Allahabad High Court
Hannu Alias Sonu Alias Abhai Singh And ... vs State Of U.P. on 2 November, 2022
Author: Rajiv Gupta
Bench: Anjani Kumar Mishra, Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 16.9.2022 Delivered on 2.11.2022 Court No. - 46 Case :- CRIMINAL APPEAL No. - 3518 of 2014 Appellant :- Hannu @ Sonu @ Abhai Singh And Anr. Respondent :- State of U.P. Counsel for Appellant :- Mithilesh Kumar Shukla,Avanish Kumar Shukla,Rajesh Kumar Srivastava,Virendra Kumar Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Anjani Kumar Mishra,J.
Hon'ble Rajiv Gupta,J.
(Delivered by Hon'ble Rajiv Gupta, J) Heard Ms. Seema Pandey, learned Amicus-curiae for the appellant, learned AGA for the State and perused the record.
This criminal appeal has been filed against the judgment and order dated 29.3.2014 passed by Addl. District and Sessions Judge/Special Judge (Dacoity Affected Area), Court No. 19, Agra in S.S.T. No. 69 of 2002 (State Vs. Hannu @ Sonu @ Abhai Singh and another) arising out of Case Crime No. 24 of 2002, under Sections 302, 364-A, 201 IPC, P.S. Lohamandi, District- Agra, whereby the accused appellants have been convicted for the offence under Sections 302 IPC and awarded the sentence of life imprisonment with a fine of Rs. 30,000/- each and in default of payment of fine, to further undergo five months additional rigorous imprisonment, under Section 364-A IPC and awarded the sentence of life imprisonment with a fine of Rs. 30000/- each and in default of payment of fine, to further undergo five months additional rigorous imprisonment and under Section 201 IPC and awarded the sentence of three years rigorous imprisonment with a fine of Rs. 5000/- each and in default of payment of fine, to further undergo one month additional rigorous imprisonment. All the sentences have been directed to run concurrently.
It has been informed that appellant No. 2- Amit @ Meenu had already expired and as such, the instant appeal as against him has been abated vide order dated 20.9.2019.
As per the prosecution case as unfolded in the first information report lodged by one Mahendra Agarwal (P.W.-1) vide written report Exbt. Ka-1 dated 27.1.2002, which was registered vide Case Crime No. 24 of 2002, under Sections 364-A IPC in Police Station- Lohamandi, District-Agra vide G.D. Report No. 4 at 1:30 A.M. (Exbt. Ka-8) and the check FIR (Exbt. Ka-7) prepared by P.W.-6 at relevant date and time. The allegations made in the first information report are that on 26.1.2002 in the evening at about 6 P.M., his son Golu @ Nitin aged about 5 years was found missing. Information in respect of which, was given by him at Police Station- Lohamandi and thereafter, he continued to make his search. It is further alleged that in the night at about 10:25 P.M., a telephone call by some unknown person was received at his house, who stated to arrange a sum of Rs. 20 lacs, to get back his son. By the said fact, it is evident that his son, has been kidnapped for the purposes of ransom.
The said FIR was registered on 27.1.2002, in presence of the S.H.O., Lohamandi, who took over the investigation and recorded the statement of the first informant and on his pointing out, inspected the place of incident and tried to trace out the person, who had kidnapped the victim's son at probable places and thereafter, recorded the statement of witnesses.
On the said date at about 2 P.M., an information was received in P.S. Lohamandi on R.T. Set, that in the jungle at Village- Mithauli, Vayu Vihar, by the side of the road, under the culvert, a dead body of a child has been recovered and Incharge Inspector, Shahganj had reached the site of incident. On getting the said information, the Investigating Officer alongwith first informant Mahendra Agarwal and his elder brother Ashok Kumar reached there and identified the dead body to be that of his kidnapped son Golu @ Nitin.
A written information about the recovery of the dead body was given by one Satyaveer in Police Station Shahganj stating therein that the dead body of a child has been found in the field of one Ramesh Chandra Sharma. On the basis of said written information, G.D. report No. 4 at 3:15 was drawn. On the basis of said information, Sri R.K. Singh, S.H.O., Police Station- Shahganj reached the place of incident and conducted the inquest, which has been marked as (Exbt. Ka-3) and thereafter, body of the deceased was sealed and despatched for autopsy.
An autopsy was conducted on the person of the deceased Golu @ Nitin in Sarojini Naidu Hospital, Agra on 27.1.2002 at 5:15 P.M. In the post-mortem report, the doctor has noted the following injuries :-
1. Incised wound 6 cm" x 1 cm x muscle deep upper part, front of neck, both sides.
2. Incised wound 3 cm x 0.5 cm x muscle deep on the left side of the neck just below injury No. 1 margin clear cut.
3. Incised wound 10 cm x 6 cm x cavital deep on the left side of the neck margin sharp edged.
4. Incised wound 5 cm x 0.5 cm x muscle deep behind left ear.
5. Incised wound 5 cm x 1 cm x bone deep on the front of left wrist.
6. Incised wound 5 cm x 1 cm x bone deep front of Right forearm near to Right wrist.
7. Multiple Incised wound around the right leg lower part except medial side size average .4 cm x 0.5 cm x muscle deep 2 cm above lateral malleolus. Margins of all injuries are clean cut.
Cause of death has been noted to be syncope as a result of ante-mortem injury.
The said post-mortem report has been marked as Exbt. Ka-2. P.W.-5 R.K. Singh has drawn the sketch map of the place, where the dead body was found, which has been marked as Exbt. Ka-11.
The Investigating Officer thereafter recorded the statement of relevant witnesses.
On 29.1.2002, on the basis of information given by the informer, the Investigating Officer arrested the appellant Hannu @ Sonu @ Abhai Singh and recorded his statement and on his pointing out is shown to have recovered the blood stained shirt of the co-accused Meenu @ Amit and prepared a fard recovery memo, copy of which has been marked as Exbt. Ka-12 and on 7.2.2002 obtained proclamation under Section 82/83 Cr.P.C. against other appellant Meenu @ Amit, who was ultimately arrested by the police on 6.3.2002 and sent to jail. The Investigating Officer, thereafter, recorded the disclosure statement of the co-accused Amit and on 16.3.2002, obtained police custody remand of the co-accused Meenu @ Amit and got recovered a blood stained knife at his pointing out and prepared its recovery memo, copy of which has been marked as Exbt. Ka-14. The recovered blood stained knife was then sent for forensic examination and after getting its report, concluded the investigation and submitted the charge-sheet against the appellant alongwith other co-accused on 20.3.2002 under Sections 364-A, 302, 201 IPC in the court of Special Judge (Dacoity Affected Area), who took cognizance of the offence and registered the case as Special Sessions Trial No. 69 of 2002 (State Vs. Hannu @ Sonu @ Abhai Singh). The Special Judge (Dacoity Affected Area) vide his order dated 22.7.2002 framed the charges against both the accused persons under Section 364-A, 302, 201 IPC. The accused appellant did not plead guilty and claimed to be tried.
During the course of trial, the prosecution in order to bring home the guilt against the appellant, examined as many as five witnesses of fact and five other formal witnesses, their testimony, in brief, is enumerated below :-
P.W.-1 Mahendra Agarwal is the first informant and father of the deceased. He, in his examination in-chief, has stated that two accused persons Hannu @ Sonu @ Abhai Singh and Meenu @ Amit were very well known to him, even prior to the incident. The incident is dated 26.1.2002. It is further stated that in outer portion of his house, there are five shops and in one of these shops, he used to carry on his business. The accused person Hannu @ Sonu @ Abhai Singh is his neighbour and very often used to visit his house. On the date of incident at about 6 P.M., he had given a ten rupee note to accused Hannu @ Sonu @ Abhai Singh to bring cottage cheese (paneer) and gold-mohar. He brought the cheese and gold-mohar and delivered it to him. He gave the cottage cheese to his son Golu @ Nitin, aged about five years and asked him to give it at his home. Golu @ Nitin after giving the cheese to his mother again came out, however after sometime, he was not to be seen. The said witness tried to search him in the nearby colony, however, he was not traced out.
At about 9:00 P.M., he visited the police station and gave a missing report in Police Station- Lohamandi. At about 10:30 P.M., a telephone call was received at his house, which was attended by his wife Anita and sister-in-law Pinki. On the phone call, some unknown person stated that his son Golu @ Nitin is with him and asked to arrange a sum of Rs. 20 lacs. When the aforesaid facts was disclosed to him by his wife and sister-in-law, then he was assured that his son has been kidnapped by some miscreants. He, thereafter, gave a written report in Police Station Lohamandi, Agra, which is marked as Exbt. Ka-1. On the basis of the said written report, a FIR was registered.
It has been further stated that on 27.1.2002, he was informed by the police of Police Station Lohamandi, that dead body of a child, has been recovered in village- Pithauli, Vayu Vihar colony and was asked to identify it. On the said information, he alongwith his brother, went there and found that the dead body, was that of his son Golu @ Nitin. There were number of injuries on his person.
During cross-examination, the witness stated that he had gone to the police station at about 6:00 P.M. and gave a missing report, however, he does not know if the said missing report is available on record.
It is further stated that the factum of receiving a phone call at 10:30 P.M., was disclosed to him and thereafter, he gave a written report in police station- Lohamandi, Agra. The phone call was attended by his wife and sister-in-law and the same was disclosed to all the family members and the neighbours.
He has categorically stated that the factum of receiving a phone call demanding ransom was disclosed to Om Prakash Yadav and Kimti Lal, in the evening itself, then corrected himself and stated that the same was disclosed in the morning. He has further categorically stated that he had not seen his son Golu @ Nitin going alongwith appellant Hannu @ Sonu @ Abhai Singh.
To quote "मैने अपने बेटे नितिन उर्फ गोलू को हन्नू उर्फ सोनू के साथ जाते हुए नहीं देखा।"
It is further stated that the dead body of a child was recovered and he identified the same, to be that of his son, Golu @ Nitin. The Investigating Officer prepared the recovery memo and the inquest, which was signed by his brother, who too went with him. He further stated that the recovery of knife and cloth were made before him. On being questioned, if Subhash Chand, Om Prakash and Kimti Lal Jain reached his house on getting information regarding the phone-call at his house, he categorically stated that he does not remember the said fact. He, however, denied the suggestion that Hannu and Amit are not related to the incident and he is falsely deposing against them in the court. He further denied the suggestion to falsely implicate them as they used to oppose his act of gambling.
P.W.-2- Om Prakash Yadav is another witness, who stated that Mahendra Agarwal and his son Golu @ Nitin aged about 5 years, were well known to him as he very often used to visit his house. He has further stated that accused Hannu is also known to him, who used to reside 5-6 houses away from his house and very often used to visit the house of Mahendra Agarwal. Co-accused Amit @ Meenu was also well known to him, who used to work in a bakery and is infact, the son of maternal aunt of Hannu.
It is further stated that on 26.1.2002 at about 6:00 - 6:15 P.M., he had seen Golu @ Nitin son of Mahendra Agarwal standing at bagichi alongwith accused Hannu@ Sonu @ Abhai Singh and Amit @ Meenu at the turning of his house, however, no suspicion was then raised as they very often used to play with the child. On the next day, when he came to know about kidnapping of the child, he disclosed the said fact to the police and stated that on 26.1.2002, he had seen the child alongwith accused persons and thereafter, he had not seen him alive and on 27.1.2002, his dead body was found.
During the course of cross-examination, he has stated that factum of kidnapping of Golu @ Nitin was disclosed on 26.1.2002 at about 6:00 - 6:15 P.M. in bagichi, where Amit and Hannu were also present and the child was in their lap and they had gone to buy gold-mohor. He has further stated that he met Mahendra Agarwal at 6:00 - 6:15 P.M. but he did not disclose him anything regarding kidnapping of his child.
During further cross-examination, he has stated that he had seen Hannu and Meenu at the feast. He had gone to the police station on 27.1.2002 and informed the police. He has further stated that he had seen Golu @ Nitin in the lap of Hannu whereas Meenu was standing 4-5 paces away from him. Alongwith Hannu and Meenu, 8-10 other persons were also standing making purchases at the grocery shop. The said shop was one of Satish. He has further stated that at about 8 P.M., he had seen accused appellants Meenu and Hannu in a feast, where they stayed for about 45 minutes till 8 P.M. He has denied the suggestion that he had not seen Hannu and Meenu and has falsely deposed against them.
P.W.-3- Kimti Lal Jain has stated that he is well known to the accused persons. Accused Meenu @ Amit used to work in a bakery whereas accused Hannu is living in the same colony. It has been further stated that on 26.1.2002 at about 7:00-7:15 P.M., he was standing at the Kedar Nagar Crossing, waiting for a vehicle, where he saw the appellant Meenu @ Amit riding a motor-cycle and co-accused Hannu @ Sonu @ Abhai Singh was in its pillion and in between the two, Golu @ Nitin aged about 5 years son of Mahendra Agarwal was sitting. However then, no suspicion was raised as very often they used to play with the boy Golu. The assailants went towards the Prithvi Nath Gate. On the next day i.e 27.1.2002, he had disclosed this fact to the Investigating Officer.
It is further stated that he had last seen Golu in the company of the assailants and thereafter, he was not seen alive. Despite opportunity being given to the defence, the said witness has not been cross-examined.
P.W.-4- Dr. Ashok Kumar Yadav is the doctor, who had conducted the autopsy on the person of deceased and proved the autopsy report and contents thereof. The autopsy report is marked as Exbt. Ka-2.
During cross examination, he has stated that the autopsy was conducted on the person of the deceased on 27.1.2002 at 5:15 P.M. He has further stated that the process of decomposition on the person of the deceased, whose autopsy was conducted, had not started. Time of death has been noted to be ¾ day. It is further stated that his statement was not recorded by the Investigating Officer and injuries found on the person of the deceased cannot be caused by penetration of any wire but could be caused by some sharp object.
P.W.-5- Rajesh Kumar Singh is the police constable, who conducted the inquest on the person of the deceased. He has further stated that an information about the finding of a dead body, in the field of one Ramesh Chandra Sharma, below the culvert, was given by one Satyavir Singh at Police Station- Shahganj. On the basis of the said information, he reached the place of incident alongwith the police personnel and had found the dead body of a child lying below the culvert. On the basis of information given on the R.T. Set, the family members of the deceased reached at the said place and identified the dead body. He then conducted the inquest and prepared the recovery memo of plain earth and blood stained earth and also found an empty wrapper of a Vijai mark blade and slipper of the deceased Nitin. The fard recovery memos were accordingly drawn. The inquest has been proved by the said witness and has been marked as Exbt. Ka-3, whereas photo-nash and challan-nash was marked as Exbt. Ka-4 and Ka-5, which has also been proved by the said witness in the court. An opportunity was given to the defence to cross-examine the said witness, however he has not been cross-examined.
P.W-6- Raj Nath Singh is the head constable, who on the basis of written report given by P.W.-1 Mahendra Agarwal had drawn the check FIR alongwith corresponding G.D. entry No. 4 at 1:30 A.M. on 27.1.2002 and the carbon copy of the check FIR, which has been marked as Exbt. Ka-7 and Exbt. Ka-8 respectively.
During his cross examination, he has submitted that check FIR was not sent by him to the Court. P.W.-1 Mahendra Agarwal had come alone alongwith a written report. He has further stated that it is not within his knowledge whether any missing report was lodged or not.
P.W.-7 constable Pratap Singh is the police personnel, who has drawn the G.D. on the basis of the written report of one Satyavir Singh stating therein that a dead body of 5 - 6 years old child has been found lying in the field of Ramesh Chandra Sharma. On the basis of said information, G.D. entry No. 40 at 3:15 P.M. was drawn and on the basis of which, inquest and other proceeding was conducted by the police personnel. The check FIR has also been drawn, which has been marked as Exbt. Ka-9. Despite opportunity being given to the defence to cross examine the said witness, no cross examination has been made.
P.W.- 8- Smt. Anita is the mother of the deceased and she in her statement recorded during the course of trial has stated that on 26.1.2022 at about 6:00 P.M., she had given 10 rupee note to her son for getting cottage cheese and gold-mohor, which was brought by him and thereafter, he left. He has further stated that she had not seen his son going alongwith Hannu.
It is further stated that at about 10-10:30 P.M. in the night, a phone call was received which was attended by his niece Sona, who was asked to pay a sum of Rs. 20 lacs. She had snatched the phone from Sona and identified the voice of Hannu. Thereafter, the phone was taken by her sister-in-law Pinki, who assured him to pay Rs. 20 lacs and the child be returned. The phone was then disconnected. Thereafter, no further phone call was received. She enquired the whereabouts of her child in her coloney and tried to search him. She has further stated that when Golu @ Nitin was at his home, then Hannu was also at his home. Thereafter, neither whereabouts of Golu was known, nor that of Hannu. On the next day, a phone-call was received from the police station and her husband and brother-in-law had gone to Pithauli. After the kidnapping of the child, he was never seen alive. It is further stated that Hannu and Meenu were infact responsible for kidnapping of her child.
She has further stated that by the time, her husband had gone to lodge a report, there was no conversation between them. He was at the house in between 26.1.2022 and 27.1.2022 till 1:30 A.M. On 26.1.2022 at about 10:30 P.M., when phone call was received, then her husband was sitting with the male persons, who had assembled there and she had disclosed the factum of phone call made by Hannu to her husband. The said information was given through her sister-in-law Pinki.
During her cross-examination, she stated that P.W.-2 Om Prakash is residing at a distance of 7-8 metres from her house. She has further categorically stated that immediately after the incident, the factum of kidnapping of Golu was disclosed to Om Prakash Yadav. Hannu is residing at a distance of 8 metres from his house and Meenu works in a bakery adjacent her house.
During her cross examination, she further stated that she had sent Golu @ Nitin to bring cottage cheese at 7:30 P.M. then corrected her and stated at 6:30 P.M. After 20-25 minutes, she started searching for him, she came to know about missing of Golu @ Nitin at about 7:45 P.M. and she had disclosed this fact within 15-20 minutes to her husband. The factum of identification of voice of Hannu on telephone was disclosed by her, to her sister-in-law and thereafter, to her husband. The time when her husband had gone to lodge the report is not known. Her son, at the relevant time, was studying in L.K.G in Holy Public School, Kailadevi, where he used to go on tempo. The registration number of which is not known to her. She has further stated that name of co-accused Meenu was disclosed on the basis of suspicion. Hannu had in fact disclosed that Meenu was also with him, however later, resiled from the said statement.
She has further categorically stated that on the date of incident, she had not seen her son Golu in the company of Hannu and Meenu. She denied the suggestion that gambling activities used to take place in her house, which was opposed by the neighbours. She further denied the suggestion that Hannu and Meenu were also opposing the act of gambling at her house and in the backdrop of the said fact, Hannu and Meenu has been falsely implicated, however, the fact remains that no gambling activities were carried out at her house.
P.W.9- Subhash Chandra Trivedi is another witness of fact. During the course of trial, he stated that he is known to Mahendra Agarwal, whose son was kidnapped. Information about his killing was disclosed to him on the next day. He has further stated that he was a partner in the bakery of one Munnu and he was known to Meenu @ Amit as he used to work in the said bakery, which was in front of his house. He has further submitted that Hannu and Meenu used to live in Punia Pada and very often used to visit the house of Mahendra Agarwal and used to play with his son Golu @ Nitin. He has further categorically stated that on the date of incident, he had not seen Meenu and Hannu taking away Golu @ Nitin on a bicycle. He was therefore declared hostile.
During cross-examination, he denied to have given any statement to the police, on his attention been drawn to his statement shown to be recorded under Section 161 Cr.P.C., he denied to have given any such statement to the police. He denied the suggestion that on account of fear of the accused persons, he is not disclosing the true facts or had entered into a compromise with them. He further categorically stated that he has no knowledge regarding the involvement of either Hannu or Meenu in the instant case nor even heard of their involvement. He also denied the suggestion of being an eye witness of the incident on 26.01.2002.
P.W.-10- Dharmendra Singh Sirohi is the Investigating Officer. He proved various stages of investigation and had inspected the spot and recorded the statement of witnesses and prepared the site plan, from where dead body was recovered as well as the recovery memo of the dead body, which has been marked as Exbt. Ka-10 and Exbt. Ka-11. He is said to have arrested the accused Hannu @ Sonu @ Abhai Singh on 29.1.2002 who got recovered a blood stained shirt of co-accused Meenu @ Amit lying at the back of the wall on the north side of the road and prepared its recovery memo, which is marked as Exbt. Ka-12, which has been sent for forensic examination. On 6.3.2002, he is shown to have arrested the other accused Meenu @ Amit and after taking the police custody remand of Meenu @ Amit, he got recovered blood stained knife from his house and prepared its recovery memo and proved the same, which has been marked as Exbt. Ka-14.
During cross-examination, he stated that the case was registered in his presence at 1:30 A.M. and investigation of which, was taken over by him. He has further stated that during the course of Investigation, factum of receiving phone-call, on the land-line, was disclosed to him, however, it was not possible for him to trace it out.
During the course of interrogation of the first informant, he had not disclosed, the name of the person, who had made the phone call. However, his wife had raised a suspicion that the voice of the person, who made the phone-call was that of Amit @ Meenu. During the course of investigation, witnesses Om Prakash Yadav, Subhash Chandra Trivedi and Kimti Lal Jain had disclosed, that they had seen Nitin @ Golu going in the company of Hannu and Meenu.
During the course of investigation, Kimti Lal Jain had disclosed him that at about 7:00 - 7:15 P.M near Kedar Nagar Crossing, he had seen Nitin @ Golu in the company of the accused persons riding a motor-cycle, however, its registration number was not disclosed and the same was also not recovered. By the time, he submitted the charge sheet. Forensic report was not received and recovery of shirt and knife was made before independent witnesses. He denied the suggestion that accused Hannu and Amit had not killed Golu @ Nitin after kidnapping him for ransom.
He further denied the suggestion that the accused persons have not caused disappearance of evidence of an offence committed. He also denied the suggestion that he has submitted false charge-sheet by preparing false recovery memos.
After concluding his statement, the statement of accused under Section 313 Cr.P.C. has been recorded by putting all the incriminating circumstances to him. The appellants denied the incriminating circumstances and claimed that they have been falsely implicated.
In his defence, he got examined one Harish Sharma (D.W.-1), who in his statement has categorically stated that Amit and Hannu are well known to him. His grand mother died on 18/19-1-2002 at about 5-6 P.M. and her 13th day ceremony was held on 26.1.2002. For attending the same, Amit and Hannu had left their house on 26.1.2002 at about 4:00 P.M. and both stayed in his village in the intervening night between 26.1.2022 and 27.1.2022 and left the village in the morning at about 10:00 A.M. and during this period, they remained present with him.
During cross examination, he stated that Amit is his next door neighbour and Hannu is the son of his maternal aunt. He further stated that on 26.1.2002, 13th day ceremony of his grand mother was held in his village, in which, they both partcipated. He has further stated that her grand mother died on 18/19.1.2002 in the evening at 5:00 - 6:00 P.M. and her 13th day ceremony was held on 26.1.2022 and mundan was held on 21.1.2022 and six days thereafter, the feast (bhandara) was organised, which continued from 4:00 P.M. to 8:00-9:00 P.M. and the accused persons were present with him for the arrangement being made for the feast and thereafter during night hours they stayed with him till 10:00 A.M. and as such the presence of appellant at the place of incident on 26.1.2002 is highly doubtful.
The trial court after appreciating the evidence and material on record, has held that the case is based on circumstantial evidence, but the prosecution has successfully proved the case against the appellant by relying upon the testimony of Om Prakash Yadav (P.W.-2) and Kimti Lal Jain (P.W.-3), who are said to have "last seen" the appellant in the company of the deceased and thereafter, child was not seen alive by anyone.
The trial court has also relied upon the testimony of police witnesses leading to recovery of shirt of the co-accused Amit at the pointing out of the appellant- Hannu and the knife shown to have been recovered at the pointing out of the co-accused Amit, which finds support from medical evidence. The chain of circumstance stood complete indicating beyond reasonable doubt that it was the accused appellant and none other who committed the murder after kidnapping the deceased for ransom. The explanation tendered by appellant was found inadequate and false and as such he is liable to be convicted.
Learned Amicus-curiae for the appellants has submitted that the present case is based on circumstantial evidence and has stated 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, however, 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. Meaning thereby 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.
Recently, the Apex Court in Criminal Appeal No. 378 of 2015, Chandrapal (Earlier M.P.) Vs. State of Chhattisgarh, has categorically held that in absence of any other links in the chain of circumstantial evidence, the accused cannot be convicted solely on the basis of "last seen" together, even if version of the prosecution witness in this regard is believed. In the said case the Hon'ble Apex Court has also relied upon the case of Jaswant Gir Vs. State of Punjab reported in (2005) 12 SCC 438, wherein the said principle was laid.
In the instant case, deceased was seen to be in company of the accused appellants boarding a vehicle Van No. CHK 8479 on 10.11.1997 at 7:30 P.M. and the dead body of the deceased was found near the culvert on the morning of 11.11.1997 at 7 A.M. The Apex Court held that even assuming that the deceased did accompany the accused in their vehicle, this circumstance by itself does not lead to the irresistible conclusion that the appellant and his companion had killed him and thrown the dead body in the culvert. It cannot be presumed that the appellant and his companions were responsible for the murder, though grave suspicion arises against the accused. There is considerable time-gap between the deceased boarding the vehicle of the appellant and the time when PW 11 found the dead body. In the absence of any other links in the chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of the "last seen" evidence.
Learned Amicus-curiae for the appellants has further submitted that 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 vs. 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 up to 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 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 Crl 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."
It is also 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.
Learned Amicus-curiae further relied upon a case reported in (2010) 8 SCC 593 G. Parshwanath Vs. State of Karnataka, wherein it has been held as under :
"23. 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 on the one hand and inference of facts to be drawn from them on the other. 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 fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
Learned Amicus-curiae for the appellants has next submitted that the trial court while recording the finding of conviction against the accused, has placed implicit reliance upon the last seen theory of P.W.-2 and P.W.-3 but "last seen" does not by itself necessarily lead to an inference that accused committed the crime. There should be something more establishing the connectivity between the accused and the crime. Mere non explanation on the part of the accused by itself cannot lead to the proof of guilt against the accused. Therefore "last seen" together itself is not a conclusive proof but alongwith the other circumstances surrounding the incident like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused non explanation of death of the deceased may lead to presumption of guilt. However, in the instant case even the "last seen evidence" in the form of statements of P.W.-2 and P.W.-3 is highly shaky and liable to be discarded. Particularly in view of the fact that both P.W.-2 and P.W.3 are chance witnesses. P.W.-2, in his statement has stated to have seen the deceased in the company of the appellant Golu at 6 - 6:15 P.M. when even according to the prosecution own case he had gone to purchase the cottage Cheese and Gold-Mohor. The said witness during cross examination has further stated that he had again seen the said two accused persons at the feast where they stayed till 8 P.M., however at the relevant time Golu was not in their company.
The factum of "last seen evidence" tendered by the said witness is also falsified from the circumstances that he came to know about the factum of kidnapping of victim in the night on 26.1.2002 itself as evident from the statement of P.W.-1 and P.W.-8 father and mother of the deceased yet he did not disclose the factum of "last seen evidence" in the company of the appellants either to his father or her mother and only on the next day i.e. 27.1.2002 discloses this fact to the police which renders the "last seen evidence" of P.W.-2 highly doubtful and not worth credence.
Similarly, the "evidence of last seen together" by P.W.-3 Kimti Lal Jain also do not inspire confidence at all, particularly, in view of the fact that he is alleged to have seen the appellant in the company of deceased on 26.1.2002 at about 7- 7:15 P.M. Admittedly, it was winter season and at the relevant time it was quite dark. The said witness at the relevant time was standing at Kedar Nath Crossing waiting for a vehicle, when the accused persons riding a motor-cycle alongwith the deceased came there. Accused Meenu, driving the vehicle and the appellant Hannu on its pillion with Golu sitting in between them and they went towards Prithvi Nath Gate. The manner and the time when the said witness is said to have "last seen" the victim alongwith the appellant is highly doubtful particularly on two counts. At the first place the said witness is merely a chance witness waiting for a vehicle, even the destination, where he had to go by boarding the vehicle has not been stated, moreover the manner, in which, the appellant while passing through the said crossing is said to have been precisely identified by the said witness that too in the dark hours of night, is too far fetched to be believed.
The trial court has held that the said persons could well be identified by P.W.-3 Kimti Lal in the light of the motor-cycle following them but such finding of the trial court does not stand to reason and is infact based on surmises and conjectures. The falsity of the said "last seen evidence" together is also evident from the circumstances that the said witness is said to have last seen them at 7.00-7.15 P.M. On 26.1.2002 and in the night itself or in any case in the next morning on 27.1.2002 the factum of kidnapping of the victim was disclosed to the said witness as is evident from the statement of P.W.-1 Mahendra Agarwal, where he has categorically stated that the factum of phone call demanding ransom on 26.1.2002 at 10:30 P.M. was disclosed to him and all his family members and even to the neighbours including Om Prakash P.W.-2 and Keemtilal Jain P.W.-3 and Narendra Prasad.
To quote "फोन की जानकारी मेरे घर में मुझे व घर के सभी सदस्यों को हो गयी थी व मोहल्ले में भी हो गयी थी। अपहरण के फोन के समय ही साथी ओमप्रकाश यादव कीमती लालजैन व नरेन्द्र प्रसाद को जानकारी हो गयी थी। फिर कहा कि सुबह जानकारी हो गयी थी।"
Still the said witness who states to have seen his son in the company of the accused persons at 7-7:15 P.M. at Kedar Nath Crossing riding a motor-cycle and going towards Prithvi Nath Gate, was not disclosed to the parents of the victim deceased at all and only on the next day, the said fact was disclosed to the Investigating Officer, however even to him, registration number of vehicle was not disclosed and as such, the said motor-cycle also could not be recovered.
Thus, in the backdrop of the aforesaid circumstances, the testimony of "last seen evidence" tendered by P.W.-3 is non worth credence and is liable to be discarded outrightly and the appellant is liable to be acquitted.
Learned Amicus-curiae for the appellants has further submitted that the factum of demand of ransom of Rs. 20 lacs, by making a phone-call, which was received by Soni, niece of P.W.-8 and later heard by P.W.-8- Anita, mother of the deceased, who is said to have identified the voice of appellant- Hannu has also not been proved beyond doubt as even according to the statement of P.W.-8 Anita, the factum of receiving a call for ransom and identifying the voice of Hannu on the said call was disclosed by the said witness to her husband Mahendra Agarwal and thereafter, he is said to have lodged the first information report but in the said report, there is not a whisper that a phone-call making demand of ransom of Rs. 20 lacs was made in the voice of appellant- Hannu, rather in the first information report, it is stated that at about 10:25 P.M., a phone-call was made by an unknown person making demand of ransom of Rs. 20 lacs. Had the fact of recognizing the voice of appellant- Hannu making the demand of ransom on phone-call been identified by mother of the deceased and disclosed to her husband this fact would have certainly been mentioned in the first information report itself. Absence of which, creates a serious doubt about the veracity and genesis of the prosecution case, particularly in respect of demand of ransom, which is said to be the motive of the incident.
Furthermore, the Investigating Officer (P.W.-10) in his cross examination, has categorically stated that during the course of investigation, Anita, wife of first informant had raised a suspicion that, the voice on phone, making demand of ransom was that of Amit @ Meenu and not of Hannu, which again creates doubt about the veracity of the prosecution story regarding receiving of phone-call demanding ransom.
Learned Amicus curiae for the appellants has next submitted that absolutely no recovery whatsoever has been made either from the possession or at the pointing out of the appellant- Hannu, which is connected with the incident of the instant case. The recovery of blood stained shirt, which is shown to have been made at the pointing out of the appellant- Hannu is admittedly that of co-accused- Amit and does not at all connect him with the present case. Even the recovery of blood stained knife, which is alleged to be used in the incident, has been recovered at the pointing out of the co-accused Amit and in no way connected with the involvement of the appellant in the present case, which further creates serious dent in the prosecution story. However, the trial court despite the fact that chain of evidence is not complete in the present case, yet on the basis of surmises and conjectures, has recorded the finding of conviction against the appellants, which is wholly illegal and liable to be set aside.
Per contra, learned AGA has submitted that there is clinching "last seen evidence" against the appellants in the form of statement of P.W.-2 and P.W.-3, which the appellants has not been able to contradict, as such they are liable to be convicted under Section 302 IPC. Further-more from the testimony of P.W.-8, the voice of appellant- Hannu, making the demand of ransom on phone call, which was attended by P.W.-8 has been identified and as such, the offence under Section 364-A IPC also stands proved against him and the trial court has rightly convicted the appellants under Section 364-A IPC.
Learned AGA has further submitted that the recoveries made at the pointing out of the appellant also establishes the prosecution case against him and he has been rightly convicted by the trial court.
Having considered the rival submissions made by learned counsel for the parties and taking into consideration all the facts and circumstances of the case, we find that in the instant case, incriminating circumstance, on which, the prosecution has placed implicit reliance does not fulfil five golden principles, which are required to be proved for recording the finding of conviction against the appellants. The four circumstances, on which, trial court has placed implicit reliance while recording the finding of conviction against the appellants are : -
(1) "Last seen together" evidence of P.W.-2 and P.W.-3, (2) Recoveries made from the accused persons, (3) Phone call received by P.W.-8 Anita, making demand of Rs. 20 lacs as ransom, (4) Appellant was responsible for causing disappearance of the offence committed, as such liable for commission under Section 201 IPC.
So far as theory of "last seen evidence" of P.W.- 2 and P.W-3 is concerned, we are of the view that their testimonies do not inspire much confidence and are liable to be discarded. The reason being :
P.W.-2 Om Prakash Yadav is said to have "last seen" the deceased in the company of the appellant at about 6- 6:15 P.M. while he was at his home. Admittedly, as per the prosecution own case as narrated, P.W.-1 Mahendra Agarwal is deceased father and P.W-8 is deceased mother. It is evident that at 6- 6:15 P.M., P.W.-1 had given a ten rupee note to the appellant- Hannu for bringing cottage cheese (paneer) and gold-mohor and when he delivered the said cottage paneer and gold-mohor to him, then he had asked his son Golu to take the cottage cheese (paneer) at his home. Thus, at about 6- 6:15 P.M. the victim was admittedly in the company of the appellant alongwith his father, however till then, he had not been kidnapped, therefore "the last seen evidence together" of P.W.-2 at 6- 6:15 P.M. Is not of much significance. The said witness has further stated that he had seen two accused appellants at the feast at about 8 P.M., however at the relevant time, the victim Golu was not in the company of the accused appellant. Furthermore, the factum of "last seen together evidence" given by P.W.-2 is further falsified from the circumstance that at about 10:30 P.M. a phone-call demanding ransom was received at the house of P.W-1 and then he was assured that his son has been kidnapped for ransom, which was disclosed to all his family members and also to his neighbours.
P.W-1, in his cross examination, has categorically stated that factum of phone-call demanding ransom was also disclosed to P.W-2 Om Prakash Yadav, P.W-3 Kimti Lal and Narendra Prasad, however despite the said knowledge, the said witness did not disclose to either of his parents that at about 6- 6:15 P.M., he had seen the victim Golu in the company of Hannu and Amit and only on the next day, the factum of "last seen evidence" was disclosed only to the I.O. Had the fact of "last seen together" been true, then certainly P.W-2 Om Prakash Yadav, who was having knowledge of the fact of kidnapping of the victim on 26.1.2002 itself must have disclosed the said factum to his parents. Non disclosure of the said fact creates a serious dent in the prosecution story and makes the testimony of P.W-2 highly doubtful and not worth credence. It is further germane to point out here that P.W.-8 Anita in her cross examination has categorically stated that ^*?kVuk ds ckn eSus vM+ksl&iM+ksl esa iwNrkWN dh Fkh vkse izdk'k ;kno dks ?kVuk ds rqjUr ckn xksyw mQZ fufru ds vigj.k dh ckr irk py x;h FkhA^* However despite the said fact being disclosed, P.W.-2 Om Prakash Yadav did not disclose the factum of "last seen together" evidence to her mother, which renders the factum of "last seen together" evidence of P.W.-2 unworthy of credence and is nothing but an after thought concoction on the part of P.W.-2.
Similarly, so far as "last seen evidence" of P.W-3 is concerned, it is admitted case of the prosecution that he had seen the victim Golu in the company of the appellants Hannu and Amit at Keda Nath Crossing while he was waiting there for a vehicle. The time of "last seen evidence" has been noted to be 7- 7:15 P.M. and admittedly it was winter season at the relevant time and quite dark. The appellant is said to be accompanying the victim Golu at the relevant time on a motor-cycle, which was being driven by accused Amit and he was at its pillion and the victim is said to be sitting in between two accused persons while they were passing through Kedar Nath Crossing and heading towards Prithvinath Gate.
As per the finding of the trial court, the appellant are said to have been recognized by P.W-3 in the light of motor-cycle, which was following them, however we are of the opinion that the precise manner, in which, the appellant alongwith accused are said to have been identified by P.W.-3 in the light of the motor-cycle is too far fetched to be believed. More-so, when it was dark and they have been heading towards Prithvinath Gate. Even the presence of P.W-3 at the time of alleged "last seen evidence together" waiting for a vehicle also does not inspire much confidence, specially under the circumstance that in his testimony, he has not stated at all his destination where he was heading waiting for a vehicle to board.
The testimony of P.W.-3 is further falsified from the circumstance that admittedly he had seen the accused appellants in the company of the victim at 7- 7:15 P.M. and the factum of victim Golu being kidnapped was disclosed to him either at 10:30 P.M. On 26.1.2002 or at the best in the morning on 27.1.2002 as stated by P.W.-1 in his statement, who has categorically stated that : "फोन की जानकारी मेरे घर में मुझे व घर के सभी सदस्यों को हो गयी थी व मोहल्ले में भी हो गयी थी। अपहरण के फोन के समय ही साथी ओमप्रकाश यादव कीमती लालजैन व नरेन्द्र प्रसाद को जानकारी हो गयी थी। फिर कहा कि सुबह जानकारी हो गयी थी।"
Yet despite having complete knowledge at the said time, P.W.-3 never disclosed the factum of "last seen evidence" either to his father P.W.-1 or to her mother P.W.-8 and only on 27.1.2002 he disclosed the said factum for the first time to the police, which clearly establishes that the testimony of said witness so far as "last seen evidence together" is concerned, is not worth credence and is liable to be discarded. Had the said fact of "last seen together" evidence at 7:15 P.M. been true, then certainly the said factum would have been disclosed to his parents and not directly to the police on the next day. Thus, in the backdrop of the aforesaid circumstances discussed above, we are of the opinion that the testimony of P.W.-2 and P.W.-3 do not inspire confidence and therefore, is liable to be discarded. The contrary view taken by the trial court ignoring the said fact is therefore based on conjectures and surmises and is liable to be set aside.
Moreover, it is well settled principle of law that "last seen evidence" does not itself necessarily lead to an inference that accused committed the crime, unless it is corroborated by some other evidence.
So far as the recovery of blood stained shirt shown to be made at the pointing out of the appellant is concerned, admittedly according to the prosecution own case, the said shirt is said to have been worn by the appellant- Amit @ Meenu at the time of incident and has no connection at all with the appellant- Hannu. The recovery of blood stained knife, which is also said to be used in the crime in question, has also not been recovered at the pointing out of the appellant- Hannu but at the pointing out of co-accused Amit, which also does not connect the appellant with the present incident. In the backdrop of the said circumstances, we are of the opinion that the prosecution has miserably failed to prove the factum of recovery against the appellant.
So far as identification of the voice of the appellant- Hannu making demand of ransom of Rs. 20 lacs on telephone is concerned, except suspicion there is no other evidence to establish the said fact. Even during the course of investigation, nothing has been investigated so as to establish the fact that the said telephone call was made by the appellant himself making demand of ransom. Even the telephone number, by which the phone call was made, has not been unravelled by the I.O. The veracity of the factum of demand of ransom of Rs. 20 lacs on telephone is further falsified from the circumstances, that there is no whisper of the said fact in the FIR, though it has been categorically stated in the testimony of P.W.-8 Anita Jain that the said factum was disclosed to him.
Thus, we find that except suspicion there is no cogent, clinching and reliable evidence to show that the appellant demanded ransom of Rs. 20 lacs by making a telephone call.
It is well settled principle of law that suspicion, howsoever strong it may be, cannot take the place of proof, as such, in the absence of any evidence connecting the fact that ransom in question on the telephone call was made by the appellant, an offence under Section 364-A IPC has not been established against the appellant and the contrary view taken by the trial court is absolutely illegal and is liable to be set aside.
Furthermore, taking into consideration the entire evidence recorded during the course of trial, there is nothing on record to show that the appellant, in any manner, was responsible for causing disappearance of an offence committed, in the absence of which, the order of the trial court holding the appellant guilty for the offence under Section 201 IPC is also absolutely illegal and liable to be set aside.
It is further germane to point out that in a circumstantial evidence, 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 within all human probability, the act must have been done by the accused. However, in the present case taking into consideration the facts and circumstances of the case and the evidence led, it cannot be said with certainty that in all human probability, the act of causing death has been done by the accused and accused himself. In the absence of which, the conviction of the appellants under Section 302 IPC also does not hold good and the contrary finding given by the trial court, is therefore liable to be set aside.
Thus, in view of the analysis and discussion made above, we are of the view that the prosecution has failed to prove the charges against the appellant beyond all reasonable doubt and the appellant is entitled for the benefit of doubt. Consequently, the appeal is allowed, the judgment and order of the trial court convicting and sentencing the appellant is set aside. The accused is acquitted of all the charges, for which, he has been tried and convicted.
It has been pointed out by learned Amicus-curiae for the appellant that the appellant is still in jail, he shall be set at liberty forthwith, unless warranted in any other case subject to compliance of Section 437-A of Cr.P.C. to the satisfaction of the trial court.
Let a copy of this order be forwarded to the court below alongwith the lower court record for information and necessary compliance.
Order Date :- 2.11.2022 KU Court No. - 46 Case :- CRIMINAL APPEAL No. - 3518 of 2014 Appellant :- Hannu @ Sonu Alias Abhai Singh And Anr.
Respondent :- State of U.P. Counsel for Appellant :- Mithilesh Kumar Shukla,Avanish Kumar Shukla,Rajesh Kumar Srivastava,Virendra Kumar Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Anjani Kumar Mishra,J.
Hon'ble Rajiv Gupta,J.
Ms. Seema Pandey, Advocate was appointed Amicus-curiae in the instant case. She has rendered valuable assistance to the Court.
This Court quantifies Rs. 7,500/- to be paid to Ms. Seema Pandey, Advocate towards fee for the able assistance provided by her in hearing of the instant criminal appeal.
The said payment shall be made to Ms. Seema Pandey, Advocate by the Registry of this Court within one month from today.
Order Date :- 2.11.2022 KU