Delhi District Court
Hon'Ble Supreme Court In Nalini vs . State Of Tamil Nadu, (1999) 5 Scc on 22 August, 2015
IN THE COURT OF SHRI PARVEEN SINGH
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI.
CC No. 23/09
RC No. 3(S)/2003/SCBII/CBI/DLI.
Case ID: 02403R0180312009.
CBI
Versus
1. Udai Bhan Singh (Acquitted)
S/o Tehsildar Singh
R/o Vill. Semra,
PS Chilha, Distt. Mirzapur,
UP.
2. Sandeep Kumar Singh @ Pintoo Singh, (Acquitted)
R/o Village Semra,
PS Chilha, Distt. Mirzapur,
UP.
3. Santosh Singh @ Tinkoo Singh, (Died)
CC No. 23/09 1 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
S/o Harish Chander Singh,
R/o Vill. Rampur Bujurg,
PS Salempur, Distt. Deoria, UP.
4. Ashok Mishra, (Acquitted)
S/o Lalji Mishra,
R/o Jagapur, PO Baribisa,
PS Gopiganj, Distt. Bhadoi, UP.
5. Rajnath Mishra @ Lallu Mishra, (Acquitted)
S/o Bans Raj Mishra
R/o Vill. Dhanipur, PS Gopiganj,
Bhadoi, UP.
6. Mabood Khan @ Shamsher Khan, (Acquitted)
S/o Bashir Khan,
R/o Vill. Modh, PS Kotwali,
Bhadoi, UP.
7. Vinod Kumar Singh @ Lallan Singh, (Died)
S/o Chanderbali Singh,
R/o Semradh, PS Koirana, Distt. Bhadoi,
UP
CC No. 23/09 2 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
8. Bashir Khan (Died)
S/o late Jabeer Khan,
R/o Vill. Modh, PS Kotwali,
Distt. Bhadoi, UP.
9. Vishal Singh, (Acquitted)
S/o Lalata Singh,
R/o Vill. Fatehpur, PS Didarganj,
Distt. Azamgarh, UP.
Date of Institution: 13.06.2008.
Date of Arguments: 29.07.2015.
Date of Pronouncement: 22.08.2015.
JUDGMENT
1. Undisputed Facts:
1.1 In the morning of 17.02.2003 at around 8.00a.m., deceased Rakesh Pandey was shot dead in front of his house in Bhagwat Pur, PS Gopi Ganj, UP. In this incident, two persons namely Ram Dass Maurya and Banwari Lal were also injured. Deceased Rakesh Pandey was arrayed as an CC No. 23/09 3 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 eye witness in an incident which resulted in murder of three persons including Vakil Shukla, brotherinlaw of deceased Rakesh Pandey (hereinafter called as Vakil Shukla murder case). It was alleged that, that murder was committed by one Uday Bhan Singh alongwith his associates.
1.2 After the murder of Rakesh Pandey, a FIR No. 97/03 (Ex.PW19/A) u/s 147/148/149/302/307 IPC was registered at PS Gopi Ganj, Bhadoi on 17.02.2003. This FIR was registered on the written complaint of Sarvesh Narain Shukla, nephew of deceased Rakesh Pandey alleging, that Rakesh Pandey was shot dead by nine named persons who had come on Bolero Jeep and three motorcycles and indiscriminately fired upon Rakesh Pandey and they also had bombs. Complainant Sarvesh Narain Shukla filed certain criminal writ petitions before the Hon'ble High Court of Allahabad and vide order dated 21.05.2003, the investigation of this case was transferred to CBI. Pursuant to the orders of Hon'ble High Court of Allahabad, CBI, Spl. Crime Branch, Delhi registered its own FIR (Ex.PW47/A) in this case as RC No.3 (S)/2003/SCB/II/CBI/DLI on CC No. 23/09 4 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 13.06.2003. Subsequently, by orders of Hon'ble Supreme Court, the trial of this case was transferred to Delhi.
2. Prosecution's case 2.1 The allegations against the accused are that accused Udai Bhan Singh anyhow wanted to stop deceased Rakesh Pandey from testifying against him in Vakil Shukla murder case. Pursuant to this, during January/ February 2003, while he was lodged in Gyan Pur Jail, accused Udai Bhan Singh called a meeting which was attended by accused Vishal Singh, accused Bashir Khan, accused Sandeep Kumar @ Pintu Singh, accused Vinod Kumar Singh @ Lallan Singh (since deceased) and Sanjay Kumar. In this meeting, a conspiracy was hatched to dissuade Rakesh Pandey, who was to testify in Vakil Shukla murder case on 26.02.2003, from testifying against Udai Bhan Singh and his associates and if required, to eliminate him.
2.2 In furtherance of this conspiracy, Ashok Mishra and Raj Nath
CC No. 23/09 5 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
Mishra visited the house of Nirmala Devi (sister of Rakesh Kumar Pandey and wife of Vakil Shukla) and asked her to persuade Rakesh Pandey to not testify against Uday Bhan Singh. They also made an offer of Rs.5/7 lacs for such pursuation. Both these accused also extended veiled threats in the name of Uday Bhan Singh to Nirmal Devi and her family. Both of these accused also tried to induce Rakesh Pandey with an offer of Rs.5/7 lacs on behalf of Uday Bhan Singh for not giving evidence in court and also threatened him and his relatives with the might of Uday Bhan Singh's gang and stated that on his failure to accept the offer, he would be killed. 2.3 In furtherance of this conspiracy, to further pressurize Rakesh Pandey and the family of deceased Vakil Shukla, accused Sandeep Kumar @ Pintu Singh and accused Mabood Khan @ Shamsher Khan went to the house of Nirmala Devi on a motorcycle being driven by Mabood Khan @ Shamsher Khan. There accused Pintu Singh, while holding a revolver, threatened her that if the offer of accused Uday Bhan Singh, as conveyed by Ashok Mishra and Raj Nath Mishra was not accepted, it would lead to CC No. 23/09 6 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 murder of Rakesh Pandey before he could go for evidence in the court. 2.4 When it became apparent to the accused that Rakesh Pandey was determined to testify in Vakil Shukla murder case and was not accepting their offer, accused decided to eliminate Rakesh Pandey through accused Santosh Singh @ Tinku Singh and his associate. 2.5 In furtherance of the criminal conspiracy, accused Sandeep Kumar @ Pintu Singh arranged weapons and motorcycle for the assailants but as he had exposed himself by giving threat to the wife and son of deceased Vakil Shukla, in order to create an alibi, he got himself arrested and lodged in Almora Jail.
2.6 In furtherance of this conspiracy, deceased Rakesh Pandey was identified to assailant Santosh Singh @ Tinku Singh firstly by Lallan Singh and later on by accused Raj Nath Mishra and Ashok Mishra. 2.7 It is in furtherance of the common object of this conspiracy, that accused Santosh Singh @ Tinku Singh and his associate, on 17.02.2003, shot and killed Rakesh Pandey and also injured one Banwari Lal and one CC No. 23/09 7 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Ram Dass Maurya, who were the employees of Rakesh Pandey.
3. On these allegations, CBI filed chargesheet against nine persons namely Udai Bhan Singh, Sandeep Kumar Singh @ Pintu Singh, Ashok Mishra, Raj Nath Mishra @ Lallu Mishra, Mabood Khan @ Shamsher Khan, Santosh Singh @ Tinku Singh, Bashir Khan, Vinod Kumar Singh @ Lallan Singh and Vishal Singh. At the time of filing of chargesheet, accused Tinku Singh was stated to be absconding and in the meantime, he is stated to have expired. Accused Bashir Khan, who was in custody at the time of filing of chargesheet, has also since died. Accused Vinod Kumar Singh @ Lallan Singh, who was also in custody at the time of filing of chargesheet, has also died. Thus, only six persons i.e. accused Udai Bhan Singh, Sandeep Kumar Singh @ Pintu Singh, Ashok Mishra, Raj Nath Mishra @ Lallu Mishra, Mabood Khan @ Shamsher Khan and Vishal Singh are presently facing trial.
4. Charge 4.1 Thereafter, on 28.10.2009, my learned Predecessor framed charge CC No. 23/09 8 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 u/s 506 (ii) r/w 34 IPC against accused Ashok Mishra and Raj Nath Mishra @ Lallu Mishra, to which they pleaded not guilty and claimed trial. 4.2 A separate charge u/s 506 (ii) r/w section 34 IPC against Mabood Khan @ Shamsher Khan and Sandeep Kumar Singh @ Pintu Singh was framed, to which they pleaded not guilty and claimed trial. 4.3 Another separate charge u/s 120B r/w 302/307/326/506 (ii) IPC against accused Udai Bhan Singh, Sandeep Kumar Singh @ Pintu Singh, Ashok Mishra, Raj Nath Mishra @Lallu Mishra, Mabood Khan @ Shamsher Khan and Vishal Singh was framed to which they all pleaded not guilty and claimed trial.
5. Prosecution Evidence 5.1 In order to prove its case, the prosecution examined as many as 52 witnesses.
5.2 The prosecution had examined 52 witnesses. Due to large number of witnesses, a summary of what the prosecution proposed it would prove through these witnesses, is being produced in a tabular form as under: CC No. 23/09 9 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 PW1 Sarvesh Narayan Shukla Is the eye witness to the murder of Rakesh Pandey.
Complainant of original FIR no.
97/03 of PS Gopi Ganj and also a witness to the offers, threats given by Ashok Mishra and Raj Nath Mishra in Vakil Shukla's murder case.
PW2 Munshidhar Yadav Is the witness to the return of deceased Rakesh Pandey from Maihar Devi on 16.02.2003 and identification of Rakesh Pandey to assailant Tinku Singh by Ashok Mishra and Raj Nath Mishra.
PW3 Mannan Identified dead body vide inquest
proceedings Ex.PW3/A.
PW4 A. Dey, Examined exhibits at CFSL.
Principal Scietific Officer
cumAssistant Chemical
Examiner
CC No. 23/09 10 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
PW5 Sandeep Yadav, Metropolitan Recorded statements u/s 164
Magistrate Cr.P.C of Mukhtar Khan vide
Ex.PW5/B and of Sarvesh
Narayan Shukla vide Ex.PW5/H.
PW6 Sajawan Witness to the seizure of the
articles collected from the spot of
murder and seizure memos.
PW7 Kamleshwar Nath Pandey He is the brother of the deceased
and had Identified the dead body
of deceased vide Ex.PW3/A.
PW8 Vinod Yadav, Chief Recorded statements u/s 164
Metropolitan Magistrate Cr.P.C of Suresh Kumar Singh @
Gabbar Singh vide Ex.PW8/B and
of Heera Lal Muarya vide
Ex.PW8/C.
PW9 Saket Narayan Shukla Witness to the offers and threats
given by Ashok Mishra and Raj
Nath Mishra.
Also a witness to the threats given
by Pintu Singh and Mabood Khan.
PW9 told him that Lallan Singh
had come to his chakki with Tinku
Singh.
CC No. 23/09 11 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
PW10 Nirmala Devi Witness to threats and offers made
by Ashok Mishra and Lallan
Mishra.
Also a witness to the threats given
by Pintu Singh and Mabood Khan.
PW11 SI Uttam Singh Joined investigation on
28.09.2004 and is a witness to the
memo Ex.PW11/A.
PW12 Keshav Nath Pandey Identified dead body of Rakesh
Pandey vide Ex.PW3/A.
PW13 Gulab Chand Tiwari Witness regarding the offers made
by Ashok Mishra and Raj Nath
Mishra to deceased Rakesh
Pandey. He is also an eye witness
to the incident.
PW14 Rinku Pandey Nephew of deceased Rakesh
Pandey and witness to the conduct
of Ashok Mishra and Raj Nath
Mishra subsequent to death of
Rakesh Pandey.
CC No. 23/09 12 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
PW15 Dr. Surender Kumar Autopsy Surgeon who coducted
post mortem and gave Post
Mortem Report Ex.PW15/A.
PW16 Dukkhoo Singh Driver of ambulance which
transported Banwari Lal and Ram
Das Morya to the hospital.
PW17 Vijay Narayan Pandey Was present at the place of
incident and had seen the
assailants.
PW18 Dr. Rajesh Kumar Singh He is an acquaintance of Udai
Bhan Singh. Used to meet Udai
Bhan Singh in jail without any
obstruction.
He had filed petitions before
Hon'ble Allahabad High Court
seeking transfer of matter to CBI.
PW19 Ct. Ram Sewak Was munshi of PS Gopiganj on
17.02.2003 and had registered FIR
Ex.PW19/A
PW20 Sarvodaya Pandey Son of the deceased and eye
witness to the incident.
CC No. 23/09 13 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
PW21 Shiv Mani Mishra Present at the place of incident
and witness to the subsequent
conduct/ utterances of the
assailants.
PW22 Vidya Shankar Mishra Witness to the Panchnama
Ex.PW3/A.
PW23 Banwari Kumar Employee of deceased Rakesh
Pandey and he was injured in the
incident.
PW24 Jagan Nath Witness to opening and resealing
of pulindas and memo
Ex.PW11/A
PW25 SI Harihar Nath Mishra Handed over the case property to
CBI.
CC No. 23/09 14 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
PW26 Suresh Kumar Singh @ Acquaintance of Udai Bhan
Gabbar Singh Singh.
Witness to the free entry of
visitors to Udai Bhan Singh in jail
He is also the person through
whom Lallan Singh had made
attempt to have deceased Rakesh
Pandey identified to accused
Tinku Singh, bu the attempt
failed.
PW27 SI Umesh Kumar Pandey, UP Had sent to CBI with attested
Police copy of FIR No. 789/2000
Ex.PW27/A (Vakil Shukla murder
case) and also chargesheet of that
case vide Ex.PW27/C.
PW28 Pradeep Shukla Driver of vehicle no.
UP66B3909, owned by his father
in which Ashok Mishra and Raj
Nath Mishra had identified
Rakesh Pandey to Tinku Singh.
PW29 SI Kashi Nath Singh Original IO of case FIR No.
97/2003 of PS Gopi Ganj.
CC No. 23/09 15 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
PW30 D.S Chakoutra, SSOII Examined case property and gave
(Retd.), Bio, CFSL, New report Ex.PW30/A. Delhi.
PW31 Mukhtar Ahmad Khan Uncle of accused Mabood Khan @ Shamsher Khan.
Was instrumental in getting accused Sandeep Kr. Singh @ Pintu Singh arrested at Almora Jail to have an alibi created.
PW32 Dr. Deepak Kumar Tanwar, Had examined empty cartridges Sr. Scientific Officer and fired bullets and prepared report Ex.PW32/A. PW33 Shiv Prasad Tiwari @ Had received message from Dangar Tiwari Mahant Singh about the conspiracy being hatched in Gyanpur Jail to eliminate one eye witness of Vakil Shukla's murder and the details of the conspiracy including the roles played by each of the accused.
CC No. 23/09 16 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
PW34 Jailer Anirudh Prasad Rai Was the Jailer in Gyanpur Jail
where Udai Bhan Singh was
lodged and conspiracy was
allegedly hatched.
Was to prove that there was a free
access of visitors to Udai Bhan
Singh without making any entries
in jail records.
PW35 Ram Das Maurya Injured in the incident.
PW36 Dr. M.P Mishra Examined Ram Das Maurya vide
MLC Ex.PW36/A
Examined Banwari Mishra vide
MLC Ex.PW36/D
PW37 A.K Verma, Stn. Supdt., Gave time tables of trains.
Gyanpur Road Railway Stn.
PW38 Heera Lal Maurya Witness who had overheard
accused Lallan Singh (deceased)
while talking to another person
and saying that if Rakesh Pandey
insisted on deposing in Vakil
Shukla murder case, Rakesh
Pandey would be murdered.
CC No. 23/09 17 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
PW39 S.L. Mukhi, Principal Had examined questioned
Scientific Officer documents Q1 to A29 and
(Documents) (Retd.) specimen writing S1 to S11 of
accused Lallan Singh and reported
vide report Ex.PW39/B that these
were written by same person
PW40 DSP Bishan Ram Arya, Witness regarding inquiries made
Uttarakhan Police by Mukhtiyar Khan as to how
suspicious vehicles were checked
by police and that accused Pintu
Singh was arrested by Insp.
Nafees Khan.
PW41 Rajender Kumar Mishra Signed inquest proceedings
Ex.PW3/A.
CC No. 23/09 18 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
PW42 Insp. Dhananjay Mishra, UP Had produced criminal record of
Police Munna Tiwari @ Anil Tiwari vide
Ex.PW42/A and that of Santosh
Singh @ Tinku Singh vide
Ex.PW42/B.
Had also produced two
photographs of Munna Tiwari
Ex.PW42/C and Ex.PW42/D to
CBI on 21.08.2007, which were
seized vide Ex.PW42/E.
PW43 Layak Ram, SCBII Was involved in investigation of
this case.
PW44 Dinesh Nath Pandey, Was Additional District Govt.
Advocate Counsel (Criminal), Bhadoi and
represented State in criminal trial
of Vakil Shukla murder.
Provide various orders related to
that case and the applications
made by deceased Rakesh Pandey
in that case.
PW45 Insp. R P Sharma Was involved in investigation of
this case.
CC No. 23/09 19 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
PW46 R.S. Tanwar, Insp. , CBI Was involved in investigation of
this case.
PW47 M.K. Jha, SP (Retd) One of the IO of this case.
PW48 B.N. Jha, SCB, CBI One of the IO of this case.
PW48A Nirbhay Kumar, SP (CBI) One of the IO of this case.
PW49 Akhileshwar Prasad One of the Investigating Officer of
this case and had filed
chargesheet.
PW50 Sajjan Kumar Pandey Was present at the place of
incident.
Witness to the subsequent conduct
and utterances of the assailants.
PW51 V. S Dagar Specimen handwriting
Ex.PW39/S1 to Ex.PW39/S11 of
Vinod Kumar Singh @ Lallan
Singh taken in his presence.
PW52 Gyan Shankar Mishra Was present at the place of
incident.
Witness to the subsequent conduct
and utterances of the assailants.
CC No. 23/09 20 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
6. Thereafter, statements u/s 313 Cr.P.C of all the accused were recorded. All the accused preferred to lead evidence in their defence.
7. Defence Evidence 7.1 Accused No. 1 and 2 examined Mukand Lal, Anil Kumar Sharma, SI Chandra Shekhar and ASI Tarkeshwar Nath as DW1(A1), DW (A1 and A2), DW5 (A1 and A2), DW6 (A1 and A2) respectively. Accused no. 3 examined one witness namely Ravinder Nath Singh as DW2(A3). Accused no. 4 examined one Sh. Shiv Kumar and one Ct. Ram Kumar Mishra as DW1(A4) and DW2(A4). Accused no. 6 did not lead any evidence in his defence and on 09.05.2013, his counsel gave a statement to close evidence on his behalf but tendered an information received under RTI Act from District Judge, Gyanpur and certified copy of order dated 16.09.2005 in criminal Misc. Bail application no. 16472/2005 titled Vishal Singh v. State.
8. Arguments have been advanced by Sh. A.K Singh, Ld. Spl. PP for CBI; Sh. Rajesh Khanna, Ld. counsel for accused Udai Bhan Singh and Sandeep Singh; Sh. Sanjay Singh, Ld. counsel for accused Rajnath Mishra, CC No. 23/09 21 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Ashok Mishra and Mabood Khan and Sh. D.P Singh, Ld. counsel for accused Vishal Singh.
8.1 Written submissions have also been filed on behalf of CBI and on behalf of accused Udai Bhan Singh and Vishal Singh. 8.2. It has been contended by ld. Spl. PP for CBI, that it is a well known fact that conspiracy is always hatched in secret and therefore, there is a very little possibility of getting any direct evidence of conspiracy. Conspiracies are proved by circumstances and in this case also, the prosecution has sought to prove through circumstances that all the accused had conspired to murder Rakesh Kumar Pandey, pursuant to which deceased Santosh Kumar Singh @ Tinku Singh alongwith his associate had murdered Rakesh Kumar Pandey on 17.02.2003. He has further contended that the court in case of conspiracy should not seek for direct evidence if the circumstances prove the existence of conspiracy. In this regard, he has relied upon the judgment of Hon'ble Supreme Court in Nalini vs. State of Tamil Nadu, (1999) 5 SCC wherein the Hon'ble Supreme Court had held as under:
CC No. 23/09 22 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
"Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.
1. Under Section 120A IPC, offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt act is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is, did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed.
2. Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.
3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct CC No. 23/09 23 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
4. Conspirators may, for example, be enrolled in a chain A enrolling B, B enrolling C and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrellaspoke enrollment, where a single person at the centre doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who CC No. 23/09 24 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy, it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.
6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone of the fact as to when a conspirator joined the conspiracy and when he left.
7. A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy, court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in CC No. 23/09 25 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders."
8. As stated above, it is unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the gravaman of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is a partnership in crime and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, CC No. 23/09 26 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 in contemplation of law, the act of each of them and they are jointly responsible therefore. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a coconspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.
10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.
CC No. 23/09 27 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
8.3 On the other hand, Ld. counsels for the accused have
contended that although it is correct that a conspiracy can be proved by circumstantial evidence, however, it is for the prosecution to establish all the circumstances beyond all reasonable doubts and the chain of circumstances should be so complete, that the only conclusion to be drawn would be the guilt of the accused. In this regard, they have relied upon the judgments of Hon'ble Supreme Court in Musheer Khan @ Badshah Khan & Anr. v. State of Madhya Pradesh, AIR 2010 SC 762 and Saju v. State of Kerala, AIR 2001 SC 175.
9. I find that both, the learned Spl. PP as well as learned counsels for accused, have given the same preposition of law, that a conspiracy need not to be proved by direct evidence but, if such circumstances are brought before the court which could establish beyond all reasonable doubts that there was a conspiracy that was hatched and a particular offence was committed in furtherance of common object of that conspiracy; it will suffice to give a verdict against the accused. However, it is also a well settled CC No. 23/09 28 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 law that the circumstances from which the conclusion of the conspiracy or the guilt of the accused is to be drawn should be of conclusive nature. The facts established before the court should only lead to one conclusion which is consistent with the guilt of the accused and no conclusion to the contrary should be possible.
9.1 The Hon'ble Supreme Court, on many occasions, has dealt with the conditions precedent, which needs to be satisfied, before circumstantial evidence can be made the basis of conviction. In Shambhu Nath Mehra Vs. State of Ajmer, AIR 1956 SC 404; Shivaji Shohib Rao Bobade Vs. State, AIR 1973 SC, 2622; Bhirdhi Chand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Pandala Veera Reddy Vs. State of A.P and Other, AIR 1990 SC 79, C. Chenga Reddy and others Vs. State of A.P, 1996 (3) 10 SCC 193; Bodh Raj @ Bodha Vs. State of J& K, AIR 2002 SC 3164; Trimukh Murty Kirka Vs. State of Maharashtra, 2007 (Crl.); Vithal Eknath Adilinge Vs. State of Maharashtra, 2009 (3) RCR (Crl.) 161, the Hon'ble Supreme Court had the occasion to deal with this CC No. 23/09 29 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 issue. The principles for use of circumstantial evidence to arrive at a finding of guilt, as laid down the Hon'ble Apex Court, can be summarized as under:
1. The circumstances from which the conclusion of guilt is to be drawn, should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of guilt of accused, i.e. 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.
10. The circumstances through which the prosecution has sought to unravel the conspiracy of murder of Rakesh Kumar Pandey CC No. 23/09 30 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 are as follows: (I) Accused Udai Bhan Singh had a motive to kill deceased Rakesh Kumar Pandey.
(II) In January/ February 2003, accused Udai Bhan Singh held a meeting in Gyan Pur Jail which was attended by Sandeep Singh @ Pintu Singh, Bashir Khan, Vinod Kumar Singh @ Lallan Singh, Vishal Singh and one Sanjay Singh. In that meeting, a conspiracy was hatched to persuade deceased Rakesh Kumar Pandey not to depose against Udai Bhan Singh in Vakil Shukla Murder case and on his disagreement, eliminate him. (IIIA) Pursuant to this conspiracy, accused Ashok Mishra and Raj Nath Mishra@ Lallu Mishra went to the house of Nirmala Devi, wife of deceased Vakil Shukla and tried to persuade her to persuade Rakesh Pandey, not to depose against Udai Bhan Singh and also extended veiled threats. For this act, both these accused have also been separately charged u/s 506 (ii) r/w Section 34 IPC.
(IIIB) In furtherance of common object of the conspiracy, accused Sandeep CC No. 23/09 31 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Singh @ Pintu Singh and Mabood Khan @ Shamsher Khan went to the house of Nirmala Devi on a motorcycle. Accused Pintu Singh, who was armed with a pistol, threatened that in case offer of Udai Bhan Singh, as sent through Ashok Mishra and Lallu Mishra, was not accepted; Rakesh Kumar Pandey would be shot dead. For this act, both these accused have also been separately charged u/s 506 (ii) r/w Section 34 IPC. (IV) Udai Bhan Singh then contacted one Anil Tiwari @ Munna Tiwari and offered him a contract to kill Rakesh Pandey. Anil Tiwari refused to accept the contract. Udai Bhan Singh then hired one Santosh Kumar @ Tinku Singh to kill Rakesh Pandey and in return, offered him to pay Rs.50,000/ and Tinku Singh accepted this contract.
(V) Santosh Kumar Singh @ Tinku Singh was provided shelter by accused Vishal Singh and during January / February 2003, accused Tinku Singh stayed in the government quarter of accused Vishal Singh which was situated at Gyanpur Jail.
(VI) Accused Pintu Singh arranged weapons and motorcycle for assailant CC No. 23/09 32 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Santosh Kumar Singh @Tinku Singh and his associate. (VII) Deceased Rakesh Kumar Pandey was twice identified to assailant Santosh Kumar Singh @ Tinku Singh. Once he was identified by accused Lallan Singh at his shop. Second time, accused Ashok Mishra and Raj Nath Mishra @ Lallu Mishra identified deceased Rakesh Pandey to assailant Tinku Singh on 16.02.2003, while they travelled together in a jeep from petrol pump of Ashok Mishra to the house of deceased Rakesh Pandey. (VIII) Accused Sandeep Singh @ Pintu Singh in order to create an alibi got himself arrested and lodged in Almora Jail.
(IX) A few days before murder, Heera Lal Maurya (PW38) overheard accused Vinod Kumar Singh Lallan Singh stating to another person that Rakesh Kumar Pandey was bent upon testifying and if he continued to insist, he would be killed.
(X) On 17.02.2003, accused Santosh Kumar Singh @ Tinku Singh alongwith his associate Kallu murdered Rakesh Kumar Pandey and in the process injured Banwari Lal and Ram Dass Maurya.
CC No. 23/09 33 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
(XI) Immediately after the murder of Rakesh Kumar Pandey, assailant Santosh Kumar Singh @ Tinku singh had made certain statements which would reflect that he had committed this crime at the behest of Udai Bhan Singh.
(XII) Lallan Singh had disclosed to Gabbar Singh that decision to kill Rakesh Kumar Pandey was taken at Gyanpur Jail.
11. So the case of the prosecution rests on proving these circumstances which, when read together, can establish the existence of conspiracy between the accused and that in furtherance of that conspiracy, Rakesh Kumar Pandey was murdered.
12. To prove each of afore stated circumstances, prosecution had sought to examine many witnesses. However, there is one witness, who had been proposed to prove five of these twelve circumstances through his testimony. Through this witness, the prosecution also sought to prove the fact that Uday Bhan Singh could have had meetings in jail without there being any record of them, which could lead to the inference, that a meeting CC No. 23/09 34 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 of conspirators could have been held in Gyanpur Jail. This witness is PW33 Shiv Pd Tiwari @ Dangar Tiwari. These five circumstances are: (I) That Udai Bhan Singh had contacted one Anil Tiwari @ Munna Tiwari and offered him a contract to kill Rakesh Pandey but Anil Tiwari refused to accept the contract. Udai Bhan Singh then hired one Santosh Kumar @ Tinku Singh to kill Rakesh Pandey and in return, offered him to pay Rs.50,000/ and Tinku Singh accepted this contract.
(II) Santosh Kumar Singh @ Tinku Singh was provided shelter by accused Vishal Singh and during January / February 2003, accused Tinku Singh stayed in government quarter of accused Vishal Singh which was situated at Gyanpur Jail.
(III) Accused Sandeep Singh @ Pintu Singh was to arrange weapons and motorcycle for assailant Santosh Kumar Singh@ Tinku Singh and his associate.
(IV) Accused Vinod Kumar Singh @ Lallan Singh, through Gabbar Singh, would get deceased Rakesh Kumar Pandey identified to assailant Santosh CC No. 23/09 35 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Kumar Singh @ Tinku Singh.
(V) Accused Pintu Singh in order to create an alibi would get himself arrested and lodged in Almora Jail.
12.1 This witness is supposed to the connecting link to help join the dots and bring out a clear picture of the conspiracy. Therefore, before discussing other evidence and testimony of other witnesses, I find it appropriate to discuss the testimony of PW33 and its impact.
13. PW33 Shiv Prasad Tiwari @ Dangar Tiwari.
13.1 As per his statement U/s 161 Cr. P. C, he stated to CBI that in the year 2003 Udai Bhan Singh used to hold a darbar in Jail and his visitors had an uninterrupted access to Uday Bhan Singh. One Mahant Singh, who was also in Gyanpur Jail at that time, sent a message to him. The message was, that in Vakil Shukla murder case, Udai Bhan Singh had purchased one witness namely Prem Shankar Dubey by paying Rs.5 lacs and to kill the second witness, Udai Bhan Singh, through Bashir and Shamsher, had given supari (contract) to Tinku Singh for Rs.50,000/. Mahant Singh had further CC No. 23/09 36 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 informed him that Sandeep Singh @ Pintu Singh would be supplying weapons and motorcycle to Tinku Singh and accused Vishal Singh would provide shelter to Tinku Singh. He was further informed by Mahant Singh that Vinod Kumar @ Lallan Singh was to have Rakesh Kumar Pandey identified to Tinku Singh through Suresh Kumar @ Gabbar Singh (PW26). That in order to create an alibi, Sandeep Singh @ Pintu Singh would get himself arrested at a far away place.
13.2 Shiv Prasad Tiwari @ Dangar Tiwari, while appearing as PW33, deposed that he was one of the main witness in Vakil Shukla murder case. He further deposed that in the year 199798, he had remained in Gyanpur Jail for 14 days. In Gyanpur Jail, he was in barrack no. 1 and did not remember any Mahant Singh being lodged in his barrack. He did not have any conversation with Mahant Singh, but came to know that Mahant Singh @ Raju Singh was also lodged in the same jail in relation to murder of one Banwari Lal (MLA). He deposed that he did not remember any other thing about this case and volunteered, that when he received notice from the CC No. 23/09 37 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 court, he was surprised as to why he was called as a witness. 13.3 During his cross examination by learned Spl. PP, he denied that he had stated to the CBI, that during his stay in Gyanpur Jail, he had become friendly with Mahant Singh or, that even after his release from jail, he kept meeting Mahant Singh @ Raju Singh in Gyanpur Jail and volunteered; that he had met Mahant Singh only once during the court hearing. He denied that he and Rakesh Kumar Pandey were being threatened by Udai Bhan Singh not to depose against him in Vakil Shukla murder case. He denied that Mahant Singh @ Raju Singh had ever sent him a message that in Vakil Shukla murder case, Udai Bhan Singh had purchased one witness namely Prem Shankar Dubey by paying Rs.5 lacs or, that he had given any such statement to the CBI. He denied receiving any message from Mahant Singh that in order to eliminate another witness of Vakil Shukla murder case, Udai Bhan Singh, through Bashir and Shamsher, had given supari (contract) to Tinku Singh for Rs.50,000/ and that, Pintu Singh would be supplying weapons and motorcycle to Tinku Singh and denied making CC No. 23/09 38 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 any such statement to CBI. He also denied stating before CBI, that Pintu Singh was to get himself lodged in a jail with the help of Bashir or, that Vishal Singh would permit Tinku Singh to stay in his quarter or, that Lallan Singh through Gabbar Singh would get Rakesh Pandey identified to Tinku. 13.4 This witness was sought to be produced by CBI in order to prove that the conspiracy was hatched in Gyanpur Jail to eliminate Rakesh Pandey and also to prove what role was to be played by which of the accused. But this witness has not at all supported the case of the prosecution. However, even if this witness would have deposed on the lines which the prosecution had sought, his entire testimony would be based on hearsay as according to the prosecution; these facts were informed to him through a message of Mahant Singh @ Raju Singh and were not in his personal knowledge. Thus, if he had deposed as per his statement u/s 161 Cr.P.C as recorded by CBI, it would not have been an admissible testimony. Firstly, this testimony would not have been based upon his own knowledge but on information given by a third person. Secondly, the alleged CC No. 23/09 39 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 information was not even directly given to him by the alleged informant Mahant Singh. We could say that he would have stated what he had not even heard from Mahant Singh but what he had heard from someone who claimed to have heard it from Mahant Singh. This will make his testimony based on double hearsay. Also, these facts allegedly disclosed by Mahant Singh prior to his death would not have been covered under the exception of Section 32 of the Evidence Act and therefore, testimony of Shiv Prasad Tiwari @ Dangar Tiwari would not be an admissible evidence on these points.
13.5 Furthermore, relying on the testimony of DW1(A4), it has further been contended by learned counsel for the accused that even Mahant Singh could not have known about this conspiracy and thus, could not have sent a message regarding this conspiracy to PW33 Shiv Prasad Tiwari @ Dangar Tiwari because, at the relevant time, when the conspiracy was allegedly hatched i.e. in January/ February 2002, Mahant Singh was not lodged in Gyanpur Jail.
CC No. 23/09 40 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
13.6 DW1(A4) is Shiv Kumar Sonkar who was jail constable at
Gyanpur Jail. During his testimony, he deposed that he had brought the summoned record and as per the summoned record brought by him, Mahant Singh was admitted in Gyanpur Jail on 17.06.1999 in a case of theft and was released from jail on 03.02.2000. Certified copy of register is Ex.DW1(A4)/E1.
13.6.1 During his cross examination, this witness deposed that he had been deputed to deliver in court, the record brought by him. He had no personal knowledge about the documents which he had brought in the court. He could not vouch for the authenticity of these documents. 13.7 However, the fact remains that what this witness had brought was a record duly certified by the Jail Supdt. There is no allegation on behalf of the prosecution that it was a manipulated record. As per this record, the alleged informer i.e. Mahant Singh @ Raju Singh had been released from Gyanpur Jail on 03.02.2000. If that be the case, then at the relevant time, when the conspiracy was allegedly hatched in Gyanpur Jail, CC No. 23/09 41 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Mahant Singh was not lodged in that jail and thus, could not have known about this conspiracy and resultantly, could not have sent any message to Shiv Prasad Tiwari as has been alleged by the prosecution. 13.8 Even otherwise, it was the duty of the prosecution to at least prove that at the relevant time, the alleged informer Mahant Singh was lodged in Gyanpur Jail and thus, he could have known about such a conspiracy being hatched in jail. However, the prosecution has failed to bring any such evidence.
13.9 I must dutifully observe at this stage that from the very beginning, the testimony of PW33 alone was an inherent weakness in the case of CBI. As discussed above, PW33 even if he had deposed on the lines as proposed by prosecution, his testimony, being hearsay, would have been inadmissible. The CBI did not even bother to examine the alleged informer Mahant Singh and cite him as a witness. This could have been the best witness of the facts which were sought to be proved through PW33 Shiv Prasad Tiwari. Although PW33 deposed that Mahant Singh has since died CC No. 23/09 42 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 but CBI has not stated anywhere that it had verified the death of Mahant Singh. If for the sake of arguments, it is admitted that Mahant Singh had died and could not be brought as a witness, then the next best evidence could have been in the form of the message or the messenger of Mahant Singh. However, here again, it has not even been explained how and by what mode Mahant singh had delivered the alleged message regarding conspiracy to PW33 Shiv Prasad Tiwari.
13.10 I, therefore, find that testimony of PW33 Shiv Prasad Tiwari @ Dangar Tiwari can be of no help and the prosecution has not been able to prove any of the facts which it sought to prove through Dangar Tiwari.
14. Now lets see if the prosecution, through other witnesses/ evidence has succeeded in proving the circumstances which will prove that it was pursuant to a conspiracy between the accused that Rakesh Kumar Pandey was murdered on 17.02.2003.
15. Udai Bhan Singh had a motive to kill Rakesh Kumar Pandey.
15.1 The alleged motive of accused Udai Bhan Singh is stated to be
CC No. 23/09 43 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
that he was an accused in a triple murder case in which Vakil Shukla, brotherinlaw of deceased Rakesh Pandey, had been killed. It was Rakesh Pandey, who was constantly pursuing that murder case. Not only was he filing various applications against the accused, but he was also an eye witness and complainant in that case. Accused Udai Bhan Singh feared that in case Rakesh Kumar Pandey testified against him in court, he would be convicted in that case.
15.2 In order to prove the involvement of Udai Bhan Singh in murder of Vakil Shukla and active prosecution of that case by Rakesh Pandey, the prosecution had examined PW44 Dinesh Nath Pandey. 15.3 PW44 Dinesh Nath Pandey deposed that from 18.02.1999 till 03.01.2011, he worked as Addl. District Government Counsel (Criminal) and as such, was representing the State in a criminal trial titled as 'State v. Udai Bhan Singh and Ors.' ST No. 162/2000 u/s 147/148/302/379 IPC. Rakesh Pandey was the informant in this case, which was popularly known as Teehra Hatya Kand and in which Vakil Shukla was one of those who were CC No. 23/09 44 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 killed. He deposed that he had provided applications dated 15.11.99 (Ex.PW44/F), 11.04.2000 filed by Rakesh Pandey (Ex.PW44/G), dated 23.02.2000 (Ex.PW44/H), 13.08.2002 (Ex.PW44/J), 05.05.2001 (Ex.PW44/K), 17.03.2001 (Ex.PW44/L) and 17.12.2002 (Ex.PW44/M), to the CBI. Exhibition of these documents were objected to on behalf of the accused on the ground of mode of proof.
15.3.1 During his cross examination, he deposed that before providing these documents, he had not verified the correctness of these documents from the originals but had checked correctness of the contents from the certified copy of record which was available in the official file and was in his possession.
15.4 It is important to first deal with the contentions regarding proof of these documents.
15.5 Learned counsels for accused have contended that these documents have not been proved as per law. These are merely photocopies of documents attested by PW44 and his attestation does not prove these CC No. 23/09 45 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 documents.
15.6 On the other hand, ld. Spl. PP has contended that PW44 was the person who had conducted the trial of the case titled as 'State v. Udai Bhan Singh' and these documents are the applications which were moved by the deceased in that case and therefore, as the prosecutor of that case, PW44 could have very well prove these documents after attesting them to be the true copies.
15.7 I find that PW44 was not the person who had moved these applications and these documents could have either been proved by bringing their certified copies or by calling for the original file. Thus, the documents Ex.PW44/F to Ex.PW44/M have not been proved as per law. 15.8 However, the undisputed facts are, that there was an incident in which three persons were murdered; that deceased Rakesh Pandey was the complainant and eye witness of this case and that accused Udai Bhan Singh was an accused in that case. The Hon'ble Supreme Court in Krishna Pilla V/s State of Kerela AIR 1981 SC 1237 had held that : CC No. 23/09 46 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015
7. It is undisputed that some bad blood existed between the deceased on the one hand and the appellants on the other prior to the occurrence. The animosity may not have been very bitter but then it is too much to say that it could not possibly form a motive for the occurrence. The variation in human nature being so vast, murders are known to have been actuated by much lesser motives. In any case, it is not a sine qua non for the success of the prosecution that the motive must be proved. So long as the other evidence re mains convincing and is not open to reasonable doubt, a conviction may well be based on it.
15.9 Therefore, it can at least be hold that accused Udai Bhan Singh may have had a motive for dissuading Rakesh Pandey from deposing against him in Vakil Shukla murder case and may also have had a motive to kill Rakesh Pandey, if he failed in dissuading Rakesh Pandey from deposing against him.
16. Meeting at Gyanpur Jail where the conspiracy was hatched. 16.1 In order to prove this meeting, prosecution sought to establish that accused Udai Bhan Singh had a clout in Gyanpur Jail and anybody who wished to meet him had free access to him and could meet him without CC No. 23/09 47 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 making any entries in jail register. By establishing this circumstance, the prosecution seeks to establish that no direct evidence of any such meeting could be produced as the jail authorities did not make any record of visitors of Udai Bhan Singh.
16.2 In order to prove this fact, prosecution had examined three witnesses (1) PW18 Rajesh Kumar Singh (2) PW26 Gabbar Singh and (3) PW34 Anirudh Prasad Rai.
16.3 PW18 Rajesh Kumar Singh deposed that he knew accused Udai Bhan Singh as he was distantly related to him. He had also been an election agent of Udai Bhan Singh when Udai Bhan Singh contested for becoming a member of legislative assembly. Once in 34 months, he used to meet accused Udai Bhan Singh in jail. Because of his profession, some jail officials were known to him and he was allowed to go inside the jail to meet Udai Bhan Singh after making some inquiries but without making any entry in the record. He was declared hostile and was cross examined by Ld. Spl. PP.
CC No. 23/09 48 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
16.4 During his cross examination by Spl. PP, he denied stating to
the IO that Lallan Singh and Ct. Vishal Singh used to meet Udai Bhan Singh in jail. He also denied that they were allowed to enter jail without any obstructions. He also denied that he had met Ashok Mishra in jail or that he had stated to the IO that on daily basis Ashok Mishra used to meet Udai Bhan Singh in jail. He again denied that whenever he used to go to jail to meet Udai Bhan Singh, he used to see Lallan Singh and Vishal Singh in company of Udai Bhan Singh.
16.5 After his cross examination on behalf of accused, he was re examined by Ld. Spl. PP and during this reexamination, he stated that he did not have any idea whether, he was asked by the jail authorities to make any entry in the relevant record/ register in respect of meetings with Udai Bhan Singh. He could not affirm or deny whether, he made any entry in jail register in respect of his meetings with Udai Bhan Singh in jail.
16.6 The next witness is PW26 Gabbar Singh. He deposed that
his brother Kamlesh Singh used to go for the election campaign of Udai
CC No. 23/09 49 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
Bhan Singh. He used to visit Gyanpur Jail frequently in order to meet Udai Bhan Singh. When he used to visit Udai Bhan Singh, jail officials used to make an entry and permitted him after making an impression of stamp on his hand. He did not know anybody named Lallan Singh and Vishal Singh. He was declared hostile and was cross examined by Ld. Spl. PP. 16.7 During his cross examination, he denied that whenever he used to visit Udai Bhan Singh in jail, there were no restrictions upon going inside the jail and meeting Udai Bhan Singh. Whenever he went to meet Udai Bhan Singh, he had never seen accused Sandeep Singh @ Pintu Singh. He denied that during his visits to Gyanpur jail, he became friendly with accused Sandeep Singh @ Pintu Singh. He deposed that he had never met Lallan Singh in Gyanpur Jail and volunteered, that he did not know Lallan Singh and denied, that he had stated to CBI that whenever he used to go to jail to meet Udai Bhan Singh, he would see Lallan Singh. Ld. Spl. PP pointed out accused Vishal Singh to him and he deposed that he had never seen accused Vishal Singh in Varanasi Jail. He denied knowing whether CC No. 23/09 50 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 accused Vishal Singh was posted in Gyanpur Jail as Constable or whether, Vishal Singh used to provide all facilities to accused Udai Bhan Singh and had become very close to Udai Bhan Singh and denied stating this fact to CBI. He denied stating to CBI that he had made good acquaintance with accused Vishal Singh during his visits to jail. He further denied that he had stated to CBI that in Gyanpur Jail, one young boy of wheatish complexion was seen in the company Vishal Singh or, that the said young boy of wheatish complexion used to reside in official quarter of accused Vishal Singh. He denied that when he went to meet accused Udai Bhan Singh, he carried his mobile phone inside jail. He denied seeing any accused persons (except accused Udai Bhan Singh) in Gyanpur Jail during his meeting with Udai Bhan Singh or stating this fact to CBI. He denied seeing accused Vishal Singh, Lallan Singh and Pintu Singh talking to Udai Bhan Singh in Gyanpur Jail and volunteered, that he used to meet Udai Bhan Singh alone and that too during his visiting hours. He denied that none of the police officials stopped him from meeting Udai Bhan Singh inside Gyanpur Jail.
CC No. 23/09 51 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
He admitted that he used to request Udai Bhan Singh to help him in procuring construction work/ contract as Udai Bhan Singh was MLA. He was confronted with his statement u/s 161 Cr.P.C as recorded by CBI and statement u/s 164 Cr.P.C on similar lines as recorded by learned MM. He admitted making statement to the learned Metropolitan Magistrate but denied the contents of the statement. He denied stating to the Metropolitan Magistrate that when he met Udai Bhan Singh in Gyanpur Jail, Udai Bhan Singh told him that Rakesh Pandey was not coming to terms and was adamant to make statement before the court against him and therefore; Udai Bhan Singh had directed Rakesh Pandey to be eliminated and stated, that this statement was given to him in writing and therefore, he stated this before Ld. MM. He denied stating before Ld. MM that visitors in Gyanpur Jail were not subjected to frisking/ search. He denied that accused Udai Bhan Singh and his associates were the mafias of the area and because of fear, he was deposing falsely on certain points or that he voluntarily made statement u/s 164 Cr.P.C (Ex.PW26/B) before Ld. MM.
CC No. 23/09 52 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
16.8 The next witness is PW34 Anuirudh Pd. Rai. He deposed that
he was the jailer of Gyanpur Jail, SRN Distt., Bhadoi, UP from July, 2002 to July 2003. during this period, Udai Bhan Singh was lodged in this jail. He further deposed that visitors used to come to meet Udai Bhan Singh but he did not remember the number of visitors. He further deposed that during his tenure, one Ct. Vishal Singh was also posted in Gyanpur Jail and his wife was also posted as Warden in Gyanpur jail and a government quarter was alloted in her name which was located in front of jail. He did not remember the names and details of visitors who used to visit Udai Bhan Singh in Gyanpur jail. He further deposed that the visitors were required to give their applications and their record was being maintained in jail. It was not possible for anyone to meet any under trial prisoner including Udai Bhan Singh without proper permission and entrires in record. He was declared hostile and was cross examined by Ld. Spl. PP for the CBI. 16.9 During his cross examination by Ld. Spl. PP, he further denied that Gyanpur Jail was like a guest house and not a jail or that, the visitors CC No. 23/09 53 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 were allowed to meet accused Udai Bhan Singh without following any procedure of permission or making entries in record. He further deposed that it was not that a large number of visitors to the extent of 50300 persons used to meet Udai Bhan Singh on daily basis. He further deposed that during his tenure, accused Udai Bhan Singh had never beaten or insulted any jail official. He denied that the accused Udai Bhan Singh was a terror in the jail, or that whoever said anything against him used to be snubbed. He denied that Udai Bhan Singh had instructed him not to make any record regarding the visitors who came to meet him. He denied that the barrack wherein accused Udai Bhan Singh was lodged in Gyanpur Jail had a separate entrance. He denied that visitors who used to meet Udai Bhan Singh were not asked to sign against relevant entries in register. He deposed that he had never seen Ct. Vishal Singh meeting Udai Bhan Singh in jail. He denied that accused Vishal Singh used to meet Udai Bhan Singh continuously and even on holidays. It was not within his knowledge, whether, accused Vishal Singh was residing in a rented room near Gyanpur CC No. 23/09 54 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Jail. He denied that accused Vishal Singh used to continuously meet Udai Bhan Singh and they never stopped him. He denied that he had been won over by accused Udai Bhan Singh.
16.10 He was questioned by the court also and in response, he stated that under the rules, even the jail employees were not entitled to meet under trial prisoner without necessary permission and entries in record except in the course of their specific duty. He further stated that no incident was within his knowledge in which, any person had been allowed to meet any under trial prisoner without making any entry in record and stated, that every person including the ministers, officers, jail authorities, jail employees, judges, magistrates and visitors were required to make their entry at the main gate of the jail and then only, they were allowed to enter the jail.
16.11 From the above evidence, it is very much clear that the prosecution has not been able to bring any evidence to show that accused Udai Bhan Singh could have had meetings without any official record of CC No. 23/09 55 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 being maintained regarding whom and when he held those meetings. All the three witnesses on this point have turned hostile. Although accused Rajesh Kumar Singh had initially stated that he used to enter jail without making any entry in record, however, when he was recalled for his reexamination, he stated that he did not remember whether he made any entry or not. 16.12 PW34 has clearly denied that his jail gave uninterrupted access to the visitors to meet Udai Bhan Singh and did not keep any record of the same.
16.13 PW26 has also turned hostile on this point. However, ld. Spl. PP has contended that in the statement u/s 164 Cr.P.C, he had clearly admitted before Ld. Metropolitan Magistrate, that he used to meet Udai Bhan Singh without making any entry in jail record and on being won over by the accused, he had resiled from that statement. He has thus contended that the statement of this witness as recorded by Ld MM u/s 164 Cr.P.C should be considered by the court.
16.14 Countering this argument, learned counsels for accused have
CC No. 23/09 56 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
contended that statement of this witness u/s 164Cr.P.C can not be read as a substantive piece of evidence as while deposing in court, he has disowned that statement. He has further contended that either the statement u/s 164 Cr.P.C is false or the statement made in court is false. In absence of any evidence to show which statement is true, it will be unsafe to rely upon any one version to record a finding of guilt. Reliance has been placed on behalf of accused on Ram Kishan Singh v. Harmit Kaur & Anr, AIR 1972 SC 468 and R. Pachisia v. State by Inspector of Police in Crl. Appeal No. 158 of 2013 dated 24.04.2013.
16.15 The prosecution has vehemently argued that it stands proved that this witness had given a voluntary statement before the Ld. MM and being won over by accused, had retracted from that statement. It is also submitted that the admission of this witness that he had neither disclosed to Ld. MM about being pressurized to give the statement, nor made any complaint in this regard at a later stage and it shows that it was a voluntary statement. It is therefore contended by prosecution that, the fact that this CC No. 23/09 57 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 statement was given voluntarily, is a corroboration of the contents of the statements u/ s164 Cr.P.C. Ld. Spl. PP has relied upon R. Shazi v. State of Kerala, 2013 (1) Crl. 217 (SC) and Bhagwan Singh v. State of Punjab, AIR 1952 SC 214.
16.16 I find that in this case, u/s 164 Cr.P.C., statements of four witnesses namely S. N. Shukla, Suresh Kumar, Mukhtar Khan and Heera Lal Maurya were recorded u/s 164 Cr.P.C. Out of these, three witnesses resiled from their earlier statements u/s 164 Cr.P.C as recorded by the MM. Therefore, it will be pertinent to decide at this stage itself as to what weightage is to be given to statements of witnesses u/s 164Cr.P.C, when those witnesses, while testifying in the court, have disowned their statements.
16.17 I have considered the rival submissions and gone through the judgments cited by both sides. I find that I cannot agree with the submissions of prosecution that just because a witness had admitted making certain statements before the Magistrate u/s 164 Cr.P.C, that statement CC No. 23/09 58 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 should be relied upon by the court and given precedence over the testimony in the court. I say so because even in the judgment cited by Ld. Spl. PP in Baghwan Singh (supra), Hon'ble Supreme Court had held:
23. Of course, that statement cannot be used as substantive evidence unless S. 288 of the Criminal Procedure Code is called in aide. But even without S. 288, a court would be entitled to say in such a case, 'basing on the evidence in chief, which is substantive evidence, that' what the witness said to the police, or to the Committing Magistrate, is the true version not because those statements from substantive evidence but because they tally with the evidence in chief which 'is substantive. This is only one of the many ways in which a witness's testimony can be sifted and examined. Corroboration is as useful to test the truth of a story as any other method. In such a case, what the Court really does, though it may happen to put the matter other way round, is to say that in its opinion the substantive evidence given in chief is true because it is corroborated by an earlier statement and for that reason, namely, because he version in chief is the true one the contradictory version given in cross examination is wrong, not because of the contradiction embodied in the former statement but because of what was said in chief, a version which it is now safe to believe on account of the corroboration afforded by the earlier statement. It is true the earlier statement could also have been used for contradicting the version given in crossexamination and in that event, if it is in writing, the limitations imposed by S. 145 of the Evidence Act CC No. 23/09 59 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 would have to be observed, but the prosecution is not bound to do that. It has a choice. It can, if it so chooses, build up the version given in chief in any way it pleases and, having done that, use the version in chief to destroy the version in cross examination.
16.18 Further in R.Shazi's case (supra), the Hon'ble Supreme Court had held:
15. So far as the statement of witnesses recorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in Court should be discarded, is not at all warranted. (Vide : Jogendra Nahak & Ors. v. State of Orissa & Ors., AIR 1999 SC 2565; and Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. & Ors, AIR 2000 SC 2901.
16. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164Cr.P.C, can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defence had no opportunity to cross examine the witnesses whose statements are recorded under Section 164Cr.P.C, such statements cannot be treated as substantive evidence. During the investigation, the Police officer may sometimes feel that it is expedient to record the statement of a witness under Section 164 CC No. 23/09 60 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Cr.P.C. This usually happens when the witnesses to a crime are clearly connected to the accused, or where the accused is very influential, owing to which the witnesses may be influenced.
(Vide: Mamand v. Emperor, AIR 1946 PC 45; Bhuboni Sahu v. King, AIR 1949 PC 257; Ram Charan & Ors. v. The State of UP, AIR 1968 SC 1270 and Dhanabal & Anr. v. State of Tamil Nadu, AIR 1980 SC 628.
16.19 Thus, from the law as discussed above, I am of the opinion that no statement of any witness, which was recorded u/s 164 Cr.P.C, can be used as a substantive piece of evidence where that witness, while testifying in court, disowns that statement. However, such statement can and shall be used to corroborate the statement of a witness or to contradict him. 16.20 Therefore, in my considered opinion, the prosecution has failed to prove that accused Udai Bhan Singh due to his clout had uninterrupted access of visitors without there being any record of such visits or visitors. Therefore, no inference can be drawn that accused Udai Bhan Singh in the month of January/ February 2003 might have held meeting in which it could have been decided first to persuade deceased Rakesh Kumar Pandey to not to give evidence against accused Udai Bhan Singh in Vakil CC No. 23/09 61 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Shukla murder case and on failure to persuade him, to eliminate deceased Rakesh Kumar Pandey.
16.21 Apart from this there is no evidence before the court regarding any such meeting being held by Udai Bhan Singh. 16.22 Therefore, firstly there is no direct evidence of any meeting in which a conspiracy was allegedly hatched and also there are no circumstances from which an inference of such a meeting being held or possibility of such a meeting being held could be drawn. I thus find, that prosecution has failed to prove this circumstance.
17. Pursuant to this conspiracy, accused Ashok Mishra and Raj Nath Mishra@ Lallu Mishra went to the house of Nirmala Devi, wife of deceased Vakil Shukla and tried to persuade her to persuade Rakesh Pandey not to depose against Udai Bhan Singh and also extended veiled threats.
In furtherance of common object of the conspiracy, accused Sandeep Singh @ Pintu Singh and Mabood Khan @ Shamsher Khan went to the house of Nirmala Devi on a motorcycle. Accused Pintu Singh, who was armed with a pistol threatened that in case offer of Udai Bhan Singh, as sent through Ashok Mishra and Lallu Mishra, was not accepted, CC No. 23/09 62 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Rakesh Kumar Pandey would be shot dead.
17.1 Not only have these two circumstances been arrayed as the proof of conspiracy to kill Rakesh Kumar Pandey , but these acts by accused Ashok Mishra, Lallu Mishra, Pintu Singh and Mabood Khan were substantial offences. Hence, these accused were separately charged U/s 506 ( II) IPC r/w Section 34 IPC.
17.2 To prove these threats by the accused, the prosecution had examined three witnesses. These are (1)PW1 Sarvesh Narain Shukla, (2) PW9 Saket Narain Shukla and (3) PW10 Nirmala Devi.
18. First I shall take up the threats issued by Ashok Mishra and Raj Nath Mishra @ Lallu Mishra. In order to show as to why they would issue threats on behalf of Udai Bhan Singh and that too to their own close relatives, an obligation was imputed on Ashok Mishra as the reason for Ashok Mishra to do the bidding of Uday Bhan Singh and threatening Sarvesh Narain Shukla and family.
18.1 To prove this obligation, the prosecution examined PW1
CC No. 23/09 63 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
Sarvesh Narain Shukla. PW1 Sarvesh Narain Shukla deposed there was a petrol pump in Jangiganj, PS Gopalganj. Accused Ashok Mishra and one Rang Nath Mishra, a former Minister, had a tussle to grab that pump. In this tussle, Uday Bhan Singh gave a lot of assistance to Ashok Mishra. On account of this, there relationship became very strong. Being obliged Ashok Mishra was ready to do anything for Uday Bhan Singh. 18.2 During his cross examination on this point, he deposed that he did not know who was the owner of that petrol pump but stated that on the date of his cross examination, it was in possession of Rang Nath Mishra. Dispute was that Rang Nath Mishra wanted to operate that pump but Ashok Mishra contested that claim. He had heard that they were litigating in Allahabad High Court. He did not know when the dispute started. 18.3 From this evidence it is clear that PW1 has not given any specific details either of the dispute between Ashok Mishra and Rang Nath Mishra, or of the manner in which Ashok Mishra was helped by Udai Bhan Singh. On the contrary, it appears that he has not deposed from any personal CC No. 23/09 64 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 knowledge of facts regarding dispute between Ashok Mishra and Rang Nath Mishra. A mere bald statement will not suffice to prove the obligation of Uday Bhan Singh upon Ashok Mishra and thus, motive of Ashok Mishra to approach Sarvesh Narain Shukla and his family on behalf of Uday Bhan Singh. Apart from this, it is also to be noticed, that as per cross examination of Sarvesh Narain Shukla, it was Rang Nath Mishra who was finally running that pump. Thus, it can not be said that with the help of Uday Bhan Singh, Ashok Mishra succeeding in getting control of that petrol pump and thus had to be under his obligation. Apart from a mere statement of PW1, CBI has brought no other evidence to prove that Ashok Mishra was under
obligation of Uday Bhan Singh. Therefore, the motive imputed to Ashok Mishra to involve himself in the conspiracy stands unproved.
18.4 Now coming on the allegations that Ashok Mishra and Lallu Mishra visited the house of Sarvesh Narain Shukla (PW1), where they threatened him, his brother ( PW9) and his mother ( PW10).
18.5 PW1 Sarvesh Narain Shukla deposed that in January 2003, Raj
CC No. 23/09 65 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
Nath Mishra and Ashok Mishra came to their residence. At that time, he, his mother, his brother and other family members were present in the house.
Both these accused inquired about their well being and asked how they were doing. He told them that everything was alright. Thereafter, these accused started talking about the murder case of his father and also asked what was happening in that case. He told them that evidence was to be recorded in that case. These persons told him that Jija ji (his father) was no more and there was no useful purpose in giving evidence, or making anyone else give evidence. These persons further told that his father would not come back by giving evidence. Thereafter they told, that Udai Bhan Singh was a very powerful man and it was a big deal to give evidence against Udai Bhan Singh or make anyone else to give evidence against Udai Bhan Singh. They also told that it was beyond the means of his family to face Udai Bhan Singh. They suggested him to find a suitable alternative to get rid of the case. He replied that there was no case for getting riddance and he would get them punished. They told him that they had been sent by Udai Bhan Singh CC No. 23/09 66 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 and asked them to take Rs.57 lacs, and ask his maternal uncle Rakesh Kumar Pandey not to give evidence in the court. He told them that they had come with the threats of Udai Bhan Singh and being relatives, they should have desisted from doing so. After a few days, these persons again came to their house and repeated the same threats and asked him to accept Rs.57 lacs. His mother, who was present there, started weeping and asked them not to talk like this. On stating that he was unable to accept the offer of Udai Bhan Singh, Raj Nath Mishra and Ashok Mishra told him that if they gave evidence in that case, they would be killed and also his maternal uncle would be killed before giving evidence.
18.6 During his cross examination, he deposed that he did not remember if the CBI had interrogated him on 17.07.2003. However, he was interrogated on several dates. He did not remember if he had told the IO about the threats extended to him by Ashok Mishra and Raj Nath Mishra in January 2003. He did not remember if he had told Insp. R. S Tanwar about the threats extended by Ashok Mishra and Raj Nath Mishra at the instance CC No. 23/09 67 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 of Udai Bhan Singh. He deposed that he had filed a petition before Hon'ble Allahabad High Court after the incident of 17.02.2003. He admitted that his statement u/s 164 Cr.P.C was recorded by Ld. MM which was a correct statement. That statement was exhibited as Ex.PW1/D1. He did not remember if he had told Ld. MM that accused Ashok Mishra and Raj Nath Mishra, when they came in January 2003, had also inquired as to what was going in the murder case of his father. He did not remember if he had told Ld. MM that accused Ashok Mishra and Raj Nath Mishra had also inquired from him as to what was going in the murder case of his father. He further deposed that he had told the Ld. MM that on the inquiry by Ashok Mishra and Raj Nath Mishra, he had told them that evidence was to be recorded in the murder case of his father. He further deposed that Ashok Mishra and Raj Nath Mishra told him that Jijaji (his father) was no more and no useful purpose would be served by giving evidence or making anyone else giving evidence but this fact was not recorded in Ex.PW1/D1. He did not remember if he had told the Ld. MM that Ashok Mishra and Lallu Mishra told him CC No. 23/09 68 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 that his father would not come back by giving evidence. He did not remember if accused Ashok Mishra and Raj Nath Mishra suggested to him to find out a suitable alternative so that their work is also done and they also get rid of that case. He further deposed that he might have told learned MM that they told him that they had been sent by Udai Bhan Singh with an offer of Rs.57 lacs and to ask his maternal uncle not to give evidence in the court. He did not remember if he had told Ld. MM that Ashok Mishra told him that if the offer was acceptable to them, he would get the matter compromised with Udai Bhan Singh.
18.7 The second witness of threats/ pursuation is PW9 Saket Narain Shukla. He deposed that in January 2003, accused Raj Nath Mishra and Ashok Mishra came to their house. The accused inquired about well being of his mother and after that they told them that the person who was involved in murder of his father was a big mafia and advised them not to litigate against that person. At that time, his brother Sh. Sarvesh Narain Shukla was also present there. He and his brother asked them "why would CC No. 23/09 69 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 they kill us" and stated, that they were no match for them but would get them punished from court of law. Thereafter, those persons started visiting their house after every 23 days. Those persons advised them that by accepting Rs.57 lacs, they should stop giving evidence in the case. After some days, he and his mother were sitting on a cot outside his house. Two persons came on a motorcycle. The person sitting on pillion seat was having a pistol in his hand. He further deposed that they told him and his mother, that they were sent by MLA Dr. Singh. Those persons stated that he and his family should accept the offer being put forward by Ashok Mishra and Raj Nath Mishra otherwise the family of his mama as well as his family would be in trouble. He further deposed that after this incident, Raj Nath Mishra and Lallu Mishra again came to their house and asked them to accept money and not to give evidence in the case. Ashok Mishra and Raj Nath Mishra further states that Rakesh Kumar Pandey did not want to give evidence in the case so why were they pressurizing Rakesh Kumar Pandey to give evidence. After the two had left, his mother sent for his maternal uncle CC No. 23/09 70 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Rakesh Kumar Pandey and Rakesh Kumar Pandey came to his house. His mother told Rakesh Kumar Pandey that if he did not wish to give evidence, he was free not to give evidence and there was no pressure upon him. His mother told Rakesh Kumar Pandey that Lallu Mishra and Raj Nath Mishra were telling that he was not interested in giving evidence. To this, his maternal uncle replied that how could she believe that he would not give evidence by accepting Rs.57 lacs.
18.8 During his cross examination, he deposed that CBI officials had met him about an year after the death of Rakesh Kumar Pandey and recorded his statement. He admitted that Insp. Layak Ram of CBI had met him on 08.09.2005 and recorded his statement. About the visits of Raj Nath Mishra and Ashok Mishra, he used to tell his relatives who used to visit his house and advise him about the murder of their father. During this period, CBI visited his house various times. He did not give anything in writing to any government official about the visit of two unknown persons to his house on motorcycle and asking them to follow the advise of Ashok Mishra and CC No. 23/09 71 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Raj Nath Mishra regarding settling of the murder case of his father. However, he had told this fact to CBI. He had not given anything in writing to any government official that Ashok Mishra and Raj Nath Mishra again came to their house after coming of two unknown persons and told them that his maternal uncle was not interested in giving evidence. He deposed that local police officials had not met him and so he did not tell these facts to them. He never visited PS Gopi Ganj. He denied that he had created a false case after about two and a half years the death of his maternal uncle, and stated that Raj Nath Mishra and Ashok Mishra were sent by Udai Bhan Singh for compromise. He denied that Raj Nath Mishra and Ashok Mishra did not visit his house with a proposal to compromise the matter. 18.9 The next witness is PW10 Smt. Nirmala Devi. She deposed that Lallu Mishra was son of her bua and was as such, her brother. Ashok Mishra was brother of her soninlaw. In January 2003, her father had expired and she went to her maternal house at Bhagwat Pur. There she met Ashok Mishra and Lallu Mishra. They told her that Udai Bhan Singh was a CC No. 23/09 72 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 big mafia and asked her to tell Rakesh Kumar Pandey not to give evidence. Thereafter, she returned to her house. Ashok Mishra and Lallu Mishra started visiting her house. They asked her to take Rs.57 lacs and live with her kids comfortably. After 23 days of her coming from her maternal house, she was sitting outside her house. It would be last days of January 2003. Her son Saket Narain Shukla was also sitting with her. Two persons came on a motorcycle. The person sitting on the pillion seat took out a pistol and stated that they should accept the offer of Lallu Mishra and Ashok Mishra as Udai Bhan Singh was a big mafia. After saying so, those persons left. She further deposed that she could identify the photographs of those persons. At that stage, two photographs were shown to her and she stated that those photographs were the photographs of the two persons who had come on motorcycle and the photographs were exhibited as Ex.Pw10/A and Ex.PW10/B. She deposed that back of these photographs had her signatures. She further deposed that those boys also told to her that if she did not accept the proposal, they would be ruined (dhajji uda denge). She further deposed CC No. 23/09 73 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 that on the same day, after sometime, Raj Nath Mishra and Ashok Mishra came to her house and told her that she was not accepting the proposal and advised her to accept the proposal. They also told her that if Rakesh Kumar Pandey was not interested in giving evidence then why was she forcing him to give evidence. After saying this, both of them left. She sent her younger son to call Rakesh Kumar Pandey. She told him that to give or not give evidence, was his discretion and there was no pressure from her. Rakesh Kumar Pandey told her that his brother in law had been shot dead in his presence then why would he not give evidence.
18.10 During her cross examination, she deposed that she did not tell anyone between February 2003 to October 2005, about the coming of two persons to her house on a motorcycle and threatening them as Rakesh Kumar Pandey had advised her against doing so. She did not tell anything about the threats/ offer being given by Ashok Mishra for reaching a compromise. She did not know if her son had filed petition in the instant case before Hon'ble Supreme Court of Hon,ble High Court. She further CC No. 23/09 74 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 deposed that the photographs Ex.PW10/A and Ex.PW10/B were brought to her by CBI. She denied that she was deposing falsely at the instance of her son and CBI. She denied that Ashok Mishra and Raj Nath Mishra never came to her house with a proposal to compromise the matter. 18.11 I have carefully considered the testimonies of these witnesses. 18.12 Regarding the visits of Ashok Mishra and Raj Nath Mishra, all these witnesses in their depositions have been consistent and no material contradiction could come out from their cross examination. In the normal circumstances, there would have been no reasons to disbelieve these testimonies. However, in this case, the circumstances in which these testimonies have emerged and the time at which these testimonies for the first time came out, needs to be minutely scrutinized. Rakesh Kumar Pandey was murdered on 17.02.2003. The initial FIR which was lodged by PW1 Sarvesh Narain Shukla is Ex.PW1/3. This FIR contains a completely different version of how the incident had happened than what has been brought forward by CBI in the form of chargesheet and what has been CC No. 23/09 75 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 deposed by PW1 and other witnesses. From the date of lodging that FIR till the year 2005, there was not even a whisper by any of the these witnesses that prior to the murder of Rakesh Kumar Pandey, threats had been issued to them.
18.13 PW1 had stuck to his version of FIR till 01.09.2005. Before 01.09.2005, he had nowhere stated about Ashok Mishra and Lallu Mishra coming to his house, making inducements and then also making threats in order to dissuade Rakesh Kumar Pandey from deposing in the court. Similarly, PW9 Saket Narain Shukla for the first time, came up with this version on 08.09.2005 and PW10 Nirmala Devi on 07.10.2005. Now, there is no explanation either by the witnesses or by the prosecution regarding the delay in disclosing the alleged role of Ashok Mishra and Lallu Mishra or the threats given by Mabood Khan and Pintu Singh. Smt. Nirmala Devi tried to explain this delay by saying that Rakesh Kumar Pandey advised her not do so. However, when Rakesh Kumar Pandey had expired in 2003, the advice given by Rakesh Kumar Pandey should not have stopped her or any of the CC No. 23/09 76 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 witnesses from revealing these facts to the IO. 18.14 Similarly, PW9, as per his cross examination, continuously from 17.02.2003 to 01.09.2005, informed his relatives about the visits of Ashok Mishra and Lallu Mishra, however, before September 2005, he did not disclose these facts either to CBI or to the local police. 18.15 This long gap in coming forward with the allegations against Ashok Mishra and Lallu Mishra coupled with the fact that throughout this period, the complainant was sticking to his original version that there were nine named assailants who had killed deceased Rakesh Kumar Pandey raises grave suspicion about the truthfulness of this part of their statements. 18.16 It is improbable that these witnesses who had not only withstood the alleged pressure of Udai Bhan Singh and his associates in the murder case of their father and husband and who despite murder of Rakesh Kumar Pandey, had fearlessly continued to pursue this case before Hon'ble High Court would have not disclosed about the visits of Ashok Mishra, Lallu Mishra, Pintu Singh and Mabood Khan, because of fear of Udai Bhan CC No. 23/09 77 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Singh.
18.17 It is also to be noticed that from the facts of the case, it stands established that there was enmity between Udai Bhan Singh, the deceased and the family of the complainant which includes PW9 and PW10 also. As discussed earlier, due to this enmity, Udai Bhan Singh could have had a motive to have Rakesh Pandey killed. However, it is also a well known that motive works both ways. Meaning thereby, that conversely these witnesses may also have had a motive to implicate Udai Bhan Singh in murder case of Rakesh Kumar Pandey as they had named relatives of Udai Bhan Singh and his associates in the murder of Rakesh Kumar Pandey. This view of mine is fortified by the fact that in the initial FIR Ex,PW1/3, PW1, who is the complainant of the FIR, had alleged that Rakesh Kumar Pandey was murdered by nine persons and all these nine persons were named in the FIR. These persons included father of accused Udai Bhan Singh namely Tehsildar Singh and accused Pintu Singh, nephew of accused Udai Bhan Singh. Therefore, it is also possible that there was a motive to falsely CC No. 23/09 78 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 implicate accused Udai Bhan Singh.
18.18 I also have to notice that regarding the alleged threats issued by accused Pintu Singh and Mabood Khan, none of the two witnesses i.e. PW9 and PW10, have in Court, identified any of these accused persons as the persons who had come to their house and threatened them. On the day when examination in chief of PW9 was recorded, accused Pintu Singh was present in the court and despite this fact, PW9 deposed that two unidentified persons had come to their house, one of whom was armed with a pistol and had threatened them to accept the offer of accused Udai Bhan Singh, as had been conveyed to them by Ashok Mishra and Lallu Mishra. If accused Pintu Singh was one of those persons then PW9 could have deposed that he did not know any of those persons at that time, however one of those persons was present in the court and he could have identified accused Pintu Singh but it was not done.
18.19 Similarly, at the time of recording of testimony of PW10, both accused Pintu Singh and Mabood Khan were present in the court but their CC No. 23/09 79 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 physical identification was never done by PW10. On the contrary, PW10 identified them through photographs which are Ex.Pw10/A and Ex.PW10/B. Despite these accused being present in the court, why the witness failed to identify them and only identified their photographs, is unexplained. 18.20 It is also to be noticed that how and when these photographs came in possession of CBI has nowhere come on record. There is no seizure memo of these photographs on record. On the contrary, both these photographs bear signatures of PW9 and PW10. That being the case, before appearing in the court as witnesses, PW9 and PW10 had already identified those two persons. Then why the witnesses have failed to identify them in court is unexplained.
18.21 I accordingly find that prosecution has failed to prove this circumstance beyond all reasonable doubts. I resultantly find that for the offence u/s 506 (ii) r/w Section 34 IPC, the accused Ashok Mishra, Raj Nath Mishra, Sandeep Singh and Mabood Khan are entitled to be given a benefit of doubt.
CC No. 23/09 80 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
19. Efforts of Udai Bhan Singh to hire Anil Tiwari @ Munna Tiwari and then on his refusal to hire Santosh Singh who did this job and offered him to pay Rs.50 thousand.
19.1 It has been alleged by prosecution that initially Udai Bhan Singh had contacted Anil Tiwari @ Munna Tiwari and offered him a contract to kill Rakesh Pandey but Anil Tiwari refused to kill Rakesh Pandey. It was only then, that accused Udai Bhan Singh approached Santosh Singh who had accepted this contract for a consideration of Rs.50,000/ 19.2 On this point, no evidence whatsoever has been led by the prosecution. Therefore, this fact remains unproved. Anil Tiwari, who was cited as PW44, is stated to have been killed in an encounter and therefore, could not be produced before the court. There is no other evidence to prove that either Anil Tiwari was approached by Udai Bhan Singh to kill Rakesh Kumar Pandey, or that the contract to kill Rakesh Pandey was finally given by Udai Bhan Singh to Santosh Kumar @ Tinku Singh. PW33 Shiv Prasad Tiwari @ Dangar Tiwari as already discussed had also not proved the fact of CC No. 23/09 81 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Tikku Singh being hired. Thus, the prosecution has failed to prove this circumstance.
20. Tinku Singh was provided shelter by Vishal Singh. 20.1 Tinku Singh was allegedly hired to assassinate Rakesh Kumar Pandey and was allegedly given shelter by accused Vishal Singh. There is no direct or indirect evidence led on this point. 20.2 The prosecution had sought to prove this fact through PW26 Suresh Kumar Singh @ Gabbar Singh and PW33 Shiv Prasad Tiwari @ Dangar Tiwari but as discussed above, Suresh Kumar Singh denied ever seeing any young boy of wheatish complexion (purported to be Tinku Singh though nothing on record to show that Gabbar Singh was even made to identify Tinku Singh to be the same boy ) in company of Vishal Singh or staying in the quarter of Vishal Singh. Similarly, Shiv Prasad Tiwari @ Dangar Tiwari had also denied being informed that Vishal Singh would provide shelter to Tinku Singh. There is no other evidence on this point which had been led by the prosecution which could prove that the alleged CC No. 23/09 82 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 assailant Tinku Singh was residing with accused Vishal Singh. Therefore, this circumstances remains unproved.
21. Arrangement of Weapon and motorcycle for assailants by Sandeep Singh @ Pintu Singh 21.1 On this point, the prosecution could not bring any direct evidence or circumstantial evidence to show or prove that weapons, which were used in the commission of this crime, were arranged by accused Sandeep Singh @ Pintu Singh or that the motorcycle used by the assailants was arranged by accused Sandeep Singh @ Pintu Singh. 21.2 As discussed above, PW33 has denied that he was informed that Pintu Singh would be arranging weapons and motorcycle for the assailants. From the very beginning apart from PW33, the prosecution did not have any evidence or witness to prove before the court, that it was for the accused Pintu Singh, in furtherance of common object of conspiracy, to arrange for the weapons and motorcycle for the alleged assailant Tinku Singh. Neither weapon of offence had been seized by the CBI nor the CC No. 23/09 83 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 motorcycle used to commit the offence was seized. Thus firstly, the witness who was to depose of this fact, that too on the basis of hearsay, has not supported the prosecution. And secondly, in absence of weapon or vehicle of offence, there is nothing to connect accused Pintu Singh with supply of weapons and vehicle to alleged assailant. Therefore, this circumstance remains unproved.
22. Identification of deceased Rakesh Kumar Pandey to the Assailants. 22.1 As per the case of the CBI, in furtherance of the conspiracy, deceased Rakesh Kumar Pandey was identified to the assailants. It was done twice.
22.2 The first attempt, according to the CBI, was made by accused Lallan Singh. To prove this, the CBI had sought to examine two witnesses. They were PW26 Gabbar Singh and PW9 Saket Narain Shukla. 22.3 PW26 Gabbar Singh did not support the prosecution on this point and was cross examined by Ld. Spl. PP. During his cross examination, he stated in a volunteered statement, that he did not know Lallan Singh. He CC No. 23/09 84 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 further denied that 810 days prior to the death of Rakesh Kumar Pandey, Lallan Singh alongwith one young boy who was having height of about 5'7'' and of wheatish complexion came outside the atta chakki of Rakesh Kumar Pandey on a black Suzuki motorcycle and that young boy had been seen by him in Gyanpur Jail in the company of accused Vishal Singh. He denied making any such statement to the CBI. He also denied stating to CBI that he had seen a young boy alongwith Lallan Singh when he was sitting at a tea stall near Hanuman Mandir alongwith 45 boys. He also denied that Lallan Singh signalled him and asked him to go with that boy on Lallan Singh's motorcycle and point Rakesh Kumar Pandey to him. He also denied that he alongwith that boy went to atta chakki of Rakesh Kumar Pandey on a motorcycle where he found a mistri running chakki and Rakesh Kumar Pandey was not present at Chakki or that, he returned to the tea shop and informed that boy that Rakesh Pandey was not available at that atta chakki and thereafter, they came back and informed Lallan Singh about it. He further denied stating to CBI that Lallan Singh then asked the wheatish CC No. 23/09 85 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 coloured boy to sit on his motorcycle and both went towards Gyanpur Railway Station where atta chakki of Rakesh Pandey was situated. 22.4 The prosecution had also sought to prove the first attempt identification of Rakesh Kumar Pandey to the assailant through PW9 Saket Narain Shukla. He stated that few days prior to the murder of deceased Rakesh Kumar Pandey, Rakesh Kumar Pandey had told him that one day Rakesh Kumar Pandey was sitting on his flour mill when Lallan Singh came on a motorcycle. One boy was pillion rider with Lallan Singh. They stopped at the flour mill of Rakesh Kumar Pandey and wished. Lallan Singh then said to the pillion rider "Tinku Singh baithiye chalte hain". 22.5 During his cross examination on this point, he stated that prior to 01.09.2005, he had not told anyone , that Lallan Singh had gone to meet his uncle at his flour mill with another unknown boy and addressed that boy as Tinku Singh. He admitted that these facts were known to him and he could have told these facts to the police but did not tell the police. He denied that these facts were not known to him and he had made improvements CC No. 23/09 86 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 before CBI.
22.6 The second attempt, according to CBI, was made in the night of 16.02.2003 i.e. a day prior to the murder. CBI has examined two witnesses to prove that on 16.02.2003, accused Raj Nath Mishra got the deceased Rakesh Kumar Pandey identified to the alleged assailant Tinku Singh.
22.7 The first witness is PW2 Munshidhar Yadav. He deposed that on 16.02.2003, he was returning from his village Ridapur and boarded a bus. The bus was crowded. In that bus, Rakesh Kumar Pandey was sitting on a rear seat and he was sitting on front seat. When the bus reached Ujje Thana, Rakesh Kumar Pandey came to him and told him that Rakesh Kumar Pandey was returning from Maihar Devi. Rakesh Kumar Pandey asked him to get down with Rakesh Kumar Pandey at Ashok Petrol Pump where he would meet Lallu Mishra. Rakesh Kumar Pandey also stated that he would reimburse PW2 for bus fare. He further deposed that Rakesh Kumar Pandey told him that Rakesh Kumar Pandey was scared because of the enmity with CC No. 23/09 87 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 Dr. Singh. They then went to the house of Lallu Mishra where he sat on a chowki outside the the house of Lallu Mishra and Rakesh Kumar Pandey and Lallu Mishra went inside. Lallu Mishra then took them to the petrol pump of Ashok Mishra where he again remained outside and Lallu Mishra, Ashok Mishra and Rakesh Kumar Pandey went inside. At around 08.15 p.m, Ashok Mishra came out and he requisitioned a Marshal Jeep and in that jeep, apart from the driver, one more person was sitting. Ashok Mishra , addressing him as Tinku Singh,asked the person who was sitting on the front seat with the driver, if he was having any acquaintance in village Rampur ghat. The said Tinku Singh stared at Ashok Mishra but kept mum. Tinku Singh was of black complexion, aged about 2223 years and with a broad face. Then they started off again and on the way took paan and finally reached Bhagwat Pur at around 09.45 p.m. 22.8 During his cross examination, he was confronted with certain statements given in his examination in chief, which were not a part of his statement u/s 161Cr.P.C. However, he deposed that local police never CC No. 23/09 88 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 contacted him. He had told these facts to everyone and also to the family members of Rakesh Kumar Pandey and nobody asked him to tell these facts to the police. However, when he told these facts to the elder brother of deceased Rakesh Kumar Pandey, brother of Rakesh Kumar Pandey told him that his one brother had already died so he would not go to the police. 22.9 The next witness to prove the identification is Pradeep Shukla who is PW28. He was the driver of the jeep in which Ashok Mishra and Raj Nath Mishra alongwith PW2 and deceased had travelled to Gyanpur. He also deposed that Ashok Mishra had addressed one boy who was sitting with him as Tinku Singh.
22.10 As regards the first identification attempt through Lallan Singh, I find that PW26 Gabbar Singh has not supported the prosecution that at the instance of Lallan Singh, he had taken one boy to have him identified deceased Rakesh Kumar Pandey. This witness not only resiled from his statement u/s 161 Cr.P.C but also resiled from his statement u/s 164 Cr.P.C as recorded by learned MM. As discussed earlier, statement of a CC No. 23/09 89 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 witness u/s 164 Cr.P.C will have the same value as that of statement u/s 161 Cr.P.C and thus, cannot be used as a substantive piece of evidence and can only be used to corroborate or contradict the testimony of a witness. Thus the testimony of PW26 does not help the prosecution in proving this fact. As far as the testimony of PW9 is concerned, I find that firstly, this fact was disclosed by PW9 Saket Narain Shukla almost after two and a half years of the incident which raises grave suspicion about the veracity of his statement. Secondly, it is also unexplainable as to why all of sudden, Rakesh Kumar Pandey would inform PW9 regarding the visit of Lallan Singh and exact words spoken by Lallan Singh by stating that "Tinku Singh baithiye chalte hain". Thus this point of his testimony appears to be not reliable. But even if this fact is taken to be proved for the sake of arguments, the fact remains that there is no evidence that this Tinku Singh was the same Tinku Singh who had murdered Rakesh Kumar Pandey. This point will also be discussed in detail at a later stage.
22.11 As regards the second attempt of identification, I find that this
CC No. 23/09 90 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
attempt itself is contradictory to the normal human behaviour because if the conspirators had already succeeded in having Rakesh Kumar Pandey identified through Lallan Singh, there could have been no requirement of further exposing themselves by having Rakesh Kumar Pandey again identified. It is also to be noticed that although PW2 Mushidhar Yadav might not have known who that boy was but if Rakesh Kumar Pandey had already seen that boy with Lallan Singh and had found it a suspicious activity, then he would have clearly been alarmed. 22.12 Even if for the sake of arguments, it is believed that on 16.02.2003, Rakesh Kumar Pandey, while returning from Maihar Devi, had visited Lallu Mishra and Ashok Mishra and had returned in Marshal Jeep alongwith Ashok Mishra, Lallu Mishra and one another boy named Tinku Singh; there is no evidence to ascertain before the court that said Tinku Singh was the same person who had killed Rakesh Kumar Pandey. The photographs of the person, who according to the CBI was the assailant were available with the CBI and were exhibited in the court in the testimony of CC No. 23/09 91 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 PW45. To establish this link, CBI should have got these photographs identified from the eye witnesses of the incident to establish that this Tinku Singh was the person who had killed Rakesh Kumar Pandey. Further if these photographs had been put to either Munshidhar Yadav, who appeared as PW2 or Pradeep Shukla who appeared as PW28 then, it could have been established that the person who had killed Rakesh Kumar Pandey was the same person who was sitting on the front seat of the Marshal Jeep in which Rakesh Kumar Pandey, in the night before his death, alongwith Lallu Mishra and Ashok Mishra travelled back to his house. However, nothing of this sort was done. Therefore, there is nothing before the court to establish that the person who was addressed as Tinku Singh by accused Ashok Mishra was the same person who had killed Rakesh Kumar Pandey. It is also to be noticed that in the testimony of all the witnesses, Tinku Singh has been stated to be a person of wheatish complexion whereas according to PW2 Murlidhar Yadav, the person who was sitting in the jeep and was addressed by Ashok Mishra as Tinku Singh was of black complexion.
CC No. 23/09 92 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
22.13 Therefore, I am of the considered opinion that the
prosecution, beyond all reasonable doubts, has not been able to establish the circumstances of identification of deceased Rakesh Kumar Pandey to the killer either by Lallan Singh or by Ashok Mishra and Lallu Mishra. This circumstance stands unproved.
23. Pintu Singh in order to create an alibi got himself arresed in Almora Jail 23.1 Another circumstance which the prosecution sought to prove that in order to create an alibi, a few days prior to the murder of Rakesh Kumar Pandey, accused Pintu Singh got himself arrested and lodged in Almora Jail. There were three witnesses which were sought to be brought by prosecution to prove the fact that accused Pintu Singh had deliberately got himself arrested and that was done in order to create an alibi. These witnesses are PW31 Mukhtar Ahmad Khan, PW33 Shiv Prasad Tiwari and PW40 DSP Bishan Ram Arya. None of these witnesses have supported the case of the prosecution that it was in furtherance of conspiracy and in order CC No. 23/09 93 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 to create an alibi that accused Pintu Singh deliberately, with the help of Bashir Kahn, got himself arrested. Although the fact stands established that accused Pintu Singh was arrested on 13.02.2003 on the allegations of keeping a knife and was then lodged in Almora Jail, however, there is no evidence that he did so in order to create an alibi, or that he deliberately got himself arrested. Therefore, the mere fact that has been proved is the arrest of Pintu Singh and his custody at Almora Jail on 13.02.2003 but in my opinion, that alone is not sufficient to prove that it was done in furtherance of common object of conspiracy. Thus, this circumstance stands unproved.
24. Heera Lal Maurya overheard Lallan Singh stating to another person that Rakesh Kumar Pandey was bent upon testifying and if continued to insist, he would be killed.
24.1 Another circumstance for proving the conspiracy which has been alleged by the prosecution is, that Heera Lal Maurya overheard Lallan Singh stating to another person that Rakesh Kumar Pandey was bent upon testifying and if he continued to insist, he would be killed.
CC No. 23/09 94 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
24.2 To prove this fact, CBI had examined PW38 Heera Lal
Maurya. He deposed that he knew Lallan Singh who had been lastly seen by him about 78 years ago when Lallan Singh had come to his shop for getting his motorcycle repaired. He deposed that Lallan Singh was alone and he had no conversation with anyone pertaining to this case. He further deposed that he was produced before Ld. MM at Tis Hazari where his statement was recorded and volunteered, that he was arrested by CBI officers from his shop on the pretext that he would be released after one or two days. He was kept by CBI for 67 days and was given a list of facts. He was asked to remember those facts and was threatened by CBI officers to state before Ld. MM as told by them. Due to fear of CBI, he gave that statement to Ld. MM. He was cross examined by Spl. PP. He admitted that on 25.07.2005, his statement was recorded by Ld. MM. He admitted that Ld. MM had inquired from him whether, he was under any pressure and he stated that he was not under any pressure. He admitted that he had signed statement u/s 164 Cr.P.C Ex.PW8/C. He also admitted that whatever stated before Ld. MM CC No. 23/09 95 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 was correctly recorded by Ld. MM. He did not disclose before Ld. MM that he was threatened by CBI officers to give that statement and volunteered, that he did not disclose this fact as CBI officers had threatened him in case he failed to give the statement according to their wish, they would seal his house and shop. He further deposed that he had studied upto 2nd class only and could write his name only but could not read or write Hindi and English. CBI officers used to force him to remember the contents of the statement from the paper given to him. The CBI officers used to read the contents from the said paper repeatedly so that he could be able to remember that. He was kept in CBI office at Delhi where he was forced to remember the contents of the statement. He denied that on the day Lallan Singh had come to his shop, Gabbar had also come to his shop or that Gabbar had told him that Lallan Singh was asking about the address of Rakesh Kumar Pandey from him. He was confronted with his statement u/s 164 Cr.P.C where it was so recorded. He denied that he had deposed these facts before Ld. MM without any fear or pressure. He denied that he was CC No. 23/09 96 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 deposing falsely to save the accused.
24.3 It is very much clear that this witness had completely resiled from his statement u/s 164 Cr.P.C as recorded by Ld. MM. He has stated his reasons for doing so. A portion of his statement u/s 164 Cr.P.C would be a incriminating circumstance against the accused person. He completely denied that these facts were told by him on his own wish. As discussed earlier, once a witness had retracted from his statement u/s 164 Cr.P.C it cannot be used as substantive evidence although it can be used to corroborate or contradict any other evidence that is available on record. 24.4 However, apart from this evidence, no other evidence is available on record to prove this fact. Therefore, this circumstance remains unproved.
25. Conduct and Statements of Assailants immediately after the murder of Rakesh Kumar Pandey.
25.1 Prosecution had alleged that Rakesh Kumar Pandey was murdered by Tinku Singh and Kallu. Both these persons have not been CC No. 23/09 97 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 brought up before the Court to face trial. It was alleged that Tinku Singh was killed in an encounter by UP Police. The identity of his associate Kallu could never be fully established by prosecution. Not even his full name, parentage and address could be unearthed by CBI. Although as they are not facing trial and it is not necessary to establish the fact that they killed Rakesh Kumar Pandey, but in the peculiar facts of the case where accused are facing trial for conspiring with Tinku Singh to kill Rakesh Kumar Pandey and where, the conduct of Tinku Singh subsequent to murder is one of the incriminating circumstance, this become a necessary to examine the testimony of proposed eye witnesses of the crime. It was alleged by prosecution that after murder of Rakesh Kumar Pandey, assailant Tinku singh had issued statement which would show that this crime was committed at the behest of Udai Bhan Singh.
25.2 Prosecution had examined eight witnesses who were either eye witnesses to the incident or were present at or near the place of incident and had seen the assailants. These are PW1, PW20, PW23, PW35, PW17, CC No. 23/09 98 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 PW21, PW50 and PW52.
25.3 PW1 Sarvesh Narain Shukla deposed that two boys came raiding a motorcycle. One of those boys got down, took aim and fired at Rakesh Kumar Pandey. The other boy kept the engine running, got down and threw a bomb which did not explode. Then he threw another bomb which exploded. Although CBI had the photographs of Tinku Singh ( Ex. PW45/1 and 2 ), the identity of assailant was not got established through this witness. 25.4 PW17 Vijay Narain Pandey deposed that two boys alighted from a motorcycle and started running towards chakki of Rakesh Kumar Pandey. He heard firing and bomb explosion. He saw people chasing those boys but they ran away. The pillion rider was having revolver in both his hands and waiving them. He deposed that he could not identify those boys. During his cross examination, he deposed that he did not know who killed Rakesh Kumar Pandey.
25.5 PW20 Sarvodaya Pandey is son of deceased Rakesh Kumar Pandey. He deposed that his father was receiving threats. However, he did CC No. 23/09 99 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 not know when and from whom his father was receiving threats. He further deposed that on the day of incident when he reached chakki, his father was around 810 feet from him. One person came from back side of his father and fired with a firearm saying "Le saale gawahi dene ka maza le" and second person also came and hit his father forcefully with his leg. His father fell down bleeding. He was scared, ran way and reached his house. He was not asked to establish the identity of assailant as Pinti Singh by showing his photographs.
25.6 PW21 Shiv Mani Mishra is a chance witness. CBI did not verify the veracity of his claim being present at the spot. He deposed that he was outside railway station. He heard sound of firing and bomb blast coming from the side of chakki of Rakesh Kumar Pandy. He saw two boys on a motorcycle. The pillion rider was having a pistol in his hand and was hurling it. He was saying " Sala Rakesh Kumar Pandey chal tha Udai Bhan Singh @ Dr. Singh or uske bhatije Pintoo Singh ke khilaf gawahi dene. Us Saale to maar diya or jo bhe samne aayega usko bhi goliyon se bhoon CC No. 23/09 100 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 denge." He was asked, by showing the photographs to establish the identity of the assailants.
25.7 PW23 Banwari Kumar was the injured in the incident. He deposed that he heard sound like fire crackers and stepped out of his shop. A bullet hit his leg and while falling, he saw one person of slim built. He was having a weapon and smoke was coming out of the weapon. He was also not asked those persons from the photographs available on record. During his cross examination, he deposed that he was operating the STD Booth of Rakesh Kumar Pandey but denied knowing Sarvesh Narain Shukla. 25.8 PW35 is Ram Dass Maurya. He was also injured in the incident. Neither did he say that he had seen the assailant nor any effort was made to elicit any such information from him.
25.9 PW50 is Sajjan Kumar Pandey. He was a chance witness. He was going to village Ram Pur to meet his brother. When he reached at Gyanpur Station, he heard a bullet fire. He saw two persons, who were riding a motorcycle, were firing upon Rakesh Kumar Pandey and were CC No. 23/09 101 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 saying "whoever will depose against Sh. Udai Bhan Singh and Sh. Sandeep Singh @ Pintoo Singh, will met the same fate." He identified Tinku Singh as pillion rider vide photographs Ex.PW45/A1 and Ex.Pw45/A2. He further deposed that pillion rider was having revolver in both of his hands. In his statement u/s 161 Cr.P.C, he stated that he had heard a loud blast and not firing. Thus, there is improvement in his testimony. 25.10 PW52 is Gyan Shankar Mishra, who was a chance witness. He had stayed at the house of one Janardan Tiwari as in the morning of 17.02.2003, he had to catch a train to Allahabad . On inquiry from Gopiganj railway station, he came to know that the passenger train for Allahabad would come at 08.45 a.m.. As there was some time, he went to Gopiganj Market to have tea. He heard bomb blast and saw a motorcycle. The pillion rider was having revolver in both of his hands and he was saying "whoever will dare to give testimony against Udai Bhan Singh and Sandeep Singh @ Pintu Singh will meet the same fate.".
25.11 During his cross examination, he deposed that he did not state
CC No. 23/09 102 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
to CBI that he had seen someone throwing a bomb. (However, it was so recorded in his statement u/s 161 Cr.P.C.).
25.12 The first thing which catches my attention is that none of these witnesses except PW50 have identified the photographs which are Ex. PW45/A and B to be the assailant who had gunned down Rakesh Kumar Pandey. This is despite the fact, that all these witnesses except PW35 Ram Dass Maurya have claimed to have seen the assailants. Ld. Spl. Prosecutor has tried to give an explanation of this lapse by saying that before the testimony of PW45 was recorded in Court, these photos were not on record and thus, could not be shown to other witnesses. However, I find that CBI can't be allowed to take advantage of the lapse on the part of its own officer who had illegally withhold the collected evidence from the Court. This has also deprived the defence of a chance to bring out contradictions on the testimony of PW50 by cross exam ination of ther witnesses, who could have deposed on the same point.
25.13 Still, let's consider the testimony of PW50 as regards the
CC No. 23/09 103 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
identification of assailants as it will be necessary to test the veracity of his testimony. PW50 has identified from the photographs, immediately taken after the encounter of Tinku Singh, that the person seen in those photographs was the same person who was the pillion rider on the motorcycle and was carrying revolvers in both his hands. However, by identifying the Anil Tiwari as the driver of the motorcycle he has demolished the case of CBI regarding the assailants. CBI had alleged that Tinku Singh along with associate Kallu had killed Rakesh Kumar Pandey. However PW50 had identified Ashok Tiwari as the second assailant. This is the same Ashok Tiwari who was cited by CBI as PW44 and who was to depose about supari/ contract being given to Tinku Singh, money being paid by Uday Bhan Singh to Tinku Singh and Kallu being the associate of Tinku Singh. The fact that CBI had arrayed Ashok Tiwari as witness and stated Kallu was the other assailant, leaves no doubt that these were two different persons. This being the case, I find that it will be unsafe to rely on the testimony of PW50 to arrive at a finding th at the Tinku Singh shown in CC No. 23/09 104 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 photographs Ex. PW45/A and B was the same person who had gunned down Rakesh Kumar Pandey.
25.14 Let us now come to the testimonies of other witnesses to find out whether they can be accepted as eye witnesses. I find that there are material contradiction in their account of Rakesh Kumar Pandey. 25.15 According to PW1, of the two boys, only one fired at Rakesh Kumar Pandey while the other, initially kept the engine running and then got down and threw bombs. On the contrary PW20 does not say anything about seeing a motorcycle or the second boy throwing bombs, he rather stated that the second boy kicked his father who fell down. Contrary to the stand of PW1 that the assailants came to the Chakki of Rakesh Kumar Pandey on motorcycle, PW17 stated that the boys alighted from the motorcycle in front of the Gumti of PW17 and ran towards the Chakki of Rakesh Kumar Pandey. It is also noticeable that as per all other witnesses the pillion rider was having revolvers in both of his hands whereas according to PW21, the pillion rider was having a pistol/revolver in his hand. Therefore, these witnesses CC No. 23/09 105 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 have differed regarding how the incident had happened. The differences in their statements can't be said to be mere natural variances but are contradictions which make it difficult to find as to how the crime was committed and this raises doubts in mind as to which version is correct or who had infact seen the incident and who had not. 25.16 Coming on to the utterances made by the assailants after they had killed Rakesh Kumar Pandey and while they were escaping from the scene of crime. Of the four witnesses, three witnesses i.e. PW21, Pw50 and PW52 had made improvements upon their statements u/s 161 Cr.P.C in recounting what was uttered by the assailants. 25.17 PW21 had stated that the pillion rider was saying " Sala Rakesh Kumar Pandey chal tha Udai Bhan Singh @ Dr. Singh or uske bhatije Pintoo Singh ke khilaf gawahi dene. Us Saale to maar diya or jo bhe samne aayega usko bhi goliyon se bhoon denge". That these words came out from the mouth of the assailants and were heard by him was not stated by him when his statement u/s 161 Cr. P. C was recorded by the investigating CC No. 23/09 106 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 officer. This is marked improvement which if believed to be a true statement, will be a proof of a circumstance pointing towards a conspiracy. However, as the witness had come up with this part of his testimony for the first time in court only, it is unsafe to believe this portion of his testimony. It is especially so, because despite being confronted with the fact that he had not disclosed any such fact in his statement under section 161 Cr. P. C., he did not put forward any explanation as to why he had failed to disclose this fact to the IO. This part of his testimony is also unbelieveable because, what he stated to have been uttered by the assailants is completely unnatural. It seems unnatural and funny that a person while stating the purpose killing some one and issuing threats on behalf of his master will use aliases in that sentence.
25.18 Similarly, Pw50 and Pw52, in their statements u/s 161 Cr.P.C, had not disclosed hearing any statements which during their testimony, they imputed upon Tinku Singh.
25.19 Coming on to PW20. He is the son of the deceased. In the CC No. 23/09 107 of 109 (Parveen Singh) Spl. Judge, CBI02, NDD: PHC.
22.08.2015 initial period of investigation it was never claimed from the side of complainant that PW20 was also an eye witness to the incident. Even otherwise it is highly doubtful that he was present at the time of incident. I say so because all the eye witnesses claimed to have either heard a bomb blast or seen a bomb being thrown by the assailants. That bombs were used while committing the crime is also evident from the investigation which clearly shows that from the scene of crime one crude bomb and shells of an exploded bomb were recovered. The failure of this witness to state that he either saw bombs being thrown or heard a bomb blast and the delay in coming forward as a witness make his presence at the scene of crime doubtful and resultantly his testimony regarding what was said by the assailants also comes under a cloud of doubt.
25.20 Therefore, I find that the prosecution has failed to prove the circumstance that Tinku Singh after allegedly murdering Rakesh Kumar Pandey made certain statements which would prove that he had committed this crime at the behest of Udai Bhan Singh.
CC No. 23/09 108 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015
26. In view of my above discussion, I am of the considered opinion that out of 12 circumstances enumerated in para no.10 the prosecution has failed to prove 11 circumstances and has only succeeded in establishing that Udai Bhan Singh may have had a possible motive to kill Rakesh Kumar Pandey. I accordingly find that the prosecution has failed to prove that the accused had hatched a conspiracy pursuant to which Rakesh Kumar Pandey was murdered. I accordingly acquit accused accused Ashok Mishra and Raj Nath Mishra @ Lallu Mishra, for offence u/s 506 (ii) r/w 34 IPC; accused Mabood Khan @ Shamsher Khan and Sandeep Kumar Singh @ Pintu Singh are also acquitted for offence u/s 506 (ii) r/w 34 IPC. All the accused are acquitted of offence u/s 120B r/w 302/307/326/506 IPC. File be consigned to record room.
Announced in Open Court (Parveen Singh)
on 22.08.2015. Spl. Judge, CBI02,
(This judgment contains 109 pages New Delhi District, PHC.
and each page bears my signatures)
CC No. 23/09 109 of 109 (Parveen Singh)
Spl. Judge, CBI02,
NDD: PHC.
22.08.2015