aspect to the ambit that it is full of contradictions, unworthy of credit and incongruous still recorded conviction for no obvious reasons. Finding of conviction is based on conjectures and surmises and the same is illegal and erroneous.

In so far as point of demand for ransom is concerned, the entire evidence is woefully wanting on that count. The Investigating Officers did not come across any such letter, which was purportedly written by the accused persons demanding ransom. Heera Devi and other prosecution witnesses have made only verbal assertion that a ransom for Rs. 5 lakh was demanded and letter in support of demand was received at their end, but the witnesses could not substantiate their claim by producing such letter. Theory of demand for ransom was based on written letter but no such letter or copy of letter was given to the I.O.; notwithstanding fact that I.O. demanded such letter from the informant. In the absence of any such written letter, the demand so raised carries no legal force. The point of ransom was deliberately brought in picture in order to intensify punitive import of Section 364-A IPC. In fact, in the absence of any supporting material for demand of ransom, the charge under Section 364A IPC is not maintainable and cannot be construed to have been proved as such. In so far as charge under Section 302 IPC is concerned, neither any last seen has been proved nor death of Adesh Tiwari has been proved conclusively and in the absence of establishment of aforesaid factual and legal aspects, it is erroneous and illegal to record conviction under aforesaid Section of IPC against the appellants.

Retorting to aforesaid argument, learned AGA submitted that the claim made by the appellants that it is a case of no evidence, is not acceptable for the reason that testimony of prosecution witnesses, on the whole, inspires confidence and the victim of the incident- Adesh Tiwari- has not yet returned since his disappearance on 8.3.1998. No plausible reason can be assigned by the accused persons as to why the victim did not return after 8.3.1998. Evidence regarding disappearance of Adesh Tiwari on aforesaid date from village- Harauli- is clinching, consistent and coherent with the prosecution story and once disappearance of the victim is proved, the other essential factors to be considered by the Court would be confined to the ambit of demand of ransom only.

All the three Investigating Officers have duly investigated the case and have recorded statement of various witnesses including the accused persons and disclosure made in the statement of all the witnesses and accused persons were duly verified and connected with the incident, which on the whole proves and establishes culpability and involvement of the accused persons in the incident. Demand for ransom Rs.5 lakh has been specifically proved by the testimony of Shiv Shanker P.W.1 and Heera Devi P.W.2 and nothing more than that was required to be proved for offence of demand for ransom. To say that the demand of ransom was not proved, is not correct and charge made under Section 364A IPC is accordingly justified. Right from the very beginning of the incident on 8.3.1999 and upto the filing of the charge sheet against the accused persons, all the material circumstances, facts and evidence, which was necessary to establish in order to prove guilt of the accused, have been consistently established. Whatever contradictions appear in the testimony of the prosecution witnesses are natural and bound to occur looking to the facts and circumstances of the case and these contradictions cannot be termed either substantial one or of the nature eroding the foundation of the prosecution case. The case of the prosecution is proved beyond reasonable doubt against the appellants and the trial court has taken just and consistent view of the evidence on record vis-a-vis factual as well as legal aspects of the case that formed basis of conviction. Appeals have no merit.

We have also considered the rival submissions and also considered the various assertions and denials made pros and cons between the parties and after considering the entire record the moot point that arises for determinations of this appeal relates to fact whether the prosecution has been able to prove charges under various sections of Indian Penal Code beyond reasonable doubt against the appellants?

At the very onset we may discuss certain admitted facts. It is asserted on behalf of the prosecution that the incident of abduction of Adesh Tiwari took place on 8.3.1998 from village- Harauli and it is alleged that the abduction was masterminded and facilitated by Fakkad Gang after 7 p.m. (on 8.3.1998). It is admitted to the prosecution that no name of any member of Fakkad Gang has been specifically mentioned in the first information report. Bare perusal of contents of first information report itself reveal that the report was lodged on 1.10.1998 approximately after elapse of six months and three weeks of the occurrence. We may proceed with scrutiny of facts from this point. It has come in the testimony of P.W.1 Shiv Shanker and Heera Devi P.W.2 that after Shiv Shanker who was also abducted by Fakkad Gang was released in the month of May, 1998. He returned to his village then informed about the incident to Smt. Heera Devi. He also informed Heera Devi about murder of Adesh Tiwari by the members of Fakkad Gang including the appellants and a report in regard to these facts was given at the police station but no action was taken by the police. Here we may observe that this factual aspect of prior reporting to the police has its inkling in the first information report itself where it has been alleged that after the report was made, the concerned police station officer came to the village and advised informant Heera Devi to accede to the demand for payment of ransom. However, the three Investigating Officers of this case- to be specific- first Investigating Officer- Lallu Ram Tyagi, Second Investigating Officer- Chand Hussain and third Investigating Officer- Ram Nath Singh Yadav P.W.8, P.W.7 and P.W.6, respectively have denied fact of any such prior reporting at the police station and they have flatly denied the claim of prior information of the incident being made to the police station. At this stage, we may observe that some whisper and guess could have been exercised by us, if some worthy document or circumstance regarding lodging of prior report were either produced for perusal of the trial court or were shown by circumstances of the case but no worthy and authentic paper, record or circumstance has been brought forth by the prosecution by the informant, which may vindicate their claim for lodging of report prior in time to the actual lodging of FIR on 1.10.1998.

Another vital aspect and circumstance of the case is that Shiv Shanker P.W.1 happens to be star witness, who claims to have witnessed murder of Adesh Tiwari by Fakkad Gang and he has been released from captivity of the gang in May, 1998 and he returned to his village then he told about the incident of abduction and murder of Adesh Tiwari to the informant Heera Devi, but we are taken aback and to our utter surprise the so called subsequent first information report lodged on 1.10.1998 does not contain even slightest hint touching on the claim made by Shiv Shanker that Adesh Tiwari was murdered by Fakkad Gang. The FIR does not mention name of even a single witness who witnessed incident of murder and the manner and style of causing murder of Adesh Tiwari by the offenders. It is beyond reason that such vital information if furnished to the informant in the month of May, 1998 skipped attention and mention in the first information report dated 1.10.1998 lodged by Heera Devi- wife of deceased Adesh Tiwari.

We also come across testimony of the Investigating Officers of this case P.W.8 Lallu Ram Tyagi and P.W.7 Chand Hussain that they for the first time recorded statement of Shiv Shanker on 15.11.1998 and he (Shiv Shanker) for the first time disclosed fact of his own abduction and release. Record profusely indicates and establishes fact that after release of Shiv Shanker from the clutches of Fakkad Gang, no efforts, whatsoever, were made to lodge any report regarding his abduction and demand for ransom to any police station or to any higher authority. Act and instance of non-lodging of any report and refraining from taking any action, in the absence of any cogent adverse circumstance, would amount to fact that Shiv Shanker's testimony on this particular aspect of his abduction and demand for ransom for his release is an improvement with some ulterior motive but known to himself. Because the circumstance in which he maintained perennial silence regarding commission of crime of abduction and demand for ransom against him by the accused persons generates lot of suspicion about creditworthiness of this witness.

With that view in mind, it would be relevant to carefully scrutinize testimony of P.W.1 Shiv Shanker and particularly his testimony emerging in his cross-examination. As per his examination-in-chief, he has stated that on 8.3.1998 it was around 7 p.m. Fakkad, Kusuma Nain and the entire gang were sitting at the door of Ex-Pradhan- Ram Babu. He was called by Satyabir and Manoj at that place. Later on Fakkad and Kusuma Nain directed Satyabir and Manoj to call Adesh Kumar. Both- the witness and Adesh Kumar were taken to forest by the gang along with two-three other hostages. After three weeks, Ram Karan Choubey, Bhagwan Das, Sri Narayan and Vishambher Singh also arrived around 8 or 9 a.m. At that point of time the gang had its location at the shore of river Quari within village- Vilourh. They all talked to Fakkad. Adesh Tiwari was tied in chain and was handed over to the aforesaid four persons. These four persons caused death of Adesh Kumar by axe. It has been specifically testified that Ram Karan gave axe blows while Vishambher, Bhagwan Das and Sri Narayan caught hold of Adesh Tiwari. After commission of murder the blood stained axe was given to Ram Asray @ Fakkad. Ram Asray showed the axe to Shiv Shanker and others and threatened that in case, they do not pay Rs.3 lacs they will also be dealt with in the same manner. Further on page-20 of the paper book, this witness has clarified that dead body of Adesh Kumar was thrown in river Quari by Sri Narayan, Ram Karan, Bhagwan Das and Vishambher after putting it in a gunny bag. He remained in captivity of the gang for about two months. He was released from captivity only after his family members paid Rs.2,75,000/- to the gang. He has also stated that he has given an affidavit to the S.S.P. and which affidavit has been proved by him as Exhibit Ka-2. He has been cross-examined, wherein, serious anomalies have emerged in his testimony. The first one is, as already observed, that he never reported incidence of his abduction to any police authority. His family members also did not give any information to the police after his abduction and prior to his release. These unexplained aspects carry with them element of mystery.

Next, he gave affidavit to the S.S.P. Etwah after one year of his release. It is dated 21.6.1999, whereas, Shiv Shanker was released two months after the incident, which period commences sometime after 8th May, 1998. Bare perusal of the affidavit and its contents reveal that all the specific details regarding the incident and murder of Adesh Tiwari were well in the knowledge of Shiv Shanker P.W.1 and he claims that after his release he narrated the entire incident to the informant (P.W.-2), but the first information report is silent on any such detail or even names of the accused persons. Thus claim of Shiv Shanker becomes oblique and ulterior and it is hard to believe that he suffered captivity at the hands of Fakkad Gang and he was released only after two months of his abduction (8.3.1998).

Further, on page-21 of the paper book, he says that he has no knowledge that Ram Ji- brother of Ram Karan Chowbey- was either murdered or not and he does not know, who is the accused in that case and just after such disclosure, he proceeds on to say that he went to meet the accused of Ram Ji case, Ram Bahadur and Awadhesh in jail. Awadhesh- is brother-in-law of Adesh Tiwari, whereas Ram Bahadur is father-in-law of Adesh Tiwari and he concedes to fact that case for murder of Ram Ji was lodged against Awadhesh and Ram Bahadur. He has been suggested whether Sri Narayan was a witness in that case of murder whereupon, this witness has expressed his ignorance. On the same page-21 of paper book, he claims that he had described the incident of murder to the mother and wife of Adesh Tiwari after his release and he says that he did not move any application for the offence of murder of Adesh Tiwari. He claims on the same page that he went to the police station- Bharray after his release along with Heera Devi- the informant and mother of Adesh Tiwari. He has been confronted with his statement regarding the aforesaid aspect as to whether he ever made any such statement to the Investigating Officer and his attention was also brought to those particular statements given before the trial court vis-à-vis the statement recorded under Section 161 Cr.P.C. then he expressed his inability to show any plausible reason as to why these specific and particular statements have not been recorded by the Investigating Officer. He never stated to the Investigating Officer under Section 161 Cr.P.C. that he witnessed incident of murder of Adesh Tiwari, instead he gave statement to the Investigating Officer to the ambit that now he believes that Fakkad has killed Adesh Tiwari. He has also testified that Ram Karan, Sri Narayan and Vishambher were not involved in the commission of abduction. He also did not give any statement to the Investigating Officer that Satyaveer and Manoj came to call them. He has stated that some letter was sent at his home by Fakkad Gang demanding ransom but no such letter was seen by him when he returned home after his release and surprisingly in the statement recorded by the Investigating Officer description of any such letter being sent at his home is altogether missing and he is unable to ascribe any cogent reason for the same.

Can it be considered natural course of events in a situation when the entire incident of abduction and murder of Adesh Tiwari was narrated to the mother and wife of deceased- Adesh Tiwari by Shiv Shaker P.W.1 in the month of May 1998, the first information report though addressed to the Commissioner of Range- Etawah, which was finally registered on 1.10.1998, did not contain even minutest detail of any such abduction and murder given by Shiv Shanker to the informant. Suprisingly, the first information report does not even mention name of Shiv Shanker as the person who told about this incident. Statement of both the first informant Heera Devi and Shiv Shanker P.W.1 was recorded at belated stage by the Investigating Officer Lallu Ram Tyagi P.W.8. Statement of Heera Devi was recorded on 28.10.1998 and that of Shiv Shanker on 15.11.1998. On 15.11.1998 fact of abduction of Shiv Shanker was disclosed for the first time. All these facts coupled with testimony so called star witness Shiv Shanker causes deep dent in the prosecution claim that abduction and murder of Adesh Tiwari was caused/committed by Ram Asrey @ Fakkad, Kusuma Nine and the other appellants.

The other witnesses of fact- say- Heera Devi P.W.2 and Smt. Om Prabha P.W.3 are not the witnesses of last seen theory. On 8th March, 1998 Heera Devi was at her Mayaka and she came back at the house of her-in-laws on 9th March, 1998. Similarily, Smt. Om Prabha P.W.3 has stated on page-45 of the paper book that Fakkad and Kusuma Nain and his gang men did not take away his son before her and the person, who came to her house to call his son are not accused in this case. She has also stated that her statement was recorded by daroga ji after 7-8 months and surprisingly on the same page she has denied having made any statement to the Daroga Ji to the ambit that Sri Narayan and Ram Karan had secured release of her son from the gang. She cannot assign any worthy cause as to how such statement was recorded by the daroga ji. She has been suggested that she is testifying after being pressurized by relatives of Nirbhay Gurjer gang, although, she has denied the suggestion. First informant has expressed his inability to show any letter for ransom, which she claims to have been sent by Fakkad gang. Even the Investigating Officers have denied having received any such letter from Heera Devi. She has stated on page-39 of the paper book that she came to know about the offence only at the instance of Shiv Shanker. It means she had no prior information regarding any offence having been committed against her husband Adesh Tiwari by the accused persons, that is why no specific complaint regarding abduction was ever moved on his behalf before any police officer or the authorities concerned.

The above scrutiny of vital facts and circumstances of the case pertaining to and concerning the commission of offence of abduction and murder of Adesh Tiwari as testified by P.W.1, P.W.2 and P.W.3 lacks the requisite consistency and coherence and on the contrary their testimony appears to be full of contradictions and not acceptable under existing circumstances of the case. Their testimony appears to be improved one and full of embellishments.

At this stage, we may switch over to the testimony of another important witness Satyabir Singh P.W.4, who is stated to have gone to the house of Adesh Tiwari on 8.3.1998 and said to the deceased that he has been called by Fakkad gang. He has testified to the effect that Ram Asray @ Fakkad, Kusuma Nain, Ram Karan Chowbey, Sri Narayan and Vishambher Singh were not involved in this case and they never came to his house and sat at the door of his house. He has been declared hostile and cross-examined, whereupon he has stated that he never gave any statement to daroga ji. In his cross-examination he has stated that Adesh Tiwari accompanied the gang and Shiv Shanker went back his home after departure of the gang and Shiv Shanker was regularly sighted by him in the village, therefore, complicity of the gang in the abduction of Adesh Tiwari has not been established by the testimony of Satyabir Singh P.W.4. But fact of abduction remains under cloud. On the face value evaluation of his testimony it is apparent that Adesh Tiwari accompanied the gang whose identity dwells in mystery and this act of accompaniment was without application of any force or allurement, explicit or implicit.

When we look to the testimony of the Investigating Officers, then regard may be had to certain relevant aspects of the case. One of such aspect relates to fact of preparation of spot map, Exhibit Ka-6 by the Investigating Officer Ram Nath Singh Yadav P.W.6. He has testified that he inspected spot where Adesh Tiwari was murdered. This spot map is Exhibit Ka-6, whereas, in the testimony of Shiv Shanker it has emerged on page-28 of his testimony that he never assisted the Investigating Officer for inspection of the spot and surprisingly the second I.O. Chand Hussain P.W.7 has stated on page No.-66 of the paper book in his cross-examination that he did not see the place where Adesh Tiwari was murdered. Another aspect of the case is that P.W.7 Chand Hussain- the Investigating Officer- has stated on page-67 of the paper book that he included name of other accused persons only after disclosure of names (of accused) was made by Sri Narayan, the accused. On page-67 of the paper book his testimony has come forth to the magnitude that he did not receive any letter meant for any demand for ransom for securing release of Adesh Tiwari. He also testifies on page-69 of the paper book that he took over investigation on 7.2.1999 and the informant did not tell him about murder of her husband. On the same page he has gone to the extent when he says that he did not file any charge sheet under Section 302 IPC pertaining to murder of Adesh Tiwari, because no evidence of murder was available and on page-71 of the paper book in the testimony of first Investigating Officer Lallu Ram Tyagi P.W.8 it has been stated that he investigated into the case from 1.10.1998 to 23.1.1999, but he did not receive any letter meant for demanding any ransom for release of either Adesh Tiwari or Shiv Shanker. No such reference surfaces in the first information report either. He also testifies on the same page-71 that family members of Shiv Shanker did not lodge any report at the police station regarding abduction of Shiv Shanker and on page-72 he has deposed that fact of abduction of Shiv Shanker was told for the first time in the statement of witnesses only on 15.11.1998. P.W.8 Lallu Ram Tyagi, one of the three Investigating Officers has denied any such statement given to him by Shiv Shanker and on page-73 of the paper book in the last 3 lines he has stated that in the purcha of 23.1.1999, he has mentioned fact that accused persons are to be arrested and recovery of victim is to be effected.

Further on page-74 he testifies that in the statement of Ram Babu Pradhan recorded on 15.11.1998 no information whatsoever was given at the police station by him regarding abduction of Adesh Tiwari by Fakkad gang and the fact that Fakkad gang was sitting at his door.

Obviously, he has accepted fact on page-75 of the paper book that first information report mentions in the column of accused words "Fakkad Gang" and quite surprisingly no witness including Shiv Shanker has been mentioned. No definite complexion of accused Fakkad and Kusuma Nain figures in the report. Name of Ram Asrey @ Fakkad and Kusuma Nain figured for the first time in the statement of Ram Bahadur on 27.10.1998 and it has been stated by P.W.8 particularly in the last portion of page-75 of the paper book that FIR does not mention presence of Ram Bahadur at his door when abduction took place and at the time of lodging of the report Ram Bahadur was in jail.

Why Shiv Shanker moved affidavit before SSP Etawah after his so called release from captivity of Fakkad Gang and wherein also the details elaborated in various paragraphs were not stated to the Investigating Officers who recorded his statement under Section 161 Cr.P.C. Obviously, filing of affidavit appears to be an extraneous effort, which cannot be said to be genuine assertion of facts and cannot be believed to be true one. Testimony of P.W.1 is vacillating on material points. Perusal of first information report does not mention fact of murder of Adesh Tiwari but it surprisingly contains prayer for recovery of Adesh Tiwari. We also notice long list of contradictions appearing in the testimony of P.W.1. On page-28 of the paper book he has specifically stated that he did not point out (to I.O.) the place where Adesh Tiwari was murdered and in case, daroga ji has stated so then that would be incorrect. Here, there is no consistent version establishing fact of abduction of Adesh Tiwari and consequent murder caused by the accused persons. The testimony falls in disarray and lacks requisite coherence. The testimony of prosecution witnesses of facts and particularly that of Shiv Shanker P.W.1 does not inspire confidence, instead his testimony on the whole renders this witness unworthy of credit and as such not wholly reliable. It appears that circumstances indicate that Adesh Kumar disappeared mysterially and remained untraceable and the informant side favoured the Nirbhay Gurjer gang, therefore, in collusion with certain persons names of the accused persons were deliberately brought in picture and efforts were made to build up a castle in the sand, which efforts, despite hectic perseverance made by P.W.1 Shiv Shanker and P.W.2 Heera Devi remained unsuccessful for apparent reason that they introduced undigestible story of abduction and murder of Adesh Kumar with improved testimony and non-explanation of normal conduct expected of them sounds louder element of embellishments brought in, in their testimony, just to fill up various vital inconsistencies emerging from wholesome reading of their testimony. If the claim of the prosecution witness, particularly that of P.W.1, is sustained and believed to be truthful then such type of first information report can never be imagined and lodged. Moreover, Heera Devi is also faulting on point that she and Shiv Shanker lodged report at the police station prior in time sometime in May, 1998, therefore, her (PW-2) testimony is discovered to be tainted with bias and she too, cannot be believed to be truthful witness and her testimony is unworthy of credit.

Even identification of members of Fakkad gang with its boss looms in darkness and one is not sure as to who is the person known by nick name ''Fakkad'. Proper traits or body figures of Kusuma Nain have not been spelt either in the FIR or in the ocular testimony of witnesses. The fact and circumstances are jumbled together and so interwined that they create deep and suspicious hole in the entire prosecution story.

It is trite law and established principle of criminal jurisprudence that prosecution would have to stand on its own leg and would have to establish its charges against accused beyond reasonable doubt. In this case, the charges have not been proved beyond doubt.

The trial court while appreciating evidence and appraising facts and circumstances of the case could not scrutinize them in true perspective but recorded erroneous finding of conviction based more on conjuncture and surmises than on law which finding of conviction pertaining to charges under Section 364A, 302 and 201 IPC in the absence of any cogent and clinching evidence is vitiated and the same is liable to be set aside by us.

Consequently, judgment and order of conviction dated 10.08.2011 passed by the Special Judge (DAA) Etawah, in Special Sessions Trial No.93 of 2008 State of U.P. Vs. Shri Narain @ Gullu and others, arising out of Case Crime No.25 of 1998, under Sections 302, 201, 364A IPC, Police Station- Bhareh, District- Etawah is hereby set aside and the aforesaid appeals are allowed. Accused-appellants are acquitted of all charges.

In this case the appellants are in jail. They be set free forthwith, if not wanted in connection with any other case after complying with the provisions of Section 437-A Cr.P.C.

Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.

Order Date:- 9th January, 2017 Raj/Ishan Hon'ble Bala Krishna Narayana, J.

Hon'ble Arvind Kumar Mishra-I,J.

Sri Sarvesh Kumar Dubey, learned amicus curiae for the appellants in Criminal Appeal No.5871 of 2011 has rendered valuable assistance in deciding the appeal, which was pending since 2011, therefore, he is directed to be paid Rs. 15,000/- as his fees by the office of this Court.

Order Date:- 9th January, 2017 Raj/Ishan

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