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Allahabad High Court · body

2018 DIGILAW 1520 (ALL)

Udaisen Gupta v. State Of U. P.

2018-07-09

NAHEED ARA MOONIS, VIRENDRA KUMAR II

body2018
JUDGMENT : (In Re: Criminal Misc. Bail Application No. 124442 of 2015) 1. Heard Sri A.B.L.Gaur, learned Senior Advocate assisted by Sri Munna Tiwari, learned counsel for the appellant on application for grant of bail under Section 389 Cr.P.C. and Sri Vikas Sahai, learned A.G.A. for the State. 2. The appellant has been convicted in Session Trail No. 125 of 2007: State Vs. Udaisen Gupta arising out of Case Crime No. 1035 of 2006, Police Station Shahpur, District Gorakhpur for offence punishable under Section 302 I.P.C. and sentenced for rigorous imprisonment for life and fine of amount of Rs. 1 lac has been imposed against the appellant. 3. It is submitted by learned Counsel for the appellant that F.I.R. of this Crime was registered against unknown persons and accused was not named in it, by the complainant. The Investigating Officer has recorded statement of Dhani Kumar Gupta on 28.12.2006 under Section 161 Cr.P.C., who was witness of recovery memo mentioned in Case Diary Parcha No. 1A, which is numbered 000088. This case diary book is different from other Parcha of case diary dated 28.12.2006. 4. Learned Counsel has brought on record statement of PW4 Sri Resham Singh Finger Print Bureau C.I.D. Lucknow and PW-5 Dr. Farhad Sahin Scientist Laboratory Lucknow. The investigation of this crime was entrusted to Sri Atul Narain Singh S.I./S.H.O. of Police Station Shahpur, Gorakhpur on 28.12.2006. Sri Kamleshwar Singh took over investigation on 31.12.2006. These investigating officers were examined as PW8 and PW-9. Their statements have also been relied upon evidence. 5. It is further submitted that it is a case of circumstantial evidence and appellant has been made the victim of planned conspiracy. He was on bail during the course of trial and he has never misused the liberty of bail. On the basis of evidence adduced by the prosecution, there is no complicity of the accused/appellant. Accused/appellant is innocent and is entiled to be released on bail, during pendency of this appeal. 6. Learned Counsel for the appellant has vehemently argued that the investigating officer PW-9 Sri Atul Narain Singh, S.I. took hairs of the accused appellant after his arrest forcibly and these hairs were planted by him in the finger/closed palm of deceased Km. Suman Gupta. Case Diary of Parcha No. 1A is numbered 000088, whereas initially Case Diary is numbered as 000020 up to 000026. Suman Gupta. Case Diary of Parcha No. 1A is numbered 000088, whereas initially Case Diary is numbered as 000020 up to 000026. These facts has been mentioned in the cross examination of PW-9, therefore, hairs of the accused were planted by the investigating officer and Parcha No. 1A was prepared by him ante date and time. 7. During the course of argument statements of PW-4 and PW-5 were not referred by learned Counsel for the appellant and no material fact could be pointed out by learned Counsel regarding these statements of witnesses. 8. Learned A.G.A. has opposed bail application of the appellant and submitted that there is ample scientific evidence of Finger Print Expert and D.N.A. The test of hairs of accused, which were found in the fingers/closed palm of deceased Km. Suman Gupta. The motive of the crime was also proved by the prosecution and mobile phone of deceased was recovered from the possession of Satya Prakash, who was brother-in-law of the accused appellant. The accused handed over it to him. 9. Learned A.G.A. has submitted that PW-4 Sri Resham Singh Finger Print expert has stated that six finger prints were collected from the place of occurrence, which were sent to forensic lab on LPT card relating to Crime No. 1035 of 2006 under Section 302/307 I.P.C., Police Station Shahpur, Gorakhpur. The finger print collected from place of occurrence were marked at Serial No. 765 to 770 and four photocopies of finger prints were marked by Serial No. 1722 to 1725. The specimen finger print of right and left hand of accused-appellant were marked by Serial No. 771 to 780. Prints of right and left palm and foot were marked by Serial No. 781 to 784. On analyses of finger print collected from the place of occurrence and specimen finger prints of accused were analysed at the forensic lab. The disputed finger print Serial No. 766 was found same as available specimen finger prints Serial No. 771. The disputed finger print Serial No. 767 was same as specimen finger print Serial No. 778. The disputed finger print Serial No. 769 was same as specimen finger print Serial No. 776. The disputed finger print Serial No. 770 was found same as specimen finger print Serial No. 775. The disputed finger print 766 to 771, 767 to 778 and 769 matched with specimen 776. The disputed finger print Serial No. 769 was same as specimen finger print Serial No. 776. The disputed finger print Serial No. 770 was found same as specimen finger print Serial No. 775. The disputed finger print 766 to 771, 767 to 778 and 769 matched with specimen 776. The disputed finger print Serial No. 770 matched with specimen 775. 10. PW-4 has proved report by identifying his signatures and signatures of expert Sri A. K. Tiwari and Sri R. S. Yadav and papers were proved as material exhibit. Therefore, finger print collected by investigating agency from the place of occurrence were found compared with the specimen finger print of accused-appellant. 11. Learned A.G.A. has further submitted that PW-5 Dr. Farhad Sahin Scientist of forensic lab, Lucknow compared and analyzed hairs collected from the closed palm of the deceased Km. Suman Gupta and specimen hairs of accused-appellant. These were marked as Material Exhibit-01 and Material Exhibit 2 respectively. These hairs were found same. He has proved his report Exhibit Ka-12. 12. It is further submitted by learned A.G.A. that PW-9 S.I. Sri Atul Narain Singh has explained the circumstances in which inquest reports of all the deceased i.e. total 04 deceased, were prepared. He has specifically stated that inquest report of deceased Km. Suman Gupta was prepared and after preparation of this inquest report at the point of time to seal of her dead body, her finger in closed palm, i.e. “muthhi” were inspected minutely and some hairs were found entangled in her fingers. PW-9 dictated Parcha No. 1A to his subordinate, whose name he did not remember. 13. We have perused the inquest report Exhibit Ka-2 of the deceased Smt. Subhawati, which was started on 29.12.2006 at 12.40 and completed at 13.40. The inquest report of Km. Suman Gupta was started on 28.12.2006 at 13.00 p.m. and completed at 14.30 p.m. The inquest report of Abhai Gupta @ Chintu was started on 28.12.2006 at 11.00 a.m. and completed at 13.00 p.m. The inquest report of Sri Chandrayan Prasad Gupta was started on 08.06.2007 at 14.00 p.m. and completed on 15.40 p.m. 14. On perusal of these inquest reports, it reveal that Smt. Subhawati expired during treatment on 29.12.2006 and Km. Suman Gupta and Abhai @ Chintu died on the place of occurrence on 28.12.2006. On perusal of these inquest reports, it reveal that Smt. Subhawati expired during treatment on 29.12.2006 and Km. Suman Gupta and Abhai @ Chintu died on the place of occurrence on 28.12.2006. Some time might have taken place for preparation of these inquest reports during the period from 11.00 a.m. to 14.30 a.m. of both deceased Km. Suman Gupta and Abhai @ Chintu. During the course of preparation of inquest report of both the deceased hairs available in closed palm of Km. Suman Gupta could not be visualized by the investigating officer, who prepared these two inquest reports. For the first time at the point of time of process of seal of dead body of both these two deceased, hairs in closed palm of Km. Suman Gupta have been seen by the investigating officer. 15. As per post-mortem report of deceased Abhai Gupta @ Chintu following ante mortem injuries were found: “1. contused swelling whole of the neck and extending into upper part of chest. On cutting underneath Haematoma present and trachea and larynx congested fracture of hyoid bone and food material was present in air wall. 2. Lacerated wound on left side skull 6 cm above left ear of size 1 cm x 0. 5 cm x scalp deep. On cutting Haematoma present underneath.” 16. As per post-mortem report of deceased Km. Suman Gupta following ante mortem injuries were found: “1. incised wound 10 cm x 2 cm x bone deep in the mid of neck 10 cm below mandible protubrance. Larynx and trachea and oesophagus found cut. Haemotoma present around neck. 2. Lacerated wound of size 3 cm x 1 cm x muscle deep left side forehead just above left eyebrow. On cutting Haematoma present underneath.” 17. As per post-mortem report of deceased Subhawati Devi following ante mortem injuries were found: "1. stitched wound with four stitches on left side of skull contused swelling. On cutting Haematoma present underneath. Haematoma also present under derivative in brain. 2. One stitched wound on forehead in middle. 3. Lacerated wound 1 cm x 0.5 cm and 0.5 cm x 0.5 cm on the left side of temporal region. Contused swelling. On cutting Haematoma present. 4. Stitched wound on left side ear lobe. 5. Linear stitched wound 6 cm in length on lower side of chin 6 cm below mandibuler prominance. On cutting Haematoma present underneath. 6. 3. Lacerated wound 1 cm x 0.5 cm and 0.5 cm x 0.5 cm on the left side of temporal region. Contused swelling. On cutting Haematoma present. 4. Stitched wound on left side ear lobe. 5. Linear stitched wound 6 cm in length on lower side of chin 6 cm below mandibuler prominance. On cutting Haematoma present underneath. 6. Linear stitched wound in mid of neck 4 cm in length. On cutting Haematoma present underneath. 7. Incised wound 1 cm x 0.5 cm x muscle deep on right side neck. 8. Stitched wound 4 in nos on left side upper lip and 3 in numbers on right side upper lip. 9. Stitched wound single in number at 3 places on right side face. 10. Stitched wound on left wrist." 18. As per post-mortem report of deceased Chandrayan Prasad Gupta following ante mortem injuries were found: "1. Old healed scar 2 cm x 1 cm on the left side of temporal region of scalp. 2. Operated wound round in shape 1.5 cm into 1.5 cm anterior of the neck in lower part. 3. Bedsore 15 cm x 10 cm on lower back. " 19. On perusal of statement of PW-9, it reveal that Parch 1-A of Case Diary was prepared on 28.12.2006 after preparation of Case Diary Parch No. 01. 20. Learned A.G.A. has submitted that no specific question was put up during cross-examination of PW-9, in which circumstances Parch 1A was prepared on Case Diary Serial No. 000088. PW-9 has proved this fact that he prepared these both Case Diary Parch No. 01 and Parch No. 1-A on the same date i.e. 28.12.2006. PW-9 was transferred on 30.12.2006 in SOG department of district Gorakhpur and Sri Kamleshwar took over investigation on 31.12.2006, who recorded statement of Santosh Kumar Gupta and Smt. Poonam Gupta and other witnesses. The investigating officer has copied post-mortem report and inquest reports of the deceased persons in the Case Diary and recorded statements of witnesses. 21. PW-9 S.I. has refuted the suggestion that he obtained hairs of accused-appellant after his arrest. The accused-appellant in his statement recorded under Section 313 Cr.P.C. has nowhere stated that his hairs were collected by PW-9 forcibly after his arrest. He has answered question no. 17 regarding recovery of hairs from the closed palm of Km. Suman Gupta, deceased by stating that the recovery was shown forged. The accused-appellant in his statement recorded under Section 313 Cr.P.C. has nowhere stated that his hairs were collected by PW-9 forcibly after his arrest. He has answered question no. 17 regarding recovery of hairs from the closed palm of Km. Suman Gupta, deceased by stating that the recovery was shown forged. He has also answered question no. 4 regarding this recovery and stated that forged proceedings were conducted during the course of investigation. He has not specifically stated that on the date of his arrest hairs were collected forcibly. Nobody was produced on behalf of the accused as defence witness that his hairs were collected on the date of his arrest. 22. Learned A.G.A. has further pointed out that accused was arrested on 21.01.2007 at 11.30 a.m. on pointing out by Satya Prakash at Sahu Talkies, Fasilnagar by the police party of D.N.Singh SOG incharge and S.H.O. Sri Kamleshwar Singh. Shri Satya Prakash Gupta resident of Village Sukrauli, District Kushinagar provided information to the police party that accused-appellant, who was brother-in-law of Satya Prakash Gupta handed over, mobile set of IMEI No. 35939100546329 to his brother-in-law Satya Prakash Gupta and this mobile set was used on SIM No. 9415378745. Mobile phone set was of IMEI of the same number, which was of the deceased Chandrayan Prasad Gupta. The accused also disclosed property dispute and in which circumstances he committed this crime in night in house of the deceased persons, where he stayed on date of incident 27.12.2006. He reached at 7.30 p.m. on date of incident at house of the deceased persons. 23. PW-1 Ravindra Prasad Gupta is brother of the deceased Chandrayan Prasad Gupta. He found his brother, sister-in-law, niece and nephew in their house on 28.12.2007 at about 10.00 p.m. in injured state. Km. Suman Gupta and Abhai had expired and his brother Chandrayan Prasad Gupta and Smt. Subhawati were injured and unconscious. The Investigating Officer visited the place of occurrence and collected finger print available on the place of occurrence and hairs, which were in closed palm of Km. Suman Gupta and entangled in her fingers. 24. PW-2 Dr. Dhani Kumar Gupta is son-in-law of deceased Chandrayan Prasad Gupta. He was informed about the incident at about 9.00 by Sri Santosh Kumar, who is son of the deceased. Suman Gupta and entangled in her fingers. 24. PW-2 Dr. Dhani Kumar Gupta is son-in-law of deceased Chandrayan Prasad Gupta. He was informed about the incident at about 9.00 by Sri Santosh Kumar, who is son of the deceased. He was also present at the point of time of collection of finger print and hairs, which were entangled in the fingers of the deceased Km. Suman Gupta. PW-2 apprised the investing officer that there was dispute regarding partition of properties between family member of accused-appellant and deceased. Accused-appellant gave threat to the deceased Chandrayan Prasad Gupta. 25. PW-3 Santosh has proved this fact that deceased used mobile set on SIM Card 9839357059 which was recovered from Satya Prakash, who is brother-in-law of the accused-appellant. PW-3 Santosh apprised the investigating officer on 28.12.2006 itself that mobile phone of the deceased was missing. He also apprised that there was dispute between the family of the accused and his brother-in-law and his sister. 26. Learned trial Court on page 13 of the impugned judgment dated 31.03.2015 has mentioned and summarised the circumstances based on evidence produced by the prosecution, which are reproduced as under: “Prosecution has produced evidence on following facts:- 1. There was a motive behind incident. 2-The mobile phone of the deceased Chandrayan Prasad Gupta was recovered on the basis of an electronic surveillance, from the accused. 3-That fingerprints found on the spot which were compared and it was found that these were of the present accused, Udai Sengupta. 4-A bunch of hair was found entangled in the fingers of deceased Suman in her fist, which were probably due to her fighting with the accused, which were found to be of the accused on the basis of the DNA profiling.” 27. Learned A.G.A. has further submitted that PW-14 Dr. D.S. Negi is D.N.A. Expert and by D.N.A. profiling he has proved this fact as under: “1. the DNA profile of source number one exhibit A hair recovered from the hand of deceased Suman Gupta is of a male origin and identical to the DNA profile of sourse exhibit C bloodstain of Udai Sengupta results enclosed in table-1. 2. source of exhibit B that is, hair of Udai Sengupta did not contain DNA as the sample B was not properly taken and was not sufficient for profiling. 2. source of exhibit B that is, hair of Udai Sengupta did not contain DNA as the sample B was not properly taken and was not sufficient for profiling. Conclusion of the examination is that DNA tests performed on the exhibits provided is sufficient to conclude that the source of exhibit A hair recovered from the hand of deceased Suman Gupta is from the source of exhibit C Udai Sengupta.” 28. Therefore, PW-14 has given definite conclusion on the basis of DNA test that hairs recovered from the hand of the deceased of the Suman Gupta is from the source of Exhibit C i.e. appellant Udaisen Gupta. Therefore, on the basis of finger print report and report submitted by PW-14 DNA profile expert the involvement of accused-appellant was found by the trial Court. Therefore, F.I.R. lodged by PW-1 against unknown persons is not material. 29. On the basis of above discussions, we do not find any ground to enlarge the accused-appellant on bail, during pendency of this appeal. 30. Bail application lacks merit hence rejected. 31. Record of trial court has already been received. The Section is directed to prepare the paper book. After preparation of paper book, list this appeal before appropriate Bench for hearing on its own turn.