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Allahabad High Court · body

2019 DIGILAW 1211 (ALL)

Pappu Raj v. State of U. P.

2019-05-06

PANKAJ NAQVI, UMESH KUMAR

body2019
JUDGMENT : Pankaj Naqvi, J. 1. This criminal appeal is preferred against the judgment and order dated 24.9.2002 by the Additional Judge, Kannauj in S.T. No. 432 of 2001 convicting appellant for life under Section 302, IPC; under section 364, IPC to 10 years R.I.; with fine of Rs. 5,000/- and a default sentence of 2 years and under section 201, IPC to 2 years R.I. All sentences were to run concurrently. 2. The case of prosecution is that the sons of sister-in-law of the informant i.e., Ishaq alias Kadar Khan and Irshad were on visiting terms, former wanted to marry the daughter of informant (P.W-1) but he was not interested in the match. P.W-1 had fixed the marriage of his daughter at Mainpuri, barat was to arrive on 9.6.2000. On 31.5.2000 at around 9 a.m. accused Ishaq alias Kadar Khan sent the son of P.W-1 i.e. Asgar Ali alias Lalla (victim) alongwith his brother Irshad and others by making him board a bus for Miyaganj on the pretext of a marriage related errand. The victim did not return till night, frantic searches were made in and around the area including the neighbourhood and the relatives along with the accused Ishaq alias Kadar Khan. P.W-1 received letters of threat and ransom including several phone calls. P.W-1, matched the writing on the letter which matched with the handwriting of the accused Ishaq alias Kadar Khan on 8.7.2000. P.W-1 along with others grilled the accused Ishaq alias Kadar Khan who confessed that he had sent the victim along with co-accused Papu Raj and Munna Khan, subsequently what happened to the victim could be disclosed only after 4 p.m. Since, then accused person are not traceable, who not only abducted the victim but appears to have murdered him. 3. On above allegations, a report (Ex Ka-1) came to be scribed on 8.7.2000 which became a basis for lodging of an FIR (Ex Ka-13) under sections 302, 364, 201, IPC on same date at 12.30 p.m. against appellant-Pappu Raj, Ishaq alias Kadar Khan, Irshad and Munna Khan. 4. 3. On above allegations, a report (Ex Ka-1) came to be scribed on 8.7.2000 which became a basis for lodging of an FIR (Ex Ka-13) under sections 302, 364, 201, IPC on same date at 12.30 p.m. against appellant-Pappu Raj, Ishaq alias Kadar Khan, Irshad and Munna Khan. 4. During investigation accused Pappu Raj came to be arrested, at his pointing out at the outskirts of the city bone-pieces, clothes, bricks were recovered on 24.7.2000 at 11.40 a.m. in presence of P.W-2 (brother of P.W-1) and 2 named constables which the said accused alleged to be belonging to the victim who was eliminated by him along with 3 others named co-accused memo (Ex Ka-2). The police also recovered 4 ransom letters alleged to have been thrown in the house of informant, memo (Ex Ka-4). 5. The I.O. (P.W-5) after recording the statements and carrying out other investigational formalities submitted a charge sheet (Ex Ka-6) against accused Ishaq alias Kadar Khan and Pappu Raj under sections 364, 302/201 IPC. The case stood committed to the sessions, charges framed against the above accused persons which were denied by both of them who claimed trial. 6. The prosecution examined P.W-1, the informant, P.W-2, witness to recoveries of the bones, clothes etc. of the victim, P.W-3 (last seen), P.W-4, the medico who performed the autopsy of the victim and P.W-5 the I.O. 7. The accused in their statements claimed false implication due to previous enmity but did not lead any evidence. 8. During trial accused Ishaq alias Kadar Khan died, his trial abated. The trial court after considering the evidence on record convicted/sentenced the accused-appellant as above. 9. We have heard Shri R.C. Yadav/Prashant Kumar Singh, learned counsel's for the appellants and Shri A.N. Mulla, the learned A.G.A. 10. Learned counsels for the appellants raised the following contentions:-- (i) A case of circumstantial evidence, yet no incriminating link in the chain of circumstances is established. (ii) The FIR is lodged after more than 1 month and 8 days when not even a missing report was filed and the alleged explanation that accused Ishaq alias Kadar Khan was himself assisting in tracing the victim, is not borne out from evidence. (iii) The alleged recovery of bones, clothes etc, at the pointing out of appellant is highly doubtful as there was no independent witness to authenticate the recovery. (iii) The alleged recovery of bones, clothes etc, at the pointing out of appellant is highly doubtful as there was no independent witness to authenticate the recovery. (iv) The testimony of P.W-4/the doctor who examined the bone pieces indicates that they belong to more than one person. (v) Motive for ransom is not established. Learned A.G.A. opposed the submissions on the ground that motive is duly established with the ransom-letters, all links in the chain of circumstances are established, plea of corpus delicti is of no consequence as bones, clothes of the victim were recovered at the pointing out of appellants, explanation for delay in the lodging of FIR is satisfactory, appeal is bereft of merit, liable to be dismissed. 11. The Apex Court in a recent decision i.e., Criminal Appeal No. 1193 of 2011 Chandra alias Chandrasekaran v. State Represented by Deputy Superintendent of Police CB CID and another decided on 12.2.2019 (Reported in 2019 (3) Scale 280 ) summarised the law on circumstantial evidence as under: "The law with regard to appreciation of circumstantial evidence has been clearly enunciated in the case of Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343 , wherein this Court held as follows: "10. .....It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 10. This law has been consistently followed and has been repeated in catena of authorities. It is not necessary to refer to all the authorities. However, we may refer to Sir Alfred Wills book Wills on Circumstantial Evidence (Chapter VI) Butterworths, Seventh Edition, Pp. This law has been consistently followed and has been repeated in catena of authorities. It is not necessary to refer to all the authorities. However, we may refer to Sir Alfred Wills book Wills on Circumstantial Evidence (Chapter VI) Butterworths, Seventh Edition, Pp. 296-329, in which he has laid down the following Rules specially to be observed in the case of circumstantial evidence: "RULE 1.-The facts alleged as the basis of any legal inference must be clearly proved, and beyond reasonable doubt connected with the factum probandum............ RULE 2.-The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability................ RULE 3.-In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits......... RULE 4.- In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.................. RULE 5.-If there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." 11. The law can be summarised in the following terms: 1. The circumstances relied upon by the prosecution which lead to an inference to the guilt of the accused must be proved beyond doubt; 2. The circumstances should unerringly point towards the guilt of the accused; 3. The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused; 4. That there should be no probability of the crime having been committed by a person other than the accused. 12. It is in the light of the aforesaid law that we have to consider the evidence and the circumstances relied upon by the courts below. 13. In a case based on circumstantial evidence it is always better for the courts to deal with each circumstance separately and then link the circumstances which have been proved to arrive at a conclusion. 12. To secure a conviction in the present case the prosecution has to establish the following links:-- (i) Victim on 31.5.2000 at about 9 in the morning left with Irshad, brother of accused Ishaq alias Kadar Khan to board a bus for Miyaganj. 12. To secure a conviction in the present case the prosecution has to establish the following links:-- (i) Victim on 31.5.2000 at about 9 in the morning left with Irshad, brother of accused Ishaq alias Kadar Khan to board a bus for Miyaganj. (ii) Victim was last seen by P.W-3 around 9-10 a.m. near the bus-stop of Chhibramau. (iii) Recovery of ransom letters from the house of P.W-1 in the handwriting of accused Ishaq alias Kadar Khan. (iv) Arrest of appellant and recovery of bone-pieces, clothes of victim at his pointing out on 24.7.2000. 13. To recapitulate, the case of prosecution is that the son of informant was taken by accused Ishaq alias Kadar Khan on 31.5.2000 at about 9 a.m. in connection with a marriage related errand. The victim was made to board a bus on the same date along with Irshad (brother of accused Ishaq) for Miyaganj. The victim did not return. Searches were made at all possible destinations along with accused Ishaq. 14. On the morning of 1.6.2000 a ransom letter (Ext 1) demanding Rs. 32,000/- in lieu of release of the son was received by P.W-1 while accused Ishaq alias Kadar Khan had slept in the house of P.W-1, followed by recovery of 2nd ransom letter (Ex-2) demanding Rs. 32,000/- after 3-4 days of the victim went missing, 3rd and 4th ransom letters (Ex-3 & 4) demanding Rs. 50,000/-. 15. P.W-3 claims to have seen the victim alongwith accused Ishaq alias Kadar Khan, Irshad, Pappu and Munna on 31.5.2000 at around 9-10 a.m. at bus-stand, Chhibramau. He admits that he shared this information with P.W-1 after 8-10 days of the alleged last seen. If it were so then there was no plausible reason for P.W-1 on having learnt about the identity of the culprits along with whom the victim was last seen, to have lodged a report at first available opportunity. On the contrary the report came to be lodged after almost one month of the date on which the information of last seen was conveyed to P.W-1. The credibility of P.W-3 is further dented when his statement was recorded after almost 37 days. 16. It is very unlikely and unnatural human conduct that the informant, whose son (victim) was missing, was continuously receiving one ransom letter after the other, total 4, demanding a specific amount for release of his son, yet no report was lodged. The credibility of P.W-3 is further dented when his statement was recorded after almost 37 days. 16. It is very unlikely and unnatural human conduct that the informant, whose son (victim) was missing, was continuously receiving one ransom letter after the other, total 4, demanding a specific amount for release of his son, yet no report was lodged. We understand that the family of victims, in a case of kidnapping/abduction followed by ransom, are reluctant to initiate any prompt police action for fear of any hostile action on the part of accused as they want safe release of the victim after fulfilling the demand of accused. But that is not the case here. In the instant case PW-1 had already acquired knowledge after 8-10 days from PW-3 (last seen), that the victim was seen with the appellant and other 3 accused on 31.5.2000, further the mere fact that no evidence was led by prosecution which could suggest that the informant had arranged for funds and had left for the designated place to ensure the safe release of his son (victim). Thus the inference which is generating from the conduct of P.W-1 is that on the one hand despite the disclosure of the fact that PW-3 (last seen) had seen the victim along with the appellant and other 3 accused on 31.5.2000 at about 9-10 a.m. at bus stand Chhibramau, and on the other after receipt of ransom letters he made no effort to arrange for funds, though the FIR was lodged after one month and 8 days of the victim went missing, it becomes evident that the prosecution is setting up a false plea both of P.W-3 (last seen) and the ransom letters (Exs. 1 to 4). 17. PW-2 claims to be a witness to the recovery memo (Ex Ka-2) and that of the inquest (Ex Ka-3). The recoveries were made at the alleged pointing out of appellant-Pappuraj around 18 kms away from Chhibramau. 18. P.W-4 is the medico who conducted the autopsy of the bones of the deceased on 25.7.2000 at 3.45 p.m. He was not in a position to confirm as to whether these bones were of a male or a female. He also could not confirm whether these bone pieces belong to one and the same individual or for that matter the alleged bones represented all the bones of an individual. He also could not confirm whether these bone pieces belong to one and the same individual or for that matter the alleged bones represented all the bones of an individual. Thus from the testimony of P.W-4, it cannot be safely said that the bones were of none other than the victim alone. 19. We after going through the testimonies of prosecution witnesses are of the considered view that none of the links are conclusively established pointing out to the guilt of no other person than appellant-Pappuraj. Assuming that the family of the informant and accused Ishaq alias Kadar Khan were on visiting terms, marriage in the family of informant was round the corner, it was not unlikely that the victim went with accused Ishaq alias Kadar Khan in connection with a marriage related work on 31.5.2000. But, this fact alone cannot generate an irrefutable hypothesis that co-accused Ishaq alias Kadar Khan handed over the custody of the victim to appellant Pappuraj who eliminated the victim. The alleged extra judicial confession of accused Ishaq alias Kadar Khan cannot be relied upon to convict appellant Pappuraj as its' a very weak evidence and also the appellant was tried solely as the trial of accused Ishaq alias Kadar Khan stood abated on account of his death. 20. Once we have repelled the theory of ransom, we have serious reservations on the motive of appellant for committing the alleged murder. 21. We are of the considered view that the prosecution miserably failed to establish its case, beyond any doubt, rendering the judgment vulnerable in law. 22. The appeal is allowed. The judgment/order dated 24.9.2002 is set aside. The appellant is acquitted of the charges. Appellant is on bail. His bail-bond stands cancelled and sureties discharged. Let this judgment/order be communicated to the Trial Court forthwith. Compliance report be submitted within 2 months.