Allahabad High Court
Girish Chandra Bajpayee vs State Of U.P. on 23 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 1133, (2020) 1 ALLCRIR 226
Bench: Shashi Kant, Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Judgement. Court No. - 81 Case :- CRIMINAL APPEAL No. - 7344 of 2006 Appellant :- Girish Chandra Bajpayee Respondent :- State Of U.P. Counsel for Appellant :- Mayank Bhushan, A.K.Mishra, Abhishek Kumar Srivastava,Ashok Mehta,Bhupendra Nath Singh,D.P.Singh,Sudeep Pathak,V.C. Mishra Counsel for Respondent :- Govt. Advocate Hon'ble Shashi Kant,J.
Hon'ble Ajay Bhanot,J.
(Delivered by Hon'ble Shashi Kant, J.)
1. Above Jail Appeal has been preferred under section 383 of Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.') against the judgment and order dated 16.11.2006 passed by Additional Sessions Judge/Fast Track Court No.5, Kanpur Nagar in Sessions Trial No. 854 of 2003, arising out from the Case Crime No. 38A of 1994, under Sections 147, 148, 149, 302, 436 of Indian Penal Code (hereinafter referred to as 'IPC'), Police Station Babu Purwa, Kanpur Nagar, whereby though the appellant has been acquitted for the offence punishable under Section 436 IPC but has been convicted and sentenced for one year simple imprisonment under Sections 147 IPC, two years simple imprisonment under Section 148 IPC and imprisonment for life and fine of Rs. 10,000/- with default stipulation clause under Section 302/149 IPC.
2. Brief facts relating to the prosecution case are that :
2.1 On 10.02.1994 S.I. Mam Chand has lodged an oral first information report regarding lying of a burnt dead body at Khatikana Pasiyana, which was suspected to be murdered. On the above information, Case Crime No. 38A of 1994 under Sections 302, 436 IPC has been registered against unknown persons. Entry about registration of case was made in GD Rapat No.11 dated 10.02.1994 at 8.20 A.M. Investigation of the case was entrusted to SI Girivar Prasad Shukla PW-6, who rushed to the spot, prepared site plan (Exhibit Ka-4) on pointing out of SI Mam Chand. He also prepared inquest memo of the dead body (Exhibit Ka-5), recovery memo of shoe and ash (Exhibit Ka-6), Chalan Lash (Exhibit Ka-7), Samples of Seal (Exhibit Ka-8), Photo Naash (Exhibit Ka-9), report to C.M.O. (Exhibit Ka-10), report to SPO (Exhibits Ka-11 & Ka-12). He has also taken statement of witnesses. After post mortem examination, dead body was buried in Bagahi Graveyard on 10.02.1994. On 13.02.1994, wife of deceased namely Smt. Nagma Parveen (PW-1) submitted a written report (Exhibit Ka-1) to the Investigating Officer PW-6 stating therein that her husband late Nafees Ahmad and father Zakir Ali were working in Bulb Factory of one Kallu. On 09.02.1994, the atmosphere was tensed due to the murder of one Kala Baccha at 11.30 a.m. When her husband and father were coming to home then Pappu @ Banta, Makku, Manoj Kanja, Ramesh, Kamal and Girish Chandra Bajpai caught hold of her husband at 12:00 P.M. in the noon and after committing murder, burnt his body. Ahmad Ali and Mehboob, who were present there also witnessed the incident. Afraid from the incident, her father came to home and told her about the incident. The dead body buried on 10.02.1994 at Bagahi Graveyard was of late Nafees Ahmad. Due to fear and curfew, she could not reach to the Police Station.
2.2 On the above information P.W.6 has recorded the statement of Smt. Nagma Parveen P.W.1, Ahmad Ali P.W.2, Zakir Ali P.W.3 and Mehboob P.W.4. He has also taken other steps in furtherance of the Investigation.
2.3 After 24.02.1994, the case was transferred to CBCID and the investigation of case was taken by P.W.9, Inspector Devendra Nath Chaturvedi.
2.4 During investigation, I.O. S.I. Deonath Nath Pandey P.W.11 has found evidence only against the appellant Girish Chandra Bajpai and co-accused Pappu @ Banta, Rakesh Sonkar @ Makku and Ramesh @ Manoj Kanja and accordingly he filed charge sheet (Exhibit Ka-15) against them under Sections 147, 148, 149, 302 and 436 IPC.
2.5 The case was committed to the Court of Sessions and in due course transferred to the Court below. The Court below on 24.02.2004 framed charges under Sections 147, 148, 302/149, 436 IPC against the appellant, who denied the charges framed against him and claimed to be tried.
2.6 To prove its case, the prosecution has examined wife of the deceased Smt. Nagma Parveen P.W.-1, brother of the deceased Ahmad Ali P.W.-2, father-in-law of the deceased Zakir Ali P.W.-3, eye-witnesses Mehboob P.W.-4, Dr. Irshad Ali P.W.-5, First Investigating Officer SI Girivar Prasad Shukla P.W.-6, Hazi Mohd. Ahmad Usmani P.W.-7, Waseem Javed P.W.-8, Inspector Devendra Nath Chaturvedi Investigating Officer of CBCID P.W.-9, Constable Lavkush Kushwaha P.W.-10, another Investigating Officer of CBCID, Inspector Deonath Pandey P.W.-11 along with documentary evidence i.e. written report (Exhibit Ka-1), postmortem examination report (Exhibit Ka-2), FIR (Exhibit Ka-3), Site Plan (Exhibit Ka-4), Inquest Report (Exhibit Ka-5), recovery memo (Exhibit Ka-6), Chalan Lash (Exhibit Ka-7), Sample Seal (Exhibit Ka-8), Photo Lash (Exhibit Ka-9), report to CMO (Exhibit Ka-10), report to SPO (Exhibit Ka-11 and Exhibit Ka-12), photocopy of entry of death register 1994 (Exhibit Ka-13), copy of G.D. dated 10.02.1994 (Exhibit Ka-14) and charge sheet (Exhibit Ka-15).
2.7 In their statement recorded under Section 313 Cr.P.C., the appellant Girish Chandra Bajpai denied his involvement in the incident. He also stated that due to communal riot and being Hindu, he was inimically implicated in the case.
2.8 After hearing the parties and evaluation of evidence available on record, the Trial Court arrived to the conclusion that prosecution has successfully proved its case against appellant and passed the impugned judgment and order, as stated above.
2.9 Aggrieved therefrom the appellant has preferred this Jail Appeal.
3. Sri Ashok Mehta, Senior Advocate assisted by Sri Sunil Singh learned counsel for the appellant contended that :
3.1 Initially FIR has been lodged against unknown persons for murder of unknown person by S.I. Mam Chand and investigation of the case was started on the basis of above FIR.
3.2 According to the prosecution, Smt. Nagma Parveen P.W.-1 (wife of deceased), Ahmad Ali P.W.-2 (brother of deceased), Zakir Ahmad P.W.-3 (father-in-law of deceased), and Hazi Mohd. Ahmad Usmani P.W.-7 (maternal father in law of the deceased), have identified the deceased as Nafees Ahmad before burial of the dead body. The Police was also present there and P.W.-1 was having curfew pass with her. Despite that they neither told the Police personnel present there that who, why and how murdered the deceased nor such information was given to the Police Station concerned, where the case of murder of deceased was already registered, without any just and cogent reason.
3.3 For the first time information regarding murder of deceased was submitted on 13.02.1994 by means of written report (Exhibit Ka-1). Admittedly, P.W.-1 is not an eye-witness. The so called eye witnesses of the incident i.e. P.W.-2 and P.W.-3 who are brother and father-in-law of the of the deceased respectively have neither informed the Police nor scribed the written report. Written report was scribed by one Tahir, who has not been examined by the prosecution.
3.4 In the written report (Exhibit Ka-1), there is no mention of any weapon and use of kerosene oil etc. in the murder and no specific role has been assigned to any of the accused in murder of the deceased even P.W.-1 has also said nothing in her evidence.
3.5 The case of pouring of kerosene oil on the deceased and his burning by the appellant Girish Chandra has been first time introduced by P.W.-2 in his statement recorded before the Court on 09.08.2004.
3.6 According to the postmortem examination report, the right ear of the deceased was chopped and that injury was possible only by use of any sharped edged weapon but no prosecution witness has assigned any sharped edged weapon and its use by any accused.
3.7 Postmortem examination report also reveals all injuries except to elimination of right ear on the left side of the deceased which belies prosecution story regarding murder of accused by surrounding him by the accused persons and beating and burning him. It appears that some persons have caused injuries to the left side of the deceased and cut his right ear by using sharped edged weapon and thereafter burnt his body, which was quite possible in the case of communal riot, which had taken place after murder of Kala Baccha.
3.8 According to P.W.5 during post mortem examination, no odour of kerosene oil was found from the dead body or clothes of the deceased, which also belies the prosecution story. Even P.W.2 has replied to a query of the Court that at the place from where he was witnessing the incident, there was no odour of kerosene oil. As well as accused persons poured liquid on his brother. He was inflamed 3.9 The Court below has wrongly and illegally convicted the accused appellant under Sections 147, 148 IPC. As per law, the appellant could be convicted only under one section first and secondly, as number of accused persons according to charge sheet is less than five, therefore, they could not be sentenced any of the sections which are Sections 147, 148 and 149 IPC as such conviction of appellant in the aforesaid sections are bad in law. Apart from above charge sheet has been filed only against the accused and no charge sheet was filed against the other named accused persons. No application under Section 319 Cr.P.C. has been moved and Court has also not summoned the other named person as accused in this case as such conviction of appellant under Sections 147, 148, 149 IPC is also wrong and bad in law.
3.10 It is highly impossible that despite imposing of curfew order in the area, dead body of any unknown person remained lying on the road from 12 p.m. (noon) of 9th February, 1994 up-to 8:20 a.m. of 10th February, 1994 i.e. for about 20 hours in densety populated area without any information to the Police in this regard from public or Police officials and that too also without any attack on it by stray animals especially dogs and vultures like crows etc. 3.11 This is also surprising that despite knowing that dead body of Nafees was lying, his wife did not visit there to see him and her evidence regarding identification of the dead body in the graveyard on 10.02.1994 is also not found reliable by the Court below.
3.12 Another eye witness Mehboob P.W.4 has not supported the prosecution case and he has been declared hostile.
3.13 Prosecution has not examined any independent witness, P.W.1 wife of the deceased is not the eye witness of the occurrence while P.W.2 and P.W.3 are chance witnesses and being wife, brother and father-in-law of the deceased respectively, all the above witnesses are highly interested witnesses.
3.14 The investigation of the case is highly defective which has caused serious prejudice to the appellant because due to various defects in the investigation, the appellant could not properly defend his case and found himself handicapped in the matter.
3.15 Due to contradictions and improvements in the evidence of P.W.1, P.W.2 and P.W.3, their evidence is not reliable and appellant could not be convicted on the basis of their evidence.
3.16 Prosecution witness P.W.2 has given different version and manner of the incident, as such he has not supported the prosecution case but prosecution has not declared him hostile and has not cross-examined him on that points. As such, evidence of P.W.2 is binding on the prosecution and defence, appellant may take benefit of that.
3.17 In this regard learned counsel for the appellant has placed his reliance on the following decisions :
In Aditya vs. State of U.P. reported in MANU/UP/1415/2016, the Court said that :
"37. Even if the witness did not support the prosecution version in its cross-examination then it was the duty of the prosecution agency to get the witness declared hostile and get him cross-examined but neither the Court nor the prosecution agency endeavoured to make an attempt to bring whom the correction factual situation of the case."
In Raja Ram vs. State of Rajasthan (2005) 5 SCC 272, the Court said that :
"9. The testimony of P.W.8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw P.W.5 making the deceased believe that unless she puts the blame on the appellant and his parents. She would have to face consequences like prosecution proceedings. It did not occur to the public prosecutor in the trial Court to seek permission of the Court to heard (sic declare) P.W.8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of P.W.8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how P.W.8's testimony can be sidelined."
In Mukhtiar Ahmed Ansari Vs. State, (2005) 5 SCC 258, Hon'ble Supreme Court said that :
" The learned counsel for the appellant also urged that it was the case of the prosecution that the Police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as P.W.1. He, however, did not support the prosecution. The prosecution never declared P.W.1 "hostile", His evidence did not support the prosecution. Instead, if supported the defence. The accused hence can reply on that evidence.
A similar question came up for consideration before this Court in Raja Ram vs. State of Rajasthan. In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution."
3.18 The injury of elimination of right ear of deceased has not been explained by the prosecution, which is a serious lacuna and dent in prosecution story. In support of his this contention, learned counsel for the appellant has placed his reliance on the following decision :
In Noor Ahmad vs. State, 2016 (3) SCC 325, in para 25 of which, the Court said that :
"25. In the postmortem report of the deceased, the presence of a surgical wound on the left side of the head, measuring 30 cm long extending vertically upwards from point 1.5 cms above and in front of left ear, has remain unexplained by the prosecution, is another lacuna in the prosecution story which casts a shadow of doubt on the same and the benefit of which should certainly go to the accused appellants."
3.19 The prosecution is miserably failed to prove its case beyond reasonable doubt against the appellant and as such, the appellants are entitled to get benefit of doubt. In this regard he has placed his reliance on the decision of Noor Mohd. (Supra), in which it is said that :
"29. Further,it is clear from the record that all the forest officers were deployed on patrolling duty to keep a check on then increasing forest offences. It means incident, like in the instant case, could reasonably be anticipated. It has rightly appreciated by the trial court that under such circumstances, they should have been armed with weapons at least for their own safety. As per record, when the incident occurred all the forest officers were found to be without weapons. It can not be believed that the forest officers on patrolling duty were without any weapon. In this regard, High court has erred in observing that the forest department being poorly equipped failed to provide weapons to meet the situation, like in the instant case."
In Mahavir Singh vs. State of Madhaya Pradesh 2016 (10) SCC 220, in which the Court said that :
" 24. It is the duty of the Apex Court to separate chaff from the husk and to dredge the truth from the pandemonium of Statements. It is but natural for human beings to state variant statements due to time gap but if such statements go to defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements [See : Tahsildhar Singh v. State of UP, AIR 1959 SC 1012; Pudhu Raja v. State, (2012) 11 SCC 196; State of UP v. Naresh, (2011) 9 SCC 698]. The case in hand is a fit case, wherein there are material exaggerations and contradictions, which inevitably raises doubt which is reasonable in normal circumstances and keeping in view the substratum of the prosecution case, we cannot infer beyond reasonable doubt that the appellant caused the death of the deceased."
3.20 The prosecution case regarding burning of dead body by kerosene oil is also not reliable due to nature of injury of deceased and to the facts that no odour of kerosene oil was found by P.W.5 Doctor who has conducted the post mortem of dead-body. In this regard, he has placed his reliance on the following decision :
In State of U.P. vs. Hanifa Khursheed 2015 (1) ALJ 596, in which Clause ii, iii, iv and (g) of para 29 and (5) of para 34 in which, the Court said that :
" 29 (ii). That the deceased did not disclose to anyone of the locality that he was set on fire by accused after sprinkling kerosene oil upon him;
(iii) That there was no kerosene smell either on the body of the deceased or in the rooms of the accommodation (lodge) of the accused;
(iv) That post-mortem report does not speak that any smell or odour of kerosene oil was noticed by the doctor who conducted the autopsy;
(ix) That the link evidences are missing and the chain of circumstances is not complete to fasten the guilt with the head of the accused;
34 (5) Non-presence of kerosene odour on the body of the deceased or in the rooms in question is further missing link to complete the circumstantial chain."
Learned counsel for the appellant has also hammered wrong procedure adopted by the Court below in recording the evidence of prosecution witnesses by submitting that during examination of P.W.2, the Court has deferred his cross-examination and examined P.W.3 and thereafter again examined and completed the evidence of P.W.2, which is against the established procedure of law.
3.21 Apart from above, appellants have examined his defence witnesses Ram Naresh Singh D.W.-1, Anant Kumar Mishra D.W.-2 and Constable C.P. Kali Charan D.W.-3 along with copy of judgment dated 04.01.2006 passed in S.T. No. 855 of 2003 (State Vs. Girish Chandra Bajpai) and photocopies of judgment dated 11.09.2001 and 17.10.2005, which also caste serious doubts on the prosecution case and support the defence version about wrong and false implication of the appellant in the case.
4. Per contra, Sri Ratan Singh, learned A.G.A. has contended that :
4.1 P.W.2 and P.W.3 are natural witnesses and their presence on the spot at the time of the incident could not be doubted. On the basis of evidence available on record, the Court below has rightly relied evidence of both the above witnesses.
4.2 The defence evidence and its witnesses are not reliable and they were rightly discarded by the Trial Court.
4.3 Non presence of odour of kerosene oil from the body of the deceased at the time of the post mortem is not of much importance due to long gap between the incident and post mortem. In this regard he has placed his reliance on the decision of Darbara Singh v. State of Punjab, AIR 2013 SC 840, in which the Court said that :
"5. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved. (Vide: State of U.P. v. Hari, (2009) 13 SCC 542; and Bhajan Singh @ Harbhajan Singh & Ors. v. State of Haryana, (2011) 7 SCC 421)."
4.4 If witness concerned has not been asked about any particular fact, his evidence could not be contradicted by citing evidence of other witness.
4.5 This is the case of direct evidence and motive for the crime is not of much importance, in this case. To buttress this argument, learned A.G.A. has placed his reliance on para-9 of the decision of Darabara Singh (Supra), in which the Court said :
"9. So far as the issue of motive is concerned, it is a settled legal proposition that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses its significance. In the instant case, firstly, there is nothing on record to reveal the identity of the person who was convicted for rape, there is also nothing to reveal the status of his relationship with the appellant and further, there is nothing on record to determine the identity of this girl or her relationship to the co-accused Kashmir Singh. More so, the conviction took place 20 years prior to the incident. No independent witness has been examined to prove the factum that the appellant was not on talking terms with Kashmir Singh. In a case where there is direct evidence of witnesses which can be relied upon, the absence of motive cannot be a ground to reject the case. Under no circumstances, can motive take the place of the direct evidence available as proof, and in a case like this, proof of motive is not relevant at all."
4.6 No failure of justice and prejudice has been caused to appellant in the case by lapses of investigation, if any. In this regard learned A.G.A. has again placed his reliance on para-15 of the decision of Darabara Singh (Supra).
"15. The 'failure of justice' is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be 'failure of justice'; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be over emphasized to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under Indian Criminal Jurisprudence. 'Prejudice', is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can seek benefit under the orders of the Court. (Vide: Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114; Rattiram & Ors. v. State of M.P. through Inspector of Police, AIR 2012 SC 1485; and Criminal Appeal No.46 of 2005 (Bhimanna v. State of Karnataka) decided on 4th September, 2012)."
4.7 As far as some different version regarding the incident in the evidence of P.W.2 is concerned, it is also of not much importance and could not be a basis for rejecting whole testimony of P.W.2 and other witness as principles of falsus uno falsus omnibus is not applicable in the India.
4.8 Considering all the evidence available on record and the facts and circumstances of the case, the Trial Court has rightly convicted and sentenced the appellants by means of impugned judgment and order.
4.9 Appeal is devoid of merits and is liable to be dismissed.
5. We have given our thoughtful consideration to the above referred rival arguments and carefully perused the record.
6. For determination of this appeal, core issue is as to whether impugned judgment and order is based on proper appreciation of the evidence available on record and is sustainable in the eyes of law?
7. To find out answer of above question, we have to consider the evidence available on record.
8. The prosecution witnesses have stated in their evidence as under :
8.1 The wife of the deceased Smt. Nagma Parveen P.W.1- has stated in her evidence that Nafees Ahmad was her husband and Zakir Ali is her father. She was living with her husband in the house of her father. The occurrence took place on 09.02.1994. On that day, her husband and father had gone to work at Kallu's work shop, Khatikiyana at 8:00 a.m. On that date at 11:00 a.m. Kala Baccha was killed. Thereafter riots were started. Her father returned to home at around 12:00 noon and told that they both were coming towards home, when Pappu Banta, Manoj Kanja, Ramesh, Kamal, Girish Bajpai and Bhakku cornered, thrashed and killed her husband Nafees. Thereafter they put him on fire. Frightened by the incident her father came to house, he further told that the occurrence was also witnessed by Ahmad Ali and Mehboob. On the day of occurrence, she could not report the matter to the Police due to being panicky and imposition of curfew. Next day after post mortem examination, the body of the deceased came to Bagahi cemetery for burial. She and her father any how, reached the cemetery and identified the dead body, which was of Nafees Ahamd. Meanwhile, curfew remain imposed in the area. After situation became normal, she along with her father went to Babu Purwa Police Station and lodged a report of the occurrence. The report was scribed by Tarique who had read over the contents of the written report to her and thereafter she put her thumb impression thereon. She has proved the written report as Exhibit Ka 1.
In her cross-examination, she has stated that the murder was committed on 09.02.1994. After the occurrence, she had gone to Police Station Babu Purwa on 13.02.1994 to report the occurrence. Before it she had not gone to the Police Station for lodging the report. At the time of the incident, her father Zakir was with the deceased. She did not go to the spot to see the body of Nafees Ahmad. She did not recognize the accused persons, whose names were written in the written report. She was not familiar with the accused persons from before. The name of the accused persons have been written in the report on the basis of information provided by her father Zakir Ali. The place of occurrence would be a distance of around one furlong from his house. The bulb work shop of Kallu in his home would be ten packs from her house, only her father had witnessed the occurrence of putting Nafees on fire. No Police personnel came to inform or take her with them. Half an hour time is consumed in reaching the cemetery from her house. There were Police. She had a curfew pass due to that she was not restrained. The face of the body was not covered. She has recognized the body immediately. Ahmad Ali is her Jeth (brother-in-law) and reside at many places. He rareally Ame to her house. She had not seen the occurrence.
She had denied the suggestions put to her that she had written wrong report being tutored by her Jeth and other persons of locality, the written report submitted by her is false and fake, the accused persons were falsely implicated in the case due to enmity and she has given wrong evidence.
8.2 Brother of the deceased Ahmad Ali P.W.2- has stated in his evidence that on 09.02.1994 at 11:30 a.m. Chaos prevailed in the area due to murder of Kala Baccha. Mehboob was coming from the side of Begam Purwa. He came through the Khatikiyana locality and saw that Manoj Kanja, Pappu Banta, Girish Chandra, Kamal and Bhakku had cornered Nafees Ahmad, had fallen him by assaulting him with sticks, when he fell down, Girish Chandra Bajpai and other persons poured Kerosene on him and then Girish Chandra Bajpai put him a fire with match-stick. The occurrence took place at 12:00 noon before the southern side of house of Sushil Khatik on the paved street on pasiyana. Mehboob Ali and Zakir Ali were also present there, owing to sheer-fear, they fled of to their houses from the spot. The curfew was imposed immediately thereafter the witness recognized Girish Chandra Bajpai, who was present in the Court telling that he is familiar with him.
In his cross-examination, he has stated that he was a sales man at a cloth shop at Bakerganj locality. He remained on duty at 10:00 a.m. To 7:00 p.m. On 09.02.1994, he was not on duty when occurrence took place. He was sitting at the shop of Dr. Siddiqui. He reached to Doctor's Clinic at around 11:00 a.m. and did not return to his house from Doctor's clinic. Later, he said that he returned to his house from Doctor's clinic at around 1:00 p.m. He knew all the accused persons before the occurrence and could have recognized them. He was present at the spot among the persons from his locality. When the inspector came for inspection at the spot. He had shown him the place where the injured was put on fire with match-stick, after pouring kerosene oil on him, the injured was coming alone from the east and was going towards the south. He did not see the accused coming from any direction.
Next day, after the murder of Kala Baccha, curfew was imposed. Though he witnessed the occurrence but did not give information immediately because, he had consulted with family members and it was not proper to go out immediately. They were apprehensive of their own life that they might be murdered as well because the situation was very tense. The people were being chased away from the occurrence spot. Force chased away the occurrence persons as well as them because force was not ready to hear anything. Due to that, he could not tell the force that the accused persons were fleeing from the spot after committing murder.
On the day of occurrence, the Police personnel from the Babu Purwa Police Station were present. He did not know that S.I. Verma was present at the spot or not. The dead body was not taken to the Police Station by him. He cannot tell how much time the body remained lying at the spot. The force reached at the spot after the murder. He cannot tell that how much time force took to reach the spot. He himself did not see force arriving at the spot. There were injuries on head, shoulders and temple of the injured. He could not tell total number of injuries. He did not flee of spot because his brother was murdered. Other persons from the locality were present at the spot. They were standing at the distance of 100 packs. His brother was first struck with stick and when he fell down unconscious, Girish Chandra set his body on fire with match-stick after pouring kerosene oil. He has witnessed the occurrence from the distance of 30-40 packs. He heard the alarm and rushed to save his brother, the assailants also threatened to kill him. Seeing their anger, he remained silent that they might also kill him. He did not try to dowse the fire in gulfing his brother from him. He was standing taking the cover of grocery shop. The inspection at the occurrence spot was conducted by the Inspector in his presence for about 10-15 minutes his brother was breakerring in pain, at that time he (witness) was weeping profusely. His mental state was tensed. Zakir Ali was also weeping as he felt helpless. At the time of occurrence, no one was stopping. He went to see the half charred body of his brother. The body of his brother in charred state was lying face down at the spot. No one has touched the body before the Police came to the spot. His brother was wearing pant shirt when he was murdered. He could not tell the colours of the pant and shirt with respect to the occurrence, they had gone to the Police Station on 12.02.1994 and lodged report there. Only three persons had gone to lodge report at the Police Station. Wife of the deceased had lodged the FIR after making her signature on the written report, which was written by some one, when accused persons were present at the spot, they had sticks, pipiya (a cane for carrying kerosene) and match-stick in their hands. On being chased by the Police the accused persons carried away the cane for kerosene with them. When kerosene was poured on his brother and he was put on fire then he came to know that it was kerosene oil and not gas, it was not gas by seeking any inflammable, he can say what kind of material it was.
When kerosene was poured on his brother, he was lying unconscious. He had told this fact to the Inspector, if inspector had not recorded these facts in his statement, he cannot assign any reason for that. It is not true that he was disclosing this fact for first time in the Court. He has never been prosecuted in any case and no FIR has been registered against him at Babu Purwa Police Station. It is true that at the time of the occurrence, Hindu and Muslim riots took place in the Babu Purwa area and on that date, incident was likely to take place due to tension between Hindus and Muslims. The Police had imposed curfew to control the situation in the area during the occurrence of riots and the imposition of curfew in the area one will have fear to go in Hindu locality near the occurrence site, Hindus were fearful of Muslims and Muslims were fearful of Hindus.
In reply to Court query, witness had stated that when the accused poured kerosene and put him on fire, he did not reach to his brother, he had no smell of kerosene from the place from where he has witnessed the occurrence. As soon as, the liquid substance was poured and fire was ignited with match-stick, he was immediately inflamed.
Due to murder of Kala Baccha, the accused persons murdered his brother Nafees out of religious hostality. He was acquainted with these persons before the incident. The witness has also identified the accused Manoj Kanja present in the Court. The road going straight from the char road inter section goes towards east to Begum Purwa, if they go to Begum Purwa from the char road, inter section there is Khatikiyana Mohalla to the left towards north, if any person goes to Khatikiyana form Ajitganj colony, he will not go towards Begum purwa. If he has no work, there. House No. 21/9 situated at Ajitganj Colony is not allotted in his name. Though his name is shown in the voter list for that house. On the date of the incident he was living in Ajitganj Colony and also received all the summons sent by the Court to that address. Nafees Ali's father-in-law Zakir Ali knew that he lives in Ajitganj Colony. How Zakir Ali came to know about it when he would not live in Juhi-Nahiraya?
He had attended the cremation of Nafees. The Police had brought the body of Nafees at home. He has told this fact to the Inspector. Nafees felt to the ground unconscious thereafter Manoj has sprinkled kerosene oil on Nafees Ahmad from a plastic pipiya (a type of container). This was the second time when he was stating before the Court about the fact of sprinkling of kerosene oil. On going to grave yard from home, the Police did not stop the persons going with dead body. After the incident, the curfew was imposed in the Mohalla for 3-4 days, after the death of Kala Baccha, curfew was imposed by around 12 O'clock. Kala Baccha was murdered at 11:30 O'clock. After the murder of Kala Baccha, no Hindu Muslim riots occurred under Police Station Babu Purwa. Neither the Hindus assaulted any Muslims nor Muslims assaulted any Hindus.
The person ran to their respective homes, when the Police imposed curfew and resorted to lathi charge. After death of Kala Baccha, neither riots nor arson occurred at any place out of rage arising from the murder of Kala Baccha. Two persons were killed, one was Nafees Ahmad and he could not remember name of another persons. After murder of Kala Baccha on 09.02.1994, houses of around 17 persons were literally set on fire and there were threats but above incidents did not take place in his presence. He reached to his home at 12:00 O'clock on that day. He came to know about death of his brother after removal of the curfew. He saw the dead-body of his brother first at his house. He was being taken to the grave yard.
8.3 Father-in-law of the deceased Zakir Ali P.W.3- has stated in his evidence that the deceased Nafees was his son-in-law. On the date of incident 09.02.1994, Nafees and he went to Kallu's Bulb Factory at Kahtikiyana. After taking breakfast at 8:00 a.m. at around 11:30 a.m., there was a ruckus that Kala Baccha has been murdered and the factory was closed. He and Nafees were returning to home through a street at Kahtikiyana. Nafees was ahead of him. He stopped at a shop for two seconds to buy bidi, when he went ahead, he saw Girish Chandra Bajpai, Makkhu, Manoj Kanja, Pappu alias Banta, Ramesh and Kamal coming from the opposite side, carrying sticks in their hands. Manoj was carrying a pipiya (a type of container). Above persons caused Nafees to fell down to the ground by beating him with sticks. Manoj Kanja sprinkled oil on Nafees and Girish Chandra Bajpai set him on fire by using a match-box. The incident occurred at around 12:00 O'clock near the paved path going to the north a bit for from the paved path going from Kahtikiyana to Pasiyana at Sushil Kahtik's house. Apart from him, Ahmad Ali and Mehboob also saw the incident. After reaching home, he narrated the entire incident to his daughter Nagma Parveen wife of Nafees. Thereafter a curfew was imposed, which is why they could not go to report the matter. The next day, i.e. 10.02.1994, his daughter Nagma and he went to graveyard to identify the dead-body which was of Nafees. After removal of the curfew, his daughter Nagma submitted a complaint of the incident to the Police Station Babu Purwa. At the time of the incident, Nafees was wearing shoes. Shoe from one leg fell at the spot. The witness recognized the shoe produced before him after opening the seal, as the same shoe which Nafees was wearing at the time of the incident. Shoe was exhibited as Exhibit-1. He has also recognized the appellant Girish Bajpai present in the Court claiming to know him before the incident.
In his cross-examination, he has stated that after reaching home, he narrated the incident to his daughter Nagma Parveen, wife of Nafees Ahmad, by that time a curfew has been imposed, due to which, they could not go to report the matter. On the 10th a dead body was brought at Bagahi graveyard for burial. He and his daughter Nagma Parveen went to identify the same where they identified dead-body as body of Nafees Ahmad. On 13.02.1994, his daughter Nagma Parveen got the FIR registered. At the time of the incident, a shoe which was wore by Nafees fell at the spot, which was later recovered by the Police. Nafees and he had been working in Kallu's Bulb Factory for the last one and half year. The factory is in Pashiyana Mohalla and Kahtikiyana is also at that very place. By guess, the factory shall be one furlong away from his home. His son-in-law had been staying with them for three years prior to the incident. In front of his house, there is a house of Constable Jahir adjacent to his house, there is a house of a retired Constable Abdul Raseed, adjacent to his house, there are two houses of Sakhauddin, his 15-16 tenants resided there. The factory where he worked was owned by a Muslim named Kallu. In front of the factory, there was a grocery shop of a Muslim. He did not know his name. In his factory, Muslims workers were in majority. Muslim population also existed around his house. On the day of the incident he had gone to the factory at 8:00 a.m. 14-15 persons worked in the factory. Persons from the Hindu and Muslim communities were there. All the persons left the factory at around 12:00 O'clock. Nafees Ahmad had told about the murder of Kala Baccha. He was sitting somewhere outside in a Hotel and upon his return, he heard the gun shot sound around 11.30 a.m. He heard the sound of bomb blast not of the gun shot. After reaching home, he told his daughter about murder of Kala Baccha at 11:30 a.m. He did not tell the Sub-Inspector about going to duty at 8:00 O'clock. The curfew was imposed at around 12:30 O'clock. After 15 minutes he reached home. The Police started announcing about imposing curfew. When he was returning from the factory, he found many persons on the way, but did not know name of any person. He told to his daughter and other persons about Kala Baccha to have been murdered at 12.30 p.m. Kala Baccha would have been murdered 20-25 steps away from the factory. When he left the factory, there was no crowd. All the persons were going to see Kala Baccha. He did not go to see Kala Baccha. Manoj Kanja had no enmity with him or his son-in-law Nafees. He knew Manoj Kanja 2-3 years prior to the incident. The Official from CID came 20-25 days after the incident to interrogate him. He did not tell them that he had seen Manoj carrying a pipiya in his hand. This is first time, he was giving this statement before the Court. He told the Officials of CID that the incident had occurred near the house of Sushil Kahtik. They were six persons, who set Nafees on fire. After beating him with the sticks or not? he do not remember that whether or not he told the Officials of CID that Nafees was made to fell down to the ground by threshing him with the sticks. From the time of the incident, until today, he had not submitted any application with any Police officer about this incident. He was screaming while witnessing the incident from a distance of 20-25 steps. When he was screaming Ahmad Ali and Mehboob were there. Ahmad Ali was shouting, people had closed their doors. He did not think it necessary to tell the aforesaid facts to the official of CID. He did not go ahead to save him, when tried the rioters made him to run away threatened to kill him if he offered resistance. He kept screaming as long as the incident was committed. After the incident and prior to 4-5:00 p.m. on the next day, he did not come outdoors because the curfew was imposed there. At 4-5:00 p.m. he came outdoor and went to the graveyard to identify the dead-body. The Police did not come to take him with them. The Police did not come to inform him about recovery of the dead-body. They were informed on this count by the resident of their Mohalla. Until 13.02.1994, prior to registration of the FIR, Police did not come to his house to inform about death of Nafees, nor did they come to him for identification of the dead-body. The receipt of graveyard and burial of the dead body of Nafees was provided, which was kept at home. The Police buried the dead body at around 5:00 O'clock. On the 10th he came outdoor during curfew. On the way, the Police met him. He did not have any pass. The person accompanying him Fahimuddin had the curfew pass and the same was shown. Since Fahimuddin knew his son-in-law, hence he told him that his son-in-law has been murdered. He told this fact to the Officials of CID that shoe of Nafees fell down at the spot but told no reason for not recording this fact in his statement. He denied that first time he is telling this fact before the Court on the day of statement. He did not go with the Police team to show them the spot nor did he go with the Officials of CID to show the same to them. Ahmad Ali alias Naggan is real brother of his son-in-law. On the day of the incident, he ran and tried to save his brother and he was remonstrating. He could not save his brother because those persons had been holding-out threats. No stone was available at the spot. Hence he could not use and throw the same. No Hindu Muslim riots took place when Kala Baccha was murdered. These very persons killed two men, another killed person was Abrahim. He did not see him killing and had just heard about it. After killing Nafees they did not take body with them rather they left at the same place. He ran away out of fear. Ahamd Ali, brother of Nafees did not come to his house on 9th. He met him after 13th when he returned from the funeral process. He went to meet him. Ahmad Ali did not submit any application with the Police. He went to meet Ahmad Ali at railway colony below the over bridge. Thereafter he said that he lived in Juhi. After the funeral process of Nafees, he went to meet his brother Ahmad Ali at Juhi. He was living there with family. He did not know what work Ahmad Ali alias Naggan was doing at the time of the incident but he knew that he lived in Juhi. Ahmad Ali lived in Juhi but he had mentioned his address to be of the colony. He denied the suggestion put to him that he named as a witness on account of his being brother. He did not go to the Police Station with Ahmad Ali on the curfew being relaxed. He did not know the time when he went to the Police Station on 13.02.1994. It was not that Hindus assaulted Muslims and Muslims assaulted Hindus. He did not remember colours of trousers and shirts wore by Nafees as incident was old. The Police has neither shown Nafees's cloth nor any paper for identification shown to him by the Police. The Police also did not show him burnt clothes etc. The Police persons had not told the dead-body to be unclaimed. He did not know whether the Police had published about the recovery of an unclaimed dead-body or not? He was not informed by the Police about Nafees's post mortem. He denied the suggestion put to him that he is being tutored by Muslim Leaders, he moved an application against Hindus through his daughter, he had not seen any incident and had not been accompanied with Nafees, after murder of Kala Baccha, the riots have irrupted in the area. He has been giving false testimony and being Muslim, he has falsely implicated the Hindu boys.
Sub Inspector had not reached the site in his presence. Since the day of occurrence till 13th February 1994, he did not meet any Police officer of Police Station Babu Purwa nor he did so the occurrence site. He cannot say before whom Sub-Inspector had inspected the occurrence site. At the time of the death the deceased was wearing brown shoes and at the time of its possession by the Police he was not present there. Those shoes were lying there, where they had fallen down. After the occurrence he had met Girish in the Court and on several occasions prior to it. Before the occurrence he met Girish, Kala Baccha and Manoj Kanja and exchanged pleasantries to them. He did not know any family member of Girish Bajpai. His son-in-law was buried at Bagahi Cemetery. It is wrong to say that there is no cemetery at Bagahi. He did not know the name of Chacha from where the bidi was purchased. Nafees and he would serve in the same factory. 14-15 persons were engaged in the factory. He did not remember since long time has been passed. An electric motor was installed in factory. Small bulbs were produced in the factory. No card was issued to ESI factory. He got Rs.1500/- as salary. No ESI card was issued to the deceased. This factory was known as Kallu's factory or Bulb Factory. An electric meter was installed but he did not know how many phases were there. He was deputed to check prepared bulb. Nafees was engaged in manufacturing of black volve inside the bulb. The factory employees were not the members of Employees Provident Fund Organization. He did not know registration number of the factory. The bulb were sold in whole sale prices. He did not know CST or Sales Tax number. He did not know where raw material was brought. They did not give receiving after making entries in register and stamping with ticket. Only some persons were given. He did not know whether he gave to his son-in-law after ending entering in the registrar or not. The owner kept attendance register with him and obtained signatures of some, while did not obtain of some. He denied the suggestion that there was no Bulb Factory in Khatikiyana. He did not go to this factory for working, the fact regarding his son-in-law being a worker of factory was not mentioned in the factory. It is also denied that since he and his son-in-law were not working in the factory due to that this fact was not being told to Sub-Inspector. He was engaged as temporary worker and did not get pay slip. He did not know whether his son-in-law received pay slip or not?
He had not seen any injury on deceased's right leg prior to or after his death. At cemetery deceased's eye, nose and both ears were burnt. His both ears were not cut. He could not say on which part of deceased sustained injury but he was given assault on his head. At the time of the death, deceased had complete denture, he might have lost one or two teeth. He was clean shaved at the time of the incident. His son-in-law was Muslim. He did not know his son-in-law prior to marriage of his daughter with him. The practice of Khatna (Musalmani) is prevalent in his community. He denied the suggestion that deceased was neither his son-in-law nor a Muslim. He has identified his son-in-law on the basis of three moles on his ears but has not told this fact to Sub-Inspector. Since no body asked him how he identified the deceased. He did not see whether deceased had undergone Khatna or not but he knew that he belonged to muslim family. He denied the suggestion that deceased was not a muslim and was a impotent person. He had seen himself that all the clothes worn by deceased had burnt and no cloth was left on his body.
8.4 Another eye witness Mehboob P.W.4- has stated in his evidence that in 1994, he was resisded at Babu Purwa. He did not know husband of Smt. Nagma Parveen. Around 11 and half years back, at 12:00 noon in Khatikiyana locality Nafees was neither killed by Pappu alias Banta, Baggu, Manoj Kanja, Girish Chandra Bajpai, Kamal and Ramesh nor was burnt in his presence, if any such occurrence took place, he had no knowledge about it.
At this stage, the witness has been declared hostile and in cross-examination on behalf of the State, he has stated that he did not know the name and address of any of the aforesaid accused and did not recognized them. After seeing Manoj Kanja and Girish Chandra Bajpai present in Court the witness stated that he neither knew nor recognized those persons. He did not know any Nagma Parveen and Nafees Ahmad, R/o of House no. 130/523 Babu Purwa. The day when Kala Baccha was killed he was present in his house and did not go out of it, in view of increasing tension. He denied his statement recorded under section 161 Cr.P.C. and the suggestion put to him that he had colluded with accused persons and due to that he was not disclosing true facts before the Court.
8.5 Dr. Irshad Ali, P.W.5- has stated in his evidence that on 10.02.1994 he was posted as Senior Child Specialist in VHM Kanpur. On that day at 1:00 P.M. he has conducted the autopsy on the dead body of unknown person who was a Muslim aged 30 years and had been produced by Constable (1687) Lallu Ram and Constable (2004), Lavkush and prepared post mortem examination report (Exhibit Ka-2). During autopsy, he has found following injuries on the dead body :
Ante Mortem Injuries.
1. Lacerated wound 4 cm. X 1/2 c.m. X bone deep (paper torn) side of skull, 3 cm. above left ear.
2. Lacerated wound 1 cm. x 1/2 cm. x bone deep just above (P.T.) of left eyebrow.
3. Lacerated would 3 cm. x 1 cm. x bone deep 5 cm. above injury no. (1).
4. Ear out through & through from base, ear absent.
5. Lacerated would 4 cm. x 1 cm. x bone deep on right side of head above 6 c.m. from right ear.
6. 4 teeth of upper and lower were broken.
7. 2 to 6th degree burn all over the body except foot & both soles and skin peeled off at various places.
The cause of death is shock and hemorrhage as a result of ante mortem injuries.
In his cross examination he has stated that on 10.02.1994 he was on duty of 24 hours. He remain present at the mortuary from 11:00 a.m. to 5:00 p.m. usually no autopsy is conducted before 11:00 a.m. and after 5:00 p.m. but on the order of the District Magistrate, post mortem is being conducted in the night also. After seeing the khatna he wrote that dead body is of unknown Muslim. Ante mortem injuries were burn injuries and incised wound, bone of head was broken, above ante mortem injuries might be caused by bricks or its parts and burns. No odour of kerosene oil was present from the dead body but death might be caused 20 hours before from the post mortem examination with six hours variations to either side. At the time of post mortem examination, a burnt piece of pant and a shock was present on the dead body, which were not present before him.
8.6 First Investigating Officer, retired S.I. Giriwar Prasad Shukla, P.W.6 has stated in his evidence that on 10.02.1994 he was posted in Police Station Babu Purwa as Sub-Inspector, Case Crime No. 38A/94 was registered at 8.20 a.m. in his presence and he was entrusted investigation of the case. There is his signature on chik FIR (Exhibit Ka-3). After recording statement of First Informant, S.I. Mam Chand Verma and Natthu Singh, he rushed to the place of occurrence and after inspection prepared site plan (Exhibit Ka-4). He has prepared inquest memo (Exhibit Ka-5) of dead body in the presence of panch witnesses Kali Charan, Mahendra, Istiyaq, Madan and Babu Lal and sent the dead body for postmortem in sealed condition along with necessary documents through Constable Lallu Ram and Constable Lavkush. He has also prepared recovery memo (Exhibit Ka-6) for taking into possession one piece shoe of deceased (delta no.6 was written on it) alongwith burnt ash in presence of the witnesses Waker Ali and Kamrul Hasan, sealed them and prepared sample seal. He has also proved challan lash (Exhibit Ka-7), sample of seal (Exhibit Ka-8), photo Naash (Exhibit Ka-9), report C.M.O. (Exhibit Ka-10), report to S.P.O. Kanpur (Exhibit Ka-11) and report to Field Unit, Kanpur (Exhibit Ka-12) in his writing and signatures. He has also recorded statement of witnesses of inquest.
On 13.02.1994, Smt. Nagma Parveen along with his father came to the Police Station and submitted a written report (Exhibit Ka-1) which was made part of the record. He recorded her statement and copied post mortem report in the C.D. He also recorded the statement of the witness Zakir Ali.
On 15.02.1994, he has recorded the statement of the witnesses Ahmad Ali, Mehboob and on 21st February, 1994 recorded the statement of accused Pappu alias Banta and Girish Chandra Bajpai.
Thereafter investigation of the case was transferred to C.B.C.I.D. In his cross-examination, he has stated that on 09th February, 1994, he was posted at the Police Station Babu Purwa. He came to know about murder of Kala Baccha on 10.02.1994 at 8.20 a.m. He was not aware that on 09.02.1994, there was Hindu Muslim riots and at what time, on 09th February, 1994 curfew was imposed. He has not referred in any parcha of C.D. about imposing and lifting of curfew due to unawareness of that. He could not tell that on 10.02.1994 curfew was imposed in the Police Station Babu Purwa or not? S.I. Mam Chand has told about unknown dead body in Mohalla Katikiyana. He has neither told any particular place where dead body was lying nor mentioned in that FIR. Exact place of dead body was told by S.I. Ram Chandra Verma, who was present on the spot. He has prepared site plan on identification of S.I. Mam Chand Verma. He has not shown the way from which accused persons came and went as he has found no information regarding that. He has not taken statement of Sushil Khatik or his any family member. Dead body was lying near the house of Sushil Khatik. He has written in inquest report that dead body was of a Muslim but has not disclosed that how he recognized that. In the inquest memo, no witness belongs to Mohalla Khatikiyana or Pasiyana, where dead body was lying, who met him, he has appointed him as punch. Since no person from the Mohalla Khatikiyana or Pasiyana met him due to this, he has not appointed them punch. Constable Lallu Ram and Constable Lavkush had taken the dead body for post mortem at 11.05 a.m. He could not tell that after post mortem examination at what time dead body came to the Police Station. Since he felt no need to know about that and to know that dead body went where. On 11 and 12th February, 1994 he has neither investigated this case nor made any efforts to know whereabouts of the dead body. Since he was busy in investigation of other cases and he could not tell number of those cases. He could not tell that after post mortem examination, on which date, the dead body was buried or burnt. Since he felt no need to know about that. He has prepared parcha no. 1 to 5 but he has not mentioned in it regarding time to start and close investigation as he felt no need to do it. He has not made any announcement in the Mohalla regarding unclaimed dead body. He could not tell that unclaimed dead body was taken to which graveyard or funeral ground. He has not shown clothes, shoes and other things belongs to the deceased or their photos to Smt. Nagma Parveen for their identification. There was Nylon shocks, paint and piece of burnt shirt etc. on the dead body but he has not shown them to Smt. Nagma Parveen and his father.
No body went from Police Station to inform Smt. Nagma Parveen and Zakir Ali in respect of unclaimed dead body.
He could not tell that on 10.02.1994 how many dead bodies were recovered in Police Station Babu Purwa. He could not tell that on 09.02.1994 unknown dead bodies of Ibrahim and Samar Jahan were recovered or not? He has no knowledge that above persons were killed in the riots or not? He could not remember that curfew was imposed in Police Station Babu Purwa or not after murder of Kala Baccha. He has not mentioned any parcha of investigation up to 21.02.1994 that on unclaimed dead body being taken where. He has not informed that C.O. and S.P. on 10.02.1994 about dead body. S.R. was sent from Police Station but he has not felt any need to mention it in C.D. He has denied the suggestion that under influence of Muslim Leaders and administration he has obtained application from Nagma Parveen and investigated the matter.
He has appointed S.I. in February, 1979 and remains so up to 19 years. At the time of the preparation of the site plan, no family member of deceased was present there. He has shown square in the site plan but not written name of it. He has also not shown house of Sushil Khatik in the north east of the place of occurrence. He has not shown place of occurrence by any sign in Exhibit Ka-4. He has shown the place of occurrence by letter 'A' where dead body was lying. He has shown the place of occurrence and place where the dead body was found by a common letter 'A'. He has not shown any grocery shop towards south of place of occurrence. Three roads were opening from the place from occurrence but he could not tell that among which, which road goes to Chalees Dhukan to Begum Purwa and to Juhi Mohalla. He could not tell name of square shown in the site plan. During his whole investigation, he has prepared only one site plan. Smt. Nagma Parveen, Zakir Ali, Ahmad Ali and Mehboob met to him during investigation but he has not inquired them to taking at the place of occurrence. He has denied the suggestion that at the time of investigation of this case, he was posted as Sipahi. He has made Girish Bajpai accused of this case on the written report of Nagma Parveen. He has not arrested Girish Bajpai rather he has surrendered in the Court. After his surrender, he has not get Girish Bajpai identified by any witness. He has not recorded the statement of house owners whose houses have been shown near to place of occurrence in the site plan, due to transfer of investigation to CBCID. He has investigated this case from 10.02.1994 to 24.02.1994 due to being busy, in investigation of other cases, he could not record the statements of the owners of houses near to place of occurrence. After recording the statements of the witnesses, he has not prepared another site plan. He also could not record the statements of recovery witnesses and also not send burnt ash for testing to CFSL. In the photo laash, the letter ... shows the burn injuries and letter 'X' denotes the cut wounds. He has not shown genital of deceased in the inquest report. Since the deceased was male due to this, he felt no need to do so. He could not tell that who has signed on photo laash and affixed his seal. He has denied the suggestion that he has not shown genital of dead body due to non recognition of male or female genital. S.S.P. Rameshwar Dayal has appointed him permanently in the Police Station Babu Purwa but he could not produce order for his permanent posting in the above Police Station, even it the Court ordered to do so. He had denied the suggestion that he was posted in the Police Station Babu Purwa as Sipahi and not as S.I. He has not get identified the name and identification of dead body by showing it to Smt. Nagma Parveen and her father Zakir Ali. He has also not identified the things found on the dead body and nearby from Nagma Parveen and Zakir Ali. Since investigation was transferred to C.B.C.I.D. He has also not get identified shoe and shocks etc. from Nagma Parveen and Zakir Ali. The things which were collected from dead body and nearby area and sealed by him were not present before him in the Court. S.R. of the case were sent to how many officers, this is not mentioned in the C.D. rather mentioned in the G.D. He has not prepared recovery memo of dead body since he felt no need to do so. He has not prepared site plan of the place of occurrence. He is not aware that Officials of CBCID have made site plan of the place of occurrence or not. No witness has told him about grocery shop in southern side of the place of occurrence and to the point that which road is going to which side. On the spot, he has found a shoe on southern corner of place of occurrence on Karanja road, at the distance of 5 packs from the dead body. During investigation, he has neither recorded statement of factory owner Kallu nor searched him. Zakir Ali has told him to work in the Bulb Factory of Kallu alongwith deceased Nafees. During investigation he has not summoned, identification card and ESI Card from Zakir Ali. He has also not summoned any Attendance Register or Salary Slip related to witness Zakir Ali or deceased Nafees from Zakir Ali or Kallu. In NAD has written in Column No. 14 of post mortem report. He did not know meaning of NAD and its full form. He has not asked meaning of NAD from the doctor who has conducted the post mortem examination on dead body. He denied the suggestion that there was no genital in the dead body. In Form No.211, he has obtained signature of punch witnesses and their statements, in which he has not written the dead body of a Muslim. InPhoto Naash he has shown breast of unknown dead body but not shown its genital while unknown dead body is being identified on the basis of the genital. He has not moved any application for chemical examination of burnt ash and not sent it for chemical examination while he has taken it in his possession for its chemical examination so far relevant evidence may be obtained. Without chemical examination of burnt ash, it could not be said that in the burnt ash element of human burning were present or not? At the time of movement he has not entries of lakh, candle, match-stick, seal, thread and needle, pen, plain paper and carbon etc. in G.D. Since all the above materials remained with him.
First time he came to know about name and address of deceased on 13.02.1994 from wife of deceased Nagma Parveen. He could not tell that dead body was cremated when and which date. Smt. Nagma Parveen has not told in her statement recorded under Section 161 Cr.P.C. that she knew Girish Bajpai and other accused persons before the incident. She also not told identification mark, style of his movement and speaking etc. He has also not tried to know above clue from Nagma Parveen while he was expected to know about above relevant facts. Witness Zakir Ali has told names and addresses of accused persons to him after four or five days of the incident but did not told him about features, style of movement and speaking etc. of the accused persons. He has also not told him that he was pre-known to accused persons Girish and others. He has not get identified Girish Bajpai in District Jail by Nagma or Zakir. On the date of statement 21.02.1994 all accused were with their open face (beparda). He could not tell that he had taken first remand of accused persons from where and whether that time, identity of accused persons were concealed or not?
8.7 Maternal father-in-law of deceased Hazi Mohd. Ahmad Usmani, P.W.7 has stated in his evidence that deceased Nafees was son-in-law of his sister Jubeda Khatoon. Zakir Ali is his brother-in-law (bahnoi). He was General Secretary of Central Peace Committee in the year 1994. In February 1994, three persons were murdered after murder of Kala Baccha as General Secretary of Central Peace Committee, he has managed burial of all the three dead bodies.
At 5:00 p.m. On 10.02.1994, the dead body of Nafees son-in-law of his sister was brought for burial to Ajittganj graveyard. That time, he brother-in-law Zakir Ali was also present. He and Zakir Ali had identified the dead body of Nafees and made entry of name of deceased in the Register maintained in the graveyard by Hafis Noor Mohammad. That time, atmosphere was very tense,due to this they have confined the fact about murder of Nafees with them and on restoration of normalcy, after two or three days, widow of Nafees submitted an application in the Police Station Babu Purwa. Dead body was brought by Police Personnel on the vehicle. CID has inquired him after so many months of the incident.
He has stated in his cross-examination that curfew was imposed in Babu Purwa Police Station on 10.02.1994 due to which no person of Ajitganj, Khatikana, Wakerganj, Babuganj was able to come outside from his house. He was member of Peace Committee which contains members of Hindu and Muslim community. Station House Officer called meeting of Peace Committee at the occasions of the festivals like Holi, Deepawali, Ied, Muharram to maintain land and order and communal harmony.
On 10.02.1994, A.C.M. 4th Gulab Singh went to graveyard for identification of dead bodies. The dead body of Nafees was reached in graveyard around 5:00 p.m. On that date two more dead bodies reached in the graveyard at 12:00 p.m and 2:00 p.m. When the dead body of Nafees reached he was not aware that. The dead body of Nafees was reached from the postmortem house and not from his home as Janaza. The wife of deceased Nagma Parveen did not go to graveyard. Father-in-law of the deceased Zakir Ali not went to ACM Sahab rather he directly reached to him. He did not know any Ahmad Ali. As a member of Peace Committee he was familiar to the Police Personnel of Police Station Babu Purwa. After identification of the dead body he has extended no cooperation to his brother in law Zakir Ali in lodging the case. After the murder of Kala Baccha Hindu Muslim riots was broken in Kanpur and people of both the parties were hide up in their homes.
On 10.02.1994, three dead bodies reached to graveyard but he knew name of only Nafees and did not know names of other two dead persons among which one dead body of a woman. Police vehicle has brought dead body of Nafees in graveyard but he could not remember the numbers of Police vehicle, numbers of Constables and Inspectors sitting in the police vehicle. He was trading in leather. He had seen dead body of Nafees. There was a mole in his right ear and his legs were very small on the basis of that he has identified the dead body but he has not told about that identification marks to any one even to Daroga Ji. When he has identified the dead body of Nafees at that time the dead body were badly burned. Ear, nose and eyes of the dead body was present but were badly burned. Dead body of Nafees was so badly burned, it was a tough task to identify him. Dead body of Nafees was buried in Bagahi graveyard. There was Khatna of Nafees his condition was deteriorated. After seeing the dead body due to that he has not seen his genital. After deciding the Khatna it can be said that the dead body belongs to any Hindu or Muslim.
8.8 Vasim Javed P.W.8, the care taker of the Bagahi graveyard, has stated in his evidence that Hazi Noor Mohammad @ Babubhai, Pesh Imam Bagahi graveyard is his grandfather, who was a very old person of 98 years of age and was unable to move due to above reasons he is taking care for various activities of graveyard. He has brought original Death Register of the year 1994, which is in Urdu language. The register contains 17 columns, Column 13th relates date for receiving of receipt. In 13th column, relating to receiving of receipts. 15.2 is written on page-41 of above register, which is prepared and signed by his grandfather Hafiz Noor Mohammad. He had obtained signature of Mohammad Ahmad in Column 12, who has received the receipt. He has approved the writing and signatures of his grandfather and relevant entry in Exhibit Ka-13. In Column 1 of Exhibit Ka-13, it is written that death due to riots, care of Police. His grandfather has stopped to read and write from 5-6 years. He has brought only Death Burial Register and not receipt since only register was summoned.
On 10.02.1994, Smt. Samar Jahan and Ibrahim were also buried in his graveyard. Name of Ibrahim is entered at Sl. No. 23 and Smt. Samar Jahan is entered at Sl. No. 24. On 10.02.1994 total eight dead bodies were buried in his graveyard among which three dead bodies were brought by the Police as they were killed in riots.
In the register, which is brought in the Court no column is shown to made entry regarding informantion of dead body and the person who is buried. There is also no column to enter the name of the person who has identified the dead body. No receipt number has been shown which was given to Mohd. Ahmad in Exhibit Ka-13. In the register, name of Police Constable or Police officer who has brought the dead body is not entered.
Entries in Graveyard Register and token regarding dead body was made on the basis of information provided by the person bringing the dead body. Employees of graveyard have no concern with the truthfulness or falsehood of the entry. They were not look the face or gentle of dead body since it is prohibited by the religious customs. He had denied the suggestions that he has given false statement and his evidence regarding dead body of deceased is also wrong.
8.9 Inspector Devendra Nath P.W.-9, another Investigating Officer of the case has stated in his evidence that in March 1994, he was posted as Inspector in CBCID, Kanpur Division. Due to promotion of Inspector Sobaran Singh, Investigation of Case Crime No. 38A/ 94, Police Station Babu Purwa, was entrusted to him. He has perused the C.D. Parcha, prepared by the earlier Investigating Officer thereafter took statements of the witnesses and accused persons. He has visited the place of occurrence alongwith former Investigating Officer Giriwar Prasad Shukla and verified the site plan prepared by him. On 11.11.1994 he has prepared the last parcha of the case thereafter, he was transferred.
In his cross-examination he has stated that he has recorded the statement of inquest witnesses Mahendra, Babulal, Madan Istiyak and others. FIR of this case was lodged by S.I. Mam Chand regarding unknown dead body against unknown persons. During investigation he has not taken S.I. Mam Chand Verma to the place where dead body was found. He has also not prepared any site plan, since he has seen the site plan prepared by Investigating Officer of local Police and inspected the site on his pointing out. During investigation, he has not inspected the place of occurrence in presence of eye-witnesses rather inspected the place of occurrence alongwith Zakir Ali. He has recorded the time to start and to close investigation in C.D. Parcha No. 3, 4 and 5 but has not mentioned above time in subsequent C.D. Parcha. First Informant S.I. Mam Chand Verma has neither told that at what time, he reached to Khatikiyana, Pasiyana during patrolling nor he has asked about that to him. He admitted that after the incident, the curfew was imposed but he could not recollect date and time of it. He has also not mentioned about it in the C.D. In Parcha No. 8, it is stated that Constable Kallu Ram and Constable Lavkush told that they had taken dead body to Babu Purwa graveyard while in Parcha No. 22 it is stated that dead body was handed over to Committee Member of Ajitganj graveyard. He has not tried to know that who went to inform Nagma Parveen or Zakir Ali for identification of dead body. He has also not tried to know that deceased was working where and factory where the deceased was working, was at how much distance from his home. No announcement was made by loud speaker and pamphlets regarding unclaimed dead body and to know about whereabouts of it. He also admitted that after murder of Kala Baccha, Hindu Muslim riots were broken out in the area. During investigation he has not tried to know that Manoj Kanja was related to Kala Baccha or not? The deceased of unclaimed dead body was killed in the riots broken out after the murder of Kala Baccha.
The witness Zakir Ali has not told him that there is Kharanja road towards south and east side and north south side to the place of occurrence; there is house of Sushil Khatik towards north and east of place of occurrence; near to place of occurrence any grocery shop; that one road went to Begumpurwa and another goes to Chalis Dukaan from the place of occurrence; that square at the place of occurrence is Wakerganj Chauraha and not at Khatikana Chauraha; the house of Sushil Khatik is towards north of Chauraha; not tell anything about house of Sushil Khatik; where the deceased was lying his shoes was also lying there; shoes of the deceased was lying out southern corner of place of occurrence out of Kharanja road rather Zakir Ali has told nothing to him about shoe; first time he met to Girish Bajpai on the date of occurrence; He knew Girish Bajpai due to Kala Baccha rather he told him that Girish Bajpai was eyed of Kala Baccha; he knew Girish Chandra Bajpai before the incident; he has not get accused Girish Chandra Bajpai identified by the witness Zakir Ali; since Zakir Ali in his statement stated the name of Girish Chandra Bajpai; that he has seen the incident from distance of how many foot, meter, packs and furlongs; that how he has identified the accused Girish Chandra Bajpai by face or by style of movement or by voice or by physic or hair style; how he has identified accused Girish Chandra Bajpai; Manoj Kanja has sprinkled kerosene oil on the deceased by pipiya (a plastic container) and Girish Bajpai had ignited fire by match-stick.
Witness Nagma Parveen has not told him that she knew the accused Girish Chandra Bajpai before the incident rather she told him that her father Zakir Ali told name of Girish Chandra Bajpai and on that basis she has submitted written report of that case; that she has herself seen the incident; she was herself present on the spot at the time of the incident.
The witness Ahmad Ali has not told him that he has seen the incident from the distance of how many meter, foot furlongs; he has seen the incident from any fix place; at the time of incident he was coming towards north from south side; the place where accused persons have sprinkled kerosene oil on deceased and set him on fire; he has identified the accused from hair style, manner of movement by face, by speaking or on what basis; at what distance he has identified to accused Girish Chandra Bajpai' he alone came at the time of incident; deceased Abdul Nafees was going towards south from east at the time of incident; that at the time of incident, the accused persons were standing on the place of occurrence; about injuries caused to the deceased in the incident and witnessing of that injuries; after how many days of the incident, he met to Nagma Parveen and Zakir Ali; house number of houses situated nearby the place of occurrence.
There is no mention in the C.D. that identity of Girish Chandra Bajpai was concealed at the time from his arrest The witness Ahmad Ali told him that on 09.02.1994 after the incident whole day he remained in his home. He has not made Ramesh S/o Ramroop, R/o Khatikana, accused of this case. Witness Ahmad Ali was not alongwith him at the time of the inspection of place of occurrence. He has not recorded statement of the witness Vasim Javed in C.D. He has denied the suggestion to the effect that he has wrongly investigated the case. The statement of the witnesses stated to be recorded at the Police Station in the arbitrary manner, willingly he has not given application for identification of the accused persons and he has given wrong and false statement in the Court.
8.10 Constable 286 Lavkush Kushwaha P.W.10- has stated in his evidence that on 10.02.1994 he was posted in Police Station Babu Purwa as Constable. On that date he and Constable Lallu Ram went to Khatikana Mohalla alongwith S.I. G.P. Shukla, where at 11.15 a.m. dead body of a muslim youth was kept for inquest proceedings. After inquest proceedings, dead body was sealed and he went to mortuary with sealed dead body and documents. After post mortem they have handed over the dead body to the Committee Member of Bagahi graveyard. There are his signatures on inquest memo (Exhibit Ka-5 alongwith signatures of Constable Lallu Ram on inquest memo (Exhibit Ka -5). He has proved chik FIR as Exhibit Ka-3 and carbon copy of G.D. Rapat No.11 at 08.20 p.m. dated 10.02.1994 as Exhibit Ka-14.
In his cross-examination he has stated that above referred Rapat No.11 was regarding oral FIR by S.I. Mam Chand Verma. There is no reference in the chik FIR and above referred Rapat No. 11 (Exhibit Ka-14) to the effect that dead body belongs to a muslim youth. Investigating Officer S.I. Giriwar Prasad Shukla has not recorded his statement. After post mortem examination both Constables including him, took the dead body directly to the graveyard at 05:00 p.m. and did not take the dead body to the Police Station. There was no written order to take the dead body to Baghahi graveyard. S.H.O. has orally directed them to do so. No family member of deceased was present at Baghahi graveyard and did not come during the period he remained in the graveyard. He has no knowledge that on 10.02.1994 how many dead bodies were handed over to him to take for post mortem examination. First time his statement was recorded by Investigating Officer of CBCID. He recorded his statement twice.
On 09.02.1994 Kala Baccha was murdered around 11:30 morning, thereafter Hindu Muslim riots was broken and curfew was imposed in the whole area (Police Station Babu Purwa). On 10.02.1994 when he went along with Doragaji for inquest proceedings, at that time curfew was imposed in the area and no person of that Mohalla was involved in the inquest proceedings.
He denied the suggestion that no dead body was sealed and no inquest report was prepared on spot at Khatikana and all the above acts had been done in the Police Station.
He and Constable Lallu Ram got the dead body buried at Babu Purwa graveyard. He is not an eye witness of the incident and did not know eye witness account of the incident. He was not aware about the names and addresses of the persons who killed the deceased.
At the time of incident he was not on duty at the place of occurrence. On the day of incident, inquest proceedings and burial he was not aware about the names of the accused persons. He did not try to know that how much part of inquest report was correct and how much was wrong. He also not tried to see the names and addresses of accused persons in the documents carried with him at the time of taking the dead body to mortuary. He denied the suggestion that being a Police Personnel he has given false statement before the Court.
8.11 Another Investigating Officer retired Inspector Dev Nath Pandey P.W.11- has stated in his evidence that on 14.03.1997, when he received investigation of the case for supplementary proceedings, he was posted in CBCID Sector at Kanpur as Inspector. After completing the necessary formalities, on 26.08.1997 he has filed charge sheet no. 33/97 (Exhibit Ka-15) against 1 Girish Chandra Bajpai, 2 Pappu alias Banta, 3 Rakesh Sonkar alias Makku, 4 Manoj Kanja under Sections 147, 148, 149, 302, 436 IPC.
He has stated in his cross-examination that on 14.03.1997 case was being entrusted to him not for investigation rather it was being entrusted to him for supplemental proceedings. Since investigation was not transferred to him due to that he neither went to the place of occurrence nor prepared site plan. He also not recorded the statements of the witnesses. Earlier Investigating Officer has not recorded the conclusion to the effect that charges have been proved against the accused persons in the last parcha prepared by him. He has prepared only two parcha and got information as to whether accused persons were being alive. Case file was remain pending with him for the period of five months. This is wrong to say that due to case belonging with a particular community on the pressure of the Government he has filed a (wrong) charge sheet. In the last column of the charge sheet he has written place of occurrence, statements of the witnesses, identification proceedings, handing over of the dead body of the deceased to Pesh Imam of Bagahi graveyard, buried dead body was being of Nafees which was identified by his cousin father-in-law (husband of sister of real father-in-law) Mohammad Ahmad and S.H.O. Babu Purwa Shivpujan Singh Yadav, on the basis of the case diary prepared by earlier Investigating Officer.
Above case was related to the Hindu Muslim riots. After the murder of Kala Baccha Hindu Muslim riots was broken and thereafter curfew prohibitory order under Section 144 was imposed. Charge sheet in this case has been filed after three and half years of the incident. He has not recorded the statements of Mohd. Ahmad (husband of sister of real father-in-law) and S.H.O. Babu Purwa Shivpujan Singh Yadav. He has not verified truthfulness of investigation conducted by earlier Investigating Officers. He also not tried to verify place of occurrence and name and address of the deceased recorded by earlier Investigating Officers. He has not investigated the case since he was not Investigating Officer of the case. Filing of the charge sheet is the job of Investigating Officer. He has filed charge sheet on the basis of the facts collected by earlier Investigating Officers. No date is mentioned in the charge sheet though it is signed by Additional S.P., CBCID. He has not tried to know that whether Khatna was performed on Nafees (deceased) or not and also not tried to know that Nafees was impotent or not? He has denied the suggestion that he has filed wrong charge sheet against the accused persons and gave false evidence.
9. The accused appellant has also produced three witnesses along with documentary evidence, which is being discussed hereinafter.
9.1 Ram Naresh Singh D.W.1- has stated in his evidence that on 09.02.1994, he was on the duty in Electric Loko Set, Faizalganj, North Central Railway, Kanpur Nagar from 8:00 am to 5:00 p.m. On that date accused Girish Chandra Bajpai and Anant Mishra came to meet him at 10:00 a.m. and asked for purchasing goods for birthday of his daughter Neetu Singh. Since he has invited above duo on the birthday of his daughter Neetu Singh which is scheduled to be celebrated at 8:00 p.m. at his residence. Since he was not granted leave, in view of the above, he requested them to wait for him in Loko Set Canteen up to 3:00 p.m. When after completing his duty, he reached there at 3:00 p.m., both the above were sitting in the Canteen. The persons present there told them that entire city is under curfew due to Hindu-Muslim riots and market has also been closed. Accused Girish Chandra Bajpai and Anant Mishra are not his relative. Girish Chandra Bajpai was leader of Bharitya Janta Party due to which he knew Girish Chandra Bajpai before the incident. Girish Chandra Bajpai had been wrongly and falsely involved in various criminal cases of 9th February, 1994 under the pressure of then Government of Samajwadi Party with the view that he was Leader of BJP and a Hindu Leader. In February, 1994 then Chief Minister offered Girish Chandra Bajpai to join Samajwadi Party and get good post but same was denied by Girish Chandra Bajpai. In consequence of above proceedings of National Security Act (NSA) has been resorted against him. However, he was subsequently acquitted from that proceedings.
In his cross-examination, he has stated that he has five children, four daughters and one boy, Neetu Singh is his elder daughter, whose birthday was scheduled to be celebrated on 9th February, 1994. He celebrated the birthday of all his five children. After murder of Kala Baccha, curfew was imposed and Hindu Muslim riots had spread, the deceased Kala Baccha was illiterate and Girish Chandra Bajpai was looking his clerical job. He did not know that how many hours per day Girish Chandra Bajpai was living with Kala Baccha. Kala Baccha was Corporator of his area. He has not made arrangement of birthday earlier due to lacks of funds. His daughter Neetu was borne on 09.02.1992. He could not remember the date of birth of his other children. On 9th February, 1994 Girish Chandra Bajpai came to meet him on his request. He has called Girish Chandra Bajpai to purchase khoya (a milk product) and other material. He was not calling Girish Chandra Bajpai for purchasing goods for birthday of his all children, since his wife is capable for purchasing. He is not aware that how many Muslim were killed in the riots relating to the murder of Kala Baccha and Girish Chandra Bajpai was facing this case for murder of which Muslim. Girish Chandra Bajpai had not told him that he was facing what type of cases. He denied the suggestions that at the time of incident on 09.02.1994 Girish Chandra Bajpai was present in Mohalla Khatikana with its companion. On 09.02.1994 there was no birthday of his daughter and being closely related with accused Girish Chandra Bajpai, he has given false evidence.
9.2 Anant Kumar Mishra D.W.2- has stated in his evidence that on 09.02.1994 he went to Electric Loko Set, North Central Railway, Kanpur Nagar alongwith Girish Chandra Bajpai and wait there along with Girish Chandra Bajpai up to 3:00 p.m. for Ram Naresh Singh who was working there. On that date he was on duty from morning 8:00 a.m. till evening. Ram Naresh Singh has called them for purchasing goods from the market on the occasion of birthday of his daughter Neetu Singh. Since he did not get leave so they have waited on 09.02.1994 up to 3:00 p.m. for Ram Naresh Singh. In the evening they came to know that due to Hindu Muslim riots whole city came under curfew. He is not relative of accused Girish Chandra Bajpai and knew him being a local Leader.
He has stated in his cross-examination that he has forgotten about the incident dated 09.02.1994, due to riots. Ram Naresh Singh was working at that time probably as Mechanic, the name of his daughter is Neetu Singh, at that time she was aged 20 years That time Ram Naresh Singh was having three female children. He was not closed with Ram Naresh Singh and not on the terms to visit his house. He was not having close relations with Girish Chandra Bajpai at that time. Earlier to it, he was not participated in any birthday of daughter of Ram Naresh Singh. That time, Girish Chandra Bajpai was local Leader of BJP. On that day, they could not go market for purchasing. He received information of riots in the Loko Set. Girish Chandra Bajpai is not his relative. He has appeared in the Court for evidence in compliance of Court summons. He and accused Girish Chandra Bajpai was living in separate Mohalla but within the same Police Station. He denied the suggestion that due to collusion and friendship with Girish Chandra Bajpai, he has given false evidence.
9.3 Pairokar of Police Station, Babu Purwa, Constable (314) C.P. Kali Charan D.W.3- has stated in his evidence that Case Crime No.38/1994 is registered against the unknown persons the accused of that case were came in the light during investigation. It is related to the incident dated 09.02.1994. It has been lodged at 15:15 p.m. On the copy of chik Rapat, an endorsement is made to the effect that above chik Rapat is related to riots. In the report of Police Station, result of the case is not mentioned. In Case Crime No. 37/ 1994, Police Station Babu Purwa, Girish Chandra Bajpai is accused. This case is also related to riots and has been registered on 09.02.1994.
Case Crime No.42 of 1994 dated 13.02.1994, Police Station, Babu Purwa is also registered as case related to riots but its result is not mentioned in the report of Police Station.
He could not tell that Case Crime No.22/1994 of Police Station Swaroop Naga was registered against whom and on which date, as its chik FIR, G.D. Rapat and result is not mentioned in the police report.
Case Crime No.38A/1994, Police Station Babu Purwa was initially registered against the unknown persons and subsequently, name of the accused persons came in the light, during investigation. This case is also related to riots.
No report is present before him regarding registration of any other criminal case against accused Girish Chandra Bajpai before 09.02.1994. There is also no report before him about lodging of any other case against accused Girish Chandra Bajpai after 13.02.1994 and he was not aware about that.
In the report of Police Station, Babu Purwa there is no reference of S.R. of any case and G.D. for sending any SR is available before him. In absence of that he could not tell about SR report and G.D. of S.R. Since G.D. was being destroyed as per the report dated 11.02.1994, 10.02.1994, 13.02.1994 are being wedded. He has proved report of A.R.K. as Exhibit Kha-1 and police report as Exhibit Kha-2.
Record of identification proceedings of accused Girish Chandra Bajpai was not available before him. It was not clarified in the report of Police Station and he was not aware whether identification proceedings of accused Girish Chandra Bajpai has taken place or not? and FIR of this case is related to riots.
In his cross-examination, he has stated that Case Crime No. 37/1994 and Case Crime No. 38/1994 are not registered before him and he was not aware that whether in those cases final report has taken place or trial had taken place?
10. Critical analysis of above referred evidence available on the record reveals the facts which are being discussed hereinafter :
11. FIR (Exhibit Ka-3) of this case has been lodged against the unknown persons. The names of the accused persons including the appellant first time came on the surface during investigation on 13.02.1994 on the basis of written report (Exhibit Ka-1) submitted by P.W.1 Nagma Parveen. Above incident was a consequence of the incident of murder of one BJP Leader namely Kala Baccha. After the above incident, curfew was imposed in the area, which was partially lifted on 13.02.1994.
12. On the same day Smt. Nagma Parveen P.W.1 wife of deceased Nafees Ahmad submitted a written report (Exhibit Ka-1) addressed to S.H.O., Police Station Babu Purwa, Kanpur Nagar stating therein that her husband late Nafees Ahmad and father Zakir Ali (P.W.3) were working in the Bulb Factory of one Kallu. In afternoon on 09.02.1994 one Kala Baccha was murdered at some distance from the factory, which caused anger among the people. When her husband and father were returning to his home Pappu @ Banta, Bhakku, Manoj Kanja, Ram Vilas, Ramesh, Kamal and Girish Chandra Bajpai had caught Nafees and murdered him. They also burnt him.
Being afraid her father came to home and told her about the incident. The incident was also witnessed by Ahmad Ali son of Majid Ali (P.W.2) and Mehboob son of Bashir (P.W.4), who were also present on the spot. The dead body buried in Bagahi graveyard, on 10.02.1994 was of her husband late Nafees Ahmad. Due to fear and curfew she could not reach to lodge the report.
13. The above written report was scribed by one Mohd. Tariq and was submitted after 96 hours of the incident without any description of the arms/weapons carried by the accused persons, manner of incident and without assigning any specific role to any particular accused.
14. P.W.-1, P.W.-2, P.W.-3 and P.W.-7 claimed to identify the dead body as dead body of Nafees Ahmad, husband of P.W.1, brother of P.W.2 and son-in-law of P.W.3 and P.W.7. For this purpose, P.W.1, P.W.2 and P.W.3 went to Bagahi graveyard. According to P.W.1 at that time she was having curfew pass and according to P.W.3 their companion Faiz Ullah also having curfew pass with him not only this a serving Constable Zaheer and a retired Constable Abdul Rasheed were also living in the building of P.W.3. Apart that Constable Lavkush P.W10 and other Constable Mohan Lal were also present in the graveyard but P.W.-1, P.W.-2, P.W.-3 and P.W.-7 have neither conveyed the facts stated in the written report to any Police Personnel nor immediately lodged the FIR.
15. Admittedly, dead body was buried by Police Personnel Constable Lavkush P.W.10 and other Constable Mohan Lal and not by his said kith and kin i.e. P.W.1, P.W.2, and P.W.3.
16. P.W.2 and P.W.3 had not received any injury in the incident.
17. Investigating Officer, P.W.6 has not informed to Circle Officer (C.O.) and Senior Superintendent of Police (S.S.P.) on 10.02.1994 about finding of unknown and unclaimed dead body. He claimed that special reports (S.R.s) of the case were sent to the officers but above S.R.s were sent to whom, it is not mentioned in the C.D. According to him those were mentioned in the G.D. but relevant G.D. is not produced before the Court.
17.1 No announcement was made by loud speaker and pamphlets in Mohalla Khatikana, Pashiyana and other areas to know actual details and whereabouts of the deceased regarding unclaimed dead body.
17.2 No witness of inquest memo (Exhibit Ka-5) belongs to Mohalla Khatikiyana or Pasiyana, where dead body was lying.
17.3 During whole investigation only one site plan has been prepared, which is on the identification of S.I. Mam Chand Verma. Though, P.W.1 has submitted written report (Exhibit Ka-1) on 13.02.1994 claiming P.W.2, P.W.3 and P.W.4, eye witnesses of the incident and their statements were also recorded but no Investigating Officer has taken pain to take them to the place of occurrence and prepare site plan on the identification of above eye witnesses. It may also be mentioned here that another Investigating Officer P.W.9 claimed to inspect the place of occurrence alongwith Zakir Ali (P.W.3) but P.W.3 has denied this fact in his evidence by stating that neither he went with the Police team to show them spot nor with the officials of CID for that purpose.
17.4 In the site plan (Exhibit Ka-4) the way(s) from which accused persons came and went, house of Sushil Khatik and grocery shop have not been shown while name of the square shown in site plan is not shown and the place of occurrence and place where dead body was found have been mentioned by a common letter ''A'. Even in para 134 of his evidence I.O. P.W.6 has denied to prepare the site plan. He has also not prepared the recovery memo of the dead body.
17.5 In the inquest report Investigating Officer P.W.6 has not shown genital of deceased. He wrote in the inquest report that dead body was of a Muslim but has not disclosed the reasons for that. In Form No. 211, he has not written that the dead body was of a Muslim. In photo Naash he has shown breast of unknown dead body but not shown its genital while gender of unknown dead body was possible to be identified only on the basis of the genital.
17.6 On 11 and 12th February, 1994 P.W.6 has neither investigated this case nor made any efforts to know whereabouts of the dead body, on behest that he was busy in investigation of other cases but he could not tell number of those cases.
17.7 P.W.6 has not shown clothes, shoes and other things belongs to the deceased or their photos to Smt. Nagma Parveen for their identification. There was nylon shocks, paint and piece of burnt shirt etc. on the dead body but he has not shown them to Smt. Nagma Parveen and his father.
17.8 The witness Zakir Ali (P.W.3) has not told P.W.6 that he was pre-known to accused persons Girish and others after surrender of Girish Bajpai, he has not get identified him by P.W.3 or any other witness.
17.9 He has not taken statement of Sushil Khatik, his family members, (while dead body was lying near the house of Sushil Khatik), the statement of house owners whose houses have been shown near to place of occurrence in the site plan, the statements of recovery witnesses and statement of factory owner Kallu while Zakir Ali has told him to work in the Bulb Factory of Kallu alongwith deceased Nafees.
17.10 During investigation he has not summoned, identification card and ESI Card from Zakir Ali. He has also not summoned any Attendance Register or Salary Slip related to witness Zakir Ali or deceased Nafees from Zakir Ali or Kallu.
17.11 In C.D. Parcha Nos.1 to 5 Investigating Officer P.W.6 has not mentioned the time to start and to close investigation.
17.12 According to Investigating Officer, P.W.6, S.I. Mam Chand has told him about unknown dead body lying in Mohalla Katikiyana and not any particular place where dead body was lying, exact place is also not mentioned in the FIR. Exact place of dead body was told to him by S.I. Ram Chandra Verma who was present on the spot.
17.13 Investigating Officer P.W.6 could not tell that on which date and time unclaimed dead body was taken to which graveyard or funeral ground or it was cremated where; who has signed on photo lash and affixed his seal on it and on 09.02.1994 unknown dead bodies of Ibrahim and Samar Jahan were recovered or not? He has also no knowledge that above persons were killed in the riots or not and could not remember that after murder of Kala Baccha, curfew was imposed in Police Station Babu Purwa or not?
17.14 He has not moved any application for chemical examination of burnt ash and not sent it for chemical examination while he has taken it in his possession for its chemical examination so far relevant evidence may be obtained. Without chemical examination of burnt ash, it could not be said that in the burnt ash element of human burning were present or not ?
17.15 The things which were collected from dead body and nearby area and sealed by him were not present before him in the Court, at the time of his evidence.
18. Investigating Officer of the case from the CBCID, Inspector Devendra Nath P.W.9 has not inspected the place of occurrence in presence of eye witnesses rather inspected the place of occurrence alongwith Zakir Ali. (It may be noted here that Zakir Ali P.W.3 has denied this fact in his evidence by stating that neither he went with the Police team to show them spot nor he went with the officials of CID for that purpose).
18.1 He has recorded the time of starting and closing of investigation in C.D. Parcha Nos. 3, 4 and 5 only and not in other subsequent C.D. Parcha.
18.2 He has also not tried to know that deceased was working where and the factory where the deceased was said working and was at how much distance from deceased's home.
18.3 According to Investigating Officer P.W.9 after murder of Kala Baccha, Hindu Muslim riots were broken out in the area. After the incident, the curfew was imposed and the deceased of unclaimed dead body was killed in the riots broken out after the murder of Kala Baccha.
19. Another Investigating Officer from the CBCID, Inspector Dev Nath Pandey, P.W.11 who has filed charge sheet (Exhibit Ka-15) in the case, has stated in his cross-examination that on 14.03.1997 case was being entrusted to him not for investigation rather for supplemental proceedings. Since investigation was not transferred to him due to that he neither went to the place of occurrence nor prepared site plan.
19.1 He has not recorded the statements of Mohd. Ahmad (husband of sister of real father-in-law) and S.H.O. Babu Purwa Shivpujan Singh Yadav and other witnesses; not tried to verify place of occurrence, name and address of the deceased recorded by earlier Investigating Officers; not verified truthfulness of investigation conducted by earlier Investigating Officers and has not investigated the case since he was not Investigating Officer of the case.
19.2 Though Investigating Officer P.W.9 admitted that filing of the charge sheet is the job of Investigating Officer; he has filed charge sheet on the basis of the facts collected by earlier Investigating Officers; above case was related to Hindu Muslim riots; after the murder of Kala Baccha Hindu Muslim riots was broken and thereafter (prohibitory order under Section 144 Cr.P.C.) was imposed; earlier Investigating Officer has not recorded conclusion to the effect that charges have been proved against the accused persons in the last parcha prepared by him; has prepared only two parcha and got information as to whether accused persons were being alive and in the last column of the charge sheet he has written place of occurrence, statements of the witnesses, identification proceedings, handing over of the dead body of the deceased to Pesh Imam of Bagahi graveyard, buried dead body was being of Nafees which was identified by his cousin father-in-law (husband of sister of real father-in-law) Mohammad Ahmad and S.H.O. Babu Purwa Shivpujan Singh Yadav, on the basis of the case diary prepared by earlier Investigating Officer.
20. Evidence of Nagma Parveen P.W.1, wife of the deceased reveals that at the time of the incident, she was cooking food in her home and knew about the incident from her father P.W.3, as such she is not an eye witness of the incident; explaining the delay to inform the Police regarding the incident, she has stated in her evidence that due to curfew, she could not approach Police Station to lodge the FIR immediately and rushed to the Police Station for above purpose on 13.02.1984 after relaxation of the curfew; she was having curfew pass at that time when she went to graveyard for identification of dead body of her husband and Police Personnel were present there; she was not aware to the co-accused persons before the incident and wrote their names in their written reports (Exhibit Ka-1) on the basis of the information provided by her father P.W.3.
She did not go to the spot to see the dead body.
According to her only her father had witnessed the occurrence of putting Nafees on fire, meaning thereby except to her father i.e. P.W.3, other witnesses P.W.2 and P.W.4 were not present at the time of the incident.
21. Evidence of Ahmad Ali P.W.2, the brother of the deceased claimed himself an eye witness of the incident while he appears a chance witness since as per his own evidence he was a salesman at the clothe's shop at Wakerganj locality and remained on duty from 10:00 a.m. to 7:00 p.m. but on 09.02.1994 he was not on duty; according to his evidence at the time of the murder of Kala Baccha, he was on the shop of Dr. Siddiqui in Begumpurwa. He went there to take medicine and he reached there at 11:00 a.m.; he did not go home from there but thereafter he stated that he went to his home from the shop of Doctor at 1:00 p.m.; during coming to home from the shop of the Doctor, he was not involved in any scuffle and riots; on that day he reached to his home at 12:00 p.m. While alleged incident has taken place at 12:00 p.m., meaning thereby at the time of the incident, he was either at the Doctor's clinic or at his home but not on the spot.
He also said that from Doctor's shop he was coming to Khatikana and Pasiyana locality for making aware to his brother and on reaching there he saw the incident, but in his evidence he has stated various important facts, which are not only self contradictory rather contrary to the evidence of other witnesses.
In his examination-in-chief he stated that: Manoj Kanja, Pappu Banta, Girish Chandra Bajpai, Kamal, Ramesh and Bhakku all have cornered Nafess Ahmad and fallen him on the earth by striking with the sticks thereafter Girish Chandra Bajpai and all others have poured kerosene oil on him and Girish Chandra Bajpai (appellant) set him on fire by match-stick, which is contrary to the evidence of P.W.3 and his evidence on this point in his cross-examination where he has stated that Manoj Kanja, Pappu Banta, Girish Chandra Bajpai, Kamal, Ramesh and Bhakku and others were beating his brother by sticks and when he fell became unconscious, Manoj Kanja poured kerosene oil on him by container and Girish Chandra Bajpai set him on fire by match-stick. He has also stated in his cross examination that after pouring kerosene oil his brother was struck with sticks and when he fell down unconscious, Girish Chandra Bajpai ignited fire with match-stick; he received information regarding murder of his brother after lifting up of the curfew. He claimed that first time he saw that dead body of his brother on his home at the time when he was being taken to graveyard, which also clearly established that he has not seen the incident.
He also stated in his evidence that he went to graveyard from the house of Nafees to attend the funeral on foots with the dead-body; the dead body was brought to home at 12:00 p.m. on 13.02.1994 by the Police and about 40 persons joined the death procession (Janaza); there was no curfew on 13.02.2014 and the Police Personnel had not prevented the persons going with the dead body, while as per the prosecution case and other prosecution witnesses dead body was directly being taken to graveyard on 10.02.2014 from the post mortem house and not on 13.02.1994 from the home of the deceased.
In his cross-examination he said that there was no riots between the Hindus-Muslims and burning incidents, after the murder of Kala Baccha but contrary to it he also admitted that at the time of the incident, there was riots between the Hindus and Muslims on Babupurwa; there was tension between them and Police has imposed curfew to control the situation and after murder of Kala Baccha, two persons were murdered including Nafees due to provocation; after murder of Kala Baccha the accused persons had murdered his brother due to religious intolerance.
He also admitted that if any persons came to Khatikana from Ajitganj colony, then he will not go to Begumpurwa, if he has no work there; he had not tried to douse the fire of his brother and did not go to see the burnt dead body of his brother. At the time of the incident he seen the accused persons on the spot but did not see that they came from which side and went towards which side.
He claimed that he went alongwith P.W.1 and P.W.3 to Police Station to lodge the FIR but P.W.1 and P.W. 3 have not corroborated him this evidence.
Contrary to the prosecution case and evidence of other prosecution witnesses he has stated that the injured was coming alone from the east and was going towards the south meaning thereby at the time of the incident the deceased was alone and P.W.3 father-in-law of the deceased was not accompanying him .
He also said in his evidence that the force which was deployed at the spot, was not ready to hear anything; the people were being chased away from the spot; the force was not ready to hear anything, hence he could not tell the force that the accused persons were fleeing from the spot after committing murder of the deceased; on being chased by the Police, the accused persons have carried away the cane of kerosene oil with them.
This witness has also stated at one place that on the date of occurrence, the Police Personnel of Babupurwa Police Station were present but at other place he has stated that force reached at the spot after commission of murder but he could not state that after how much time force reached to the spot; he has not seen himself the force arriving at the spot; he also claimed that inspection at the place of occurrence was conducted by the Inspector in his presence, while as per evidence of Investigating Officer P.W.6 he was inspected the spot on the pointing out of S.I. Mam Chand, complainant of the case, and according to the P.W.9 he has inspected the spot in the presence of the local Investigating Officer i.e. P.W.6 and P.W.3. He claimed the identification of the dead body in graveyard but according to P.W.7 only he and P.W.3 have identified the dead body.
As stated above evidence of P.W. 2 is self contradictory and evidence of the other witnesses P.W. 1, P.W 2, P.W.3, & P.W. 7.
22. Evidence of Zakir Ali P.W.3, father-in-law of the deceased reveals that:
Nafees and he started to come through a street at Khatikana; Nafees was a head of him; he stopped at a shop for two second to buy biri; on approaching ahead, he saw Girish Chandra Bajpai, Bhakku, Manoj Kanja, Pappu alias Banta, Ramesh and Kamal coming from the opposite site carrying sticks in their hands. Manoj was carrying a pipiya (a type of container); the above named persons caused Nafees to fell on the ground, by beating him with sticks. Manoj Kanja sprinkled kerosene oil on Nafees and Girish Chandra Bajpai set him on fire by using match-stick. The incident occurred at around 12:00 O'clock; the next day i.e. on 10.02.1994 his daughter Nagma and he went to graveyard to identify the dead body which was of Nafees. While in his another statement recorded on 09.11.2004 he has stated the above named persons thrashed Nafees and sprinkled oil on him from the pipiya and Girish Chandra Bajpai set him on fire by using match-stick.
He admitted that:
Infront of his house, there is house of Constable Zakir and adjacent to his house, there is house of retired Constable Abdul Rasheed; he told his daughter and other persons about the murder of Kala Baccha at 12:30 p.m. This evidence of the witness clearly established that he has not told anything to his daughter or other persons about murder of deceased Nafees rather he only told to them about murder of Kala Baccha.
Manoj Kanja had no enmity with him or his son-in-law Nafees; he did not tell the Sub-Inspector about going to duty at 8 O'clock; he also not told the Sub-Inspector that he had seen Manoj carrying a pipiya (a type of container) in his hand and admitted that he gave that statement first time before the Court.
The Police did not come to take him with them or inform him about the recovery of the dead body. They were informed about this count by resident of Mohalla. Fahimuddin accompanying him had the curfew pass, since he knew about his son-in-law, hence he told him that his son-in-law has been murdered. It is clear from the above admission of P.W. 3 that he had not seen the incident and came to know about murder of his son in law from residents of Mohalla and Fahimuddin.
The Police buried the dead body at 5 O'clock on 10th, he did not go with the Police or with the Officers of the CID to show them the spot. No Hindu Muslim riots took place when Kala Baccha was murdered, Hindus were not assaulted Muslims and Muslims were not assaulted Hindus. Above persons killed two men other killed person was Ibrahim, he was not witness of that incident. After relaxation in curfew; he and his daughter went to the Police Station; he did not go to the Police Station with Ahmad Ali on the curfew being relaxed. He cannot say before whom Sub Inspector has inspected the occurrence site; he was posted as temporary worker in the Bulb Factory; he did not get pay slip and not aware that his son-in-law was receiving pay slip; at cemetery the deceased's eyes, nose and both ears were burnt, both his ears were not cut; he had not seen the deceased burial in cemetery and added thereafter that after his death, he had seen his burial; at the time of his death, the deceased was having complete denture and he might have lost one or two teeth. The three moles on the ear of the deceased related to this case, made him identified by him as his son-in-law; he did not tell this fact to the Sub-Inspector that he had identified him due to three moles on the ear of the deceased. He had himself seen that all the clothes worn by the deceased was burnt; no clothes was left on is body. He also claimed that receipt of burial was given to him which is in home but according to evidence of Vasim Javed P.W. 8 receipt of burial was received by one Mohd. Ahmad.
He admitted that the Officials from CID came to interrogate him but he did not tell them that he had seen Manoj carrying a pipiya in his hand. This is first time when he has given this statement before the Court.
He did not tell to Sub-Inspector about going to duty at 8:00 O'clock.
It is clear from the above discussion that the witness P.W. 3 has adopted contradictory stand in his evidence regarding Hindu Muslim riots or communal tension between Hindus and Muslims after death of Kala Baccha. At some places he has denied the above facts but at last conceded that Hindu Muslim riots were taken place.
23. As stated earlier that another eye witness Mehboob Ali P.W.4 has not supported the prosecution case and has been declared hostile.
24. Evidence of Hazi Mohd. Ahmad Usmani P.W.7, maternal father-in-law of the deceased reveals that :
He and Zakir Ali P.W.3 have identified the dead body of Nafees but his this evidence does not find corroboration from the evidence of other witnesses P.W.1, P.W.2 and P.W.3, who claim identification of the dead body.
The dead body of Nafees was reached to graveyard from the post mortem house and not from his house as Janaza.
The wife of deceased, Nagma Parveen (P.W.1) did not go to the graveyard.
After the murder of Kala Baccha, Hindu Muslim riots was broken in Kanpur and people of both the parties were hide up in their house.
There was a mole in his right ear and legs were very small on the basis of that he has identified the dead body but he has not told about that identification mark to anyone even to Darogaji. It is also noteworthy here that as per post mortem report and evidence of Dr. Irshad Ali P.W. 5 right ear was completely removed in the dead body.
Dead body of Nafees was so badly burnt that it was a tough task to identify him.
25. In view of the above, discussion the evidence of P.W.1, P.W.2, P.W.3, and P.W.7 does not inspire confidence and as such not reliable .
26. It is clear from the above referred evidence of prosecution witnesses that :
26.1 That though six persons named in the written report (Exhibit Ka-1) but after investigation charge sheet (Exhibit -Ka 15) has been filed against only four persons namely Girish chandra Bajpai (appellant), Pappu @ Banta, Rakesh Sonkar @ Makku and Manoj Kanja and no charge sheet has been filed against two named persons namely Ramesh and Kamal.
26.2 There was no previous enmity between the appellant-Girish Chandra Bajpai and the deceased and no motive has been assigned against the appellant for committing murder of the deceased.
26.3 P.W.1 Nagma Parveen is neither an eye witness of the incident nor known to the appellant and other co-accused persons before the incident and she has named them in the case on the basis of the information provided by her father P.W.3. Zakir Ali and her evidence regarding identification of dead body and going to graveyard is found unreliable even by the trial Court.
26.4 P.W.2 Ahmad Ali is real brother of the deceased and P.W. 3. Zakir Ali is father-in-law of the deceased and their evidence being self contradictory and contradictory to the evidence of other eye witnesses, same was found not reliable.
26.5 The case of pouring of kerosene oil on the deceased and his burning by the appellant Girish Chandra has been first time introduced by P.W.-2 in his statement recorded before the Court on 09.08.2004 and same stand is also adopted by P.W. 3.
26.6 According to postmortem examination report, the right ear of the deceased was eliminated. The above injury i.e. elimination of right ear was possible only by use of any sharped edged weapon but no prosecution witness has assigned any sharped edged weapon and its use by any accused.
26.7 P.W.2 has taken a quite different stand from the prosecution story in his cross-examination by stating that the people were being chased away from the occurrence spot. Force chased away the accused persons as well as them (the witness and his companions) because force was not ready to hear anything. Due to that, he could not tell the force that the accused persons were fleeing from the spot after committing murder and Police had brought the body of Nafees at home but he has neither been declared hostile nor cross-examined by the prosecution and in these circumstances, defence is entitled to rely on above evidence of P.W.2 as is held in the cases of Aditya, Raja Ram and Mukhtar Ahmad (all Supra).
26.8 As stated earlier P.W.4 has not supported the prosecution case and he has been declared hostile and there is nothing in his evidence which may support the prosecution case.
26.9 At the time of the incident, the appellant was the leader of Bharitya Janta Party and there was Government of another political party (Samajwadi Party) in the State.
27. At this stage we would like to refer relevant case law on the point of distinction between ''may be' and ''must be' and view preferable in the matter where two views possible in respect of criminal trial.
28. In the case of Jaharlal Das v. State of Orissa, (1991) 3 SCC 27 held as under:
" 4. No doubt the offence is a shocking one but the gravity of the offence cannot by itself overweigh as far as legal proof is concerned. Invariable in such cases a person last seen with the victim, unless otherwise there are circumstances prima facie exonerating him, would be the prime suspect but in the ultimate judicial adjudication suspicion, howsoever strong, cannot be allowed to take the place of proof. With that caution in mind we shall now proceed to examine the facts and circumstances as put forward and the various arguments advanced.
....
8. As already mentioned this case rests purely on circumstantial evidence. It is well settled that the circumstantial evidence in order to sustain the conviction must satisfy three conditions:
1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;
iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused."
29. In the case of VarkeyJoseph v. State of Kerala, 1993 Suppl (3) SCC 745 held as under :
"12. Suspicion is not the substitute for proof. There is a long distance between 'may he true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12 1993 and set the appellant at liberty which have to little doubt it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under Section 302 I.P.C."
30. In the case of Sujit Biswas v. State of Assam, (2013) 12 SCC 406: 2013 (4) Supreme 509 held as under:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
31. In the case of Digamber Vaishnave & Anr v. State of Chhattisgarh, 2019 (1) Crimes 211 (SC) held as under:
"19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence (See Kali Ram v. State of Himanchal Pradesh, (1973) 2 SCC 808."
32. In view of above, we reached to the conclusions that :
32.1 Prosecution story regarding lying of dead body at the same place in dense populated area and without notice of police despite imposing of curfew in the area up to 20 hours after murder (as per opinion of Dr. Irshad Ali P.W.5 for duration of death) without any damage to it by stray animals and birds like vultures and crow etc. is highly unnatural and unreliable and specially when P.W.6 has not collected plain and blood stained soil/road material and also not send burnt ash collected from the spot for its chemical examination to establish the place of occurrence as well as shown place of occurrence and place where dead body was lying by common letter ''A' in the site plan.
32.2 Since according to P.W.1 at the time of going graveyard she was having curfew pass and according to P.W.3 at that time his companion Fahimuddin was having curfew pass. At the graveyard Police Personnel were present and near to his house, there were home of Constable Zaheer and retired Constable Abdul Rasheed were living still they have neither informed the Police Personnel nor lodged the FIR promptly about involvement of appellant and other co-accused in the murder of the deceased Nafees up to 13th February, 1994 on the behest that curfew was imposed in the area and they have submitted written report on relaxation of curfew is no proper explanation for delay caused in not lodging report promptly. As such delay in submission of written report (Exhibit Ka-1) to the Police is not properly explained.
32.3 The claim of identification of dead body is also highly doubtful due to the facts that evidence of P.W.1 and P.W.2 regarding identification is not supported and corroborated by the P.W.7 and even it was not relied by the Trial Court. P.W.7 claims that dead body was identified by him and P.W.3 but his this claim was not supported by P.W.3 apart from that P.W.3 claims identification of dead body as Nafees on the basis of three moles on his ear and P.W.7 claims identification of dead body as Nafess on the basis of his small legs and mole his right ear but both P.W.3 and P.W.7 have admitted that they have not told about above basis of identification of dead body to anyone even I.O. and first time disclosed above facts before the Court during their examinations and as per post mortem examination report, right ear of the dead body was completely missing. It may also be mentioned here that P.W.6 has not shown clothes, shoes and other things belongs to the deceased or their photos to Smt. Nagma Parveen for their identification. There was nylon shocks, paint and piece of burnt shirt etc. on the dead body but he has not shown them to Smt. Nagma Parveen and his father. According to P.W.3 Nafees was having complete denture, he might have lost one or two teeth but as per Dr. Irshad Ali P.W.5 four teeth of upper and lower were broken. In these circumstances, proper identification of dead body is also highly doubtful. Apart from that no announcement was made by loud speaker and pamphlets in Mohalla Khatikana, Pashiyana and other areas to know actual details and whereabouts of the deceased regarding unclaimed dead body.
32.4 In absence of evidence of Sushil Kahtik, his family members and other owners and residents of surrounding houses of place of occurrence, forensic reports of burnt ash collected from the spot and collection of plain and blood stained soil etc., there is no corroborative and supportive evidence of prosecution case. Even prosecution case is also not supported by medical evidence as according to evidence of Dr. Irshad Ali P.W.5, ante mortem injuries of the deceased was caused by bricks or its part and burns, right ear of the deceased was completely missing, no odour of kerosene oil was found by him from the dead body but according to prosecution story, deceased was beaten by the accused persons by using lathi and danda and burnt by pouring kerosene oil and thereafter lighting him by matchstick, deceased was having both ears and there is no reference of any sharp edged weapon which may completely remove the right ear of the deceased. The prosecution witnesses stated in their evidence that accused persons have caught hold the deceased and got him fallen on the ground but post mortem report reveals that all the injuries except to complete removal of right ear of deceased were on left side of the deceased.
32.5 As discussed above, investigation of the case is not as per established norms and the relevant rules and regulation rather it is violative of very casual manner and highly defective having potential to cause great prejudice to the accused persons in their proper defence.
32.6 No credible evidence is available on record to establish the factum of working of deceased Nafees and P.W.3 in Bulb Factory and returning together from the factory on the date of incident since Investigating Officer have not collected any material in this regard and even not recorded the statement of Kallu according to prosecution in whose factory both deceased and P.W.3 Nafees were working rather there is contradictory evidence of P.W.2 who has stated in his cross-examination that at the time of the incident Nafees was coming alone from the east and was going towards the south. It is also mentioned here that P.W. 3 has not told the Sub Inspector about going to duty at 8 O'Clock on the date of incident.
32.7 The evidence of P.W.2 and P.W.3 is full of improvement, embellishment and contradictions as discussed above and as such not reliable, moreover, above witnesses have not received any injury in the above incident, in the facts and circumstances of the case they appear chance witnesses instead of being natural witnesses, 32.8 All witnesses of the facts examined by the prosecution P.W.1, P.W.2, P.W.3 and P.W.7 who are respectively wife, brother, father-in-law and maternal father-in-law of the said deceased Nafees are his close relatives and are highly interested in success of prosecution case as such their evidence are not reliable.
32.9 The independent witness P.W.4 has not supported the prosecution case and has been declared hostile. No other independent witness has been examined by the prosecution and it has without any just and proper reason withhold the important witnesses of the case S.I. Mam Chand (complainant of the case) S.I. Ram Chandra Verma (who has told the exact location of the dead body to I.O. P.W.6) Shushil Khatik, Ram Khelawan, Smt. Kamtali w/o Fakire, Smt. Gomati, Mohan, Mohan Pasi and Nabiullah (all are owners of adjoining houses of place where dead body was found, as is shown in the site plan), Waker Ali and Kamrul Hasan (both are witnesses of recovery memo), Kali Charan, Mahendra, Istiyak, Madan and Babulal (all are witness of inquest memo) Mohd Ahmad and S.H.O. Babupurwa, Shivpujan Singh Yadav (who had identified the buried dead body as Nafees) and according to P.W.8 Mohd. Ahamd has received receipt of burial of dead body.
We may refer here judicial pronouncement in the case of Tomaso Bruno & Anr. v. State of Uttar Pradesh (2015), 7 SCC 178 in which a three Judges Bench of the Apex Court has held as follows :
"28. The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 Cr.P.C. and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW-1, PW-12 and PW-13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence-CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced."
Considering the above facts and circumstances along with exposition of law in the cases of Tomaso Bruno & Anr. (supra), we are of the considered view that in this case presumption under Section 114 (g) of Indian Evidence Act, 1872 be drawn against the prosecution for withholding the best evidence.
32.9 After death of Kala Baccha Hindu Muslim riots were broken and curfew was imposed. According to P.W.9, dead body referred in this case was a result of a Hindu Muslim riots. P.W.7 has also said in his evidence that in February 1994, three persons including deceased of this case were murdered, after murder of Kala Baccha and as General Secretary of Central Peace Committee, he has managed burial of all the three dead bodies.
32.10 By its evidence prosecution could prove only recovery of an unknown and unclaimed dead body on 10.02.1994 from Mohalla Khatikana, Pashiyana but could not prove rest part of prosecution story beyond reasonable doubts that deceased/said Nafees was murdered on 09.02.1994 at the place, in the manner as claimed by the prosecution and involvement of the accused appellant in that murder.
32.11 Considering all the facts and circumstances, as discussed above, we are of the considered view that the Trial Court has not properly considered above aspects of the matter and failed to properly appreciate the evidence available on record in its right perspective. In the result, Trial Court could not draw proper conclusions and passed wrong and illegal impugned judgment and order, which is not sustainable in the eyes of law and is liable to be set aside.
33. In view of the our finding in the predeceasing para we answer the aforesaid question arose for our consideration as stated in para 6 of the judgment, in negative.
34. For aforesaid discussion, this appeal is allowed.
35. The impugned judgment and order dated 16.11.2006 passed by Additional Sessions Judge/Fast Track Court No.5, Kanpur Nagar in Sessions Trial No. 854 of 2003, arising out from Case Crime No. 38A of 1994, under Sections 147, 148, 149, 302, 436 IPC, Police Station Babu Purwa, Kanpur Nagar, is hereby set-aside.
36. The accused appellant is acquitted for the offences charged. Fine paid, if any be refunded to him.
37. However, keeping in view the provisions of Section 437-A Cr.P.C., the appellant is directed to furnish his personal bonds of the amount fixed by C.J.M./Court concerned and two reliable sureties each of the like amount (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition or for grant of leave to appeal against this judgment, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
38. Since the appellant is in jail, he will be set at liberty, if not required in any other criminal case forthwith after compliance of the above directions contained in predeceasing paragraph of this judgment.
39. Office is directed to certify this order to the Court concerned/ C.J.M, Kanpur Nagar and remit the lower court record to the Court concerned immediately.
40. Before parting, we would like to clarify that our above findings and conclusions are confined only to this appeal relating to the accused appellant Girish Chandra Bajpai and will have no bearing or effect on the other appeals/proceedings filed by the State or other co-accused.
Order Date : 23.05.2019 Monika Criminal Appeal No. 7344/2006