Reserved on 26.11.2018 Delivered on 20.12.2018 Court No. - 1
Case :- CRIMINAL APPEAL No. - 1621 of 2016
Appellant :- Surendra Singh
Respondent :- State Of U.P.
Counsel for Appellant :- Ankit Agarval
Counsel for Respondent :- G.A.
Hon'ble Ramesh Sinha,J. Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Ramesh Sinha, J.)
1. The present criminal appeal has been preferred against the judgment and order dated 17.03.2016 passed by learned Additional Sessions Judge, Court No.1, Bulandshahar in Sessions Trial No. 314 of 2008 arising out of Case Crime No. 402 of 2007 under sections 302/34, 201 IPC, PS. Siyana, District Bulandshahar thereby convicting and sentencing the appellant for life imprisonment for offence under section 302 IPC with fine of Rs. 10,000/- and in default of payment of fine, further one year additional imprisonment and for a period of three year simple imprisonment for offence under section 201 IPC, with fine of Rs. 1,000/- and, in default of payment of fine, further three months additional simple imprisonment.
2. The prosecution case as set out in the FIR is that the informant Harnand Singh Tyagi son of Harilal Tyagi resident of village Thal Inayatpur, PS. Syana, District Bulandshahar gave a written report on 01.12.2007 addressed to the Inspector, PS. Kotwali, District Bulandshahar that his nephew Amit son of Udaiveer Singh had gone along with one Dushyant Tyagi of his village few days ago at his agricultural field. Along with them, one Surendra of their village also accompanied them. Dushyant had informed Udaiveer Singh that he has engaged Amit and Surendra as partners. In the morning of 21.11.2007, Amit had gone from his house after preparing food for three persons and the on the said date, all the three persons were performing agricultural work in the filed of Dushyant Tyagi. Thereafter, Amit did not return and Dushyant and Surendra were also not seen. As Amit often used to go out of the house, the informant did not care of his return and thought that Amit would return shortly. On 30.11.2007, there was a rumor in the village that there is a dead body buried in the agricultural field of Dushyant of which Udai Veer Singh informed his brother i.e. the informant on phone. The informant came from Ghaziabad in the morning and along with his brother Udai Veer Singh and other villagers went to the agricultural field of Dushyant and saw the dead body lying in a pit which was visible because the same had been dug out by the animals. The dead body was identified to be of the missing nephew of the informant namely Amit. The informant suspected that Amit was murdered by Dushyant Tyagi and Surendra and they fled away after burying the dead body in their field. After submitting the said written report at the police station, he prayed that necessary action be taken against them.
3. In pursuance of the said written report of the informant, an FIR was registered on 01.12.2007 at 07.30 a.m. as Case Crime No. 402/2007 u/s. 302/201 IPC against accused Dushyant Tyagi and Surender Jatav. The said two accused were taken on police remand by SHO Alok Singh and other police personnel on 25.12.2007, the accused Dushyant and Surender took the police party to the agricultural field of Dushyant and on their pointing out, one 'Kasla' and 'danda' were recovered. The accused made the confessional statement before the police that they killed the deceased Amit and buried his dead body in the field. At the pointing out of accused Surender, the danda was recovered and accused Dushyant confessed that he had assaulted the deceased on his neck with 'kasla' and thereafter dug a pit and buried the body of the deceased with the help of co-accused Surender and hidden the said 'kasla' at the place from where the recovery was made.
4. After the investigation, the investigating officer submitted the chargesheet against the two accused u/s. 302/201 IPC before the competent Court. Charges were framed against the accused on 14.03.2008 u/s. 302/34 and 201 IPC. The accused denied the prosecution case and prayed for their trial.
5. The prosecution, in support of its case, examined PW1 Harnand Tyagi, the informant and uncle of the deceased, PW2 Satyavir who is also the uncle of the deceased and witness of recovery of weapon of assault, PW3 Udaiveer Singh Tyagi, father of the deceased, PW4 Dr. Raj Kumar, Surgeon who conducted the postmortem of the deceased, PW5 Inspector Alok Singh, PW6 S.I. Gambhir Singh and PW7 Constable Tejveer Singh. The documentary evidence led by the prosecution in support of its case are written report, Ex. Ka.1, recovery memo of weapon of assault, Ex. Ka.2, postmortem report, Ex. Ka.3, site plan of the incident, Ex. Ka.4, chargesheet, Ex.Ka.5, site plan of the recovery of weapon of assault Ex. Ka.6, inquest report, Ex.Ka.7, photo Ex.Ka.8, CMO report Ex. Ka.9, letter of R.I., Ex.Ka.10, sample of earth of the agricultural field and the pit from where the dead body was recovered Ex.Ka.12, utensils, Ex.Ka.13, FIR, Ka.14, GD, Ex.Ka.15.
6. PW1 Harnand Tyagi has deposed before the Trial Court that the deceased was his nephew. Accused Dushyant and Surender were known to him as they belong to his village. Prior to one month of the incident, there was a quarrel between the deceased, accused Dushyant and the appellant and his nephew who was a well built person, had beaten the appellant, accused Dushyant and they threatened his nephew for dire consequences and when the family members of the deceased came to know about the said fact, they advised their son to work outside the village but some persons of the village and the family members of the deceased got the matter compromised between the parties and they again became friends. The accused Dushyant, prior to the incident, made the deceased Amit and appellant Surender partners in his agricultural field. On 21.11.2007, his nephew Amit got prepared food for himself as well as for the two accused persons and went to the agricultural field of Dushyant where appellant and accused Dushyant and the deceased were seen by his father P.W.-3 Udaiveer Singh. All the three persons were seen busy doing agricultural work and discussing about the holy occasion on said date and that they would go for a dip in Ganga. In the night of 21.11.2007, his nephew Amit did not return and his family members were under the impression and all the three had gone for a dip in Ganga and when Amit did not come back even on the next day, his brother Udaiveer Singh i.e. the father of the deceasd, started searching for them. Both the accused persons were not traceable in the village. The father of the deceased thought that his son would have gone to Century Mill along with Dushyant and Surender for a job as the Fufa of Dushyant was working there and Dushyant had assured father of the deceased that he would get his son employed in Century Mill.
7. On 30.11.2007, there was a rumour in the village that a dead body was buried in the agricultural field of Dushyant which had been eaten by animals. The said information was given to PW1-Harnand Tyagi by father of the deceased who also inquired whether Amit was with him or not to which he denied. Udaiveer also informed him that Amit is not traceable in the village since long on which he told Udaiveer that he would come to the village and reached there late night and went to see the dead body along with Udaiveer. The dead body was seen in a pit and some parts of which were eaten by the animals. They remained near the dead body in the night so that it may not be further eaten by the animals. In the morning, a written report was given by him in the concerned police station which was written and signed by him. On the said written report, the police arrived and the dead body was taken out from the pit. On the right shoulder of the dead body, there was a tattoo of Lord Hanuman and from the clothes on the dead body, the witness and father of the deceased Udaiveer identified the same to be of Amit and he further deposed that because of the previous quarrel between the accused and the deceased Amit, he was done to death and the dead body was buried in the field.
8. PW2 Satyaveer examined by the trial Court has stated that on 25.12.2008 at about 12.30 a.m., he along with his son Kapil were going to Sayana for purchasing some household items and when they reached near the mango grove of Ishwar Tyagi, Sub-Inspector stopped them and asked them to follow him as they were required for the recovery of weapon used for the murder of deceased Amit by accused Dushyant and Surender. The said witnesses stated that both the accused guided the police to the place from where two weapons i.e. 'kasla' and danda were recovered from a sugarcane field and the accused Dushyant confessed that he killed the deceased with the same kasla and buried his dead body in the field with the assistance of co-accused Surender. He proved the recovery memo as Ex.Ka.2. He also proved material Ex.Ka.3 and Ka.4 and the said recoveries were made at 02.30 p.m. in the afternoon at the pointing out of the accused persons.
9. PW3 Udaiveer Singh Tyagi stated before the trial Court that the deceased Amit was his son and he used to spend most of the time with accused Dushyant and Surender and when he inquired from them about their intimacy, accused Dushyant told him that he has made Amit and Surender partners in his agricultural field and that they would perform the agricultural work together. Amit also told him about the said fact. In the morning of 21.11.2007, Amit got prepared food for himself as well as Dushyant and Surender and went to the field of Dushyant as they were doing agricultural work there. When Amit did not return back home, PW3 went to the field in the evening at about 4.30 p.m and he saw all the three persons working there. Accused Dushyant told him that after completing the agricultural work, he would take Amit to Century Mill for the purpose of his employment. On 30.11.2007, PW3 came to know that a dead body has been found buried in the field of Dushyant. He informed about the said fact on phone to his brother Harnand Singh, PW1 who was at Ghaziabad and further inquired from him whether Amit was with him or not to which he denied. In the morning of 01.02.2007, PW3 along with his brother PW1 and other villagers went to the field of Dushyant where they saw that animals have dug out the mud where the dead body was buried. Tattoo of Lord Hanuman was found on the right shoulder of the dead body and the same was identified to be of his son Amit. The said incident was reported by his brother Harnand Tyagi. They searched the two accused Dushyant and Surender at their house but they were not traceable. The police reached the place of occurrence and conducted the inquest on the body of the deceased and PW3 signed on the same. He also deposed that the two accused have murdered his son.
10. PW4 Dr. Raj Kumar who was posted as a Surgeon in the District Hospital, Bulandshahar deposed that on 01.12.2007, he was posted in the said hospital and at about 04.00 p.m., he conducted the postmortem of the deceased Amit son of Udaiveer Singh and found the following injuries:
i) Incised wound of 16 cm x 8 cm upto bone just above clavicle
ii) Contusion about 1 foot and 13 cm on front of chest, both sides just below clavicle underneath echymosis present
iii) Contusion of 15 cm x 10 cm in front of left shoulder
iv) Contusion of 15 cm x 8 cm on front right knee.
As per post mortem report, the cause of death is shock and hemorrhage as a result of injuries sustained by him. He has proved the postmortem report as Ex. Ka-3.
The doctor has opined the cause of death is injury no. 1 as a result of shock and hemorrhage which is caused by sharped edged weapon and the rest injuries are caused by hard blunt object.
11. PW5 Inpector Alok Singh has deposed before the trial Court that in December, 2007, he was posted as Inspector at PS Syana and at the relevant point of time and in his presence, the FIR of the present case was registered of which he was the Investigating Officer and he conducted the investigation of the said case, prepared the site plan of the place of occurrence at the pointing out of the informant and proved the same as Ex. Ka-4. He recorded the statement of the witnesses u/s. 161 Cr.P.C and took the accused after seeking their remand from the competent Court for effecting the recovery of weapon of assault and got the weapon of assault i.e. fawda and danda at the pointing out of the accused persons. He submitted the chargesheet against the accused persons after completing the investigation which he proved as Ex. Ka-5.
12. PW6 S.I. Gambhir Singh has deposed before the trial Court that on 01.12.2007, he was posted at PS. Syana, District Bulandshahar and he along with the Station Officer of the said police station Inspector Alok Singh (PW5) had gone to the place of occurrence and along with other police persons, he prepared the inquest report and conducted the investigation proceedings i.e. Ex. Ka-7 and he further proved other police papers in that regard which was marked as Ex. Ka-8.
13. PW7 Constable Tejveer Singh, No. 717 also deposed before the trial Court that on 01.12.2007, he was posted as constable clerk at PS Sayana, District Bulandshahar and on the said date, FIR of the present case was registered which was lodged on the written report of the informant Harnand Tyagi and he has proved the same as Ex.Ka.14 and the same was also endorsed in the GD of the said police station which was proved as Ex.Ka.14.
14. The statement of the accused Surender was recorded by the trial Court u/s. 313 Cr.P.C and he has denied the prosecution case and has submitted that on account of enmity with the deceased, he has been falsely implicated in the present case and further denied the recovery of danda at his pointing out on 25.12.2007. The documentary evidence filed by the accused in his defence was a list which was marked as paper no. 107 ka to paper no. 108 ka i.e. the copy of chargesheet of Case Crime No. 153 of 2002.
15. CW1 S.I. Arun Kumar was examined by the trial Court regarding the death of accused Dushyant who has proved the said fact.
16. Heard Sri Ankit Agarwal, learned counsel for the appellant and learned AGA for the State and perused the lower Court record.
17. It has been argued by learned counsel for the appellant that the FIR of the present case has been lodged after ten days of the incident for which no explanation has been given by the prosecution. He submits that though the incident has taken place on 21.11.2007 on which date, the deceased Amit is said to have left his house after preparing food for three persons including himself went to the agricultural field of Dushyant Tyagi where they were doing agricultural work and when he did not return on the said date, no missing report was lodged by any family member of the deceased. It was next submitted that on 25.12.2007, the appellant along with co-accused Dushyant Tyagi were taken on police remand and on the pointing out of accused Dushyant Tyagi, a 'kasla' was recovered from a sugarcane field and the said accused has stated that he has committed the murder of the deceased and had cut his neck, thereafter, buried the dead body in the field with the assistance of co-accused Surender. So far as the appellant is concerned, it is stated that at his pointing out, a danda was recovered and he too has made confessional statement before the police. He stated that the said recovery of the weapon at the pointing out of the appellant is a false one as no such recovery was made. He argued that the motive to commit the crime has also not been proved by the prosecution and it was only stated that one month prior to the incident, there was some quarrel between the deceased and the two accused persons and the deceased had beaten the two accused but the matter was compromised between the parties and they again became friends. There is no eye witness of the occurrence. Moreover, the findings of last seen by Udaiveer Singh, PW3 who is the father of the deceased who saw the deceased along with the two accused at the agricultural field of accused Dushyant Tyagi also does not inspire confidence as after the deceased did not return to his house, PW3 did not lodge any missing report nor tried to search him as the deceased used to remain out of the house for several days and when PW3 came to know about the dead body found in the agricultural field of accused Dushyant, he reached there along with his brother PW1 and other villagers and suspected the involvement of the appellant and co-accused Dushyant Tyagi in the murder of his son. He further submitted that no independent witness has come forward to depose against the appellant, hence, the testimonies of PW1, PW2 and PW3 are highly interested and partisan witnesses and the prosecution has failed to establish the chain of circumstances which may conclusively establish that it was the appellant and the accused Dushyant Tyagi who have murdered the deceased. Hence, the appeal of the appellant is liable to be allowed and the conviction and sentence awarded by the Trial Court be set aside as it is against the evidence on record.
18. Learned AGA, on the other hand, has vehemently opposed the argument of learned counsel for the appellant and has submitted that on 21.11.2007, the deceased had gone from his house after getting prepared food to the agricultural field of co-accused Dushyant Tyagi and the deceased along with the appellant and co- accused Dushyant Tyagi was seen by PW3 at the agricultural field of co-accused Dushyant Tyagi in the evening and when the deceased did not return to his house, PW3 did not take care to know about the whereabouts of the deceased as he used to remain out of his house for some days due to which PW3 did not anticipate that his son would have been done to death. Therefore, he did not lodge any missing report regarding his untraceability. Moreover, when he came to know from the villagers about the fact that a dead body was found in the agricultural field of co-accused Dushyant Tyagi, he went there along with his brother and other villagers and found that the dead body was seen in a pit and the animals have eaten some parts of it. He identified the dead body to be that of his son Amit from a tattoo of Lord Hanuman present on the right shoulder of the dead body and also from the clothes worn by him. Thereafter, he lodged the present FIR against the appellant Surender and co- acccused Dushyant Tyagi. He further submitted that on 25.12.2007, appellant Surender and co-accused Dushyant Tyagi were taken on remand to the sugarcane field from where a 'kasla' was recovered at the pointing out of the co-accused Dushyant Tyagi and a danda was recovered from the pointing out of appellant Surender which shows that they have murdered the deceased and have buried the dead body in the filed of Dushyant Tyagi and the trial Court has rightly convicted them for the offence u/s. 302 IPC and the appeal is devoid of merits and be dismissed.
19. We have given thoughtful consideration to the arguments advanced by learned counsel for the parties.
20. It is apparent from the evidence on record that the deceased left his house on 21.11.2007 after preparing food for three persons including himself and went to the agricultural field of Dushyant Tyagi where he was stated to be doing agricultural work along with the appellant and as accused Dushyant Tyagi who had made the appellant and the deceased partners in this agricultural field, they were performing the work together. Thereafter, the deceased did not return to house and went untraceable and his father, PW3 did not lodge any missing report though it is stated that he saw the deceased in the company of appellant Surender and co-accused Dushyant Tyagi in the evening of 21.11.2007 while they were performing the agricultural work in the field of co-accused Dushyant Tyagi. When the rumor of a dead body being buried in the agricultural field of accused Dushyant Tyagi spread in the village, then PW3 informed the same to his brother PW1 on phone who was in Ghaziabad and who rushed to the village same day and reached there late night. In the next morning, PW3 went to see the said dead body along with his brother PW1 and other villagers. Thereafter, after noticing the tattoo of Lord Hanuman on the right shoulder of the deady body and from the clothes worn by him, identified it to be that of his son Amit, thereafter, he lodged the present FIR on 01.12.2007 at 07.30 a.m at PS. Sayana, District Bulandshahar suspecting the involvement of appellant Surender and co-accused Dushyant Tyagi for the murder of his son. PW2 Satyaveer who also happens to be the uncle of the deceased though is a witness of recovery of the danda from the appellant and the kasla from the co-accused Dushyant Tyagi. The said recovery which has been made after 25 days of the lodging of the present FIR also does not inspire confidence as the deceased died because of antemortem injuries sustained by him as per the postmortem report in the opinion of the doctor PW4, the cause of death was injury no.1 which was on account of excessive bleeding as an incised wound was found on the neck of the deceased which found to be cut. A sharp edged weapon is said to have recovered on the pointing out of the accused Dushyant Tyagi whereas the danda which is said to have recovered at the pointing out of the appellant, the contusions in injury nos. 2 to 4 can be a result of a hard blunt object but the said injuries were not the cause of death.
21. Accused Dushyant is said to have died during trial, hence, the trial against him was abated. So far as the appellant is concerned, he appears to have no motive to commit the crime in question and the motive suggested by the prosecution is too weak. The evidence of last seen which is of PW3 Udai Veer Singh also is unworthy to believe as it appears from the evidence of PW3 that there was no occasion for the appellant to be present at the place of occurrence. The delay in lodging of the F.I.R. of the incident by P.W.-1 Harnand Singh after 10 days no plausible explanation has been given by the prosecution though P.W.3 Udaiveer Singh was aware of the fact that the deceased had gone to the agricultural field of Dushyant and was last seen on 21.11.2007 with them. Moreover, the father of the deceased Amit did not lodge any missing report when the deceased did not return on 21.11.2007. The explanation given by him for not lodging the same is also not acceptable because no prudent man would wait for such a long time after his son did not return to home from work. The evidence of PW1 and PW2, the uncles of the deceased and PW3, the father of the deceased does not go to show that it was the appellant and the accused Dushyant who had murdered the deceased as the chain of circumstances which may conclusively prove the guilt of the accused/appellant Surender has not been established by the prosecution and the conviction and sentence of the appellant by the trial Court is against the evidence on record. The trial Court has committed error in recording the finding of conviction and sentencing the appellant without establishing the chain of circumstances conclusively proving the guilt of the appellant. Hence, the same is liable to be set aside and is accordingly set aside.
22. The accused/appellant is stated to be in jail. He shall be released forthwith unless otherwise wanted in any other criminal case.
23. It is further directed that the accused/appellant shall furnish bail bond with sureties to the satisfaction of the Curt concerned in terms of the provisions of Section 437A Cr.P.C
24. The appeal stands allowed.
25. Let the lower court record along with the present order be transmitted to the trial Court concerned for necessary information and compliance.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Order Date :- 20.12.2018 Madhurima