Allahabad High Court
Kallu Yadav vs State Of U.P. on 6 December, 2022
Bench: Sunita Agarwal, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- CRIMINAL APPEAL No. - 1447 of 2013 Appellant :- Kallu Yadav Respondent :- State of U.P. Counsel for Appellant :- Pramod Kumar Srivastava,Mohd. Samiuzzaman Khan,Nisar Uddin Counsel for Respondent :- Govt. Advocate,Rahul Kumar Tripathi with Case :- CRIMINAL APPEAL No. - 2710 of 2013 Appellant :- Makkhan Pasi Respondent :- State of U.P. Counsel for Appellant :- Jay Babu Kesharwani,Amit Kumar Pandey,Bhuvnesh Kumar Singh Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Subhash Chandra Sharma, J.)
1. These appeals emanate from the judgment and order dated 13.02.2013 passed by the Additional Sessions Judge, Court No.6 Kaushambi in S.T. No.152 of 2004 (State vs. Kallu Yadav and others) arising out of Crime No.153 of 2004, under Section 364, 302, 201 I.P.C, Police Station Puramufti, District Kaushambi whereby the appellants were convicted and sentenced under Section 302 I.P.C. for life imprisonment with fine of Rs.2000/- ; under Section 201 I.P.C. for a period of 3 years rigorous imprisonment with fine of Rs.1000/- and under section 364 I.P.C for a period of 5 years rigorous imprisonment with fine of Rs. 2000/- by each and in default of payment of fine to further undergo for period of one month simple imprisonment. All the sentences are to run concurrently.
2. The prosecution case in brief is that informant Smt. Sudha Devi wife of Sri Baijnath Yadav was resident of the Village Chhabilwa, Police Station Puramufti, District Allahabad (now Kaushambi). On 17.06.2004, the deceased Phoolchand Yadav, son of the informant, was sitting on the board (takht) lying in the varandah at about 12o'clock in the noon. In the meantime, Kallu Yadav known to the deceased came there with smiling face at which the deceased also smiled and both of them went together. The deceased did not return to his house and searches were made but ended unsuccessful, as a result, missing report was filed at the Police Station Puramufti on 26.06.2004 by the informant, which was entered into G.D. as report No.19 dated 26.06.2004. Later on, Kallu Yadav and Makhan Pasi were interrogated by the police in which they disclosed that they had committed the murder of the deceased Phoolchand Yadav and buried his dead body near the puddle behind the house where appellant Kallu Yadav lived. At the instance of both the appellants, the dead body of the deceased was recovered by digging the place where it was buried by them. It was identified by the informant as dead body of her son Kallu Yadav. The case was converted as Crime No.153 of 2004, under Section 364, 302, 201 I.P.C. and investigation was handed over to Sub Inspector D.K. Saini.
3. The inquest of the deceased was conducted by Sub Inspector D.K. Saini and other papers were prepared, the dead body was sealed and handed over to Constable Kamlakant and Krishnakant to carry it for post-mortem.
4. The post-mortem of the dead body of the deceased Kallu Yadav was conducted on 30.07.2004 at 2:30 P.M. by Dr. R.K. Dubey Orthopaedic Surgeon District Hospital Allahabad who mentioned in the post-mortem report that the dead body was brought by constable Kamlakant and Krishnakant in a sealed bundle sent by the Station House Officer, Police Station Puramufti and also affirmed the fact that seal was found intact and correct.
5. The findings recorded in the post-mortem report of the deceased Phoolchand Yadav are as under :-
Age about 25 years, the whole body was completely distorted and decomposed, mud was present over the body, bones were separated in pieces, decomposed pieces of muscles and ligaments were present, lower limb length 2 feet, 11 inches, the right side skull was fractured in parietal region and a regular piece was absent, the cause of death was found to be coma as a result of antemortem injury.
6. The investigating officer D.K. Saini recorded the statements of witnesses and inspected the place of occurrence, prepared the site plan relating to the place where from the deceased was taken away by the appellant Kallu Yadav and the place wherefrom the dead body was recovered. After recording the statements of the witnesses conversant to the facts of the case he found prima facie case made out under Section 364, 302, 201 I.P.C. against these appellants thereafter, filed charge sheet before the court concerned. The cognizance of the offences was taken by the learned court concerned who provided copies of the prosecution papers to the appellants in compliance of Section 207 Cr.P.C. and committed the case for trial.
7. The learned trial court framed the charges under Section 364, 302, 201 I.P.C. against the appellants on the basis of material on record after giving the opportunity of hearing to them. Charges were read over and explained to which they pleaded not guilty, denied the charges and claimed for trial. Consequently, the case was fixed for prosecution evidence.
8. The prosecution examined PW-1 Smt. Sudha Devi, PW-2 Sukhnandan @ Fajji as witnesses of facts, PW-3 Dr. R.K. Dubey who conducted the post-mortem of the deceased, PW-4 Sub Inspector/H.M. Ram Kumar Yadav who lodged the missing report, PW-5 Sub Inspector D.K. Saini who conducted the investigation of the case and submitted the charge sheet.
9. After conclusion of prosecution evidence, the statements of appellants were recorded under Section 313 Cr.P.C. wherein they negated the statements made by the witnesses before the court and stated that they had been implicated falsely in this case on account of enmity. The opportunity of defence evidence was given to the appellants but they did not adduce any evidence.
10. Learned trial court heard the arguments on behalf of the prosecution as well as the appellants and passed the judgment and order dated 13.02.2013 wherein the court concerned found the appellants guilty under Sections 364, 302, 201 I.P.C. and sentenced them as aforesaid against which these appeals have been preferred.
11. Learned counsel for the appellants argued that the judgment of the learned trial court is against the evidence available on record and it is bad in the eyes of law and based on the testimony of interested witnesses related to the deceased who were not present at the time of alleged incident. The testimony of the interested witnesses is full of contradictions. No independent witness had been examined to affirm the prosecution case. No motive has been assigned to these appellants to commit murder of the deceased. It has also been argued that no disclosure statement of the appellants was recorded by the I.O. but at the instance of the appellants recovery of dead body and spade was shown by the I.O. which was not made in a proper way but was relied upon by the learned trial court. Even the dead body was not identifiable at the time of recovery and post-mortem. PW-1 and PW-2 were not even present at the time of alleged recovery though their presence had been shown by the Investigating Officer. In this regard, the statements made by PW-1 and PW-2 are contradictory and not reliable. In this way, the prosecution could not prove its case beyond reasonable doubt, therefore, the appellants are entitled for acquittal and the appeals deserve to be allowed.
12. Learned A.G.A. contended that in this case the deceased was taken away by the appellant Kallu Yadav from his house in the presence of his mother PW-1. Later on, his dead body was recovered at the instance of appellants Kallu Yadav and Makhan Pasi. Prior to the incident of murder, deceased was seen by PW-2 while going on bicycle with appellants. Even spade and iron rod used in the commission of murder of the deceased and buried dead body were recovered at the instance of these appellants. In this way, the circumstances proved with evidence clearly indicate that these appellants committed murder of the deceased and concealed his dead body. With the evidence on record the charges against the appellants are proved beyond reasonable doubt. Therefore, the judgment and order passed by learned Sessions Judge is sound and these appeals being devoid of merit are liable to be dismissed.
13. With the submissions as made by the learned counsel for the appellants as well as learned A.G.A., the question before this Court to consider is as to whether the circumstances proved by the prosecution unerringly indicate that these appellants committed murder of the deceased and concealed his dead body in the ground which was recovered at their instance.
14. Before we deal with the contentions raised by the learned counsel for the appellants, it would be convenient to take note of the witness account as adduced by the prosecution.
15. PW-1 Smt. Sudha Devi was the informant who deposed that 6 years prior to the deposition, at about 12 O'clock during the day she was sitting at the board(takht) in varandah of her house with her son Phoolchand aged about 25 years who was unmarried. Kallu Yadav resident of Kajipur who used to come to the village Chhabilwa came to her house and took her son with him. She asked her son Phoolchand as to where was he going, at which he responded that he would come back after a while but he did not return. She made searches but could not find the whereabouts of his son and then gave an application for missing at the police station Puramufti which she proved as Ex Ka- 1. This witness was subjected to cross-examination which will be discussed in later part of this judgment.
16. PW-2 Sukhnandan @ Fajji brother of the deceased deposed that it was 12 O'clock in the day when his brother was taken by appellant Kallu Yadav from his house. At that time, his mother was also present. Appellant Kallu Yadav took his brother. Makhan was cycling,his brother Phoolchand was sitting on the front side of the bicycle and Kallu Yadav was on the back. All of them met him at about 5 P.M. near Tera mill. He enquired from his brother Phoolchand who replied that he was going to have food at the house of Kallu Yadav and, thereafter, he never returned. Kallu Yadav and Makham Pasi committed murder of his brother Phoolchand and the dead body of his brother was found after one month and ten days, buried ten steps behind the house of Kallu Yadav. This fact was disclosed by Kallu Yadav before the Sub-Inspector. After inquest, the dead body was sent to Allahabad for post-mortem. P.W.2 had identified his signature on the inquest report which was proved as Ex Ka-2. This witness was also cross-examined by the learned counsel for the appellants.
17. PW-3 Dr. R. K. Dubey deposed that, on 30.07.2004, he was posted as Orthopaedic Surgeon in Motilal Nehru Hospital. On that day, he was on the post-mortem duty and conducted post-mortem of the dead body of deceased Phoolchand Yadav which was sent by the Station House Officer, Police Station Puramufti in sealed state. Seal was found to be intact and the body was brought by constable Kamlakant and Krishnakant with relevant papers. The age of the deceased was about 25 years and near about 5 weeks had passed after his death. The whole body of the deceased was decomposed and mud was present all over the body. Bones were separating from one another, muscles and ligaments were decomposed, the length of his feet was 2 feet and foot was 9.5 inch. Right side parietal bone was broken in pieces. The membrane in the head was also decomposed, ribs were separating from the backbone and decomposing, chest wall was also decomposing, lungs had decomposed completely, heart and its membrane was decomposed. Small intestine, large intestine, liver, kidney and spleen were also decomposed. The cause of death of the deceased was coma as a result of ante-mortem injury. One pant, under-wear, vest and shirt were recovered from the dead body and having sealed them it was handed over to the constables. Jaws of the deceased were separated and there were 16 x 16 teeth. He proved the post-mortem report in his hand writing and signature as Ex Ka-3.
18. PW-4 Sub-Inspector Ram Kumar Yadav deposed that on 26.06.2004 he was posted at the Police Station Puramufti as H.M. On that day at 11:30 A.M., Smt. Sudha Devi was present at the police station and handed over a written report under her thumb impression regarding missing of her son Phoolchand on the basis of which he made entry in the G.D. at 11:30 A.M. in his hand writing and signature which he proved as Ex Ka-4.
19. PW-5 Sub-Inspector Dilip Kumar Saini, the Investigating Officer deposed that, on 28.07.2004, he was posted as Station House Officer at Police Station Puramufti. On that day, on the basis of the investigation of the missing report regarding Phoolchand the Case Crime No.153 of 2004, under Secton 364 I.P.C. was registered which was investigated by him. He copied the contents of the missing report in C.D. On 29.07.2004, he recorded the statements of Smt. Sudha Devi, the informant and Sukhnandan and made spot inspection at the instance of Ram Chandar. He arrested accused persons Kallu Yadav and Makhan Pasi from G.T. Road at about 12:10 P.M. After recording their statements, at their instance the dead body of the deceased was recovered from the village Kajipur and the inquest report was prepared with relevant papers and the dead body was sent for post-mortem. The weapon used in committing murder of the deceased iron rod and spade were also recovered regarding which recovery memo was prepared. On 31.07.2004, post-mortem report was received and copied in the C.D. On 24.08.2004, the statement of witness Harilal and Ashraf were recorded with other witnesses relating to the inquest. After collecting evidence, he submitted the charge sheet against the accused persons. He proved the site plan, recovery memo in his hand writing and signature as Ex Ka-5 to Ex Ka- 14. He also proved the inquest report as Ex Ka- 2 in his hand writing and signature with other papers prepared by him. This witness was also cross examined by the learned counsel for the applicants which will be considered in the later part of this judgment.
20. From the evidence on record, it appears that there is no direct evidence against the appellants to commit murder of the deceased Phoolchand Yadav and burying his dead body behind his house but the whole prosecution case rests upon the circumstantial evidence. In such a case, the prosecution is required to prove the links which unerringly indicate that these were the accused persons who committed the murder and no other inference can be drawn from those circumstances.
21. The most fundamental decision on circumstantial evidence is Hanumant Govind Nargundkar vs. State of M.P AIR 1952 SC which laid down the five golden principles which constitute the Panchsheel of root of the case based on the circumstantial evidence. (1) circumstances from which the conclusion of guilt is to be drawn should be fully established (2) fact so established should not be explainable on any hypothesis except that accused is guilty (3) facts should be of conclusive nature (4) the fact should exclude every possible hypothesis except the one to be proved (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities it must have been done by the accused. In the case of Bodhraj vs. State of Jammu and Kashmir (2002) 8 SCC 45, it was held by the Supreme Court that conviction can be based on wholly circumstantial evidence but it should be tested on the touchstone of law relating to the circumstantial evidence laid down by the Hon'ble Supreme Court in Hanumant Govind Nargundkar case. Further in the case of Vijay Kumar vs. State of Rajsthan 2014 (2) scale 387, it was held that in a case based on circumstantial evidence the settled law is that the circumstances from which conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover all the circumstances should be complete and there should be no gap left in the chain of evidence.
22. In the present case, occurrence is said to have taken place on 17.06.2004 at 12 a.m. when appellant Kallu took deceased Phoolchand with him in the presence of his mother (P.W.1). The deceased did not return regarding which no missing report or F.I.R. was lodged by the informant at the police station concerned but it was given in the police station on 26.06.2004 as Ext. Ka-1 which was entered into G.D. as report No.19 dated 26.06.2004. On 27.06.2004 and after inquiry it was registered as Crime. No. 153 of 04 under section 364 I.P.C. on 28.07.2004 and recovery of dead body was made on 29.07.2004. P.W.1 also stated that after a month, dead body of her son was found, then she went to the police station and lodged F.I.R. The dead body was kept at the police station. P.W.2 also stated that he went to the police station with his mother and 50 other people. On the day, the dead body was recovered he did not lodge the F.I.R, but his mother lodged the report by dictating it to police. P.W.1 also admitted that she gave an application about the dead body after affixing her thumb impression on the day, the dead body was recovered. In this way, it is established that the F.I.R was not lodged promptly. Though it is sought to be proved by the prosecution that the F.I.R was filed with delay of 10 days as per the record, i.e. on 26.06.2004 and 27.06.2004 but the record is inconsistent with the statement of the witnesses P.W.1 and P.W. 2, according to whom the report was given in the police station only after the dead body was recovered on 29.07.2004.
23. In a case based on circumstantial evidence, motive is significant but in the present case there is no motive with the appellants to commit the murder of the deceased. Even P.W.1 stated clearly that there was no dispute between her son and appellants Kallu and Makkhan. So there is lack of motive.
24. The dead body was identified by the informant, mother of the deceased and his brother Sukhnandan. P.W.1 the informant deposed that she went to the police station where Darogaji told her that Kallu and Makkhan had murdered her son. No where she stated that she herself identified the dead body being of her son. P.W.2 Sukhnandan has also not stated in his chief-examination that he had identified the dead body but in his cross examination he stated that the dead body was lying at the police station and it was decomposed but from face it was identifiable. P.W.3 Dr. R.K Dubey stated that the whole dead body of the deceased was distorted and decomposed. In his cross-examination, the doctor further stated that the dead body was not identifiable.
25. P.W.1 informant herself did not identify the dead body but it was told to her by the police that appellants Kallu and Makkhan had committed the murder of his son Phoolchand. It was told when she went to the police station on the day the dead body was recovered but it was not recovered in her presence. She never stated that she had identified the dead body by seeing it or from the clothes of the deceased. She also expressed that the dead body was not recovered in her presence. P.W.2 Sukhnandan stated that the dead body of the deceased was lying at the police station, it was decomposed yet face was identifiable though as per version of the doctor P.W.3, the skin on the face was rotten only bones could be seen and the face was also not identifiable. Thus the dead body was not in identifiable state either by face, body or clothes because clothes were also rotten as per the doctor's account, therefore, the identification of the dead body of Phoolchand has not been established either in view of the statement of P.W.1(mother) or P.W.2 (brother) with the statement of P.W.3.
26. P.W.5, the Investigating officer stated that he arrested the accused persons Kallu and Makkhan Pasi from G.T Road, village Navapur turn at the instance of Ramchandra and Sukhanandan, brother's of the deceased at 12.10 pm on 29.07.2004. P.W.2 Sukhnandan never stated that the appellants were arrested by the police at his instance from GT Road on 29.07.2004 but stated that on the second day of occurrence Kallu met him and was brought to the police station. On the day, the dead body was found he went to the police station with his mother and 50 other people. His mother lodged the report. His thumb impression was got affixed by the police at the police station. He did not make any signature. Kallu was in the lockup then the police told him that Kallu had committed murder of his brother. In this way, arrest of the accused/appellants is also not established having been made from the G.T Road as shown by the Investigating Officer in the presence of P.W.2 or at his instance on 29.07.2004.
27. So far as the disclosure statement of recovery of the dead body and spade etc. are concerned, Ext. Ka. 7 & 8 are the recovery memos of the dead body of deceased Phoolchand, spade and iron rod etc. Ext. Ka. 7 discloses that appellants Kallu and Makkhan confessed that they had committed the murder of the deceased together and burried the dead body in the garden of Ramkhelawan in the village Kazipur which they could recover. Appellants were brought to the aforesaid place in the police jeep with witnesses- Ramchandra and Sukhnandan, where they indicated the place of burial of the dead body, a spade was brought from the neighbourhood and the dead body was excavated by the appellants which was found covered in a cloth. Both the appellants told that the digged dead body was of deceased Phoolchand. Dead body was identified by the eye witnesses of recovery and the recovery memo was prepared and got signed by the accused/ appellants and witnesses. Likewise, spade and an iron rod were also recovered from the room of Gorelal which was told to be in possession of the appellants by them and the aforesaid articles were given by them from beneath the Takht. Recovery memo Ex. Ka.8 was prepared and got signed by the appellants and witnesses Ramchandra and Sukhnandan.
28. During trial, the Investigating Officer was examined as P.W.5 who narrated the incident of recovery as aforesaid but during his cross examination he stated that the dead body was exhumed by the witnesses present, those were Ramchandra, Sukhnandan @ Fajji; Ram Sufal and Kundan. Dead body was kept on the surface after excavation by them. He also stated that he had not mentioned in Ext. Ka.7 as to which appellants made the disclosure statement first and who gave the weapon used in the murder. He also did not mention as to which of the appellant was going ahead, behind or whether they went together.
29. P.W.2 Sukhnandan, the witness of recovery of the dead body and weapons used in the murder, made quite different statement during his examination before the trial court. He stated that he came to the police station with his mother on the day, the dead body was recovered. About 50 other people also went to the police station with him. His mother lodged the report. His thumb impression was taken by the police. He further stated that he never gave his thumb impression or signature to the police prior to that. When the dead body was lying at the police station, he and other persons were present where their thumb impressions were taken. At the time of the recovery of the dead body, he with his mother went by tempo with other people. People told that the dead body had been recovered, then he went there from home. Police showed him the spade and an iron rod at the police station. When he reached the police station, Kallu was confined in the lockup . Police told him that Kallu had committed murder of his brother, then he came to know that Kallu committed the murder of his brother. Police also told about the recovered articles. The statement of P.W.2 also is in sync. with the statement of P.W.1 informant in this respect when she stated that she went to the police station after recovery of the dead body which was placed at the police station. Darogaji told him that Kallu and Makkhan had committed murder of Phoolchand. In this way, the arrest of appellants from the GT Road, recovery of the dead body of the deceased, the spade and an iron rod, as made by the Investigating Officer does not corroborate with the testimony of P.W.2 Sukhnandan who was alleged to be the witness of recovery. Even the disclosure statement and the recovery whether made either by the appellant Kallu or by Makkhan alone or by both simultaneously, had also not been made clear by the Investigating Officer which fact he admitted during his cross-examination. As a result, the disclosure statement, recovery of the dead body with other articles said to have been used in the commission of the murder can not be said to be established and proved in accordance with the provisions of Section 27 of the Evidence Act.
30. P.W.2 Sukhndandan stated, in his examination in chief, that at about 5 o'clock, all persons met to him at 13 Mile. Makkahn was cycling, Phoolchand was sitting on the front side and Kallu on the hind. He enquired from his brother Phoolchand who said to him that he was going to eat at the house of Kallu Yadav and then he did not come back. The dead body of his brother was found after one month and ten days. This fact of last seen by this witness was not mentioned in the F.I.R. by the informant who was his mother and went to the police station with the witness Sukhnandan(P.W.2.) when the report was given at the police station concerned on 26.6.2004, after ten days of the alleged incident marked as Ext. Ka. 1, and after the recovery of dead body as per the version of P.Ws. 1 and 2 i.e. about one month ten days. In this way, the account of last seen given by P.W. 2 does not inspire confidence and cannot be said to be truthful.
31. Having considered the circumstances of the case as aforesaid, we are of the view that the prosecution could not prove its case beyond reasonable doubt against the appellants. The circumstances said to have been proved do not unerringly indicate the guilt of the appellants, so the appellants cannot be convicted and sentenced for the aforesaid charges. The learned trial court did not make proper appreciation of evidence but convicted the appellants by misappreciation of the evidence on record,which cannot be sustained in the eye of law. Consequently, the judgment and order dated 13.02.2013 is hereby set aside. The appellants are acquitted of all the charges.
32. The appeals are allowed.
33. The appellant Kallu Yadav is in jail. He shall be released from the jail forthwith, if not wanted in any other case.
34. The appellant Makkhan Pasi is on bail. He need not to surrender. His bail bonds are cancelled and sureties are discharged.
35. The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary compliance.
The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad within one month.
Order Date :- 6th December, 2022
Ashok Gupta/A. Singh
(Subhash Chandra Sharma,J.) (Sunita Agarwal,J)