Court No. 47 Judgment reserved on 10.07.2018 Judgment delivered on 31.07.2018
Case :- CRIMINAL APPEAL No. - 154 of 2004 Appellant :- Vijay Bahadur Respondent :- State Of U.P.
Counsel for Appellant :-Sharad Kumar Srivastava, Arun Kumar Shukla, Virendra Kumar Yadav Counsel for Respondent :- Government Advocate Connected with Case :- CRIMINAL APPEAL No. - 668 of 2004 Appellant :- Dinesh Respondent :- State Of U.P.
Counsel for Appellant :-Rajesh Kumar Dubey, Abmrish Kumar, Virendra Kumar Yadav Counsel for Respondent :- Government Advocate
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Umesh Chandra Tripathi,J.
[Delivered by Ram Surat Ram (Maurya),J.]
1. Heard Sri Arun Kumar Shukla, along with Sri Abmrish Kumar, for the appellants and Sri I.P. Srivastava, A.G.A.-I, for State of U.P.
2. Vijay Bahadur and Dinesh (the appellants) have filed aforementioned appeals, from their conviction and sentence passed by Additional Session's Judge, Court No. 10, Kanpur Nagar, dated 05.01.2004, in S.T. No. 380 of 2001, State vs. Vijay Bahadur and Another, (arising out of Case Crime No. 512 of 2000, under Section 364, 302, 201 IPC, P.S. Chakeri, district Kanpur Nagar, convicting them under Section 364, 302/34 and 201 IPC and awarding sentence of seven years rigorous imprisonment along with fine of Rs. 2,000/- each under Section 364 IPC, imprisonment for life along with fine of Rs. 3,000 thousand each under Section 302/34 IPC and three years imprisonment under Section 201 IPC, with default stipulation.
3. Ram Prakash Dwivedi, father of Amit Kumar @ Monu gave a missing report at Police Station Chakeri which was entered in G.D. Vide Entry No. 29 (Ex-Ka-12), on 10.08.2000 at 11:00 hours, by Constable Clerk Rajpal Yadav (PW-11), regarding missing of Amit Kumar @ Monu from school on 09.08.2000 after 1:00 PM. Thereafter, on the complaint (Ex-Ka-5) of Ram Prakash Dwivedi, FIR (Ex-Ka-3) of Case Crime No. 512 of 2000, under Section 364 IPC was registered at P.S. Chakeri, by Constable Clerk Shiv Charan (PW-5) on 11.08.2000 at 9:45 hours, against Vijay Bahadur and Dinesh Chamar (the appellants). It has been stated in the complaint that Amit Kumar @ Monu aged about 8 years (son of the informant) was studying in Class III, in Sai Foundation Academy, New Azad Nagar. On 09.08.2000, he went to the school, in school dress, thereafter, he did not return to the house, of which missing report was given at the police station on 10.08.2000. He was searching Amit Kumar @ Monu from 09.08.2000. Today on 11.08.2000 at 7:00 AM in morning, Shiv Shankar Sharma son of Sri Siddha Gopal Sharma, resident of Gujaini Naubasta, Kanpur Nagar came to his house and informed that he was standing at Ramadevi Chauraha on 09.08.2000 at 2:00 PM, then he had seen mason Vijay Bahadur Kori son of Maikulal, resident of village Rari Khurd, Bindaki, Fatehpur was riding a green color scooter (registration no. UGW-3573) and laborer Dinesh Chamar son of Girdhari Lal, resident of Rari Khurd was sitting on pillion seat and in between them Amit Kumar @ Monu was sitting and they were going towards Fatehpur. Today about 8:00 AM, Shankar Lal son of Kailash, resident of Tejpur, Ghatampur, Kanpur and Balendra son of Shyam Gopal, resident of village Bari Mahsain, Ghatampur, Kanpur came to his house and informed that on 09.08.2000 at 7:00 PM they were returning from village Rari Khurd towards Riwari, after searching laborers, then at nala lying before village Mamrejpur, they found that mason Vijay Bahadur son of Maikulal and Dinesh Chamar son of Girdhari Lal, along with Amit Kumar @ Monu were going on the scooter. Vijay Bahadur Kori son of Maikulal and Dinesh Chamar son of Girdhari Lal, residents of Rari Khurd, Bindaki, Fatehpur were serving as mason and labor at his house. Some altercation had taken place between him and them, in respect of payment of their wages. On which, they stopped working at his house and warned of serious consequences. He had full belief that Vijay Bahadur and Dinesh had abducted his son with an intention to kill.
4. After registration of FIR, Sub Inspector Gorakhnath (PW-10) started investigation. After copying check FIR in Case diary, he recorded statement of Ram Prakash Dwivedi. On his pointing out, he inspected the spot and prepared site plan (Ex-Ka-12). In search of abductee, he came at Ramadevi Chauraha, from where he reached at turn of Chakeri. On 11.08.2000 at 11.20 AM, he arrested two persons, who were riding Bajaj Super scooter bearing registration no. UGW 3573. On query being made, they informed their names as mason Vijay Bahadur Kori son of Maikulal, resident of village Rari Khurd, Bindaki, Fatehpur and other person, sitting on pillion seat as laborer Dinesh Chamar son of Girdhari Lal, resident of Rari Khurd. On interrogation, they confessed their guilt and informed that they had abducted Amit Kumar @ Monu on 09.08.2000, in noon, when he came out from the school. They took him on their scooter up to Chaudagera chauraha, where some fault had come in his scooter. Then scooter was parked there. From that place they went to Riwari on a tempo. From Riwari they went on foot up to nala ahead to village Mamrejpur, where it had become 8:00 PM. Vijay Bahadur and Dinesh committed unnatural sexual intercourse with Amit Kumar @ Monu, due to which he had become unconscious. Then Vijay Babadur sent Dinesh to take a plastic sack. Thereafter, they committed murder of Amit Kumar @ Monu by strangulation and closing his mouth. They undressed Amit Kumar @ Monu except an underwear. Dead body of Amit Kumar @ Monu was filled in plastic sack and thrown in the well of Ram Babu Patel at that place. School dress of Amit Kumar @ Monu was concealed beneath grass in field in south side of canal. His shoes and shocks were thrown in paddy field near the well. They remained there in night and in early morning came to village Riwari. From Riwari they came to Chaudagera in a truck, from where they took their scooter and came to Kanpur, to take information. But they were arrested while returning to their village. They could recover the dead body and clothes of the deceased. In order to take revenge they had committed this offence. They had thrown the school bag of Amit Kumar @ Monu in the way.
5. In the meantime, Ram Prakash Dwivedi, Ashok Kumar and Ramesh Mishra came on Tata Sumo bearing registration no. UP 78 Q 3167, along with driver Dharmendra Kumar, there. They recognized the accused. All of them came on Tata Sumo to village Mamrejpur along with the accused. After crossing village Mamrejpur, both the accused stopped Tata Sumo and brought out the clothes of Amit Kumar @ Monu from the grass, where it were concealed, which were recognized by the informant. PW-10 prepared its recovery memo (Ex- Ka-1). Thereafter, the accused took them to the place, where murder of Amit Kumar @ Monu was committed. PW-10 prepared site plan (Ex-Ka-13) of that place. Thereafter, the accused took them to the well, lying in middle of paddy field, in which dead body was thrown. Hook and rope were brought. The accused brought out plastic sack containing the dead body from well with the help of hook and rope. Dead body was recognized by father, mother of the deceased and the witnesses on the spot as body of Amit Kumar @ Monu. Its recovery memo (Ex-Ka-2) was prepared. PW-10 prepared site plan (Ex-Ka-14) of the well. Shoes and socks could not be recovered. PW-10 gave information to Police Station Bindaki for conducting Inquest of the deceased. On which Sub Inspector Ram Awadh Yadav (PW-7) conducted Inquest (Ex-Ka-5) on 11.08.2000 during 17:10 to 18:30 hours. He took photo-lash, prepared letters to the authorities, challan lash (Ex-Ka-6 to Ka-9) and dispatched the dead body for postmortem with Constables Rasoolbux and Home Guard Mahabir. On coming back to the Police Station, Section 302 and 201 IPC were added.
6. Dr. Afzal Ahmad (PW-6) conducted autopsy of the dead body on 12.08.2000 at 4:05 PM and prepared postmortem report (Ex-Ka-10). Hyoid bone was fractured. Cause of death was noted as “asphyxia as the result of ante-mortem strangulation”. Duration of death was noted as three days. From 16.08.2000, investigation was undertaken by SHO Dinesh Tripathi (PW-9). He recorded statements of the witnesses. He submitted charge-sheet (Ex-Ka-11), against the accused, on 28.08.2000, on which, cognizance was taken.
7. On committal, the case was registered as S.T. No. 380 of 2001. Xth Additional Sessions Judge, framed charges on 06.05.2002 against the appellants. The appellants denied charges and claimed trial. In order to prove the charges, the prosecution examined Shiv Shankar (PW-1), the witness of last seen, Ramesh Mishra (PW-2), the witness of recovery of dead body and clothes, Balendra (PW-3), witness of last seen, Smt. Shiv Kanti Dwivedi (PW-4), mother of the deceased, Constable Shivcharan (PW-5), to prove check FIR, Ashok Kumar (PW-6), scribe of the complaint, SI Ram Awadh Yadav (PW-7) to prove Inquest, Dr. Afzal Ahmad (PW-8), to prove postmortem report, SI Dinesh Tripathi (PW-9), second Investigating Officer, SI Gorakhnath (PW-10), first Investigating Officer and Constable Rajpal Yadav (PW- 11), to prove GD entry relating to missing information.
8. All the incriminatory materials and facts were put to the accused, under Section 313 Cr.P.C. They denied the evidence and materials and stated that after recovery of dead body, FIR has been falsely lodged against them due to manipulation of SI Gorakhnath, concealing the correct facts. Ram Prakash Dwivedi is alive but incorrectly shown as dead and had not lodged any FIR.
9. Additional Session's Judge, after hearing the parties, by the impugned judgment held that from the statements of Shiv Shankar (PW-1), Balendra (PW-3) and Smt. Shivkanti Devi (PW-4) it was proved that Vijay Bahadur and Dinesh were doing work of mason and laborer at the house of informant. Some dispute had taken place between them and informant, in respect of payment of their wages. On which, they stopped working at his house and warned of serious consequences. Thus motive was proved. Shiv Shankar (PW-1) had seen the deceased on the scooter of the accused on 09.08.2000 at 2:00 PM at Ramadevi Chauraha. Balendra (PW-3) has seen the deceased on the scooter of the accused on 09.08.2000 at 7:00 PM at village Rari Khurd. On being arrested, the accused confessed their guilt and on their pointing out, dead body of Amit Kumar @ Monu was recovered from a well at Rari Khurd and his clothes were recovered from a field. The appellants were held guilty, convicted under Section 364, 302/34 and 201 IPC and sentenced as mentioned above. Hence, the aforesaid appeals have been filed.
10. The counsel for the appellants submitted that the appellants belonged to labor class. It is alleged that in the building of the informant, the appellant Vijay Bahadur was working as mason and Dinesh as labourer. Due to some differences, they stopped working there. This was a very weak motive for the appellants to abduct the son of the informant and commit his murder. On the other hand, under this suspicion the appellants were falsely implicated. Dead body of Amit Kumar @ Monu was recovered on 11.08.2000. The police arrested the appellants thereafter and falsely implicated them in this case. Ram Prakash Dwivedi was not examined to prove lodging of the FIR on 11.08.2000 at 9:45 AM. FIR is ante-timed and was lodged after recovery of dead body. Last seen evidence of Shiv Shankar and Balendra (PWs-1 and 3) are false. If Shiv Shankar (PW-1) seen the appellants taking Amit Kumar @ Monu on 09.08.2000 at 2:00 PM at Ramadevi Chauraha, then there was no reason for him to keep silence for two days. Balendra (PW-3) is real brother of Ram Prakash Dwivedi. If Balendra (PW-3) had seen the deceased along with the appellants on 09.08.2000 at 7:00 PM at village Rari Khurd, then there could be no reason for him not to interfere and take Amit Kumar @ Monu with them. In any case, if there had been any evidence of last seen on 09.08.2000, FIR could have been lodged against the appellants on 09/10.08.2000. Rari Khurd is about 60 KM away from Kanpur Nagar. Going Rari Khurd from Kanpur Nagar on a cycle by Balendra was not probable. Gorakhnath (PW-10) has stated that Smt. Shivkanti (PW-4) was present on the spot at the time of recovery of dead body, which has been denied by Smt. Shivkanti (PW-4). Confessional statements leading to recovery was neither separately recorded nor it was proved/exhibited. No reliance can be placed either on confessional statements or on the recovery as held by this Court in Capital Case No. 1943 of 2017 Monu @ Chandra Prakash Vs. State (decided on 23.05.2018). It was recovery on joint pointing out. No reliance can be placed on it. Dinesh is in jail since 11.08.2000.
11. We have considered the arguments of counsel for the parties and examined the record. Amit Kumar @ Monu aged about 8 years went to school, Sai Foundation Academy, New Azad Nagar PS Chakeri on 09.08.2000 at about 7:00 AM, from where he was missing. His dead body was recovered on 11.08.2000 at 16:10 hours from a well at village Rari Khurd PS Bindaki, which is village of the appellants and at a distance of about 60 KM from New Azad Nagar. From postmortem report, it is proved that Amit Kumar @ Monu had died on 09.08.2000 due to asphyxia as a result of strangulation. However, involvement of the appellants in this offence, has to be examined. The prosecution case is based upon circumstantial evidence.
12. First information report was lodged on information of Sri Ram Prakash Dwivedi father of deceased Amit Kumar @ Monu on 11.8.2000 at 9:45 AM. He came to know about involvement of accused/appellants when Sri Shiv Shankar Sharma informed him that on 11.8.2000 at about 7:00 AM. He saw the deceased Amit Kumar @ Monu with accused/appellants Vijay Bahadur Kori and Dinesh Chamar on a scooter on 9.8.2000 at about 2:00 PM at Ramadevi Chauraha. The scooter was driven by Vijay Bahadur Kori, Dinesh Chamar was sitting on the rear seat and in between of them, deceased Amit Kumar @ Monu was sitting. They were going towards Fathepur. Shankar Lal and Balendra Kumar also informed to informant Ram Prakash Dwivedi on 11.8.2000 at about 8:00 AM that they have seen the deceased Amit Kumar @ Monu with appellants Vijay Bahadur and Dinesh on 9.8.2000 at about 7:00 PM at Village Mamrezpur before Canal. At that time, they were coming towards Riwari from Village Rari Khurd after searching labourer. Shankar Lal has not been examined by the prosecution. Sri Balendra Kumar is real brother of informant Ram Prakash Dwivedi but this fact has not been disclosed in the first information report. From this inference may be drawn that informant Ram Prakash Dwivedi has concealed this fact deliberately to strengthen the prosecution version.
13. PW-3 Balendra in his examination-in-chief stated that on 9.8.2000 at 9:00 PM he narrated the informant Ram Prakash Dwivedi that at 7:00 PM he saw the deceased Amit Kumar @ Monu with accused/appellants Vijay Bahadur and Dinesh. The statement of PW-
3 Balendra appears to be false and contrary to version of first information report. If Balendra has seen the appellants with deceased Amit Kumar @ Monu on 9.8.2000 at 7:00 PM and stated this fact to informant Ram Prakash Dwivedi on the same day at 9:00 PM, then there was no reason or occasion for the informant Ram Prakash Dwivedi not to inform the police about this fact quickly. In first information report, it is mentioned that Balendra was returning to Riwari from Village Rari after searching labourer but he made contrary statement before the court that he was going to Rari Khurd for searching labourer with Sankar Lal. In his cross-examination, he admitted this fact that he is real brother of informant Ram Prakash Dwivedi but he could narrate the distance of Rari Khurd from his residence. From his statement, it is apparent that he did not know the location of Rari Khurd which was about 70 KM approximately from his residence. It is highly improbable that a person may go for a distance of 70 KM to search labourer in some other village of which location is unknown to him. He had seen the deceased Amit Kumar @ Monu 70 KM away from his residence with accused persons in unusual condition. Balendra further admitted this fact that at that time, he asked the accused Vijay Bahadur to stop the scooter but he could not do so. At that time deceased Monu was trying to stand slightly on the scooter but accused-appellant Dinesh compelled the deceased Amit Kumar @ Monu to remain on the seat. Even though, PW-3 Balendra has not informed his brother Ram Prakash Dwivedi about the incidence. Accordingly, only inference could be drawn that Balendra is wholly unreliable and not trustworthy witness. He had not seen the deceased with the appellants.
14. PW-1 Shiv Shankar has admitted in his cross-examination that he informed Sri Ram Prakash Dwivedi about missing of deceased Amit Kumar @ Monu on 11.8.2000 at about 2:00 PM. If PW-1 Shiv Shankar has informed this fact to the informant Ram Prakash Dwivedi on 11.8.2000 at 2:00 PM, then it was not possible for informant Ram Prakash Dwivedi to narrate this fact in the first information report lodged at 9:45 AM on 11.8.2000. It was also not possible for PW-1 Shiv Shankar to tell full particulars of the accused/appellants such as father's name, address etc., to informant Ram Prakash Dwivedi. He further admitted that he went at the residence of Ram Prakash Dwivedi only to narrate this incidence to him. In his cross-examination, he stated that on 9.8.2000 he was busy in some other work. The incident of missing of deceased Amit Kumar @ Monu was very much important event, even though Shiv Shankar has not informed this incident to informant Ram Prakash Dwivedi on 9.8.2000 or 10.8.2000. It is evident from these facts that Shiv Shankar had also not seen the deceased Amit Kumar @ Monu with the appellants on 9.8.2000 at 2:00 PM.
15. FIR was lodged on 11.8.2000 at 9:45 AM, PW-10 Sub Inspector Gorakh Nath stated that appellants Vijay Bahadur and Dinesh were arrested on 11.8.2000 at 11:20 AM on Chakeri Morh. From there, they went to village Rari Khurd with public witnesses. At 4:10 PM on the pointing of accused-appellants Vijay Bahadur and Dinesh, the dead body of deceased Amit Kumar @ Monu was recovered from a well. Here, it must be noted that PW-10 Investigating Officer Gorakh Nath has not prepared the disclosure statement of the accused. As per recovery memo of the dead body and statement of PW-10 Sub Inspector Gorakh Nath, at that time public witness Ashok Kumar and Ramesh Mishra, informant Ram Prakash Dwivedi and Smt. Shiv Kanti Devi mother of deceased were present there.
PW-4 Smt. Shiv Kanti Devi, who is mother of deceased admitted this fact that she had not gone at the place of recovery of dead body of her deceased son Amit Kumar @ Monu. She was at her residence at that time. In recovery memo and statement of PW-10 Sub Inspector Gorakh Nath, it has come that on the spot of arrest of accused- appellants, the informant Ram Prakash Dwivedi, witness Ashok Kumar and Ramesh Mishra arrived there. Contrary to that, Smt. Shiv Kanti Devi stated that after arrest of the accused person, police took her husband Ram Prakash Dwivedi, Balendra, Shiv Shankar and Ramesh Mishra from her residence in the evening of 11.8.2000.
16. PW-2 Ramesh Mishra admitted in his cross-examination that it comes to his knowledge that accused had been arrested by the police at about 8:30 to 8:45 AM on 11.8.2000 and they were detained in police station.
17. PW-6 Ashok Kumar also admitted this fact that he went at police station with his brother-in-law Ram Prakash at about 7:30 to 7:45 AM on 11.8.2000. Accused person were detained there. Sub Inspector had gone with them from police station to the place of recovery of dead body at 8:00 AM. Public witnesses stated that they arrived at the place of recovery from the Police Station with police. Contrary to it, PW-10 Sub Inspector Gorakh Nath stated that they have arrived on the place of recovery of dead body from Chakeri Morh where accused were arrested. From the statements of these witnesses of facts, it appears that accused were arrested by the police on 11.8.2000 in the morning and after that first information report was lodged and thereafter all the proceedings by the police took place.
18. PW-2 public witness Ramesh Mishra admitted this fact that crowd of about 500 to 600 persons was present at the well, from where dead body of the deceased Amit Kumar @ Monu was recovered before they reached there with police.
19. PW-10 Sub Inspector Gorakh Nath also admitted that when they reached near the well with accused persons, crowd was already gathered there. From the statement of these witnesses, it appear that dead body of deceased Amit Kumar @ Monu was not discovered on the information received from accused persons but dead body was recovered by the public before arrival of police and accused persons on the place of recovery.
20. Here, it must be noted that it is not specified by the prosecution the name of accused on whose information, dead body of the deceased Amit Kumar @ Monu was recovered. Accordingly, joint statement of accused person about the recovery of dead body could not be proved as dead body has already been recovered by police as per provision of Section 27 of the Indian Evidence Act.
21. In the first information report, it is mentioned that some altercation took place between informant Ram Prakash Dwivedi and accused person in reference to payment of labour charge, due to which, informant scolded them. It is not specified in the FIR or in statement of PW-4 Smt. Shiv Kanti Devi, mother of deceased that accused-appellants had worked for informant and their labour charge was due on informant. PW-10 Sub Inspector Gorakh Nath stated that accused-appellants have murdered Amit Kumar @ Monu after seducing. This fact is not corroborated by post mortem report.
22. In the facts and circumstances of the case, we find that motive for the accused-appellants to commit murder of deceased Amit Kumar @ Monu is not proved. Trial Court has recorded erroneous finding in the impugned judgment and order without considering all these facts, which is not sustainable.
23. Consequently, both the appeals are allowed. Conviction and sentence of appellants Vijay Bahadur and Dinesh under Sections 364, 302/34 and 201 IPC are set aside and they are acquitted. They are in jail. They shall be released forthwith, if not detained in any other case.
24. Let a certified copy of this judgment and order along with Lower Court record be sent back to the trial court for its intimation and necessary compliance.
Order Date :- 31.7.2018 Rahul/-/ Jaswant [Umesh Chandra Tripathi] [Ram Surat Ram (Maurya),]