Abhishek Kumar vs State of Uttar Pradesh

Pramod Kumar Srivastava, J—This appeal has been preferred against the judgment of conviction dated 19.6.2015 and order of punishment dated 24.6.2015 passed by Sri D.P.N. Singh, Additional Sessions Judge, Court No. 3, Ball, in S.T. No. 19 of 2006, State v. Abhishek Kumar alias Pintoo under sections 302 and 394 IPC, case crime No. 502 of 1999, P.S. Rasra, district Ballia by which the accused-appellant was convicted for charges under sections 302 & 394 IPC and was punished for charge under section 302 IPC with imprisonment for life and a fine of Rs. 1,00,000/- (in default of payment additional imprisonment for one year) and for the charge under section 394 IPC with rigorous imprisonment for 10 years and a fine of Rs. 50,000/- (in default of payment additional imprisonment of six months).

The Lower court records were summoned and were placed before us. Learned counsel for the appellant as well as the learned AGA for the State agreed for the disposal of the appeal as such we, with their consent, have proceed to hear this appeal finally dispensing with the requirement of preparation of a formal paper book, as counsel for both sides had opportunity to verify facts from the original records that were perused by us.

Prosecution case in brief was that one Kamaluddin, r/o village Kop, police station Rasra, district Ballia was an employee of a petrol pump in Kuren. He was informed in his village that a dead body was lying at a place one kilometer away from Sidhagar Ghat where a mob had assembled but no one is informing the police, then he sent this information to the police by telephone and also informed that the said dead body has not been identified. On this information received by telephone on 1.10.1999 at 7:15 am police registered case crime No. 502 of 1999 under section 302 IPC and started investigation. During investigation it was found that the deceased was Luv Kush, son of Hari Narayan, r/o Gudari Bazar, p.s. Rasra, district Ballia. In postmortem 27 incised wounds were found on all over the body of Luv Kush and he was reported to have been murdered approximately between 30.9.1999 (5:00 pm) to 1.10.1999 (7:15 am). During investigation it was known that Luv Kush had gone from his house on 30.9.1999 at about 10 am with his brother Anup Kumar Gupta on a scooter. On the way Anup left him, and Luv Kush proceeded on his scooter for recovery of money from different persons. After investigation the police submitted a charge-sheet against the appellant Abhishek alias Pintoo under section 302 and 394 IPC for murdering Luv Kush and looting the scooter and money from him. On this charge-sheet S.T. No. 19 of 2006, State v. Abhishek alias Pintoo was registered and the trial began.

During trial accused appellant Abhishek alias Pintoo was charged firstly that on 30.9.1999 at 7:00 p.m at a place one kilometer away from Sidhagar Ghat barrier he had committed murder of Luv Kush, and secondly that at the said time and place he had robbed Luv Kush. Accused-Appellant denied the charges u/ss. 302, 394 IPC, pleaded not guilty and withstood trial.

Prosecution side, in oral testimony examined PW-1 Kamaluddin (informant), PW-2 Anup Kumar Gupta (brother of the deceased), PW-3 Bhagwan Ji (maternal uncle of deceased), PW-4 Dilip Kumar Gupta (son of the deceased), PW-5 Sudhir Singh, PW-6 Arjun Yadav, PW-7 Vinod Kumar Chaudhary, PW-8 Inspector S.R. Sonkar (I.O.) and PW-9 Dr. Vijay Bahadur Singh (who conducted the postmortem).

After closure of prosecution evidence statement of accused appellant u/s. 313 Cr.P.C. was recorded during which he denied the allegations against him and stated that the witnesses had given false evidence. He further stated that he had opposed Vashistha Narain Soni, Chairman, Nagar Palika during elections therefore he had been falsely implicated in this case with the connivance of police, and a false case has been lodged. He had not committed any offence. The accused-appellant had not adduced any defense evidence.

After awarding opportunity of hearing to the parties, Additional Sessions Judge, Court No. -3, Ballia passed the impugned judgment dated 19.6.2015 by which the accused-appellant was convicted for the charges u/ss.302 and 394 IPC, and then after affording an opportunity of hearing on the point of quantum of sentence above mentioned punishment was awarded against which the present appeal has been preferred.

We have heard Sri S.D. Kautilya and Sri A.K. Shukla, learned counsel for the appellant, and Sri P.S. Yadav, learned AGA on behalf of the respondent-State, and gone through the records of this case.

Learned counsel for the appellant contended that there is no evidence at all against the appellant for convicting him, nor was there any direct or indirect evidence. Nothing related to this case or deceased was recovered from the custody of the appellant during investigation. No one had ever seen him with the deceased and there is no witness of last seen evidence. He also contended that not even hearsay evidence is available against him but the trial court has passed judgment of conviction on its whims, mentioning incorrect facts in the judgment, which are against records; therefore such judgment of conviction and punishment should be quashed and the appeal should be allowed.

Learned AGA admitted that there is no evidence of last seen of the deceased with the accused-appellant and also that there is no recovery of any articles from him. But he had pointed towards the finding of the trial court that the accused-appellant had won over one witness namely Sudhir Singh (PW-5) which shows his mala fides. He also pointed out the finding of the trial court that after knowledge of being wanted in this case, the accused had absconded and remained unavailable for more than 5 years which is proof of his guilt. On these grounds he had supported the impugned judgment and pleaded that appeal should be dismissed.

A perusal of the entire evidence of the witnesses of fact as well as those of formal witnesses, it is proved that no one had ever seen the accused-appellant in the company or in the vicinity of the deceased during or soon before or soon after the charged incident. There is no evidence to the effect that the deceased or accused had any enmity or the accused had any motive against the deceased.

Dr. Vijay Bahadur Singh (PW-9) had performed the postmortem of the deceased Luv Kush on 01.10.1999 when his dead body was brought by two constables in a sealed state. During his statement, he proved that the age of the deceased was about 40-years and his dead body had 27 incised wounds all over his body which were caused by any incised weapon, and were about one day old. The cause of death of the deceased were these ante-mortem injuries and shock. Dr. Vijay Bahadur Singh (PW-9) proved that the death of the deceased occurred anytime between 5:00 p.m. of 30.09.1999 to 7:15 am of 01.10.1999.

Inspector S.R. Sonkar (PW-8) was the second Investigation Officer of this case, who had submitted charge sheet against the accused-appellant as absconder. He had not collected any material evidence from the spot and the entire exercise relating to the collection of evidence from the spot, preparation of site-plan and inquest report was performed by the earlier Investigation Officer Raj Mani Mishra, who was not examined during trial. PW-8 had proved several prosecution documents only by his secondary evidence.

From the evidence of PW-8 and PW-9 it is proved that the deceased Luv Kush was murdered anytime between 5:00 p.m. of 30.09.1999 to 7:15 am of 01.10.1999. Remaining witnesses, right from PW-1 to PW-7 were witnesses of facts in this case, but none had stated to have seen the accused-appellant near Abhishek Kumar alias Pintoo on 30.09.1999 or on 01.10.1999 or anytime before or after that. No witness has ever stated to have seen the accused in company or in the vicinity of the deceased during or before the charged incident.

The description of statements of witnesses of facts are as under:

"(1) PW-1 Kamal Uddin had stated that he had never gone near the spot and he had informed the police on telephone about the information of a lying dead body.

(2) PW-2 Anup Kumar Gupta is the real brother of the deceased who had stated that his brother Luv Kush had gone from his house by scooter on 30.09.1999 at 10:00 a.m. with his brother, but in the way he had dropped his brother and gone on his scooter towards Kopaganj. Next day in the morning the information about the dead body of Luv Kush was received and at that time some money and a wrist watch was found on his body but the scooter was not found there.

(3) PW-3 Bhagwan Ji is a maternal uncle of the deceased, who is stated to have received information of the death of Luv Kush on 01.10.1999 near Sidhagar Ghat, and on the spot he found that slippers, spectacles and a pen was found near the dead body and Rs. 3940/- was found in pocket of pant of deceased, and there was a wrist watch on his hand but the scooter was not found there. He had also stated that the police had performed proceedings of inquest and he had signed on the inquest report (Ex-Ka-1). He had also stated that on 30.09.1999 at about 10:00 a.m. the deceased and his brother Anup had gone on a scooter for recovery of money, but on the way, Anup had gone in a different direction, and Luv kush had gone on a scooter but did not come back. He suspected that Luv Kush was robbed and murdered for money and scooter.

(4) PW-4 Dilip Kumar Gupta is the elder son of the deceased, who also stated that on 30.09.1999 at about 10:00 a.m. his father Luv Kush and uncle Anup had gone from their house on a scooter but on the way his uncle had left his father and went in a different direction, and that his father had gone towards Bahadur Ganj and Kasmabad. In the night his uncle came back, but his father did not return. Next day in the morning he received an information about the dead body of his father. On inquiry he was informed by the people that when his father was coming back from Kasmabad then one Abhishek alias Pintoo was also accompanying him, who had murdered his father with the help of his companions for money and scooter. This witness had not taken name of any person who had informed him that accused was accompanying his father at the time of or soon before the incident, or who had seen the accused in the company of his father.

(5) PW-5 Sudhir Singh stated that he had never given information at Sudhagar Ghat barrier about the deceased. This witness was declared hostile. He has even denied his statement under section 161 Cr.P.C.

(6) PW-6 Arjun Yadav stated that he had no knowledge of any direct or hearsay information about the incident; and neither he knows Luv Kush, nor about his death. This witness was also declared hostile. He has also denied his alleged statement under section 161 Cr.P.C.

(7) PW-7 Vinod Kumar Chaudhary was a bus driver during the period of year 1998-99 and was driving a bus on 30.9.1999. He had stated neither to have seen any dead body nor heard about it. This witness was also declared hostile by the prosecution. He had stated that the police had not made any inquiry from him."

Thus out of 7 above named witnesses of facts examined during the trial no one had ever seen the accused-appellant Abhishek alias Pintoo with or near the deceased at the time of charged incident. No witness of fact or formal witness had stated that any money, scooter or other article of the deceased was found or recovered from the accused. Prosecution case was that the scooter and money of the deceased was robbed. The said scooter was never recovered by the police and the robbery of money appears to have been gathered on the basis of speculation. There is no evidence that during his alleged outing for recovery of money the deceased Luv Kush had received any money from many persons, and no person had ever stated that on 30.09.1999 or after that he had given any money to the deceased Luv Kush. Whereabouts of the scooter of the deceased was not known to any witness. Therefore, there was no evidence of commission of robbery. To the contrary, Bhagwan Ji (PW-3) has stated that he found a wrist watch and Rs. 3940/- in the pocket of the pant of the dead body, which he handed over to the police. Had there been any incident of robbery from the deceased then there was a least possibility of availability of this money from his pocket. Though Dilip Kumar Gupta (PW-4) son of the deceased had stated that on his own inquiry he was informed that Abhishek alias Pintoo and his companion had murdered and looted his father, but he had not stated as to when, how and from where he had got such information. This part of his statement is based on hearsay information from unknown persons which was never verified by him. Such hearsay evidence is not admissible in evidence. This witness had never stated to have seen the accused with or in vicinity of his father at the time of the charged incident. This contention of learned counsel for the appellant is supported by prosecution evidence that there is no witness of last seen evidence of appellant with the deceased and there is no proof of robbery in this case.

A perusal of the impugned judgment of the trial court reveals that the learned Additional Sessions Judge had gone all out to convict the accused-appellant, without any evidence and without any justification; and for this he has used fallacious and incorrect arguments, inapplicable rulings and unwarranted sayings. Only two points were taken by the trial Court to connect the appellant in this matter. Sudhir Singh (PW-5) was examined by prosecution to prove that he was a bus driver and had given information of a dead body at Sudhagar Ghat Barier, which he denied in his statement and stated that he was not a bus driver or a conductor, and during the year 1999, he was studying. He had never stated in Court to have met any witness before his examination in Court. But the learned Additional Sessions Judge has transcribed a wrong recital in his judgment (at page 10) that the accused Abhishek alias Pintoo had met the witness PW-5 before his statement and won him over.

On the basis of this non existing quote of an untold statement the learned Additional Sessions Judge has given a perverse incorrect finding that the witness Sudhir Singh (PW-5) was won over by the accused. Apart from it, the learned Additional Sessions Judge had incorrectly and erroneously relied on a statement under section 161 Cr.P.C. of PW-5 about his having seen the deceased Luv Kush, though the witness was not confronted with such statement nor was proved by the Investigation Officer or any other witness. These facts reflect the lack of bona fides on the part of the learned Additional Sessions Judge while attempting to implicate the accused-appellant as a person involved in the charged incident.

The other ground given by the trial court for finding the appellant guilty in this case was that Abhishek alias Pintoo had left his house and absconded for more than 5 years after this incident, which is indicative of the fact that the offence was committed by the appellant. The trial court has quoted an old Latin saying the meaning of which was that "He who flees from justice confesses his guilt"; and on this basis trial Court had held the appellant guilty. Probably the learned Judge had deliberately ignored this fact that case crime No. 502 of 1999 was registered against an unknown accused and no witness of fact or Investigating Officer had ever stated during examination and statement in the court that the accused had absconded for 5 years from his house after the incident. This finding of absconding of the appellant for 5 years from his house appears and that being proof of guilt appears to be the brain child of the learned Addl. Sessions Judge. Apart from it, this was a mockery of justice for the trial court to have found the appellant guilty only on the ground that after the incident, he was not available at his house.

On the basis of above discussions, we are of the considered opinion that during trial no evidence was adduced that may connect the charged incident with the appellant. There is no direct or indirect evidence, nor any recovery to prove the connection of the appellant with the charged incident. Even no witness of last seen was there to have named the appellant with the incident of this case. There was no evidence at all to prove any connection of the appellant-accused with the charged incident. Therefore, we are also of the firm view that the learned Addl. Sessions Judge had passed the impugned judgment of conviction and punishment without any basis, and for reasons best known to him. This judgment lacks bona fides on the part of the learned Addl. Sessions Judge. The appeal is therefore allowed. The judgment of conviction dated 19.06.2015 and order of punishment dated 24.6.2015 passed by Sri D.P.N. Singh, Additional Sessions Judge, Court No. -3, Ballia in S.T. No. 19 of 2006, State v. Abhishek Kumar alias Pintoo under sections 302 and 394 IPC, case crime No. 502/1999, p.s. Rasra, district Ballia is set aside, and the accused-appellant Abhishek Kumar alias Pintoo is acquitted of the charges under section 302 and 394 IPC. The accused-appellant is in custody. He be released immediately, if he is not wanted in any other case.

Let a copy of this judgment be sent to the learned Additional Sessions Judge, Ballia for ensuring compliance.

Let a copy of this judgment be communicated to the learned Additional Sessions Judge, Ballia Sri D.P.N. Singh through Registry for information, guidance and for being cautious in future. A copy of this judgment be also placed before the Hon''ble Administrative Judge of district Ballia for his lordships kind perusal.