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2018 DIGILAW 1724 (ALL)

Rakesh v. State of U. P.

2018-08-06

RAM SURAT RAM (MAURYA), UMESH CHANDRA TRIPATHI

body2018
JUDGMENT : Umesh Chandra Tripathi, J. Heard Sri Bhagwan Das Sharma, learned counsel for the appellants and Sri Rajesh Kumar Mishra, Brief Holder for the State of U.P. 2. This appeal is directed against the judgment and order dated 17.3.2010 passed by learned Addl. Sessions Judge, Court No. 8, Shahjahanpur in S.T. No. 185 of 2007 (State Vs. Rakesh and others) arising out of case crime no. 394 of 2006 whereby the accused-appellants Rakesh, Sarvesh, Jandail and Mahesh were convicted and sentenced as follows: (a) Life imprisonment alongwith fine of Rs. 5000/- each under Section 302/34 Indian Penal Code (In short 'IPC') and in case of default in payment of fine, to undergo one year additional imprisonment and (b) Three years rigorous imprisonment alongwith fine of Rs. 2000/- each under Section 201 IPC and in case of default in payment of fine, to undergo six months additional imprisonment. By the impugned judgment and order, accused Rajendra was acquitted. However, no appeal for acquittal has been filed. 3. All these sentences were directed to run concurrently. 4. The brief facts of the prosecution case are that on 28.9.2006 informant Nanhe and his son Sarvesh on a bicycle and behind them at some distance Chhanga and Harish also sons of informant on another bicycle were returning to home from Baribara jungle after picking and collecting wood. Informant Nanhe and his son Sarvesh reached approximately KM ahead to Gahluhiya bridge on Kamalpur Road at about 5:00 PM. Accused Sarvesh, Mahesh, Jandail and Rakesh armed with axe and gadasa stopped them and after dragging Sarvesh from the bicycle, they beheaded Sarvesh by assaulting with axe and gadasa upon the road. Accused-appellants threw the dead body of deceased Sarvesh upon the road and proceeded towards canal with head of Sarvesh and bicycle belonging to them. Due to fear, informant Nanhe fled from the spot and reached at his home. After that they also stopped Chhanga and Harish who were coming behind informant by abusing them near the bridge. Due to fear, Harish also fled from the spot and reached at his home after leaving the bicycle. They apprehended Chhanga and murdered him with axe and gadasa and threw the dead body of Chhanga into the canal. Informant Nanhe went at police station with some villagers. Due to fear, Harish also fled from the spot and reached at his home after leaving the bicycle. They apprehended Chhanga and murdered him with axe and gadasa and threw the dead body of Chhanga into the canal. Informant Nanhe went at police station with some villagers. On his information, first information report as Case Crime No. 394 of 2006 under Sections 302, 201, 504 IPC against accused-appellants Rakesh, Sarvesh, Jandail and Mahesh was lodged at Police Station Banda, District Shahjahanpur on 29.9.2006 at 00:15 hours. Police went on the spot and conducted inquest on the person of deceased Sarvesh. Inquest report and related papers were prepared. Thereafter, the dead body of the deceased Sarvesh was sent for post mortem. Post-mortem of dead body without head of deceased Sarvesh was conducted on 29.9.2006 by PW-5 Dr. N.K. Saxena who noted the following ante-mortem injuries:- "(i) incised wound of circumference of 30 cm and diameter of 8 cm at level of C 5 vertebrae, margin clean cut. (ii) Incised wound 2 cm x cm x muscular deep over right side of lower neck, margin clean cut. (iii) Incised wound 2.5 cm x cm x muscular deep over mid on lower neck, clean cut. (iv) Incised wound 9 cm x 3 cm x bone deep on the right shoulder. (v) Incised wound 3 cm x 1 cm x muscular deep on top of left shoulder. (vi) Incised wound 14 cm x 7 cm x bone deep on right chest present below right nipple. (vii) Incised wound 3.5 cm x 2 cm x muscular deep on front of right wrist. (viii) Incised wound 5 cm x cm x muscular deep on right upper arm 4 cm below shoulder. (ix) Incised wound 9 cm x 2 cm x bone deep on left shoulder." Margins of all above injuries are clean cut. In the opinion of doctor, cause of death of deceased was shock and hemorrhage due to ante-mortem injury. Duration of death was about one day. 5. Bones of skull of deceased Sarvesh was recovered on 4.10.2006 at 2:30 PM on the joint information of accused appellants Jandail and Mahesh by the police from bushes. Jai Sukh identified the head of deceased Sarvesh on the basis of teeth. Duration of death was about one day. 5. Bones of skull of deceased Sarvesh was recovered on 4.10.2006 at 2:30 PM on the joint information of accused appellants Jandail and Mahesh by the police from bushes. Jai Sukh identified the head of deceased Sarvesh on the basis of teeth. Examination of bones of skull of deceased Sarvesh was conducted on 5.10.2006 by Dr D.S. Mishra and found that head was cut at C-5 vertebrae, margin clean cut. 6. On the information of accused-appellant Sarvesh, the axe alleged to be used in committing crime was recovered by the police on 30.9.2006 at 8:35 PM. On 4.10.2006 at 5:00 PM on the information of appellant Jandail, a banka alleged to be used in the commission of crime was recovered by the police. On the same day at 5:40 PM on the information of appellant Mahesh, a farsa alleged to be used in the commission of crime was recovered by the police. On 7.10.2006 at 9:15 AM on the information of accused/appellant Rakesh, two bicycle belonging to deceased Sarvesh and Chhanga were recovered by the police. 7. After investigation, chargesheet has been submitted against appellants Rakesh, Sarvesh, Jandail and Mahesh and co-accused Rajendra under Sections 302, 201, 504, 34, 120-B IPC. 8. Learned Trial Court has framed charges under Section 302/34, 504, 120-B and 201 IPC against appellants Rakesh, Sarvesh, Jandail and Mahesh and co-accused Rajendra and explained charges to them. They have pleaded not guilty and claimed to be tried. 9. To substantiate charges against accused persons, prosecution has examined PW-1 Harish, PW-2 Ram Naresh and PW-3 Sarvesh son of Sumer as witnesses of facts and PW-4 Shrikant, PW-5 Dr. N.K. Saxena, PW-6 Investigating Officer Sub Inspector Ajay Kumar Chauhan, PW-7 Investigating Officer Sub Inspector Shashikant Sharma and PW-8 Dr D.S. Mishra as formal witnesses. 10. Except as above, no other witness was adduced, therefore, evidence for the prosecution was closed and statements of the accused were recorded under Section 313 Code of Criminal Procedure (hereinafter referred to as Cr.P.C."), wherein, they claimed their innocence and pleaded that they have been falsely implicated in this case due to enmity. They further stated that witnesses are deposing against them due to enmity. 11. In defence, no defence witness was adduced. 12. They further stated that witnesses are deposing against them due to enmity. 11. In defence, no defence witness was adduced. 12. Upon detailed consideration of evidence on record, learned Trial Court found that the guilt of the accused/appellants for the offences punishable under Sections 302/34 and 201 IPC is proved beyond reasonable doubt and passed aforesaid order of conviction and sentence. 13. Learned counsel for the appellants contended that identity of deceased Sarvesh could not be established by the prosecution. FIR has been lodged with inordinate delay without any plausible explanation. Witnesses of fact are not the eye witness and had not seen the occurrence. There are material contradiction in the ocular testimony of witnesses of fact. No independent witness has been examined by the prosecution. Role of conspiracy has been assigned to the co-accused Rajendra who had been acquitted by the learned trial court. Learned trial court has passed the impugned order without considering all these facts, which is not sustainable. 14. Learned A.G.A., has contended that there is no any error or infirmity in the order passed by the learned Trial Court and as such the appeal is liable to be dismissed. 15. Although, the bones of skull of deceased Sarvesh was identified by Sri Jaisukh on the basis of teeth. It is not possible to identify a person on the basis of teeth and bones of skull. There is no dispute that beheaded body was of deceased Sarvesh. From the perusal of the post mortem report of beheaded body of deceased Sarvesh and bones of skull, it is evident that the recovered skull and the beheaded dead body of which post mortem was conducted on 29.9.2006 were of the same person as the head was separated from the rest of the body by cutting at level C-5 vertebrae. This fact is also corroborated from the fact that death of duration mentioned in the post mortem of the beheaded body was of one day and in post mortem report of bones of skull, the duration of death was mentioned as one week. From these facts, it is evident that bones of skull was of deceased Sarvesh. 16. Occurrence has taken place on 28.9.2006 at 5:00 PM. Informant Nanhe went at his home from the spot which is situated at a distance of about 6 KM. After that he informed the villagers. From these facts, it is evident that bones of skull was of deceased Sarvesh. 16. Occurrence has taken place on 28.9.2006 at 5:00 PM. Informant Nanhe went at his home from the spot which is situated at a distance of about 6 KM. After that he informed the villagers. With the help of villagers he went at the police station which was about 14 KM from the place of occurrence and first information report was lodged in the same night at 00:15 hours. Accordingly, it cannot be said that first information report has been lodged with inordinate delay. 17. Informant Nanhe could not be examined as he had died. 18. PW-2 Ram Naresh is real brother of informant Nanhe. It is not narrated in the FIR that Ram Naresh was also coming behind Harish and deceased Chhanga, son of informant Nanhe at the time of incidence. This was a material fact. Due to non mentioning of this fact in the first information report, it infers that this fact has been improved after due deliberation only to show Ram Naresh as an eye witness. In the first information report, it is mentioned that informant Nanhe and his sons Sarvesh reached approximately KM ahead from Gahluhiya bridge to Kamalpur Road, where accused met them and committed murder of deceased Sarvesh. Kamalpur road is in the east side of the bridge. PW-1 Harish was not coming with his father Nanhe and his brother Sarvesh. PW-1 Harish stated that when he reached at some distance in east of bridge with his brother Chhanga, accused/appellants stopped them and caused murder of his brother Chhanga. PW-1 Harish had not seen the accused person while they were murdering his brother Sarvesh. There was distance of about KM between places of murder of Sarvesh and murder of Chhanga. In such circumstance, it was not possible for PW-1 Harish to see the murder of his brother Sarvesh. PW-1 Harish in his statement has not stated that he had seen the murder of his brother Sarvesh. He only stated that these accused have committed murder of his brother Sarvesh by beheading him on the same day. The murder of Sarvesh was committed in east side from the place of murder of deceased Chhanga. According to statement of PW-1 Harish and statement of PW-2 Ram Naresh, Ram Naresh was coming behind Harish and Chhanga. He only stated that these accused have committed murder of his brother Sarvesh by beheading him on the same day. The murder of Sarvesh was committed in east side from the place of murder of deceased Chhanga. According to statement of PW-1 Harish and statement of PW-2 Ram Naresh, Ram Naresh was coming behind Harish and Chhanga. As Harish has not seen the murder of Sarvesh, then it was not possible for PW-2 Ram Naresh to see the murder of deceased Sarvesh as he was coming behind Harish and murder of Sarvesh was committed when Sarvesh and Nanhe were going ahead to PW-1 Harish. 19. For the aforesaid reasons, we are of the considered view that PW-2 Ram Naresh is neither eye witness of the fact nor trustworthy witness. 20. As alleged, informant Nanhe was eye witness of murder of his son Sarvesh. There was no other eye witness of murder of deceased Sarvesh. Murder of Sarvesh and Chhanga were committed in the same sequence. If it is proved that accused/appellants have committed murder of Chhanga, then it may be presumed that they might have committed murder of Sarvesh also. 21. In the first information report, it is mentioned that PW-1 Harish and deceased Chhanga were going on same bicycle. Contrary to the version of FIR, PW-1 Harish in his cross-examination stated that when appellants/accused apprehended Chhanga, he was at distance of 16-17 steps from him. PW-1 Harish has admitted in cross-examination that they went in jungle to pick wood at about 9:00 AM and further admitted that they have picked and collected wood about 2 hours. Accordingly, they must return at their home about 11:00 AM. The reason for staying up to 5:00 PM of the whole family in the jungle is not explained by the prosecution. One man can easily collect sufficient wood to carry on a bicycle but what was the reason for Nanhe and Harish to go with Sarvesh and Chhanga in jungle is not explained. Sarvesh, Nanhe, Harish, Chhanga and Ram Naresh were members of same family. They reached on bridge at about 5:00 PM at some interval. Generally family members return home from jungle together. None of the witnesses of fact explained about not returning to home of all family members together from jungle. 22. Sarvesh, Nanhe, Harish, Chhanga and Ram Naresh were members of same family. They reached on bridge at about 5:00 PM at some interval. Generally family members return home from jungle together. None of the witnesses of fact explained about not returning to home of all family members together from jungle. 22. It was known fact to the informant Nanhe that his sons Harish and Chhanga were coming behind him, his brother PW-2 Ram Naresh was also coming behind Harish and Chhanga at some distance. When accused were committing murder of his son Sarvesh, who was going with him, then, it was natural for Nanhe to return back towards his sons and his brother Ram Naresh to alarm them and call for rescue of his son Sarvesh. But Nanhe had not done so and chose to fled away from the spot to his home, which was situated at 6 KM from the spot. PW-1 Harish has also not attempted to alarm his father who was going ahead at some distance and his uncle Ram Naresh who was coming behind at some distance. PW-1 Harish and PW-2 Ram Naresh admitted this fact that they had fled away from the spot to their home. Contrary to examination-in-chief, PW-1 Harish stated in his cross-examination that from the spot he went to village Kamalpur but the residents of village Kamalpur did not pay an attention. This statement of PW-1 Harish does not appear natural. Both the witnesses of fact PW-1 Harish and PW-2 Ram Naresh admitted this fact that nearby the jungle, there were many villages such as Luchanlochi, Kamalpur, Navi Nagar and in all these villages mostly sardar communities resides. In between place of occurrence and residence of informant, there might have been many other villages but informant Nanhe, PW-1 Harish and PW-2 Ram Naresh had neither gone in any of the villages nor requested any of the villagers to rescue. Age of deceased Sarvesh was about 20 years, Chhanga was his brother, he might have been a young person at the time of incident. PW-1 Harish was also young. PW-2 Ram Naresh was examined in Court on 21.10.2008 and stated his age about 35 years. Accordingly, on the date of occurrence, he was also young. Accused were not armed with fire-arm weapon. They were armed with sharped edged weapon i.e. axe and gadasa. PW-1 Harish was also young. PW-2 Ram Naresh was examined in Court on 21.10.2008 and stated his age about 35 years. Accordingly, on the date of occurrence, he was also young. Accused were not armed with fire-arm weapon. They were armed with sharped edged weapon i.e. axe and gadasa. Even though, informant Nanhe and PW-1 Harish and PW-2 Ram Naresh had not made any attempt to save Sarvesh and Chhanga. They have sustained no injury. This conduct of witnesses do not appears reasonable and natural. Accordingly, presence of Nanhe, Harish and Ram Naresh at the time of occurrence is highly doubtful. 23. As per prosecution allegation, accused person firstly committed murder of Sarvesh and beheaded his body. Thereafter, they went to commit murder of Chhanga with the head of deceased Sarvesh alongwith bicycle and then committed murder of Chhanga. After committing murder of Chhanga, they took his dead body with them and went to canal and threw the dead body of Chhanga in it. This conduct of accused/appellant is not natural. Presence of informant Nanhe and Harish was known to accused. In such circumstances, natural conduct of accused/appellants would be to flee away from the spot after committing murder as early as possible. Accordingly, prosecution version, does not appear to be reliable. 24. The alleged recovery of axe, banka or farsa on the pointing out of accused person is not material for decision of this case. As per Forensic Science Laboratory report, the origin of blood found on these weapons could not be determined as blood was disintegrated. Prosecution has not produced any evidence to show that murder of Sarvesh and Chhanga have been caused by these weapons. Recovery of bicycle as alleged, is also not very much material for decision of this case. This recovery may easily be shown by the Investigating Officer to strengthen the prosecution version. 25. As far as recovery of bones of skull of deceased Sarvesh on the pointing of information of accused-appellants Jandail and Mahesh is concerned, statements of accused were not recorded before the public witnesses. Jai Sukh who had identified the bones of skull of deceased Sarvesh is not examined by the prosecution. Memo of confessional statement of accused Jandail and Mahesh was not prepared by the police. PW-7 Sub Inspector Shashikant Sharma has also not stated the time of recovery of bones of skull of deceased Sarvesh. Jai Sukh who had identified the bones of skull of deceased Sarvesh is not examined by the prosecution. Memo of confessional statement of accused Jandail and Mahesh was not prepared by the police. PW-7 Sub Inspector Shashikant Sharma has also not stated the time of recovery of bones of skull of deceased Sarvesh. He has also not specified that for the first time from whom accused, he had got the information about the bones of skull of deceased Sarvesh. It is unnatural that both the accused states simultaneously about the place, where they conceal the head of deceased Sarvesh. As first information report was lodged mentioning that the dead body of Chhanga was thrown in the canal but police has not made effort to search the dead body of Chhanga on 29.9.2006 and 30.9.2006. PW-7 Sub Inspector Shashikant Sharma stated before the court that police has attempted to recover the dead body of Chhanga on 1.10.2086 and 2.10.2006. If it was known to the police that the dead body of the Chhanga was thrown in the canal, then police should firstly attempt to recover the dead body of Chhanga from the canal immediately. But for two days, police had not made any such effort. Sub Inspector Shashikant Sharma has not specifically narrated the time of search for dead body of deceased Chhanga in the canal. This conduct of the police shows that it was known to the police that the dead body of the deceased was not thrown in the canal. Otherwise, there was no reason for not making effort to search the dead body of Chhanga in the morning of 29.9.2006. 26. PW-1 Harish has stated that his uncle Ram Sukh and Ram Lakhan had committed murder of Naresh, who was brother of accused Sarvesh and of Jwala Prasad, who was uncle of accused Sarvesh, due to which, accused persons have committed murder of his brothers Sarvesh and Chhanga. At the time of murder of Naresh and Jwala Prasad, the age of the deceased Sarvesh was about 4 years. PW-1 Harish had admitted this fact that the case of murder of Naresh and Jwala Prasad was compounded between the parties and that enmity came to an end. As such, there was no any reason for the accused persons to commit murder of deceased who were child at the time of murder of Naresh and Jwala Prasad. PW-1 Harish had admitted this fact that the case of murder of Naresh and Jwala Prasad was compounded between the parties and that enmity came to an end. As such, there was no any reason for the accused persons to commit murder of deceased who were child at the time of murder of Naresh and Jwala Prasad. Accordingly, motive for committing murder is also not proved. 27. From the facts and circumstances of the case, it appears that some people might have seen the occurrence and informed to informant Nanhe about the occurrence but they were not willing to came into light and be witness of the case. On their information, Nanhe might have lodged the first information report showing the family members as eye witnesses of the occurrence. Appellants are real brother. Some or all of them might have committed the murder, but only on the basis of suspicion, how the strong may be, no one could be convicted without evidence. 28. Learned Trial Court has passed the impugned order of conviction without considering all these facts and without properly appreciating the evidence on record, which is not sustainable. 29. Consequently, the appeal is allowed. Conviction and sentences of appellants Rakesh, Sarvesh, Jandail and Mahesh under Sections 302/34 and 201 IPC are set aside and they are acquitted. They are in jail. They shall be released forthwith, if not detained in any other case. 30. Let a certified copy of this judgment and order along with Lower Court record be sent back to the trial court for its intimation and necessary compliance.