Pintu alias Bittu vs State of U.P.

Imtiyaz Murtaza, J.—This appeal is directed against the judgment and order dated 8.6.2005 passed by Additional Sessions Judge, Court No. 1, Ghaziabad whereby the Appellant is convicted u/s 364, I.P.C. and sentenced to undergo R.I. for 10 years and a fine of Rs. 5,000. In default of payment of fine further S.I. for 6 months. The Appellant is further convicted u/s 302, I.P.C. and sentenced to undergo life imprisonment and a fine of Rs. 10,000 and in default of payment of fine further S.I. to one year. The Appellant is further convicted u/s 201, I.P.C. and sentenced to undergo R.I. for 5 years and a fine of Rs. 2,000 and in default of payment of fine further S.I. of 3 months.

Brief facts of the case as mentioned in the first information report lodged by Abdul Ali at P.S. Garhmuketshwar, Ghaziabad are that on 3.2.2003 his servant Pintu took away his grandson Jaid at about 4.30 p.m. on cycle on the pretext of showing him helicopter and thereafter he did not return. He had announced in the neighboring area and also searched with the help of his friends and acquaintance but he could not be found out. At about 5.30 p.m. on 4.2.2003 his brother Mustaq and Meharban told him that he had seen Pintu taking Jaid alongwith him on cycle towards field. They had seen him on 3.2.2003 at about 5.00-5.15 p.m. and he is confirmed that his grandson is abducted by Pintu for committing his murder. At the time of going from the house Jaid was wearing blue Paint and green striped shirt and jacket. He was also wearing shocks and white plastic shoes. The report was registered at P.S. Garhmukteshwar at 6.45 p.m. The distance of the police station was 2 Kms. The report was registered by Head Constable Yashpal Singh Tomar at 6.45 p.m. which is Ext. Ka-1. He had prepared the Chik No. 32 of 2003 which is Ext. Ka-4. He had also prepared the G.D. entry No. 46. Copy of G.D. entry is Ext. Ka-6.

After the registration of the case, R.S. Pandey, I Ind Officer, P.S. Garhmukteshwar had commenced the investigation. He recorded the statement of scribe Yashpal Singh and informant Haji Abdul Ali. He arrested the accused Pintu at about 9.00 p.m. on the same day. He was brought to the police station and he confessed his crime and expressed his willingness to get recovered the dead body. He alongwith other police constables, accused Pintu and 2 witnesses Javed Salim and Shakeel had gone and on the pointing out of Pintu, the dead body of Jaid was recovered from the sugar cane field of Ramesh. The dead body was identified by informant and other witnesses and recovery memo Ext. Ka-2 was prepared. He had prepared the site plan which is Ext. Ka-9. The inquest on the dead body was prepared by S.I. Harishchandra Pandey which is Ext. Ka-3. He had also prepared the letter to C.M.O., Challan Lash, Photo Lash and the dead body was sealed. Sample seal was prepared. The dead body was handed over to Constables Sushil and Ajeet for carrying it to mortuary. Relevant papers for the post-mortem examination are Exts. Ka-10 to Ka-13. On 5.2.2003, he had recorded the statements of Saleem, Javed, Shakeel Ahmad, Panchan, Matloob Ali, Shamshad, Arkan Ali and Liyaqat Ali.

After the recovery of dead body the case was converted into under Sections 302 and 201, I.P.C. Thereafter the case was investigated by Inspector Rishipal Singh. On 20.2.2003, he recorded the statements of Mushtaq and Meharban. On 28.2.2003, he recorded the statements of witnesses Farooq, Yameen alias Pappu, Matloob, Smt. Khairunnisha, Abdul Rauf, Sharafat, Ravi Kumar Sharma, Chetan Swaroop and Sanjay Chawla. He had submitted the charge-sheet, Ext. Ka-15, against the Appellant.

After the submission of charge-sheet, the case was committed to the Court of Sessions and in usual manner the Sessions Judge had framed charges under Sections 364, 302 and 201, I.P.C.

In order to support its case the prosecution had examined 12 witnesses.

P.W. 1 Abdul Ali deposed that Pintu is son of Raghubir and Raghubir had left Pintu about 4 years back for doing work. He used to work at his shop and household work. On 3.2.2003 Lal Ji Tandon had come to Garh on helicopter at 4.00 p.m. Several persons had collected there to see helicopter. On 3.2.2003, Pintu had taken away his grand-son Jaid at 4.30 p.m. on the pretext of showing him helicopter but he did not return after 6.00 p.m. He had made an announcement by loudspeaker in Qasba Garh and other neighbouring places. He had also searched in his relations and friends but Jaid could not be located. At that time Jaid was aged about 4-1/2 years. In the evening at 5.30 p.m. Mushtaq and Meharban told him that they had seen Jaid going on cycle alongwith Pintu. His grand-son was wearing blue jeans and green striped shirt. He was also wearing a jacket, shocks and white plastic shoes. Pintu had abducted Jaid for committing his murder. This report has been scribed by Saleem Javed which is Ext. Ka-1. The dead body of Jaid was recovered on the next day on the pointing out of Pintu. After the missing of Jaid his daughter-in-law told him that he had scolded Pintu in the noon and feeling aggrieved by the scolding he had abducted Jaid and committed his murder.

P.W. 2 Meharban deposed that on 3.2.2003 he and Mushtaq were returning from their field towards chak road to their house. When they reached on the turning from chak road at about 5.15 p.m. they saw that Pintu, servant of Abdul Ali, was going on his cycle towards field. He used to take their children to market and fields and he lived in his house. On the next day when he heard the announcement at 5.30 p.m. he had informed Abdul Ali that he had seen Pintu taking away Jaid on his cycle. Jaid was aged about 4-1/2 years at that time. The dead body of Jaid was recovered on the pointing out of Pintu.

P.W. 3, Saleem Javed, deposed that Jaid was grand-son of Abdul Ali. On 3.2.2003, he has been abducted by Pintu and committed his murder. He had scribed the report which is Ext. Ka-1. He had received information about the abduction of Jaid on 4.2.2003 at about 7.00 a.m. He had also accompanied with the family members of Jaid for searching Jaid. Someone had informed him that Pintu had taken away Jaid alongwith him. They were searching within the area of Garh. The police had reached at about 10.00 p.m. alongwith Pintu and on his pointing out dead body of Jaid was recovered from a pit in the field of Ramesh and a recovery memo was prepared which is Ext. Ka-2. The inquest on the dead body was prepared. He had also signed the inquest which is Ext. Ka-3.

P.W. 4, Farookh, deposed that Jaid Ali was son of Matloob. He was aged about 5 years. Abdul Ali is grandfather of Jaid. Pintu is servant of Abdul Ali. He was working there for about 4-5 years. On 3.2.2003, he had seen Pintu coming on a cycle from the side of chak road and he was in disturbed condition. He enquired from Pintu as to from where he is coming but he did not say anything. On 5.2.2003, when he returned from Meerut he received information that Pintu had committed murder of Jaid Ali.

P.W. 5 Shakeel Ahmad deposed that Jaid Ali is grandson of Abdul Ali. He was aged about 4-1/2 years. He was murdered on 3.2.2003. On that date Lalji Tandon had come from helicopter. At that time at about 4.30 p.m. Pintu had taken away Jaid Ali on his cycle on the pretext of showing him helicopter. Pintu lived in the house of Abdul Ali for the last about 4-5 years. On 4th February, 2003 at about 10.00 p.m. he came to know that Pintu wants to get recovered the dead body of Jaid. At that time he was present at Garh Mela. At that time Saleem Javed was also present there. In front of a hotel Pintu was alongwith 7-8 police personnel. On the pointing out of Pintu, the dead body of Jaid was recovered. The recovery memo of the dead body of Jaid was prepared which is Ext. Ka-2. The recovery memo was also signed by Pintu.

P.W. 6 is Matloob Ali. He deposed that Pintu was his servant. He used to look after the children and to work in the house. He used to take the children to market on cycle. He also used to work in the shop and nursing home. They used to depose confidence on him. His son Jaid was aged about 4-1/2 years. On 3.2.2003, one Minister had come from helicopter. He was present at his house. His wife asked me that Pintu wants to show Jaid helicopter. He had permitted him to take him for showing Helicopter. At about 4.30 p.m. Pintu took away Jaid on his cycle. Thereafter Pintu did not bring Jaid back. They waited for some time and searched Pintu and his son. His father had also made announcement. His father had lodged the report in the night of 4/5.2.2003. The dead body of his son was recovered on the pointing out of Pintu and inquest memo was prepared. He had signed the inquest memo which is Ext. Ka-3. His wife had also told him that Pintu was annoyed with her as she had scolded and slapped him. On account of that he had committed this murder.

P.W. 7 Abdul Rouf deposed that Pintu is servant of Abdul Ali. He used to do house hold work. He has a nursing home in the name of Jeevan Rekha and adjacent to his nursing home, the nursing home of Abdul Ali in the name of Hind Nursing Home is there. Jaid has been taken away by Pintu on 3.2.2003 and he was murdered. There was an announcement about the missing of Jaid. On 4.2.2003 at about 7.00 p.m., Pintu came to his nursing home. He was in a very disturb condition. He told him that he had committed a big mistake. He confessed to have committed murder of Jaid. He was annoyed with the mother of Jaid. She used to abuse him. He had refused to prepare the tea and she has slapped him. He had committed the murder of Jaid to take the revenge of his insult. He took away Jaid on the pretext of showing him helicopter and he committed his murder in the field of Ramesh and concealed the dead body in the nala.

P.W. 8 is the Head Constable who had prepared the chik F.I.R.

P.W. 9 is the first Investigating Officer.

P.W. 10 is Dr. Vinay Bhargava who had conducted the postmortem examination of the deceased and noted the flowing ante-mortem injuries:

Abraded contusion over front of neck just below the chin. Size 2 cms. x 2 cms. x skin deep.

A ligature marks seen around the neck. It is transversely circular and placed low down in neck.

According to the opinion of the doctor the cause of death was asphyxia as a result of strangulation.

P.W. 11 is the second Investigating Officer who had submitted the charge-sheet.

P.W. 12 is the Constable Sushil Kumar who had taken away the dead body after being prepared the inquest report to the mortuary for conducting the post-mortem examination.

The case of the defence was of denial. He stated that the investigating was not fair. He was not paid the salary for 6 months when he demanded the salary he has been falsely implicated in this case. The defence has also examined two witnesses.

D.W. 1 is Hemant Kumar Soni. He has proved sale certificate of his signature which is Ext. Kha-1.

D.W. 2 is Raghubir Singh. He is father of the accused. He deposed that his son Pintu was servant in the medical store of the informant. They used to pay him Rs. 2,100 per month as salary. Six months'' salary was due and when the money was demanded he has been falsely implicated in this case.

The Sessions Judge convicted the Appellant as aforesaid. Hence this appeal.

It is contended by learned Counsel for the Appellant that there is no direct evidence of commission of the murder of the deceased by the Appellant and the case rests entirely on circumstantial evidence.

The Sessions Judge recorded the finding of conviction on the basis of following circumstances:

The deceased was taken away by the Appellant on 3.2.2003 at 4.30 p.m. by the Appellant on the pretext of showing helicopter.

The deceased was seen going away towards field on the chak road.

At about 6.00 p.m. he was returning alone in disturbed condition.

On 4.2.2003 he had made extra judicial confession before P.W. 7.

After his arrest on his pointing out the dead body of the deceased was recovered from a pit in sugar cane field of Ramesh.

We have carefully examined the testimonies of the witnesses. The circumstance of taking away the deceased by the Appellant is proved by the evidence of P.W. 1 Abdul Ali and P.W. 6 Matloob Ali. There is no inconsistency or infirmity in their testimonies. This is proved beyond reasonable doubt that he had taken away the deceased at about 4.30 p.m. P.W. 2 had stated that he had seen the deceased alongwith the Appellant nearby the chak road. P.W. 2 Meharban had seen the Appellant in a disturbed condition. He had enquired from him but he did not give reply. The recovery of the dead body on the pointing out of the Appellant is proved by the Investigating Officer and two witnesses namely P.W. 3 Salim Javed and P.W. 5 Shakil Ahmad. They had corroborated each other. There is nothing in their statements to discredit their testimonies. The prosecution has successfully proved that the deceased was last seen in the company of the Appellant beyond reasonable, doubt. The simple denial is another circumstance to show that he had taken away the deceased and there is no explanation forthcoming from the Appellant as to whether he had left the deceased at any other place.

The counsel for the Appellant has challenged the findings of the trial court on the ground that the prosecution had failed to prove the motive. The motive as suggested by the witnesses cannot be said to be legally proved because the mother of the deceased was not produced in the Court. It is alleged that she had scolded and slapped the Appellant and he felt humiliation and in order to take revenge he had committed the murder of the child. The Appellant had also suggested that his 6 months'' salary was not paid, therefore, he has been falsely implicated in the case.

We do not find any substance in the suggestion because the report was lodged prior to the recovery of the dead body and till that time it was not known whether the boy was alive or dead. No father will lodge report against the innocent person making recovery of the boy impossible. In any case the circumstances, as alleged by the prosecution, is proved beyond reasonable doubt and the motive becomes immaterial.

The counsel for the Appellant further submitted that there is inordinate delay in recording the statements of the witnesses.

In our opinion, the testimonies of the witnesses cannot be disbelieved only because their statements were belatedly recorded by the Investigating Officer. This could be the fault of the Investigating Officer for which the prosecution cannot be suffered.

The counsel for the Appellant further submitted that all the prosecution witnesses are not examined. It is pointed out that Mushtaq was not examined.

In our opinion, his non-examination does not affect the credibility of other witnesses. He is real brother of the informant. There is no charm in multiplying the witnesses to prove only one circumstance.

It is further submitted that only interested and partisan witnesses were produced.

This is also of no value because the testimonies of the witnesses cannot be rejected solely on the ground that they are interested and partisan. The only requirement of law is to careful scrutiny.

We have carefully examined the testimonies of the witnesses. In our opinion, the Sessions Judge had rightly recorded the finding of conviction.

In view of the above, the appeal is dismissed. The conviction and sentence awarded to the Appellant by the trial court is affirmed. The Appellant is in jail. He shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.

Office is directed to communicate this order to the trial court concerned within two weeks.