Vijay Kumar Yadav and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Sri Dhirendra Kumar Mishra, learned counsel for the appellants and Sri Sharad Dixit, learned Additional Government Advocate for the State were heard. We have also perused the material available on record.

All the three criminal appeals i.e. [Criminal Appeal No. 82 of 2008- Vijay Kumar Yadav and Others V. State of U.P.], [Criminal Appeal No. 2963 of 2007-Smt. Malti Pandey V. State of U.P.] and [Criminal Appeal No. 14 of 2008-Ram Jiyawan Pandey] arise out of the same judgment, therefore, the same are being disposed of together.

Instant criminal appeals have been preferred by the appellants-Vijay Kumar Yadav, Vatika Yadav, Pawan Kumar Yadav, Smt. Malti Pandey and Ram Jiyawan Pandey challenging the judgment and order dated 14.12.2007 passed by learned Additional Sessions Judge/F.T.C.-III, Faizabad, in Sessions Trial Nos. 264 of 2006 and 212 of 2006 arising out of Case Crime No. 19 of 2006, Police Station Bikapur, District Faizabad whereby all the appellants were convicted and sentenced as under:

"(i) Under Section 302 IPC- Imprisonment for life with fine of Rs. 5000/- each, with default stipulation of one year''s additional imprisonment.

(ii) Under Section 364 IPC- 10 years'' rigorous imprisonment with fine of Rs. 3000/- each, with default stipulation of six months'' additional imprisonment.

(iii) Under Section 307 IPC- 7 years'' rigorous imprisonment with fine of Rs. 2000/- each, with default stipulation of six months'' additional imprisonment.

(iv) Under Section 201 IPC- One year''s imprisonment with fine of Rs. 1000/- each, with default stipulation of two months'' additional imprisonment."

All the appellants were convicted under Section 147 IPC and they were sentenced to undergo six months'' imprisonment. Appellants Vijai Kumar Yadav, Vatika Yadav and Pawan Kumar Yadav were also convicted under Section 148 IPC and were sentenced to undergo one year''s imprisonment with fine of Rs. 500/-, with default stipulation one month''s additional imprisonment.

However, the appellants Smt. Malti Pandey and Ram Jiyawan Pandey were acquitted of the charges under Section 148 IPC.

All the sentences were directed to run concurrently.

In brief, the case of the prosecution was that the complainant Shiv Dayal Sahu lodged an FIR at Police Station on 04.01.2006 at 12:30 hours alleging therein that he was resident of Village Ramapur Mauja, hamlet of Dikhaura, Police Station Kurebhar, District Sultanpur. His brother Ram Chandra had moved an application for the measurement of his agricultural land in Tehsil Sadar, District Sultanpur because Smt. Malti Pandey, (appellant) had extended the boundaries of her land upto Abadi land by encroachment. On 01.01.2006 Nayab Tehsildar came to the village for measurement of the land of Smt. Malti Pandey. Appellant Smt. Malti Pandey alongwith Ram Jiyawan Pandey, Vijay Kumar Yadav, Pawan Kumar Yadav and Vatika Yadav reached there and asked Nayab Tehsildar not to measure her field. Then the brother of the complainant Ram Chandra Sahu told that he shall again move such an application in Tehsil Diwas. Hearing these words altercation started on the place of measurement so Nayab Tehsildar, without measuring the field came back. It was alleged that the accused persons extended threats of dire consequences to all the members of the family of Ram Chandra Sahu and to the complainant. On the same day, in the night at about 11:00 p.m. all the aforesaid accused persons alongwith 8-10 unknown persons armed with fire arms raided the house of the complainant and made an effort to get their door opened. The complainant and his brother Ram Chandra Sahu, his sister Poonam Sahu and other persons of the village went to the roof of their house and recognized the accused persons. When they tried to make good their escape from the back side of the house, the accused persons caught Ram Chandra Sahu and went away with him with the intention to kill him. Because of the fear of the accused persons the complainant and his family members could not go to the police station Kurebhar to lodge the FIR. The sister of the complainant Poonam Sahu gave an oral information of the incident to the Superintendent of Police, Sultanpur, on 02.01.2006 and on said information the police had come to his house on 02.01.2006 in the evening, but at that time, only old mother of the complainant was present in the house. The complainant and the other family members were busy and were out of their house in connection with the search of Ram Chandra Sahu. On 04.01.2006 the dead body of Ram Chandra Sahu was found within the area of village Khiddirpur, Police Station Kotwali Bikapur, District Faizabad lying in the ''Nali'' situated towards west of the field of Nankan Harijan. This information was given to the complainant by Rajendra Kumar Sahu then he went to that place and saw the dead body of his brother and thereafter lodged the FIR of this case.

After registration of the case, investigation proceeded and inquest proceedings were conducted and the dead body was sent for postmortem.

The place of occurrence was inspected where the dead body of the deceased was recovered and also the place wherefrom the deceased is alleged to have been taken by the appellants. The police had taken the torch in the light of which the incident was seen and its recovery memo was prepared. During investigation Poonam Sahu (PW-2) gave 15 pellets which were the result of firing made by the miscreants and collected by her which were also taken into custody and its memo was prepared.

The postmortem on the body of the deceased Ram Chandra Sahu was conducted on 05.01.2006 at 3:30 p.m. and duration of death was reported to be about one and half day old. In the postmortem following ante-mortem injuries were found on the body of the deceased:-

"(a) Ligature mark around neck except right side posterior and below right ear size of ligature mark was 30 cm x 2 cm, abrasion was present over ligature mark. The skin below the ligature mark was hard and parchment like appearance. Underneath thyroid cartilage was fractured.

(b) Contusion over skull 2 cm x 3 cm x 6 cm above right ear. Abrasion over internal mucosa of right nostril size 0.2 cm.

(c) Abrasion over upper gum above 7th incisor teeth 1.5 cm x 0.5 cm."

In the opinion of the doctor the cause of death was asphyxia as a result of ante-mortem strangulation.

After completing the investigation charge-sheet was filed against all the appellants.

The case of the defence as stated by the appellants in their statements under Section 313 Cr.P.C. was of total denial and their false implication because of enmity.

Appellant Pawan Kumar Yadav has taken a defence that he had contested the election of village pradhan and one Mata Prasad was a candidate against him. Complainant and his family members were supporting Mata Prasad and due to pressure of the Member of Parliament this false case has been concocted against them.

In order to prove its case, the prosecution has examined PW-1, the complainant Shiv Dayal Sahu, PW-2 Phool Kali alias Poonam Sahu, PW-3 Rajendra Prasad Sahu, as witnesses of fact, PW-4 is Constable, Aash Narayan Yadav, who is a formal witness who after the inquest had taken the dead body for postmortem, PW-5 is Head Constable Ram Harsh Yadav, who has prepared the chik report and G.D. of this case, PW-6 S.I. D.D. Mishra, the initial Investigating Officer of this case, PW-7 S.I. Rajendra Prasad Katiyar who has taken up investigation of this case from 05.01.2006, PW-8 Chandra Prakash Tiwari, Inspector CBCID, who had taken up the investigation from 10.03.2006 and after concluding the investigation had filed charge-sheet, PW-9 Dr. R.N. Rawat, who had conducted the postmortem on the body of the deceased and PW-10 is Inspector Kailash Nath Dwivedi who has investigated this case from 20.02.2006 and because of his transfer he left the investigation of this case from 06.03.2006.

In defence one Daya Ram Gautam, Senior clerk in the office of DIOS has been examined. This witness has stated that on 04.01.2006 in the attendance register, Phoolwati Gupta (PW-2) was shown present on duty and after cutting her presence she was shown to be on casual leave.

After appreciating the evidence on record, the trial court convicted the appellants as above. Hence the instant appeal.

Submission of the learned counsel for the appellants was that in the instant case the prosecution has come with the allegation that the incident has taken place at 11:00 p.m. on 01.01.2006 while no FIR of this incident was lodged by the complainant or any other member of the family at the police station. It is alleged that Poonam Sahu (PW-2) had given an oral information of this incident to Superintendent of Police, Sultanpur, and the police officer had visited the village and house of the complainant in the evening of 02.01.2006 but no case was registered upto 04.01.2006. It is submitted that the learned trial court has considered the incident of 01.01.2006 to be proved and thereafter the dead body was recovered on 04.01.2006 i.e. after about three days. In the postmortem, which was conducted on 05.01.2006 at 3:30 p.m., duration was only one and half day old. So the evidence of last seen also loses its corroborative value. Submission of the learned counsel for the appellants was that the incident is alleged to have taken place on 01.01.2006 the complainant has not lodged any FIR of such incident so the evidence of last seen itself was highly doubtful, apart from it, there was nothing in the case of the prosecution to connect them with the instant offence.

Learned Additional Government Advocate has also fairly conceded that apart from the evidence of last seen i.e. forcibly taking away of the deceased by the accused persons there was no other evidence against the appellants to connect them with the instant offence. Nothing incriminating is alleged to have been recovered from the possession of the appellants or on their pointing out.

In this case incident is alleged to have started on 01.01.2006 at 11:00 a.m. and FIR was lodged on 04.01.2006 at 12:30 pm. Prosecution has come with an explanation that PW-2 Phoolwati alias Poonam Sahu had given an oral information to Superintendent of Police, Sultanpur, and Superintendent of Police, Sultanpur, call for a report from S.O. Kurebhar. Police went to the house on 02.01.2006. So even if the explanation is accepted then it would lead to the only conclusion that on 02.01.2006 police got no information about any firing in the village because no case even after visit of place of occurrence was registered by the police.

Since it is a case of circumstantial evidence, therefore, before proceeding further, we would like to address ourselves on the point of standard required to be proved before recording the conviction on the basis of circumstantial evidence.

In the case of Haresh Mohandas Rajput v. State of Maharashtra , 2011 (12) SCC 56, Hon''ble Apex Court following its earlier decision in the case of Krishnan v. State represented by Inspector of Police , (2008) 15 SCC 430 observed that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

� Reference on this point may also be made on the pronouncements of Hon''ble Apex Court in the cases of Manthuri Laxmi Narsaiah v. State of A.P. , (2011) 14 SCC 117, Sangili alias Sanganathan v. State of Tamilnadu , (2014) 10 SCC 264, Satni Bai v. State of M.P. , (2010) 2 SCC 646, Sk Yusuf v. State of West Bengal , AIR 2011 SC 2283, Sharad Birdhichand Sarda v. State of Maharashtra , AIR 1984 SC 1622, Krishnan v. State represented by Inspector of Police , (2008) 15 SCC 430 and Wakkar and another v. State of Uttar Pradesh , (2011) 3 SCC 306.

In the instant case, learned trial court has laid great emphasis on the incident which is alleged to have taken place on 01.01.2006. Admittedly, no FIR of this incident was lodged. It was only after recovery of the dead body on 04.01.2006 that the FIR of this case was lodged. It is nowhere the case of the prosecution that the complainant or his family members, because of fear, were hiding themselves. On the contrary, it is the specific case of the prosecution that they were busy in search of Ram Chandra Sahu. It is also admitted case of the prosecution that Poonam Sahu has given an oral information of this incident to Superintendent of Police, Sultanpur, on 02.01.2006 in the evening but in absence of any evidence to the contrary it appears to be more probable that if any information disclosing the commission of cognizable offence would have been furnished to the Officer of the level of Superintendent of Police then he must have given direction to his subordinates to register the FIR and to start search of the abductee Ram Chandra Sahu. So the delay in lodging of FIR brings this part of the prosecution case under suspicion because no reasonable and reliable explanation of delay in lodging FIR could be furnished. When FIR is lodged with delay and no satisfactory explanation is furnished then the courts are obliged to scrutinize prosecution evidence with extra care and caution. Because the delay in FIR enhances chances of coming up a coloured version. PW-1 complainant has supported the case of the prosecution as alleged by him in his FIR. He has admitted that his sister Poonam Sahu was a teacher in Amethi and the school is situated at a distance of about 50-55 kilometers from her house. The complainant in his evidence has admitted that he got the information on phone on 04.01.2006 at about 8:00 a.m. that the dead body was lying. When he reached there then several persons of the vicinity were present there. However, no police personnel were present there. This witness has stated in his cross-examination that on 01.01.2006 the firing took place for about 5 minutes but not even a single person of the village reached there during the entire night. In the early morning he went in search of his brother. Thus the evidence of this witness appears to be highly doubtful and unreliable. Even after firing which continued for 5 minutes not even a single person of the village reached there. Even he himself, after the disappearance of the accused persons, did not make any effort to seek the help of the villagers and only in the morning he went in search of his brother Ram Chandra Sahu. This entire conduct of the complainant brings his testimony under shadow of doubt particularly keeping in view that he had did not prefer to go to the police station and to inform the police to seek help of the police in that connection. Even prosecution could not get any evidence of any other person of the village to say that any incident of firing took place in the night in the village. PW-2 is Phool Kali alias Poonam Sahu as per the case of the prosecution she was present in the house of the complainant on 01.01.2006. Though this witness says that she had given the information of this incident to the Superintendent of Police, Sultanpur on 02.01.2006 in the evening while according to the defence version she was a teacher and was on duty on 01.01.2006 and subsequently her presence in the register was scratched out and she was shown on casual leave. This fact has been proved by DW-1 on the basis of the attendance register which was brought by him and the evidence of DW-1 makes the presence of this witness highly doubtful.

In her cross examination she has admitted that she was a teacher in Amethi Government Inter College at the time of incident and the said college was situated at a distance of about 60 kms. from her house where the incident has taken place. In Amethi she lives in a rented house near the Amethi College. She has stated that on 02.01.2006 she has given information of this incident to the Superintendent of Police, Sultanpur, and also made a request for the safety and security of her brother. Superintendent of Police, Sultanpur, on phone directed S.O. Kurebhar and asked him to give information about this incident. On 02.01.2006 in the evening the police had gone to her house and at that time only her mother was present there. Apart from it not even a single person of the village could be examined to support that any firing took place in the night of 01/02.01.2006. Nor any person has come forward to depose that any police officer visited the house of the deceased on 02.01.2006. The prosecution has not produced Superintendent of Police, Sultanpur, to prove the fact whether any information was given by this witness. PW-3 Rajendra Prasad Sahu is the person who has given the information of the recovery of the dead body in his village Khiddirpur on phone to the complainant and he has stated that when he saw the dead body of his brother-in-law (Jija) he informed the complainant. The place where the dead body is alleged to have been recovered was within the territorial jurisdiction of District Faizabad while the incident has taken place within the territorial jurisdiction of District Sultanpur. PW-3 Rajendra Prasad in his evidence has stated that he had not seen the dead body at the place wherefrom it was recovered upto evening of 03.01.2006. So the dead body came on the place wherefrom it was recovered in the intervening night of 3/4-01-2006 while according to the case of the prosecution the accused persons had taken the deceased with them on 01.01.2006 at 11:00 p.m. The postmortem on the body of the deceased was conducted on 05.01.2006 in the evening and the duration was about one and half day only. So the deceased even thereafter survived for a period of two long days but there is absolutely no evidence of any witness that the deceased was seen alive during this period of two days or any of the appellant was seen near the place in the company of the deceased where the dead body was recovered. Even on the point of immediate motive, the prosecution has not chosen to examine the Nayab Tehsildar or the Lekhpal who could have proved the said fact that any altercation took place at the time of proposed measuring of the field or any threats were extended by the appellants to the complainant and their family members. PW-2 Phool Kali alias Poonam Sahu has stated that she had given oral information to Superintendent of Police, Sultanpur, but this by itself appears to be incorrect because she is literate lady, she was a teacher in an Intermediate college so it was more feasible for her to give a written complaint to the Superintendent of Police concerned. It is pertinent to mention here that as per evidence PW-2 Poonam Sahu had a mobile phone. So when her house was raided then why she did not prefer to inform the police on mobile phone. She has no where explained it. Perusal of the evidence of PW-1 and PW-2 shows that these persons saw the accused persons in the torch light from the roof of their houses. It appears that the accused persons failed to get the doors of the houses opened but these persons, instead of remaining inside the house, came out from the southern side of the house. The deceased was first to come out. PW-2 has stated that at that time the appellants had fired at them. However, she could not state as to where those fires landed. If the incident was true and the appellants had come prepared to murder the deceased then at that time there was absolutely nothing to prevent them to cause his death. It has also come in evidence that all the family members from the side of the complainant were coming out of the house, which also appears to be extremely unnatural because the complainant side was more safe inside their closed house. It has come in the evidence that the walls of the house were about 15 feet high. So in that perspective, they were in a better position to protect them and to save their life by remaining inside the house. Thus in the instant case when we consider the entire case of the prosecution as a whole then it is clear that the evidence of the last seen as alleged by the prosecution was not reliable. This circumstance stands further weakened by the fact that the information of this incident was not given by any member of the family of the complainant side to the police and no FIR was lodged. The presence of Phool Kali alias Poonam Sahu becomes doubtful in view of the evidence of DW-1. It transpires from the perusal of entire evidence that only after recovery of the dead body this story of incident dated 01.01.2006 was cooked up.

There is absolutely no other incriminating circumstance except the recovery of the dead body that could be proved by the prosecution to connect these appellants with the instant offence. Thus in the instant case there was absolutely no legal evidence to hold the appellants guilty, keeping in view standard required to be proved for recording the conviction in a case based on circumstantial evidence. Learned trial court appears to have been swayed away by the incident that is alleged to have taken place on 01.01.2006 and has not appreciated the entire prosecution evidence in correct perspective which has rendered in judgment unsustainable under law.

In view of the discussion made above, after careful scrutiny of the evidence, we are of the considered view that prosecution has utterly failed to prove its case beyond reasonable doubt. Accordingly, all these appeals deserve to be allowed.

These appeals i.e. [Criminal Appeal No. 82 of 2008- Vijay Kumar Yadav and Others V. State of U.P.], [Criminal Appeal No. 2963 of 2007-Smt. Malti Pandey V. State of U.P.] and [Criminal Appeal No. 14 of 2008-Ram Jiyawan Pandey] are hereby allowed. Appellants Vijay Kumar Yadav, Vatika Yadav, Pawan Kumar Yadav, Smt. Malti Pandey and Ram Jiyawan Pandey are in custody. They be set at liberty. They shall be released forthwith, if not wanted in any other case.

Office is directed to communicate this order forthwith to the court concerned to ensure compliance and to send back the lower court record.