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2012 DIGILAW 812 (ALL)

SARMAN LAL v. STATE OF U. P.

2012-04-03

ANIL KUMAR AGARWAL, DEVENDRA PRATAP SINGH

body2012
Anil Kumar Agarwal, J. 1. Heard counsel for the parties including the learned AGA and perused the lower court record. 2. This appeal is directed against a judgement and order of acquittal dated 28.3.2011 passed by the Additional District and Sessions Judge ( F.T.C. No. 2/Special Judge ( Dacoity), Jalaun at Urai, in S. T. No. 37 and 62 of 2007 whereby all the respondents accused have been acquitted for the offences u/s 147, 148, 364, 302/149, 392, 506 I.P.C. 3. Briefly the story is that the appellant Sarman, resident of village Gora Chiraiya, lodged a written report at Police Station Rampura, District Jalaun at Urai, at 15.35 hrs on 17.10.2006 with the allegation that his son Mathura Prasad had gone to ease himself in his agricultural field at about 7.00 a.m. on 13.10.2006 and at the same time Priti daughter of accused Govind was going to her school. After some time Ajeet son of Ram Prasad came to his house and informed him that his son Mathura had assaulted Priti with fists and he naratted the same story to accused Govind. Whereupon Govind and other accused person armed with guns, axe, knife and sticks encircled the field and when the informant with his and Mathura's wife reached there, the accused abused and threatened them with dire consequences and forced them to return home. After some time when they again came out they were accosted by the accused and told that his son would never return and warned him not to inform anyone or lodge any report, and since then Mathura went missing. On 15.10.2006 a phone call of Mathura was received at his sister Maya's house which was received by her daughter in law between 9 to 10 disclosing that he has been kidnapped and somebody should come to Rampura Jungle with Rs. 1 lac. After sometime Govind's nephew Shailendra with some persons duly armed reached Maya's house searching for Mathura and abused them but when informed that he was not there they went away. Then the daughter in law phoned the informant and narrated the story. 1 lac. After sometime Govind's nephew Shailendra with some persons duly armed reached Maya's house searching for Mathura and abused them but when informed that he was not there they went away. Then the daughter in law phoned the informant and narrated the story. While search for Mathura was going on, police personnel of P.S. Umri reached the informant's village on 16.10.2006 and informed him that a dead body was recovered from near the railway tracks at Urai from which a letter was recovered mentioning his name as Mathura Prasad, son of Sarman Lal, resident of Gora Chiraiya and mentioning that he had been kidnapped at the instance of Govind and Tarachand and kidnappers have been asked to kill him, thus, on the basis of the letter he went the next day and identified the dead body of his son but by that time the postmortem etc. had been done treating it to be unidentified body. 4. On this information a case Crime No. 297 of 2006 was lodged under the aforesaid sections against the accused persons. During investigation police recovered one steel box and a towel from the room of accused Satendra. After completion of investigation the I.O. submitted charge sheet against the five accused and they were put to trial. 5. The trial court, after considering the evidence on record, found that there were long unexplained delay, lack of any proved motive, lack of evidence to prove the chain of events including last scene, no direct or indirect evidence of the actual murder, substantial inconsistencies in the testimonies of the witnesses of fact etc. It went on to return a finding of acquittal. 6. Learned counsel for the appellant submitted that the findings of trial court are perverse and based on conjectures and surmises. The accused respondents had abducted the deceased Mathura Prasad from sugar cane field and demanded ransom through Mathura Prasad and subsequently committed his murder. The prosecution had proved this fact by its witnesses and sufficient evidence had been given. During Panchnama a short letter ex. Ka2 of deceased Mathura Prasad was found from the dead body of the deceased by S.I. R. K. Gautam, which proved the complicity of the accused respondents in abduction, demanding ransom and murder of the deceased Mathura Prasad, which is admissible u/s 32( 1) of the Evidence Act. During Panchnama a short letter ex. Ka2 of deceased Mathura Prasad was found from the dead body of the deceased by S.I. R. K. Gautam, which proved the complicity of the accused respondents in abduction, demanding ransom and murder of the deceased Mathura Prasad, which is admissible u/s 32( 1) of the Evidence Act. The trial court misread this evidence and gave finding of acquittal on imaginary ground. The trial court committed gross illegality in acquitting the accused respondents, though there was sufficient material against the respondents for their conviction in this case, hence the order of the trial court be set aside and appeal is liable to be admitted for hearing. 7. The prosecution has produced ten witnesses to prove its case. Out of them PW1, the informant, PW2 Puja, wife of deceased and PW3, Maya, the informant's sister, are the only witnesses of fact. Apart from them, the relevant witness, Doctor S. K. Sharma, who conducted the postmortem was examined as PW5; PW6 Sri R.K. Gautam recovered the body, PW8 Noor Mohd. a railway employee and witness of inquest, PW9 S. K. Rai is the first I.O. and PW10 B. S. Yadav is the second I.O. 8. The motive for the offence is sought to be established from the incident involving Priti and Mathura Prasad and story of demand of ransom. Both PW1 and PW2 ( father and wife of the deceased) have parroted the story related to them by Ajeet, but Ajeet was never produced by the prosecution to prove that the deceased had misbehaved and assaulted Priti in his sugarcane field. Their evidence that on this information they had gone there, is based on hearsay and is not supported by any other evidence. PW2 admits that when they went there they neither saw the deceased nor Priti. Apart from their statement there is no other evidence on this point and their hearsay statement without any corroboration cannot be relied upon. The story of abduction and ransom is sought to be proved by the telephone call received at the house of Maya ( PW3) on 15.10.2006 followed by Satendra's visit and recovery of a letter from the trouser of the deceased. The story of abduction and ransom is sought to be proved by the telephone call received at the house of Maya ( PW3) on 15.10.2006 followed by Satendra's visit and recovery of a letter from the trouser of the deceased. All the three admit that the alleged phone call of Mathura Prasad was received in the house of Maya and it was attended by her daughter-in-law, Sundari, and after the call Satendra with his accomplice had come searching for Mathura Prasad. But again, this story is based on hearsay as Sundari was never produced in evidence to corroborate it. There is no reasonable explanation to withhold her even though she was Maya's family member. Even the factum of receiving the call at Maya's house has not been proved by prosecution without proper explanation. Similarly, the visit of Satendra and others has also not been proved. There is also no explanation why no FIR of this incident was lodged though Maya's husband was present when Satendra and other accused men had abused and threatened them. 9. The alleged letter in the handwriting of the deceased was recovered from the dead body on 16.10.2006 and thus PW1 on that basis went to Urai and identified his deceased son at the post mortem house. It does not stand to reason that when the letter, Ex A-2, was received from the dead body disclosing his complete identity on the basis of which the informant was contacted, how the inquest and the post mortem could have been conducted treating it to be unidentified body. According to PW8, Noor Mohd., who is a railway employee and had informed the police about recovery of the dead body from near the railway tracks, is also a witness of the inquest report. In his entire statement he has not disclosed the recovery of the letter from the dead body. No other inquest witness was examined. However, PW6, Sri R. K. Gautam has stated that Ex A-2 was recovered from the pant of the deceased. But, Sarman, PW1 has refused to identify the pant as belonging to his son. The recovery of Ex A-2 from the dead body has not been proved by any independent witness or by the witnesses of the inquest and it was never sealed at the spot. But, Sarman, PW1 has refused to identify the pant as belonging to his son. The recovery of Ex A-2 from the dead body has not been proved by any independent witness or by the witnesses of the inquest and it was never sealed at the spot. In fact, the 1st I.O. PW9 has stated in his cross examination that recovery of Ex A-2 was never brought to his notice even by the witnesses. Further, the prosecution miserably failed to establish that the letter was in the handwriting of the deceased. The entire story of the recovery of the letter from the dead body and its recovery in his handwriting is highly doubtful and not worthy of reliance. 10. The trial court was fully justified in holding that the prosecution has failed to prove the motive as the story was very doubtful. 11. Now the question of delay and evidence connecting the accused with the crime. According to the prosecution story the accused persons had surrounded the deceased in his sugarcane field on 13.10.2006 and the informant and his daughter in law were threatened against lodging of report and a phone call was received at Maya's house on 15.10.2006 followed by Satendra's visit and this information was conveyed to the informant on the same day. Assuming that the informant under threat on 13.10.2006 could not go to lodge the FIR, but there is no plausible explanation why the report could not be lodged on 14th or even on 15th after he received the information about the ransom demand. This inordinate and unexplained delay in lodging the report on these facts raises a serious doubt about the truthfulness of the entire prosecution story as it is against normal human conduct. There is no direct evidence at all to connect the accused with the crime and the prosecution has woefully failed to even connect the accused with circumstantial evidence. Right from the day Mathura went missing on 13.10.2006 till the time of recovery his body on 16.10.2006, the accused were never seen with the deceased. Even on 13.10.2006, neither PW1 nor PW2 saw Mathura in the sugarcane field surrounded by the accused. There is no evidence of last scene. 12. The accused Satendra is sought to be connected with the crime on the basis of recovery of a steel box and a towel belonging to the deceased. Even on 13.10.2006, neither PW1 nor PW2 saw Mathura in the sugarcane field surrounded by the accused. There is no evidence of last scene. 12. The accused Satendra is sought to be connected with the crime on the basis of recovery of a steel box and a towel belonging to the deceased. During investigation, on 21.11.2006 the I.O. PW9 is alleged to have recovered a steel box and a towel from a rented house of Satendra, who was staying there, in the presence of Maya, PW3 and two persons Babloo and Ramu and the articles were identified by her. However, the recovery memo is signed only by Ramu, who has not been produced and though recovery was allegedly made in front of Maya, she is not its witness and did not even sign the memo. She admits that her statement was never recorded by the I.O. and she was also not cited as a witness in the charge sheet. She also admits in her cross examination that articles were never got identified by her in the court and there was no special feature or identifying mark on those articles by which it could be segregated from identical articles which can be easily procured from the market. The aforesaid when coupled with the fact that neither the recovery was at the instance of Satendra nor he was arrested at the time of recovery, raises a strong suspicion of its veracity and the trial court has correctly doubted this recovery. 13. In this background, if the statement of the doctor and the post mortem report is considered, the prosecution story further gets confounded. PW5, Dr. Sharma has proved the post mortem report and has stated that the death was caused due to the ante mortem injuries and could occur on or after 15.10.2006. He had received the dead body in two parts and has admitted that the injuries could have been caused by being run over by a train. 14. Having considered the totality of the evidence of the present case, we are of the opinion that the view taken by the trial court in acquitting the accused respondents does not suffer from any perversity or illegality. No interference is called for in the judgement and order passed by the trial court acquitting the accused respondents. 15. This appeal has no force and is accordingly, dismissed.