Allahabad High Court
Lotan @ Anil Kumar Singh Thakur vs State Of U.P. on 16 November, 2022
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD 1 Reserved Court No. - 48 Case :- CRIMINAL APPEAL No. - 1508 of 2013 Appellant :- Lotan @ Anil Kumar Singh Thakur Respondent :- State of U.P. Counsel for Appellant :- Nisar Uddin,Arimardan Yadav,Arvind Kumar Srivastava,Jadu Nandan Yadav,S.K. Shukla,Santosh Shukla Counsel for Respondent :- Govt. Advocate,Anurag Shukla WITH Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 885 of 2022 Appellant :- Shiv Kumar Singh Respondent :- State of U.P. and Another Counsel for Appellant :- Anurag Shukla Counsel for Respondent :- Govt. Advocate,Anurag Dubey Hon'ble Suneet Kumar,J.
Hon'ble Syed Waiz Mian,J.
(Per Justice Syed Waiz Mian)
1. Since both the appeals have arisen out of the same judgement and order, therefore, are being heard and decided together.
2. Criminal Appeal No. 1508 of 2013; Lotan @ Anil Kumar Singh Thakur Versus State of U.P. has been filed by the appellant Lotan @ Anil Kumar Singh Thakur against the judgement and order dated 27.2.2013, passed by the Additional Session Judge-II (Ex Cadre), Aurraiya in Sessions Trial No. 189 of 2007, arising out of Case Crime No. 352/2006, under Sections-302,201 I. P. C., P. S.-Kotwali Aurraiya, district-Aurraiya, whereby, the appellant has been convicted and sentenced with life imprisonment under Sections-302 I. P. C. and fine of Rs. 10,000/- and three years' rigorous imprisonment under Section- 201 I. P. C. with fine of Rs. 5,000/- and its default stipulations. All the sentences were directed to run concurrently.
3. Criminal Appeal (U/s 372 Cr. P. C.) No. 885 of 2022; Shiv Kumar Singh Versus State of U. P. and Another has been filed being aggrieved by a portion 2 of judgement of learned lower Court, whereby accused Ram Babu Singh has been acquitted of the charges under Sections-302, 201 I. P. C.
4. The prosecution story in brief reveals that the informant Shiv Kumar Singh presented a written F. I. R. (Ext. Ka 1) on 6.10.2006 at police station concerned alleging that his son Pawan Kumar, aged about 4 and ½ year went to play on 5.10.2006 around 3.00 P. M. and went missing; search was made; on 6.10.2010 at 7.30 P. M. in the millet field of one Ram Singh, was found lying dead; on the neck of the deceased there was a deep cut wound.
5. On the strength of the written F. I. R. (Ext. Ka 1) a criminal case being Case Crime no. 332/2006 was registered by P. W. 10 Constable Hardayal, against the appellant and another, for the offence under Sections-302/201 IPC and the substance of the F. I. R. was entered into G. D. No. 26 at 9.45 P. M. on 6.10.2010 by Constable Chandra Pal Singh; constable Ashok Kumar departed from the police station to place of occurrence.
6. During investigation S. H. O. Brij Raj Singh on 1.11.2006 while patrolling the area to trace the accused in connection with the instant case, one person was apprehended and on his interrogation, he introduced himself as Anil Kumar Singh; he was taken into custody and he confessed the crime and told that he is servant of Ram Babu, fair price shop dealer; on the complaint of Shiv Kumar Singh license for fair price shop was cancelled, whereupon, Ram Babu threatened him that he will take revenge for it; Rambabu asked him to kidnap Pawan; on 5.10.2006, Pawan was playing with Aman in front of chakki of Lakshman Singh, Anil Singh induced and kidnapped him to the residence of Ram Babu; in the night, he and Rambabu brought Pawan in the field of Ram Singh and on exhortation of Ram Babu, he assaulted Pawan with dagger (banka) with several blows, consequently, the deceased succumbed to injuries; he and Ram Babu Singh brought the deceased towards borderline of field and dagger (banka) was hidden thereunder and they had returned to their house.
7. Appellant-accused Anil Kumar Singh has also disclosed to Brij Raj 3 Singh, S. H. O. that he could get the dagger (banka) recovered; on the pointing out of the appellant-accused, in the presence of witnesses Bhupendra Singh, Prem Singh and Satpal Singh and also in the presence of the police personnel, who were accompanying him, dagger (banka) was got recovered from the right side of med (dividing line of fields). He further confessed that after the murder of the deceased, he and Ram Babu had hidden the recovered ''banka'. Thus, recovery of ''banka' at the instance of the accused Anil Kumar Singh was made. At around 8.00 A. M. banka was taken to the police custody and the same was sealed in a piece of cloth and on the dictation of Brij Raj Singh, recovery memo of the assault weapon, i. e. banka, was written; the same was also read over to the witnesses who had signed it.
8. Brij Raj Singh took up the investigation and inquest report, Ext. Ka 9 and Ext. Ka 10 over the body of the deceased and other necessary papers Ext. Ka. 11 to 14 were prepared and the dead body of the deceased Pawan along with the necessary papers to ascertain the cause of death was forwarded to the district mortuary; from the place of recovery, slippers, material Ext. Ka 2 and underwear material Ext. Ka 3 were also taken into possession and these belongings of the deceased were sealed in a piece of cloth; Plain and blood stained earth was also taken from the site and was put in two containers and both containers are also marked as Ext. Ka 7 and 8.
9. At district mortuary, the autopsy over the dead body of the deceased was conducted and autopsy report Ext. Ka 3 was prepared by the doctors. G. D. No. 34 Ext. Ka 4, G. D. No. 16 Ext. Ka 5A, G.D. No. 26 and G. D. No. 30 in pursuance of alteration of instant case were prepared and these G. Ds. are marked as Ext. Ka 16 and Ext. Ka 17. Investigating officer also inspected the place of recovery and sketched the site plan Ext. Ka 5; S. I. Subhash Chandra and the Investigating officer during investigation recorded the statements of informant constable Moharrir, accused Ram Bahadur Singh, Lotan Singh and also other witnesses, Investigating officer Brij Raj Singh on the basis of the evidence collected during investigation concluded that against both the 4 accused there was incriminating evidence under Sections-302 and 201 I. P. C. and forwarded challan Ext. Ka 4 to the court concerned; after compliance of Section 207 Cr. P. C., copies of the record were supplied to the accused and the Magisterial court vide order dated 10.9.2007, committed the case against the accused for trial to the Sessions Court, wherein, criminal case was registered as S. T. No. 889 of 2007 under Sections-302 and 201 I. P. C. against both the accused and trial court vide order dated 5.12.2008 framed the charges for offences under Section-302/34 and 201 I. P. C. against both the accused who denied the charges and claimed trial.
10. In order to prove the case, prosecution examined injured P. W. 1, P. W. 2, P. W. 3, P. W. 5, P. W. 7, P. W. 9, P. W. 9 and P. W. 11, Investigating officer also P. W. 12. Upon closure of the evidence on behalf of the prosecution, statements of accused under Section-313 Cr. P. C. were recorded. Accused denied to have committed the crime and further stated that one Aman, nephew of Shiv Kumar Singh and on being tutored, he has deposed against them, further, stated that rest of the witnesses have not given evidence against them. It was further stated by the accused that charge-sheet is untrue and on account of the prior enmity, the instant trial was conducted. Accused declined to adduce evidence on their side.
11. The trial court heard the learned counsel and A. D. G. C. (Criminal) for both the parties and also perused the record. Learned trial court concluded that prosecution has failed to prove the charges under Sections-302 and 201 I. P. C. against the co-accused Ram Babu Singh and resultantly he was acquitted, whereas, the trial court found ample evidence on record for offences under Sections-302 and 201 I. P. C. against the appellant-accused and convicted and sentenced him.
12. The appellant Lotan, alias, Anil Kumar preferred instant criminal appeal against the impugned judgement and order pleading that he was languishing in Jail since 27.2.2013; he is innocent and has no concern with the alleged incident; he has neither committed the alleged crime, nor, there is any direct or 5 circumstantial evidence against him to connect him with the alleged incident; name of Ram Babu Singh and appellant surfaced during investigation. In the instant criminal appeal it is alleged that on 26.5.2006, at 3.00 P. M. Pawan Singh aged about 5 years was playing with Aman. On interrogation Aman Singh did not tell anything to the Investigating officer because of his tender age. Investigating officer again recorded statement of the informant Shiv Raj Singh on 12.10.2006, wherein, name of appellant and Ram Babu Singh appeared. Informant Shiv Kumar Singh has neither named Ram Babu Singh nor his name appeared in his earlier recorded statement under Section 161 Cr. P. C. Thus, the second statement of Shiv Kumar Singh, under Section 161 Cr. P. C. recorded on 12.10.2006, is totally an afterthought; Informant Shiv Kumar Singh has also not named Ram Babu Singh in the written F. I. R.; thus, he was falsely implicated by informant Shiv Kumar Singh in his second statement; recovery of 'banka' was planted on him (appellant); there is also no public witness of the alleged recovery; recovery memo of 'banka' prepared by the police is absolutely a fake document; Investigating officer has not conducted just and fair investigation and also has not collected credible evidence; The investigating officer while sitting in the police station has prepared C. D. and submitted charge-sheet against him and Ram Babu Singh; P. W. 3 Opendra Singh, who is said to be a witness of the recovery of 'banka' has not whispered against the appellant; P. W. 8, at the time of the incident, was aged about 5 years and at the time of the examination was aged about 10 years; considering the infancy of Aman Singh P. W. 8 at the time of the incident, his statement cannot be relied upon; he has further stated that the prosecution witnesses P. W. 1, P. W. 4, P. W. 5, P. W. 6 and P. W. 7 have turned hostile and have not given any evidence against the appellant but the trial court while recording the acquittal of Ram Babu Singh, has wrongly convicted and sentenced him which is absolutely unjust and improper and also against the evidence on record.
13. The impugned judgement and order suffers from illegality and infirmity 6 which is apparent on the face of record; there is material contradictions in the version of the first information report qua medical report and the statement of the prosecution witnesses; trial court has not properly appreciated the evidence on record; there was no motive of the appellant to commit the murder and he has been falsely roped in this case; the impugned judgement and order is based on surmises and conjectures and against the weight of evidence. Prosecution has failed to prove the charge against the appellant beyond any reasonable doubt.
14. We have heard Arimardan Yadav and Jadu Nandan Yadav, learned counsel for the appellant, Sri Om Prakash Mishra, learned A. G. A. for the State and have perused the record.
15. Informant P. W. 1 Shiv Kumar has stated in his statement that Pawan at the time of the alleged incident was aged about 4 and ½ year; he was his only son; On 5.10.2006 Pawan was playing in front of chakki of Lakshman Singh at around 3.10 P. M. and went missing from there. The dead body of the deceased was found in the field of Ram Singh lying on 6.10.2006 at 7.30 P. M.
16. P. W. 1 Shiv Kumar in the written F. I. R. has not nominated appellantaccused or any person. P. W. 1 Shiv Kumar had presented a written F. I. R. at the police station on 6.10.2006 at 9.45 A. M. It appears from the written F. I. R. that by the time written F. I. R. was presented at the police station, P. W. 1, Shiv Kumar had no knowledge as to whether appellant and his associate Ram Babu Singh had conspired to kidnap and kill the deceased; the deceased was taken from the said place by the appellant to the house of Ram Babu Singh. P. W. 1 Shiv Kumar has also not disclosed the name of the appellant or Ram Babu Singh in his first statement recorded by the Investigating Officer under Section 161 Cr. P. C. but thereafter, P. W. 1 Shiv Kumar informant got recorded his second statement under Section 161 Cr. P. C. by the Investigating Officer, wherein, for the first time he stated that he was told by Pawan Singh, who was playing with his nephew Aman Singh (deceased), informed him that Anil Kumar Singh had taken the deceased, saying to him (Pawan Singh) that 7 he can continue to play while he was taking Aman Singh to feed him guava. P. W. 1 Shiv Kumar has also stated that Pawan Singh had also told him that he had seen that Ram Babu Singh was standing at the gate of his house and the appellant had taken the deceased at the house of Ram Babu Singh; appellant and Ram Babu Singh took the deceased inside the house of Ram Babu Singh.
17. P. W. 1 Shiv Kumar Singh neither nominated the appellant, nor, his associate in his written F. I. R. which was presented at the police station on 6.10.2006, nor, he had disclosed the name of the appellant and his associate Ram Babu Singh in his previous statement recorded under Section 161 Cr. P C; statement of P. W. 1 Shiv Kumar Singh is based upon the information of Pawan Singh, as such, it is needed to be corroborated by Aman Singh.
18. P. W. 8 Aman Singh who was admittedly at the time of the alleged incident, aged about 4 and ½ year, whereas, in the written F. I. R. age of Pawan Singh is noted as five years, he has deposed that the deceased was son of his uncle (taau) Shiv Kumar. He has further stated that six years before the date of deposition in the trial he and Pawan were playing near the engine of Raju, at around 3.00 P. M. Lotan took Pawan with him to the house of Ram Babu, fair price shop dealer, who was standing at the gate of his house; Lotan had informed him (Aman) that he can continue his play; he took Pawan to feed him guava; next day, dead body of Pawan was found. P W. 8 Pawan has also stated that the police had come to the village; Police had interrogated him; he could not tell anything with regard to the incident to the appellant or the police; second time when police came to his house, then he had told the police that Lotan had taken Pawan from the place where both children were playing; Lotan had also said to him that first he will feed guava to Pawan, thereafter, he will feed him also; Lotan had taken Pawan towards the house of Ram Babu who was standing at the gate of his house.
19. P. W. 8 Pawan Singh has admitted in his cross examination that from the place he was playing, house of Ram Babu was not visible, he cannot tell the distance from the place they were playing and the house of Ram Babu. 8
20. It transpires from the evidence of P. W. 8 that in his examination-inchief he has stated that appellant had taken Pawan with him to the house of Ram Babu who was standing at the gate of his house but in the cross examination he has admitted that the house of Ram Babu Singh was not visible from the place they were playing. According to the evidence of P. W. 8 Aman Singh, appellant and Ram Babu took the deceased into the house of Ram Babu; Ram Babu was introduced as an accused and for lack of evidence Ram Babu was acquitted of the charges under Sections-302 and 201 IPC. As such, evidence of P. W. 8 Aman Singh that appellant/ accused had taken the deceased to the house of Ram Babu, who was standing at his gate, and deceased was taken into the house of Ram Babu is untrue and self contradictory.
21. P. W. 8 Aman has stated in his cross-examination that he had not disclosed anything about the incident on the date of occurrence to any member of his family, his uncle or any member of the family of his uncle Shiv Kumar and the reason for not disclosing, as stated in cross examination, has been explained to the effect that since all the family members were sleeping, therefore, he also went to sleep. He further says in his cross-examination that he did not reveal the incident to the police in his first statement under Section 161 Cr. P. C. because police had not asked him in his interrogation about the appellant and his associate Ram Babu. He also has stated in his crossexamination that on the date of occurrence i. e. 5.10.2006, he did not reveal the incident to anyone.
22. P. W. 8 Aman in his cross-examination has also deposed that on the day of occurrence, his mother had not inquired from him about Pawan but on the following day, he had told his mother about the incident; he also admits that no member of his family had gone to the house of Ram Babu to enquire about the disappearance of Pawan. Informant Shiv Kumar Singh P. W. 1 is also father of the deceased and uncle of P. W. 8 Aman, has admitted in his statement that he has named the appellant and Ram Babu in his second 9 statement recorded under Section 161 Cr. P. C. by the Investigating officer, because in this respect his nephew Aman had narrated him the incident. P. W. 8 Aman has stated in his cross-examination that on the following day of the incident he had narrated the occurrence to his mother, who has not been examined by the prosecution for the reasons best known to it. P. W. 8 Aman has not stated in his examination that he had told his uncle (Shiv Kumar) about the incident, therefore, the statement of P. W. 1 Shiv Kumar that the appellant had kidnapped his son from the place where deceased and Aman were playing and was taken to the house of Ram Babu who took deceased into his house, is inconsistent with the evidence of P. W. 8 Aman. Therefore, indirect evidence of P. W. 1 Shiv Kumar has not been corroborated by P. W. 8, hence, no reliance could be placed upon his evidence.
23. It is also pertinent to note that at the time of the alleged incident P. W. 8 Aman was aged about 4 and ½ to 5 year and after lapse of about six years, he was examined before the trial court and P. W. 8 Aman had not disclosed the name of the appellant and his associate in his first statement recorded by the Investigating Officer which has not been explained by the prosecution. The statement of P. W. 8 Aman that after the incident he did not tell anything to any member of his family or to his uncle Shiv Kumar, in our opinion, is not natural and trustworthy.
24. The Hon'ble Apex Court in Pawan Kumar Versus State of Maharashtra has held that evidence of a child witness can be relied upon unless there is material contradictions.
25. In this case, it is evident from the appraisal of the evidence of P. W. 8 Aman, that regarding material particulars, his testimony is self contradictory. Evidence of P. W. 8 Aman is solitary and has not been corroborated by his mother.
26. He has also stated to have seen the deceased for the last time on 5.10.2006 at around 3.00 P. M., whereas, the dead body of the deceased was 10 found lying in the field of Ram Singh on 6.10.2006 at 7.30 A. M. The incident is said to have occurred in day light and it is the case of the prosecution that the deceased was taken by appellant to the house of his associates at 3.00 P. M. and the dead body of the deceased was found on 6.10.2006 at 7.30 P. M. There is no evidence on record about the deceased having been seen by anyone in the company of the appellant after 5.10.2006 at 3.00 P. M. to 6.10.2006 at 7.30 P. M.
27. The instant case is based on circumstantial evidence. In State of Maharashtra Versus Munshi Lal 2009 (65) SCC 591; C. Chenna Reddy and others Versus State of Andra Pradesh 96 (10) SCC 193 and Hanumant Govind Versus State of M. P.; AIR 52 SC 343;
Hon'ble Apex Court has held that in a case based on circumstantial evidence there must be a complete chain of circumstances.
28. P. W. 4 Ranbeer Singh has stated in his statement that he knows Ram Babu and his servant Lotan alias Anil Kumar; Shatrughan Singh, Ram Babu or Lotan, alias, Anil Kumar had not come at his house on 5.10.2006, nor Shatrughan Singh had told him that Lotan Singh, alias, Anil Singh had induced the deceased and was taken in the millet field of Ram Singh.; Lotan, alias, Anil Singh had also not told him that after killing the deceased, his dead body was thrown in Ram Singh's field.
29. P. W. 5 Shatrughan Singh has also deposed that he knows Ram Babu; Lotan, alias, Anil Singh is a servant of Ram Babu; Lotan and Ram Babu had not come to meet Ran Vir Singh in his presence nor Lotan alias Anil Kumar and Ram Babu had told Ranbeer Singh that Ram Babu had asked his servant Lotan, alias, Anil to induce the deceased and at the exhortation of Ram Babu, Lotan had killed the deceased and thereafter body of the deceased was thrown in the field of Ram Singh.
30. P. W. 5 Shatrughan Singh has also next stated that Lotan alias Anil Kumar and Ram Babu had not told him that they be screened from the police, 11 because police were familiar to him.
31. P. W. 12 Mahilpal Singh in his deposition has stated that his real cousin (Mausera bhai) six years earlier Pawan, son of, Shiv Kumar was killed; he knows Ram Babu; he was running fair price shop; license of his shop was cancelled on the complaint of Shiv Kumar.
32. This witness has expressed his ignorance about the fact that due to cancellation of license for fair price shop, enmity had developed between Shiv Kumar and Ram Babu.
33. P. W. 12, Mahipal Singh has also stated in his evidence that before one month of the alleged incident Ram Babu had not met him nor he had complained against Shiv Kumar regarding cancellation of his fair price shop license. He has also denied that Ram Babu had told him that he will get back at Shiv Kumar to eliminate his family. He has also feigned ignorance as to how Pawan came to be killed.
34. P. W. 4 Ranveer Singh, P. W. 5 and P. W. 12 have turned hostile and they were put to cross-examination on behalf of respondents but they, in their cross-examination have also not adduced any evidence in favour of the prosecution. They also have denied their statements, under Section 161 Cr. P. C., said to have been recorded by Investigating Officer. Witnesses have also expressed their inability as to how their statements came to be recorded by the Investigating Officer.
35. P. W. 3, Upendra Singh is stated to be a witness of alleged recovery of dagger ''banka'.
36. P. W. 3 in his examination-in-chief has deposed that on 1.11.2006, he did not accompany Aurraiya police nor in his presence Lotan alias Anil Kumar had got recovered dagger (banka) in connection with the death of Pawan nor in his presence, police had prepared memo of recovery of ''banka'; his sign was taken on a plain paper.
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37. This witness has recognized his signature on memo of recovery paper no. 13Ka/2 but has categorically denied its contents. Witness P. W. 3 has also been declared hostile but he has also in his cross-examination done on behalf of the prosecution reiterated his deposition lent in his examination-in-chief. He was also asked about his signature on the recovery memo to which he has stated that out of fear of police, he had put his signature on a plain paper. He has denied to have adduced his evidence before the trial court under any pressure.
38. P. W. 6 Satpal about memo of recovery paper no. 13ka/2 has stated in his examination-in-chief that on 1.11.2006 he did not go anywhere with Aurriya police nor in his presence Lotan alias Anil Kumar Singh had got recovered ''banka' nor any memo of recovery was prepared; in the evening, police had come at his village and his signature was obtained on a plain paper. This witness like P. W. 3 has identified his signature on the memo of recovery paper no. 13Ka/2 but has denied its contents.
39. P. W. 6 Sant Pal Singh has also been declared hostile by the prosecution and was put to cross-examination but in the cross-examination, he has reiterated his evidence adduced in his examination-in-chief by saying that he did not accompany Aurraiya police nor Lotan had got recovered 'banka' or in his presence any memo of recovery was prepared; in the evening, police had come in the village at his house and his signature was taken on a plain paper. This witness also denies to have given his statement to the Investigating Officer under Section 161 Cr. P. C.
40. P. W. 3 and P. W. 6 who are stated to be the witnesses of recovery of assault weapon 'banka' have turned hostile and have not supported the evidence of P. W. 11 investigating officer Brijraj Singh, therefore, recovery of assault weapon at the instance of accused-appellant in the presence of witnesses Upendra Kumar Singh and Sant Pal Singh has not been corroborated by witnesses P. W. 3 to P. W. 6.
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41. P. W. 7, Dinesh Singh in his examination-in-chief has stated that on 6.10.2011, police had come to his village and his signatures on two plain papers were obtained; in his presence, police had not recovered slippers and underwear of the deceased nor the same were having been sealed or any memo in this respect was prepared.
42. He has also denied that in his presence police had also collected plain earth and blood stained earth from the place of recovery of the dead body.
43. P. W. 7 Dinesh Singh has also been declared hostile on behalf of the respondents because of the fact that he did not support its version of the story.
44. P. W. 11 Brij Raj Singh, Investigating officer has stated in his testimony that in presence of the public witness Dinesh Singh on 6.10.2006 slippers and underwear of the deceased were found on the place where body of the deceased was lying and also it is stated that plain earth and blood stained earth was collected in the presence of Dinesh Singh, but P. W. 7 Dniesh Singh has turned hostile and does not support the testimony of P. W. 11 Brij Raj Singh, Investigating Officer. Since P. W. 1 Brij Raj Singh Inspector is interested in the outcome of the investigation, therefore, his solitary and uncorroborated deposition with regard to the alleged recovery of crime weapon on the pointing out of the appellant is not safe to be relied upon.
45. Hon'ble Supreme Court in Shahaja alias Shahajan Ismail Mohd. Shaikh Versus State of Marharastra, 2022 LiveLaw (SC) 596, has outlined the conditions necessary for applicability of Section 27 of the Evidence Act that the appellant stated before the panch witnesses to the effect that "I will show you the weapon concealed adjacent the shoe shop at Parle". This statement does not suggest that the appellant indicated anything about his involvement in the concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed 14 that he would show the weapon used in the commission of offence."
46. In the present case, it is stated by the Investigating officer P. W. 11 that the appellant had confessed in his disclosure statement to have killed the deceased by 'banka' and recovery of 'banka' was made on the pointing out of the appellant in the presence of witnesses, but the appellant-accused in his statement recorded under Section 313 Cr. P. C. has denied his disclosure statement and also the alleged recovery of 'banka'. Further, P. W. 3 Upendra Singh and P. W. 6 Santpal Singh who are the witnesses of recovery of 'banka' have not supported the evidence of P. W. 11 Investigating officer Brij Raj Singh, therefore, in view of the aforementioned judicial pronouncement of the Hon'ble Supreme Court the alleged recovery of 'banka' in the presence of P. W. 3, P. W. 6 at the instance of appellant has not been proved, hence, learned trial court has committed the mistake by relying on the solitary and uncorroborated evidence of P. W. 11 Investigating Officer in respect of the recovery of 'banka' and also he has erred by placing reliance upon the statement of P. W. 11, Investigating Officer with regard to the disclosure statement attributed to the appellant.
47. It is also evident from the above analysis of the testimonies of the prosecution witnesses that the trial court has placed reliance upon the deposition of P. W. 1 Aman who is a child witness aged about 4-4 and ½ years. As per the testimony of P. W. 1 Shiv Kumar, P. W. 8 Aman, a child witness was examined in the Court about six years after the alleged incident and from the appraisal of testimony of child witness P. W. 8, it is evident that his testimony is not natural, consistent and is self-contradictory.
48. Further, trial court has relied upon the evidence of one Shiv Kumar P. W. 1 to the effect that P. W. 8 Pawan had told him that appellant had taken the deceased from the place they were playing to the house of Ram Babu. P. W 1 Shiv Kumar has not stated in his ocular evidence that his wife had told him about these facts, therefore, it has not been explained as to how P. W. 1 Shiv Kumar came to know about the fact that the deceased was taken by the 15 appellant to the house of Ram Babu. It is only P. W. 8 Aman, child witness who is stated to have lastly seen the appellant on 5.10.2006 at around 3.00 P. M. in front of engine of Raju and there is no evidence on record to show that the deceased was seen in the company of the appellant on 5.10.2002 after 3.00 P. M. until 6.10.2006 at 7.30 A. M. If the evidence of P. W. 8 child witness Aman is accepted on its face value, even then, on the basis of his inconsistent and uncorroborated evidence it can be presumed that the deceased was stabbed to death by the appellant because the incident is alleged to have occurred in the day light and it is not possible that if the deceased was taken by the appellant from the village none would have seen it.
49. Since, this case rests upon circumstantial evidence, therefore, it is incumbent upon the prosecution to prove complete chain of circumstances against the appellant.
50. We have also seen in the evidence of P. W. 8 Aman that he has not candidly stated the date of incident in his testimony but has just deposed that incident had occurred six years ago.
51. Hon'ble Supreme Court in Chandrapal Versus State of Chhattisgarh (Earlier M. P.) AIR 2022 SC 2542, has laid down in paras 13 and 14:
"13. This takes the Court to examine the theory of "Last seen together"
propounded by the prosecution. As per the case of prosecution, P. W. 1 Dhansingh had seen the accused Chandrapal calling the deceased Kanhaiya and taking him inside his house on the fateful night. Apart from the fact that the said Dhansingh had not stated about the time or date when he had lastly seen Kanhaiya with Chandrapal, even assuming that he had seen Chandrapal calling kanhaiya at this house when he was sitting at the premises of village panchayat, the said even had taken place ten days prior to the day when the dead bodies of the decease were found. The time gap between the two incidents i. e., the day when Dhansingh saw Chandrapal calling Kanjaiya at his house and the day Kanhaiya's dead body was found being quite big, it is difficult to connect the present appellant with the alleged crime, more particularly, when there is no other clinching and cogent evidence produced by the prosecution.
In this regard, it would be also relevant to regurgitate the law laid down 16 by this Court with regard to the theory of "Last seen together".
52. It is the case of the prosecution that the deceased while playing with P. W. 8 Aman was taken by the appellant on the pretext to feed him guava, thereafter, deceased is not stated to have been seen by anyone in the company of the appellant, therefore, the time gap between the point of time when the deceased with the appellant was allegedly last seen alive and when the deceased was found dead, is not small; the possibility of any other person other than the accused being the author of the crime, cannot be ruled out.
53. In view of the above discussion, we are of the opinion that the prosecution has utterly failed to prove the theory of "last seen" and since this is a case based on circumstantial evidence, the complete chain of circumstances has not been proved.
54. There is sole and uncorroborated evidence, as per the prosecution story, Aman Singh has admitted in his ocular evidence that from the place where he and deceased were playing, house of Ram Babu Singh was not visible, as such, there is no evidence on record to the effect that Lotan alias Anil Kumar Singh had allegedly kidnapped the deceased from the place of occurrence to the house of Ram Babu Singh, who is said to have been standing at his gate and the deceased was taken by both, inside the house of Ram Babu Singh. There is no iota of evidence on record to show that deceased was seen in the company of Ram Babu Singh, as such, there is no evidence on record against Ram Babu Singh to convict him under Sections-302/34 and 201 I. P. C.
55. Therefore, we find that acquittal of Ram Babu Singh by the trial court is based on the evidence and other material on record.
56. The trial court has taken recourse to Section 106 of the Evidence Act and has believed the chain of circumstances complete and theory of "last seen" proved, consequently, presumption has been drawn against the appellant and onus to rebut it has been shifted to him.
57. In our opinion, in the backdrop of the above discussion, presumption 17 under Section 106 Indian Evidence Act cannot be drawn against appellant.
58. For the reasons and discussion above, we are of the opinion that the prosecution has totally failed to bring home the charges proved beyond reasonable doubt against appellant/accused, Lotan @ Anil Kumar Singh Thakur, hence, learned trial court has committed error in convicting the appellant under Section 302/201 IPC.Resultantly, the instant criminal appeal is allowed and the appellant, Lotan @ Anil Kumar Singh Thakur is acquitted of all the charges levelled against him. If the appellant is in jail, he shall be set free forthwith if not wanted / detained in any other case.
59. Accordingly, Criminal Appeal No. 1508 of 2013; Lotan @ Anil Kumar Singh Thakur Versus State of U.P. is allowed. The mandate of Section 437 A Cr. P. C. to be complied with.
60. Criminal Appeal U/s 372 Cr. P. C. No. 885 of 2022; Shiv Kumar Singh Versus State of U. P. and Another is dismissed.
61. The Superintendent of Police, Auraiyya is directed to ensure compliance and send a report to this Court.
62. Registry to send the lower Court record along with a copy of this judgement / order to the lower Court for compliance and obtain report thereof. Order Date:- 16.11.2022 HR (Syed Waiz Mian, J.) (Suneet Kumar, J.)