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2016 DIGILAW 1693 (ALL)

Naresh Kumar v. State of U. P.

2016-05-03

ANIL KUMAR SRIVASTAVA-II, SURENDRA VIKRAM SINGH RATHORE

body2016
JUDGMENT Surendra Vikram Singh Rathore, J. – Instant criminal appeal was listed for hearing on bail application. Since paper books have already been prepared and learned counsel for the appellant expressed his willingness to argue the appeal finally to which learned AGA also gave his consent. So we proceeded to hear this appeal on merits. 2. Mr. Uma Kant, learned counsel for the appellant, and Mr. Sharad Dixit, learned AGA for the State, were heard at length. 3. Under challenge in the instant criminal appeal is the judgment and order dated 27.02.2015 passed by Additional Sessions Judge, Court No. 1, Lakhimpur Kheri, in Sessions Trial No.131 of 2009 arising out of Case Crime No.604 of 2007, Police Station Palia, District Lakhimpur Kheri whereby the present appellant Naresh Kumar was convicted for the offence under Section 302 IPC and was sentenced with imprisonment for life and also with fine of Rs. 20,000/- with default stipulation of two years' additional rigorous imprisonment. He was further convicted under Section 201 IPC and was sentenced with rigorous imprisonment for a period of five years and also with fine of Rs. 5,000/- with default stipulation of one year's additional rigorous imprisonment. Both the sentences were directed to run concurrently. 4. In brief, the case of the prosecution was that Smt. Geeta Devi, the complainant, moved an application under Section 156(3) Cr.P.C. on 11.04.2007 alleging therein that appellant Naresh Kumar is the real husband of her sister-in-law. About two years' ago, he had taken a loan of Rs. 10,000/- from her husband Santosh Kumar and had promised to return the same at the earliest but the loan amount was not repaid and he was delaying the repayment. Since her husband used to make demand of the same so the appellant became annoyed with the deceased. However, this feeling of the appellant was not within the knowledge of the deceased. On 01.07.2006, appellant came to the house of the complainant, took breakfast and asked the deceased to accompany him to his house where the money shall be paid to him. Relying on the offer of the appellant for return of the money and to enjoy being the guest of the appellant, he went with him. Several persons of the vicinity had seen the deceased going along with the appellant. Relying on the offer of the appellant for return of the money and to enjoy being the guest of the appellant, he went with him. Several persons of the vicinity had seen the deceased going along with the appellant. When her husband did not come back for several days then she started making inquiry about him and on inquiry, she came to know that on the railway line at a distance of about 200 meters east the dead body of her husband was lying in a sugarcane field. Information of recovery of the dead body was immediately given by the complainant to the police and thereafter postmortem was conducted. However, no case was registered. As in the postmortem report the cause of death could not be ascertained hence Viscera was preserved. In the Viscera report ethyl alcohol poison was found. It was also stated by the complainant in the application under Section 156(3) Cr.P.C. that she made effort to lodge the first information report but the same was not registered. She also moved application to the District Magistrate, Kheri on 09.10.2006 but even thereafter her report was not registered. Under the orders of the court on the basis of this application the case was registered on 21.09.2007 at 02.30 PM against the appellant for an incident that took place on 01.07.2006. 5. After completing the investigation, the police filed charge sheet. Here it is pertinent to mention that prior to it the complainant Smt. Geeta Devi on 05.07.2006 had given an application to the police, after recovery of the dead body, wherein she has stated that her husband had gone to the village Semri to the house of his real younger sister about five days ago and after staying there for two days he was coming back on 03.07.2006. Her husband was a heavy drunkard. On 05.07.2006 his dead body was found near the sugarcane center in a sugarcane field along with his cycle. 6. The defence of the appellant was that he has been falsely implicated in this case simply to extort money from him. 7. In order to prove its case, the prosecution has examined PW-1 Smt. Geeta Devi - the complainant of this case, PW-2 Dr. 6. The defence of the appellant was that he has been falsely implicated in this case simply to extort money from him. 7. In order to prove its case, the prosecution has examined PW-1 Smt. Geeta Devi - the complainant of this case, PW-2 Dr. S.K. Shukla, who has conducted the postmortem on the body of the deceased, PW-3 Constable 139 Jaipal Singh, who has prepared the chik report and GD of this case under the orders of the Court on application under Section 156 (3) Cr.P.C., PW-4 Ram Bharosey - father of the deceased Santosh Kumar, PW-5 Arun Kumar Srivastava, Sub-Inspector, who has conducted the inquest on the body of the deceased, PW-6 Jagdish Singh - Investigating Officer of this case, PW-7 Azad Kumar - scribe of the first information report, PW-8 Ram Swaroop - a witness of recovery of the slippers of the deceased by the police, PW-9 Suresh - a witness of recovery of cycle which was lying by the side of the dead body of the deceased. 8. No evidence in defence was adduced on behalf of the appellant. 9. After appreciating the evidence on record, learned trial court has convicted the appellant, as above, hence, the instant criminal appeal. 10. Submission of the learned counsel for the appellant was that the appellant has been convicted only on the basis of presumptions. There was absolutely no evidence against him. Evidence of PW-1 was wholly unreliable. She kept mum for a long period of about 10 months. It has further been argued that the deceased died because of some poisonous alcohol and it has come in evidence that he was a drunkard. It is submitted that even if the entire case of the prosecution is taken to be true even then the only evidence available against the present appellant was of last seen on 01.07.2006. The dead body of the deceased was recovered on 05.07.2006. The postmortem report of the deceased shows that the duration of death was about 3-4 days. The postmortem was conducted on 05.07.2006 at about 05.00 PM. So either the deceased died on the same day or on the following day and there is no evidence that any person had seen the deceased along with appellant near the place of occurrence wherefrom his dead body was recovered. The learned trial court only on the basis of presumptions has convicted the appellant. 11. So either the deceased died on the same day or on the following day and there is no evidence that any person had seen the deceased along with appellant near the place of occurrence wherefrom his dead body was recovered. The learned trial court only on the basis of presumptions has convicted the appellant. 11. Learned A.G.A. has tried to support the judgment of the learned trial court but he has fairly conceded that apart from the evidence of last seen of the complainant there was no other evidence on record to connect the appellant with the instant offence. No recovery is alleged to have been made from the possession or on the pointing out of the appellant. 12. Admittedly in this case after recovery of the dead body no suspicion was raised against the present appellant. It was only in the application under Section 156 (3) Cr.P.C., which was moved on 11.04.2007, it was alleged that the deceased had gone with the appellant on 01.07.2006. However, the time at which the deceased went along with the appellant was not mentioned in the said application. Thus, there is delay of about ten months in moving the application under Section 156 (3) Cr.P.C. A delayed first information report creates doubt regarding the correctness of the prosecution case. The prosecution could not furnish any plausible explanation for such a huge delay. In this background, learned trial court was expected to scrutinise the prosecution evidence with utmost care and caution. The motive to commit this offence is alleged to be the money which was taken by the appellant from the deceased. In the examination-in-chief the complainant herself has admitted that her husband used to take liquor. She has stated that on her application the police had searched the dead body of her husband but according to the case of the prosecution the information of recovery of the dead body of the deceased was given by PW-1 to the police by means of a written report (Ext. Ka-14). She has stated in her cross examination that she came to know, when the dead body was recovered, that appellant has murdered her husband but it is really strange to note that in Ext. Ka-14 not even suspicion was raised against the present appellant nor it was mentioned that he had taken an advance of Rs. 10,000/- from her husband. She has stated in her cross examination that she came to know, when the dead body was recovered, that appellant has murdered her husband but it is really strange to note that in Ext. Ka-14 not even suspicion was raised against the present appellant nor it was mentioned that he had taken an advance of Rs. 10,000/- from her husband. She has also stated that the money was advanced to Naresh Kumar in the presence of her father-in-law. Evidence of PW-2 Dr. S.K. Shukla is of no consequence because he could ascertain any cause of death of the deceased. PW-3 was a formal witness. PW-4 Ram Bharosey is the father of the deceased. He has stated that about one year prior to the incident Naresh had taken Rs.10,000/-. Thus, there is contradiction regarding the time as to when the money was taken by the appellant. According to the evidence of PW-1 money was advanced to the appellant about two years prior to the incident while according to the evidence of PW-4 it was advanced about one year prior to the incident. He has stated that when the next day his son did not come back then on the third day he went to the house of the appellant. At that time his son was alive and was present in the house of the appellant wherefrom he was asked to go back by the appellant on the assurance that Santosh shall come back by evening along with money. Thus, this statement of the witness is fatal to the prosecution because on one hand it is not supported by the duration of the death as reported by the doctor and on the other hand it shows that the deceased was alive for a period of three days after coming to the house of the appellant wherefrom he came back. This witness has stated that when his son did not come back then he again went to the house of the appellant where appellant told him that he has gone back. He has also admitted that when he saw the dead body of his son then he was of the view that he has been murdered by the appellant but it is really strange that no effort by this witness was made to lodge any first information report regarding the murder of his own son. He has also admitted that when he saw the dead body of his son then he was of the view that he has been murdered by the appellant but it is really strange that no effort by this witness was made to lodge any first information report regarding the murder of his own son. He has stated that the police personnel told him that his son might have died because of consumption of liquor. There is no other evidence to connect the appellant with the offence. As stated earlier, the motive part is also not established by the evidence because there are contradictory statements of the witnesses regarding the period as to when the money was advanced and apart from it, the evidence of PW-1 on the point of last seen also becomes meaningless as the deceased was seen alive by PW-4 in the house of the appellant even after a gap of three days. There was absolutely no evidence to show that the appellant accompanied the deceased upto the place wherefrom the dead body was recovered. There is no evidence that they were seen together coming out of the house of the appellant or the appellant was seen near the place of recovery of the dead body. So virtually it was a case of no evidence. The learned trial court has committed error of fact and law in convicting the appellant. Hence, judgment is not sustainable under law. 13. Accordingly this appeal deserves to be allowed and is hereby allowed. Appellant is acquitted of all the charges levelled against him. He is in jail. He shall be released forthwith, if not wanted in any other case. 14. Office is directed to communicate this order to the court concerned forthwith and also to send back the lower court record to ensure compliance. Appeal allowed.