Allahabad High Court
Deepak Kumar Yadav vs State Of U.P. on 6 September, 2022
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
(LUCKNOW)
A.F.R.
Reserved on 11.07.2022
Delivered on 06.09.2022
Court No. - 1
Case :- CRIMINAL APPEAL No. - 435 of 2016
Appellant :- Deepak Kumar Yadav
Respondent :- State of U.P.
Counsel for Appellant :- Mr. Rajesh Kumar Dwivedi
Counsel for Respondent :- Additional Govt. Advocate, Mr. Umesh Chand Verma
WITH
Case :- CRIMINAL APPEAL No. - 407 of 2016
Appellant :- Arvind Kumar Maurya
Respondent :- State of U.P.
Counsel for Appellant :- Mr. Amit Chaudhary
Counsel for Respondent :- Additional Govt. Advocate, Mr. Umesh Chand Verma
Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Saroj Yadav,J.
(Per Mrs. Saroj Yadav, J. for the Bench)
1. The Criminal Appeal No.435 of 2016 (Deepak Kumar Yadav vs. State of U.P.) has been filed by the convict/appellant Deepak Kumar Yadav and the Criminal Appeal No.407 of 2016 (Arvind Kumar Maurya vs. State of U.P.) has been filed by convict/appellant Arvind Kumar Maurya against the judgment and order dated 29.02.2016 passed by Additional District & Sessions Judge, Court No.5, Faizabad in Sessions Trial No.25 of 2014, under Sections 302/34 and 201 of Indian Penal Code, 1860 (in short I.P.C.) arising out of Case Crime No.338 of 2013, Police Station Kotwali Rudauli, District Faizabad.
2. The facts shorn of unnecessary details are as under:-
A First Information Report (in short F.I.R.) was registered at Case Crime No.338 of 2013, under Section 363 I.P.C. on 10.11.2013 at Police Station Rudauli, District Faizabad on the basis of the written report presented by Mihi Lal wherein, he stated that his elder son, Anil Kumar, aged about 18 years, went somewhere on 02.11.2013 around 08:00 P.M. Since then his whereabouts are unknown. The complainant searched for him (Anil Kumar) at his relatives' places but no information could be found. His son had a mobile No.7388080774 which was switched off.
3. The above noted information given by the complainant was entered in General Diary at No.19, at 12:40 hours and thereafter a case was registered at Case Crime No.338 of 2013, under Section 363 of I.P.C. and the Investigating Officer went to the spot, prepared the site plan, recorded the statements of witnesses, prepared the inquest report and sent the dead body for post mortem examination and after completing the investigation submitted the charge sheet against accused persons Deepak Kumar Yadav and Arvind Kumar Maurya, under Sections 302 and 201 of I.P.C.
4. The learned Chief Judicial Magistrate, Faizabad took cognizance of the matter and committed the case to the court of Sessions for trial. The court of Sessions framed charges under Sections 302/34 and 201 of I.P.C. against both the accused persons. They both denied the charges and claimed to be tried.
5. In order to prove its case, the prosecution examined the following witnesses:-
(i) P.W.1- Mihi Lal, the complainant;
(ii) P.W.2- Jokhawati, sister-in-law of the complainant (Bhabhi);
(iii) P.W.3- Moti Lal, witness of inquest (Panch);
(iv) P.W.4- Dr. Vipin Kumar, who conducted the autopsy of the deceased;
(v) P.W.5- Mr. Vijay Bahadur Singh, Sub-Inspector, who investigated the case;
(vi) C.W.1- Sub-Inspector Vijay Bahadur Singh, who proved the carbon copy of General Diary.
6. Apart from the above oral evidences, relevant documents have also been proved by the prosecution which are as under:-
(i) Exhibit Ka-1 - Written report;
(ii) Exhibit Ka-2- Inquest report;
(iii) Exhibit Ka-3 - Post mortem examination report;
(iv) Exhibit Ka-4 - Recovery memo;
(v) Exhibit Ka-5 - Police form No.13;
(vi) Exhibit Ka-6 - Specimen Seal;
(vii) Exhibit Ka-7 - Police form No.379;
(viii) Exhibit Ka-8 - Letter to Reserve Inspector of Police for post mortem;
(ix) Exhibit Ka-9 - Letter to C.M.O. for conducting post mortem;
(x) Exhibit Ka-9A - (As Exhibit Ka-9 has been marked at 2 pages so this is referred as Exhibit Ka-9A) Entry in relevant General Diary;
(xi) Exhibit Ka-10 - Site plan of the place of recovery of dead body;
(xii) Exhibit Ka-11 - Site plan of the place where accused persons killed the deceased;
(xiii) Exhibit Ka-12 - Charge sheet;
(xiv) Exhibit Ka-13 - General Diary related to entry about the missing report of the deceased given by complainant;
(xv) Exhibit Ka-14 - Carbon copy of the General Diary having entry regarding alteration after recovery of the dead body and (xvi) Exhibit Ka-15 - Carbon copy of the General Diary regarding the articles recovered related to the crime.
7. After close of the prosecution evidence, the statements of the convicts/appellants were recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.). Both the convicts/appellants denied the crime and related proceedings and stated that all the Exhibits have been prepared falsely at the concerned police station. The witnesses have deposed falsely due to enmity. The convict/appellant Arvind Kumar Maurya has further stated that the complainant and Moti Lal who lost the election of Pradhan are from the same family and the convict/appellant belongs to the family of Village Pradhan Sudama. He has been implicated due to enmity of election. The convicts/appellants did not produce any evidence in defence though opportunity was provided by the learned trial court.
8. The learned trial court after hearing the arguments of both the sides and analyzing the evidence on record, found the evidence of P.W.1, P.W.2, P.W.3 and P.W.5 trustworthy and concluded that the prosecution has proved that the deceased left the house on 02.11.2013 and when after all attempts, the whereabouts of the deceased could not be known, the missing report was recorded. On the basis of this information, the Investigating Officer went to the Village of Shesh Kumari but her house was found locked. Thereafter accused Deepak Kumar Yadav was arrested on account of this information. He disclosed that Arvind Kumar Maurya was also with him while committing the crime and they killed the deceased and threw the dead body in a well. The learned trial court has further noted that the dead body of deceased Anil Kumar was recovered from one well and the bicycle by which the deceased went, from another, at the pointing out of accused Deepak Kumar Yadav. The post mortem examination report proved that the deceased died due to ante-mortem throttling. The learned trial court came to the conclusion that all these circumstances indicate that the convicts/ appellants Deepak Kumar Yadav and Arvind Kumar Maurya killed the deceased Anil Kumar and threw his dead body in a well. The learned trial court has also held that there is nothing on the record to show that the complainant has falsely implicated the convicts/appellants. The learned trial court held that the prosecution has proved the charges framed against the convicts/appellants beyond reasonable doubt and held them guilty under Sections 302/34 and 201 of I.P.C. The convicts/appellants were sentenced under Section 302 read with Section 34 of I.P.C. with life imprisonment coupled with a fine of Rs.10,000/- each and in default of payment of fine further imprisonment of 5 months each. Both the convicts/appellants have further been sentenced under Section 201 I.P.C. with imprisonment of 7 years coupled with a fine of Rs.3,000/- each and in default of payment of fine further imprisonment of 2 months each. Being aggrieved of this conviction and sentence, the convict/appellant Deepak Kumar Yadav filed Criminal Appeal No.435 of 2016 and convict/appellant Arvind Kumar Maurya filed Criminal Appeal No.407 of 2016.
9. Heard Shri Rajesh Kumar Dwivedi, learned counsel for the appellant Deepak Kumar Yadav and Shri Amit Chaudhary, learned counsel for the appellant Arvind Kumar Maurya and Shri Umesh Chandra Verma, learned Additional Government Advocate for the State-respondent. Shri Firoz Ahmad Khan, learned counsel for the complainant did not appear to argue the appeals.
10. Learned counsel for the appellant Deepak Kumar Yadav argued that there is inordinate delay in lodging the F.I.R. The F.I.R. is ante-dated and ante-timed. The scribe of F.I.R., Ram Pyare Lal Head Constable of Police has not been produced by the prosecution in the witness box. No motive has been established by the prosecution against the convict/appellant to commit the crime. The convict/appellant Deepak Kumar Yadav was allegedly arrested on 12.11.2013 at 02:00 P.M. but no arrest memo is on record. The place of arrest of convict/appellant Deepak Kumar Yadav is doubtful. There is no public witness of the arrest of convict/appellant Deepak Kumar Yadav. The alleged recovery of the dead body of the deceased and his bicycle on the pointing out of the convict/appellant Deepak Kumar Yadav is not covered within the ambit of Section 27 of the Indian Evidence Act. The recovery is a false recovery. No disclosure statement of the convict/appellant is there on the record. The alleged recovery of the dead body of the deceased and his bicycle on the pointing out of the convict/appellant Deepak Kumar Maurya is from two wells situated at a distance of half kilometer in two different villages, hence, both the recovery memos cannot be prepared simultaneously on the spot by the same person. The recovered bicycle was not got identified by Hanuman to whom the bicycle belongs as stated by the complainant. The presence of Mihi Lal P.W.1 at the time of recovery of the dead body of the deceased and his bicycle and at the time of conduction of inquest is not established. It is belied by the testimony of P.W.1 himself. There is no mention of case crime number and sections on the inquest report which indicates that the F.I.R. was not in existence at the time of preparation of inquest report. Inquest proceedings were not done on the spot and those were done at the Police Station Rudauli and inquest report was ante-timed. No test identification parade was conducted as the convict/appellant Deepak Kumar Yadav was not previously known to P.W.1 Mihi Lal. Further convict/appellant Deepak Kumar Yadav was not kept (Baparda) by the police and he was got identified to P.W.1 Mihi Lal. No D.N.A. test of the bones of the deceased was got conducted by the prosecution to establish the identity of the deceased. No recovery of mobile phone of the deceased was made by the Investigating Officer. No explanation was given by the prosecution about the cutting made in General Diary and after cutting the name of accused Dileep, the name of accused Deepak Kumar Yadav was added. Medical evidence does not corroborate the prosecution version. The cause of death has been opined by the autopsy surgeon, only on the basis of surmises and conjectures as the dead body was completely decomposed and turned into skeleton and the soft tissue over the neck was missing. Only bones were present on the neck. Hence the strangulation could be ascertained. There are variations, inconsistencies and major contradictions in the testimony of the prosecution witnesses. No Jeans/Pants and cloth around the neck of the deceased was found at the time of alleged recovery of the dead body. The case of prosecution is based on circumstantial evidence and the chain of circumstances is not complete to bring home the guilt of the convict/appellant. No circumstance under Section 302 I.P.C. was put to the convict/appellant to explain his innocence. Hence no conviction can be awarded to him under Section 302 I.P.C. He further submitted that P.W.1 Mihi Lal is not a reliable witness and conviction cannot be based on his evidence. He further submitted that it is a settled position of law that suspicion howsoever grave cannot take place of the proof. The prosecution has miserably failed to prove its case beyond reasonable doubt against the convict/appellant. Hence, the accused/appellant Deepak Kumar Yadav deserves to be acquitted.
11. Learned counsel for the convict/appellant Deepak Kumar Yadav relied upon the following case laws :-
(i) Sharad Birdhichand Sarda vs. State of Maharashtra AIR 1984 SC 1622: 1984 SCC (Cri) 487;
(ii) Ganpat Singh vs. State of Madhya Pradesh (2018) 2 SCC (Cri) 159: (2017) 16 SCC 353;
(iii) Anil Kumar Singh vs. State of Bihar 2004 SCC (Cri) 1167;
(iv) Padala Veera Reddy vs. State of Andhra Pradesh AIR 1990 SC 79: 1990 ACC 32 (SC);
(v) Gargi vs. State of Haryana (2019) 9 SCC 738;
(vi) Hanumant Govind Nargundkar vs. State of M.P. AIR 1952 SC 343;
(vii) Shivaji Shahabrao Bobade vs. State of Maharashtra (1973) 2 SCC 793;
(viii) Anjan Kumar Sarma vs. State of Assam (2017) 14 SCC 359;
(ix) Joydeb Patra & Ors. vs. State of West Bengal 2013 (3) JIC 548 (SC);
(x) Pulukuri Kottaya and Others vs. Emperor AIR (34) 1947 Privy Council 67;
(xi) Bahadul vs. State of Orrisa AIR 1979 SC 1262;
(xii) Sonu Sharma vs. State of U.P. 2011 (1) JIC 381 (All D.B.);
(xiii) Anter Singh vs. State of Rajasthan (2004) 10 SCC 657;
(xiv) Navaneethakrishnan vs. State by Inspector of Police AIR 2018 SC 2027;
(xv) Kusal Toppo and Another vs. State of Jharkhand 2019 (106) ACC 964;
(xvi) Ram Chander vs. State of Haryana (1981) 3 SCC 191 and (xvii) Samsul Haque vs. State of Assam 2019 (3) JIC 432 (SC).
12. Learned counsel for the convict/appellant Arvind Kumar Maurya argued that there was no motive to commit the crime by the convict/appellant Arvind Kumar Maurya. He has been implicated in the crime due to political enmity and that too on the basis of the statement of co-convict/appellant Deepak Kumar Yadav. He has no concern with the crime. No incriminating article has been recovered either from his person or on his pointing out. There is no evidence on the record to connect Arvind Kumar Maurya with the crime. The evidence of P.W.2 Jokhawati is not reliable and he (convict/appellant Arvind Kumar Maurya) never told Jokhawati that the deceased used to talk with one Shesh Kumari on telephone. The statements of witnesses are contradictory. P.W.1 and P.W.2 are related witnesses. The dead body of the deceased was not identifiable as it was found fully decomposed as has been stated in the post mortem examination report, hence, there is no evidence on record to prove that the convict/appellant Arvind Kumar Maurya killed the deceased. Hence, the accused/appellant Arvind Kumar Maurya should be acquitted.
13. To the contrary learned A.G.A. argued that the chain of circumstantial evidence is complete and has very well been proved by the prosecution. The P.W.1 Mihi Lal has proved that his son Anil Kumar left the house on 02.11.2013 at about 8 O'Clock in the night and did not return and his mobile phone was also switched off. He informed the police about the missing of his son. He did not name anybody in the report so it cannot be believed that later on he implicated the convicts/appellants due to enmity. He further submitted that P.W.2, Jokhawati has proved that convict/appellant Arvind Kumar Maurya has told her that the deceased Anil Kumar used to talk on telephone with one Shesh Kumari resident of village Gulzar Ka Purwa and the deceased went there. When this information was given to the Investigating Officer, he went to the place of Shesh Kumari but the house was found locked. The Investigating Officer, on the information given by the informant, arrested accused/appellant Deepak Kumar Yadav and he confessed that he killed the deceased Anil Kumar and convict/appellant Arvind Kumar Maurya was also with him while committing the crime. He further submitted that the prosecution has also proved the recovery of dead body of the deceased from a well at the pointing out of the convict/appellant Deepak Kumar Yadav. The prosecution has also proved the recovery of the bicycle on which the deceased left the house, at the pointing out of the convict/appellant Deepak Kumar Yadav. The statement given to the Investigating Officer by the convict/appellant Deepak Kumar Yadav, supported by recovery of dead body and bicycle, is admissible under Section 27 of The Indian Evidence Act. The dead body has been identified by the father of the deceased by his clothes and also from the soles which were not decomposed. He further submitted that the near relative of the deceased can identify the body by clothes of deceased. He further submitted that the learned trial court has rightly relied upon the testimony of witnesses of facts and held the convicts/appellants guilty and sentenced them accordingly. He prayed that both the appeals should be dismissed.
14. Considered the rival submissions and perused the original record of the trial court as well as the record of the appeals and also gone through the case laws cited by the learned counsel for the convict/appellant Deepak Kumar Yadav.
15. Admittedly, it is a case of circumstantial evidence as there was no eye witness. In case of circumstantial evidence, to hold a person guilty of offence alleged the chain of circumstantial evidence must be complete. All the circumstances must point out towards the guilt of the person who is accused, no other possibility should be there. No hypothesis of accused being innocent should be there. Further, suspicion however strong can not take place of proof beyond reasonable doubt.
16. The Hon'ble Apex Court in Plethora of cases have explained the principles relating to circumstantial evidence. In Ram Niwas vs. State of Haryana (2022) SCC OnLine SC 1007, the Hon'ble Apex Court in this regard has observed as under:-
"25. The prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra , wherein this Court held thus:
"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 is Hanumant v. State of Madhya Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions upto-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]:
"It is well to remember that in 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."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ''may be' and ''must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
26. This Court has held that there has to be a chain of evidence so complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It has been held that the circumstances should be of a conclusive nature and tendency. This Court has held that the circumstances should exclude every possible hypothesis except the one to be proved. It has been held that the accused ''must be' and not merely ''may be' guilty before a Court can convict.
27. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt."
17. The Hon'ble Apex Court in the case of Sujit Biswas vs. State of Assam (2013) 12 SCC 406 has held as under:-
"14. In Kali Ram v. State of H.P. [(1973) 2 SCC 808 : 1973 SCC (Cri) 1048 : AIR 1973 SC 2773] this Court observed as under: (SCC p. 820, para 25) "25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.""
18. Now we have to examine the matter in the light of evidence available on the record keeping in mind the above principles of law laid down by the Hon'ble Apex Court. In the present case, the son of the complainant left the house on 02.11.2013 at about 08:00 P.M. The complainant searched for him at the places of his relatives but he could not be found at any place. The mobile phone carried by the son of the complainant was switched off. The missing report was submitted by the complainant at the police station on 09.11.2013 i.e. after 7 days when his son left the house. This missing report was entered in General Diary at Police Station Kotwali Rudauli, District Faizabad at No.19 at 12:40 hours as missing information. Since the missing boy could not be traced so entry in General Diary regarding alteration was made at No.25 at 12:50 hours (Exhibit Ka-13) on 10.11.2013 and a case was registered as Case Crime No.338 of 2013, under Section 363 of I.P.C. The carbon copy of relevant General Diary is Exhibit Ka-14.
19. The investigation was handed over to Sub-Inspector Vijay Bahadur Singh examined as P.W.5. The Investigating Officer after taking over the investigation recorded the statement of complainant Mihi Lal and Jokhawati (sister-in-law of the complainant). Thereafter, he received information about the appellant/convict Deepak Kumar Yadav through an informant. He (Investigating Officer) arrested Deepak Kumar and on his arrest, Deepak Kumar allegedly confessed the crime and told that appellant/convict Arvind Maurya was also with him at the time of committing the crime. The dead body of the deceased was recovered from a well on the pointing out of Deepak Kumar Yadav and a bicylce from another well. At the time of recovery of dead body and bicycle appellant/convict Deepak Kumar Yadav told that he and Arvind Maurya committed murder of the deceased and threw the dead body in a well in his village and the bicycle in another well. The Investigating Officer along with appellant/convict Deepak Kumar reached at the place where well was situated. The dead body was taken out from the well. At the distance of 400 metres the bicycle was recovered from another well. The inquest report was prepared of the body of deceased. Dead body was sent for postmortem examination along with relevant papers. Recovery memo of bicycle was also prepared.
20. In the post-mortem examination report following condition of the cadaver was noted:-
"A decomposed body. Soft tissue missing over Face, Neck and Subaro Anterior Scalp. Lt. hand and Lt. Radius Bone missing. No opinion regarding nose, mouth, tongue, nail and anus.
1. Head/neck skin and soft tissue not present at head. Contusion prest over posterior part of scalp- 8x6 cm which was hanging posteriorly brain because liquified- changing into skeletal;
2. Magot present, more over skull in notched, cloth present around neck;
3. A knotted cloth present around neck;
4. Contusion over (Rt) side chest- 18x14 cm;
5. Contusion over (Lt) side chest- 20x14 cm plus two ribs fractured 5th and 6th;
6. Contusion (Rt) inguinal region- 18x16 cm extending to thigh;
7. Contusion (Lt) thigh above knee joint- 25x10 cm;
8. Contusion at scrotal region- 8x6 cm and
9. Bone and tissue of Lt hand missing and (Lt) radius bond also missing.
It has further been noted in the post-mortem examination report that only skeletal present on orbital/nasal and aural cavities findings. Immediate cause of death has been noted as "Asphyxia as a result of most probably due to Ante-mortem strangulation.""
21. Doctor who conducted the post-mortem examination of the deceased preserved the D.N.A. sample. It has also been noted in the report that on the dead body, a t-shirt, underwear, a cloth in the throat and 'Kalava' over palm were found which were kept in sealed bundle. Dr. Vipin Kumar who conducted the post-mortem has been examined as P.W.-4 and he has stated before the trial court that no rigor mortis was present in the dead body. The dead body was rotten, a flesh of face, neck and head was missing. Palm and radius bone of left hand missing. Eyes and tongue were also missing. He has further stated that the skin and flesh of neck and head were missing and there were contusions present on the posterior part of head- 8x6 cm. Head/Brain was rotten and magots were present there. In the neck one handkerchief was there. In the Rt side of chest there was a contusion of size 18x4 cm. On the Lt side of chest there was contusion of size 20x14 cm and 5-6 ribs were broken. On the right hand at inguinal region a contusion 18x16 cm was present which was going up to the thigh. He has further stated that in the left thigh above the knee joint a contusion of size 25x10 cm was present and in the genital region a contusion of 8x6 cm was present. This witness has proved the post-mortem report as Exhibit Ka-3 and has stated that cause of death was Asphyxia probably due to ante-mortem throttling. This witness has further stated that femur bone was preserved and sent in a sealed state along with the clothes found on the body and 'Kalava' were also handed over to the concerned constable. In the cross-examination this witness has stated regarding the injury found on the neck of deceased that nothing was possible to say about the injury found on neck because only bone was there. No estimation can be done of pressing the neck on the basis of a bone. He has further stated that remaining injuries found on the remaining parts of the body, which have been noted by him, were on the rotten parts. Both the soles of the feet were left. There were injuries on the legs above the knees and over both the thighs but below knees and soles, there were no marks. He has further submitted that Investigating Officer did not record his statement in this regard. This witness has further stated in his cross-examination that dead body which came before him for post-mortem examination was not identifiable. The dead body which was brought before him was rotten from neck to head. There was only one bone in the neck and there was one handkerchief tied over neck. He has further stated that he has written in the post-mortem report that cause of death is strangulation only on the basis of probability.
22. None of the appellants/convicts were named in the F.I.R. as there was no clue with the complainant to name them. The F.I.R. was registered as a missing report. No motive has been disclosed in the missing report nor any possibility of murder of the missing boy. On the basis of missing report, the Investigating Officer started investigation. P.W.1- Mihi Lal (the complainant) in his statement before the trial court has stated that after the missing report, the Investigating Officer came to his house on 10.11.2013 and inquired from him whether he found any clue about his son then he told the Investigating Officer that Arvind (accused/appellant) told him that the deceased used to talk on mobile phone with a girl resident of Gulzar Ka Purwa and her name was Shesh Kumari. The deceased received a phone call and probably he went there. He also stated that whatever was to be done, done. This witness has further stated that this was heard by his sister-in-law (Jokhawati) who was present at the time. This witness has identified Arvind Kumar Maurya, who was present in the court, as the person who told all this to him. This witness has further stated that he told all this to the Investigating Officer and remained indulged in search of his son. Thereafter on 12.11.2013 Investigating Officer called him at about 02:30 P.M. and asked him to come at the 'Chak road' of Gulzar Ka Purwa. He reached there. Thereafter the Investigating Officer reached there, after some time in a jeep. The accused Deepak and police personnel came down from jeep and Deepak moved forward and pointed out the well from where the dead body of his (complainant) son was recovered. Deepak also told that Arvind was with him in committing the murder. Thereafter, the dead body was taken out of well and inquest was done. This witness was present at the time of inquest and he signed over that as a Panch. He has further stated that from well the bicycle was recovered on the pointing out of the accused Deepak Kumar Yadav.
23. P.W.2- Jokhawati has also stated that after 7 days of the incident at about 3 P.M. Arvind came in front of his home and asked whether Anil came back when she told him that he did not come back then Arvind stated that whatever was to happen, happened and he also told that the deceased was talking on mobile phone with a girl resident of Gulzar Ka Purwa. This fact had come into the knowledge of the brothers of girl and they asked the deceased not to talk with the girl but the deceased did not pay heed. He further stated that Anil, while going told him that he was going to get the mobile recharged. This witness has further stated that at the time his brother-in-law (the complainant) was also present at the home. She has further stated that she has prior knowledge of the love affair between Anil Kumar (deceased) and the girl Shesh Kumari.
According to this witness (P.W.2) she was aware of the love affair between the Shesh Kumari and the deceased but there is nothing in the missing report about the same. On the record there is no evidence showing any connection between the deceased and the girl. It has been alleged that the deceased used to talk with a girl on mobile phone but no call details record were presented and proved by the prosecution to prove the motive of crime. Though it is not always necessary to prove motive because no one can peep into the mind of a miscreant, yet in the case based on the circumstantial evidence, the motive acts as a link in the chain of circumstantial evidence. Existence of motive gives support to the prosecution case based on circumstantial evidence. In this case the prosecution did not prove the motive of the case. There is no evidence to prove the motive of the crime.
24. The case of the prosecution is that during investigation, the Investigating Officer got the information that accused Deepak Kumar Yadav has committed murder of the deceased Anil Kumar and arrested him and he confessed that dead body was thrown by him in a well after committing the murder and Arvind Kumar Muarya was also present at the time of committing the crime. The dead body was recovered on the pointing out of the appellant Deepak Kumar Yadav from a well and the bicycle by which he went from the house was also recovered from another well situated at a distance of 400 metres, from the well from which dead-body was recovered.
25. The dead body was recovered after ten days when the deceased left his house and according to the doctor, who conducted the post-mortem of the dead body, the dead body was found in a rotten state. No flesh and tissue was present over face, neck and other parts of body except soles. The doctor has clearly stated in his statement before the trial court that the dead body was not identifiable. The complainant (father of the deceased) stated that he recognized the dead body of his son by his clothes. He has stated in the cross-examination that when the dead body was recovered there were t-shirt and jeans on the dead body, which the boy was wearing when he left the house. He has further stated that there was a mark on the neck of his son. P.W.3 - Moti Lal has been examined as a witness, he was present at the time of 'Panchayatnama' and he was one of the Panch. He has stated in his examination-in-chief that he saw the dead body which was mostly rotten. In the cross-examination this witness has also stated that the dead body was completely rotten. In his cross-examination this witness has also stated that when the dead body was taken out of the well, the deceased was wearing 'baniyan', 'kachchha', t-shirt and pants. The pants were of black colour. As far as the identity of the dead body is concerned, the doctor who conducted the autopsy has stated that the body has completely rotten except soles and he found on the body a t-shirt, 'banyan', 'kalava' and underwear. There was no mention of any pants/jeans while the father of the deceased examined as P.W.1 has stated that at the time of recovery of dead body a jeans were there and witness P.W.3- Moti Lal has stated that on the dead body a black colour pants were there.
Admittedly the body was rotten and was not identifiable with face or other parts. Only soles were left/remained. In such circumstances, the identity of the body is not proved beyond reasonable doubt. The doctor in his statement has already stated that he has written the cause of death as a probability because he has found a cloth tied on the bones of neck.
26. In the light of above analysis the case of prosecution cannot be deemed to be proved beyond reasonable doubt. Further more the D.N.A. sample was preserved but no D.N.A. test was conducted to ascertain the identity of the dead body.
27. All the above facts and circumstances show that chain of circumstances is not complete. Missing report was lodged after seven days of leaving the house by the deceased. There is no mention in the report that anything was told by Arvind Kumar Maurya to Jokhawati. There is no evidence on record to establish the love affair between the deceased and the girl Shesh Kumari, hence, it cannot be said that the prosecution has proved the case against the accused/appellants beyond reasonable doubt. Both the accused/appellants deserve the benefit of doubt to be given.
28. Accordingly, both the appeals i.e. CRIMINAL APPEAL No. - 435 of 2016 and CRIMINAL APPEAL No. - 407 of 2016 are allowed. The impugned judgment and order dated 29.02.2016 is hereby set-aside.
29. The accused/appellant Arvind Kumar Maurya is already on bail, his bail bonds are cancelled and sureties discharged. The accused/appellant Deepak Kumar Yadav is in jail. The accused/appellant Deepak Kumar Yadav shall be released from jail forthwith if not required in any other criminal case.
30. The convicts/appellants Deepak Kumar Yadav and Arvind Kumar Maurya are directed to file personal bonds and two sureties each in the like amount to the satisfaction of the court concerned in compliance with Section 437-A of Cr.P.C.
31. Office is directed to send a copy of this order along with lower court record to the trial court concerned for necessary information and compliance forthwith.
(Mrs. Saroj Yadav, J.) (Ramesh Sinha, J.) Order Date :- 06.09.2022 S. Shivhare