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2019 DIGILAW 92 (ALL)

Durga Mishra v. State of U. P.

2019-01-10

DINESH KUMAR SINGH, RAMESH SINHA

body2019
JUDGMENT : Ramesh Sinha, J. The present appeal has been filed by three appellants out of which appellant no. 1 Durga Mishra son of Jagdeo and appellant no. 2 Madan Singh son of Jangi Singh died during the pendency of appeal and the appeal on their behalf has already been ordered to be abated by this Court vide order dated 19.7.2016 and the present appeal survives with respect to appellant no. 3 Jata Shanker Pandey only, hence the Court proceeds to adjudicate the aforesaid appeal with respect to the said appellant, namely, Jata Shanker Pandey. 2. The present appeal has been preferred against the judgment and order dated 30.6.1983 passed by VII Additional Sessions Judge, Deoria in Session Trial No. 15 of 1982 convicting and sentencing the appellant under sections 302/34 I.P.C. to imprisonment for life and under section 201 I.P.C. to three years rigorous imprisonment. All the sentences were ordered to run concurrently. 3. The prosecution case in brief is that accused Jata Shanker Pandey is the nephew (Bhanja) of accused Durga Mishra and accused Radhey Shyam is the nephew (Bhatija) of Durga Mishra. The accused Jata Shanker Pandey and Rajendra Pathak are the friends of accused Madan Singh. The accused Madan Singh along with accused Jata Shanker Pandey used to come to the house of accused Durga Mishra in village Kathwalia prior to the incident. The deceased Vidhya was the cousin of accused Madan Singh. The parents of the deceased Vidhya had expired and his elder brother has left the house as he became maniac. The deceased Vidhya left all alone in his family. The agricultural land of accused Madan Singh and the deceased Vidhya were in partnership. The motive which has been suggested for the crime by the prosecution is that the deceased Vidhya had got his agricultural land partitioned from accused Madan Singh. Thereafter, he himself started ploughing his agricultural land after giving some part of it on Batai to one Raghunath Dhobi. The accused Madan Singh wanted that the agricultural land of deceased Vidhya be remained with him, hence in order to grab the said land, he conspired the murder of the deceased Vidhya. 4. On 4.10.1981, village Chaukidar, namely, Ramjeet Mallah had received an information that a dead body is lying in the field of one Paramhans Pradhan. The accused Madan Singh wanted that the agricultural land of deceased Vidhya be remained with him, hence in order to grab the said land, he conspired the murder of the deceased Vidhya. 4. On 4.10.1981, village Chaukidar, namely, Ramjeet Mallah had received an information that a dead body is lying in the field of one Paramhans Pradhan. On receiving the said information, he went to the place of occurrence and when he saw that a decapitated dead body of a male is lying there, he after leaving the said dead body in the supervision of some persons of the village, namely, Paramhans, Ugrasen and others, went to police station Rampur Karkhana, Deoria to inform about the same. On receiving the said information, the police registered an F.I.R. as case crime no. 95 of 1981 under section 302/201 I.P.C. at police station Rampur Karkhana on 4.10.1981 at 15:04 hours against unknown persons. 5. The Investigating Officer Shamsher Singh took the investigation of the case and reached the spot on 4.10.1981 itself and called the Photographer, who took the photos of the said decapitated dead body. Thereafter the Investigating Officer prepared the inquest of the decapitated dead body (Ex. Ka.-1), sealed the same and sent for postmortem through Constable Balram Mishra. 6. On 6.10.1981, two persons, namely, Naresh and Jagai of village Kaithwalia had gone to river for washing patwa where they saw that a shredded head of a person is lying on which they informed about the same to Innar Pradhan, who on getting the said information went there along with some other persons of the village and saw that shredded head of a male person is lying. Thereafter Innar Pradhan had sent P.W. 4 to police station for giving information about the same. On receiving the said information, the Sub Inspector reached the spot and took the said shredded head into the custody and got the inquest report (Ex. Ka-5) of the same prepared. The Investigating Officer after concluding the inquest proceedings, sealed the same and sent for postmortem through Constable Kanta Rai. 7. The Investigating Officer Shamsher Singh during the course of investigation recorded statements of Madan Singh son of Bhokal, Ram Autar, Sudama, Ram Nagina Tiwari under section 161 Cr.P.C. and after completing the investigation submitted charge-sheet (Ex. Ka. The Investigating Officer after concluding the inquest proceedings, sealed the same and sent for postmortem through Constable Kanta Rai. 7. The Investigating Officer Shamsher Singh during the course of investigation recorded statements of Madan Singh son of Bhokal, Ram Autar, Sudama, Ram Nagina Tiwari under section 161 Cr.P.C. and after completing the investigation submitted charge-sheet (Ex. Ka. 26) against five accused persons including the appellant before the Magistrate concerned, who committed the case to the Court of Session which framed charges against the appellant alongwith two accused persons, namely, Durga Mishra and Madan Singh under section 302/201 I.P.C. The accused denied the charges and claimed their trial. 8. The prosecution in support of its case has examined 14 witnesses, i.e., P.W. 1 Madan Singh son of Bhokal, P.W. 2 Sudama, P.W. 3 Ramjeet Mallah, P.W. 4 Innar, P.W. 5 Darshan, P.W. 6 Ram Autar, P.W. 7 Balram Mishra, P.W. 8 Sri Kant Rai, P.W. 9 Ram Nagina Tiwari, P.W. 10 Sita Ram, P.W. 11 Dr. Shyam Lal Varnwal, P.W. 12 Hafijulla Ansari, P.W. 13 Dr. M.S. Azam and P.W. 14 Sham Sher Singh-the Investigating Officer. 9. The documentary evidence filed by the prosecution in support of its case, i.e., the inquest report of decapitated dead body (Ex. Ka. 1), F.I.R. (Ex. Ka. 2), inquest of shredded head (Ex. Ka. 3), post mortem of decapitated dead body (Ex. Ka. 4), copy of the post mortem of shredded head (Ex. Ka. 5), Original postmortem report of shredded head (Ex. Ka. 6), copy of G.D. (Ex. Ka. 7), police form and other documents relating to decapitated dead body and shredded head (Exs. Ka. 8 to 14) and (Exs. Ka. 20 to 23), site plan (Ex. Ka. 15) and (Ex. Ka. 24), recovery memo of blood stained and plain earth (Ex. Ka. 16 and 17), recovery memo of Lungi (Ex. Ka. 18) recovery memo of blood stained Gamchha (Ex. Ka. 19), recovery memo of torch (Ex. Ka. 25), Charge-sheet (Ex. Ka. 26), copy of the application of accused Madan Singh (Ex. Ka. 27). 10. The statements of the accused were recorded under section 313 Cr.P.C. by the trial court in which they denied the prosecution case and stated that they have been falsely implicated in the present case. 11. The accused Madan Singh had denied that the accused Jata Shankar was his friend. Ka. 27). 10. The statements of the accused were recorded under section 313 Cr.P.C. by the trial court in which they denied the prosecution case and stated that they have been falsely implicated in the present case. 11. The accused Madan Singh had denied that the accused Jata Shankar was his friend. The defence had taken a plea that the elder brother of the deceased Vidhya had become maniac and left his house and gone somewhere and it is quite possible that Vidhya has also became maniac and under the said condition he himself had gone somewhere and was neither murdered nor killed. 12. P.W. 1 Madan Singh son of Bhokal has deposed before the trial court that he knew accused Durga Mishra and Radhey Shyam, who belong to his village. Accused Durga Mishra is the uncle of accused Radheyshyam. He is aware of village Satiyawan where the accused Jata Shanker Pandey, who is also known to him, resides. The Nanihal of accused Jata Shanker Pandey is in his village Kathwalia. The accused Jata Shankar Pandey and accused Durga Mishra are related to each other as accused Jata Shankar Pandey is nephew (Bhanja) of accused Durga Mishra. Accused Jata Shankar Pandey used to come to the house of accused Durga Mishra. Village Satiyawan situated at a distance of about 6-7 miles from his village. He also knew accused Madan Singh resident of village Satiyawan. He also used to come along with accused Jata Shanker Pandey to his village. The house of accused Durga Mishra is situated towards Western side of his house at a distance of 8-10 yards. He deposed that accused Durga Mishra, Radheyshyam, Jata Shankar Pandey, Madan Singh and one person, whose name he did not remember are present in the trial court today. He deposed that the incident had taken place one year prior. In the morning, when he was going to give fodder to his buffaloes, he saw accused Durga Mishra, Radheyshyam, Jata Shankar Pandey, Madan Singh and one more person, who is also present in the Court today, were coming from North side of the river. He enquired from accused Durga Mishra from where he is coming on which Durga Mishra replied that he had gone to attend the call of nature and guests have come to his house. He enquired from accused Durga Mishra from where he is coming on which Durga Mishra replied that he had gone to attend the call of nature and guests have come to his house. On the same day, he heard that in the village murder has taken place and the dead body is lying in the field of Paramhans. He also went to see the same. The head of the dead body was shredded and many persons of the village were present there. Blood was lying in the field of Durga Mishra but body was not there. There was a mark of dragging from the agricultural field of accused Durga Mishra to the place where the dead body was lying. Blood stained aungaucha was also lying where the blood was lying. Pradhan of the village had sent the Watchman to give information about the same at the police station. On receiving the information, the police had arrived in the village. The Sub Inspector had seen the decapitated dead body and prepared the Panch in which he is also one of the Panch. He has also affixed his thumb impression on the report. The other witnesses of the inquest were Jagai, Pradhan, Kalicharan and Tansen. They have also put their signatures on the inquest report. In his cross examination, the said witness has stated that he received information about the recovery of the dead body at about 10-11 a.m. and after 2 and half hours of his reaching there, the Sub Inspector had arrived at the spot. Accused Durga Mishra and Radhey Shyam were not present in the crowd and till the inquest report was prepared no one could identify the dead body. After sending the dead body for post mortem, the Investigating Officer had made a spot inspection. He had gone to jail for identification of the fifth accused but could not identify him. When he saw the accused coming from the river side it was between 4-4:30 a.m. but till then Sun had not arisen. The Investigating Officer has taken his statement after four days of the incident. He in his statement recorded under section 161 Cr.P.C. has deposed before the Investigating Officer that he has seen the accused coming from the river side at about 4:30 a.m. He has further deposed that he was unaware of the fact that accused Durga Mishra had contested the election against Paramhans Pradhan. He in his statement recorded under section 161 Cr.P.C. has deposed before the Investigating Officer that he has seen the accused coming from the river side at about 4:30 a.m. He has further deposed that he was unaware of the fact that accused Durga Mishra had contested the election against Paramhans Pradhan. He denied the suggestion that on account of pressure of Paramhans Pradhan he is deposing against the accused. 13. P.W. 2 Sudama had deposed before the trial court that he knew the deceased Vidhya, who was resident of his village Satiyawan and accused Madan Singh, who is present in the Court is cousin of deceased Vidhya. Accused Madan Singh is the friend of accused Jata Shankar Pandey. The elder brother of the deceased had became maniac and gone somewhere. The parents of the deceased had also expired. The deceased Vidhya used to look after his agricultural land of which he was the owner. Prior to the murder of deceased Vidhya, he had seen him in the company of accused Madan Singh and Jata Shankar Pandey as they were going to purchase cow for Jata Shankar Pandey. Thereafter, the deceased Vidhya did not return to the village while Jata Shankar Pandey returned back to the village. After 2-3 days, when the accused Madan Singh had taken deceased Vidhya along with him, he saw that accused Madan Singh was taking out the belongings of deceased Vidhya from his house and putting the same into his house and when he made a query from him about the deceased Vidhya then he stated that he had left him. Some part of the agricultural field of deceased Vidhya was ploughed by Raghunath Dhobi on Batai. The accused Madan had asked Raghunath Dhobi not to do any agricultural work at the field of deceased Vidhya. From the said happenings, he gathered that the accused persons had murdered the deceased Vidhya and thereafter he came to know that he was killed. The said witness in his cross examination has stated that he had not seen the head and body of deceased Vidhya. He further deposed in his cross examination that Vidhya was a married person and in his agricultural properties the name of his wife has not been mutated as litigation was going on. The said witness in his cross examination has stated that he had not seen the head and body of deceased Vidhya. He further deposed in his cross examination that Vidhya was a married person and in his agricultural properties the name of his wife has not been mutated as litigation was going on. He deposed before the trial court that accused Madan Singh and Dwarika, who is the maternal cousin of deceased Vidhya, had objected for mutation of the name of his wife on the same. He further deposed in his cross examination that he had informed about the same to villagers prior to giving statement to the Investigating Officer. When he suspected the murder of the deceased Vidhya then he told about the same to the villagers. He denied the suggestion that he was companion of Vidhya, hence he is falsely deposing against the accused persons. He further denied the suggestion that Vidhya was not murdered and he had gone somewhere leaving his house on his own. 14. P.W. 3 Ranjeet Mallah, has deposed that he was the Watchman (Chaukidar) of village Ahirauli. Village Kathwalia also come under his area. He on receiving information about lying of decapitated dead body in the field of Pramahans Pradhan, had informed about the same to the police at the instructions of Pradhan. He stated that the dead body was without head and on seeing the dead body it appeared to be of a male person. The place where the dead body was lying many persons of the village were present. On the North side where the dead body was lying, there was agricultural field of accused Durga Mishra where also the blood was lying. The place where the blood was found, the crops were destroyed and there was a mark of dragging from the place where the blood was found to the place where the dead body was lying. A search for head of the dead body was made but it could not be traced. He had left the dead under the supervision of Pradhan and other persons and went to inform about the same to the police station. He orally got a report written at police station and affixed his thumb impression. He proved the same as Ex. Ka.-2. On the said report, the Investigating Officer arrived for investigation. He had left the dead under the supervision of Pradhan and other persons and went to inform about the same to the police station. He orally got a report written at police station and affixed his thumb impression. He proved the same as Ex. Ka.-2. On the said report, the Investigating Officer arrived for investigation. The Investigating Officer got photographs of the dead body and sent the same for post mortem. He deposed in his cross examination that efforts were made by him and other persons for searching out the head of the dead body but when he failed to trace out the same then he had gone to police station to inform about lying of the dead body. He stated that there was no contest between Paramhans and accused Durga Mishra for the election of Pradhan. At the time of identification of the dead body before the Investigating Officer no one could identify the same as it was decomposed. He denied the suggestion that under the pressure of Paramhans Pradhan he is falsely deposing against the accused. 15. P.W. 4 Innar has stated before the trial court that on 6.10.1981 at the Southern side of the river in his village a head was recovered which was noticed by Naresh and Jagai, who went for washing Patwa on the river. On seeing the same, they had come to Pradhan and informed him about the same on which he along with Pradhan and several other villagers had gone to see the same. The Pradhan had sent him for giving information about the same to the police on which he had gone to inform the police, who arrived at the place of occurrence. The Investigating Officer after seeing the head got the photographs of it and conducted inquest of the same. He was also one of the Panch witness of the inquest along with other Panchas, who have signed the inquest report and proved the same as Ex. Ka-3. He further deposed that two days prior to the recovery of the head, a dead body was also recovered head of which was decapitated. In his cross examination, he has deposed that the severed head could not be identified by any one as there was swelling on the same. The hair of the head was shaved and there was only a 'Choti' on it. In his cross examination, he has deposed that the severed head could not be identified by any one as there was swelling on the same. The hair of the head was shaved and there was only a 'Choti' on it. There was neither mustache nor beard on the face of it. He denied the suggestion that no head was recovered in his presence and the Investigating Officer had obtained his signature later on. 16. P.W. 5 Darshan in his evidence has deposed before the trial court that he knew the accused Jata Shankar Pandey as he is resident of village Satiyawan and is related to accused Durga Mishra as Durga Mishra is his maternal uncle. The accused Jata Shankar Pandey regularly used to visit to the house of accused Durga Mishra. Before the recovery of the dead body, he saw accused Jata Shankar Pandey, Madan Singh and two other persons whom he did not know at the house of Durga Mishra. He has stated that accused Jata Shankar Pandey and Madan Singh are present before the trial court but he could not say as to whether the two persons, who were seen by him at the house of Durga Mishra prior to recovery of dead body of the deceased, are present in the Court today or not. He stated that the day on which the dead body was recovered, in the morning, he had seen Durga Mishra going from his house alongwith accused Jata Shankar Pandey, Madan Singh and another person whom he did not know. In his cross examination, he stated that four persons whom he saw in the evening were Madan Singh, Jata Shankar Pandey and two others. He had seen the faces of all the four persons properly. He had gone to jail to identify the two persons whom he saw at the house of Durga Mishra going but he could not identify them. After recovery of the head, the Investigating Officer has recorded his statement under section 161 Cr.P.C. and the said statement was taken after one or two days. Thereafter, the Investigating Officer had not called him to identify the head. He has further deposed that towards the South of his village, at the North side of river there was crematorium (Shamshan). After recovery of the head, the Investigating Officer has recorded his statement under section 161 Cr.P.C. and the said statement was taken after one or two days. Thereafter, the Investigating Officer had not called him to identify the head. He has further deposed that towards the South of his village, at the North side of river there was crematorium (Shamshan). He denied the suggestion that he is working with Pradhan Paramhans nor he belongs to his group and has further denied the suggestion that the accused has given his goat in the Kanji house. He denied the suggestion that he is deposing because of the pressure of Pramahans. 17. P.W. 6 Ram Autar, who was examined before the trial court has stated that Durga Mishra is resident of village Kathwalia and a day prior to recovery of the dead body four persons have come to the house of accused Durga Mishra, who were Jata Shankar Pandey and Madan Singh along with two other persons, whom he did not know and on the next day he had seen Jata Shankar Pandey, Madan Singh and one person leaving the house of Durga Mishra and the fourth persons whom he saw in the evening was not with them. Thereafter at about 9-10 a.m. a news spread in the village that a dead body was recovered on which he went to see the dead body which was without head and after recovery of the dead body he did not see Durga Mishra and his nephew in his house. He also identified accused Jata Shankar Pandey, Durga Mishra, Madan Singh and also accused Radhey Shyam, who were present in the Court but he could not identify the fifth accused present in the Court. Two days after the recovery of the dead body, the head was found. He has also seen the head and his statement was recorded under section 161 Cr.P.C. by the Investigating Officer on the day on which the head was recovered. He denied the suggestion that he was working with Paramhans and further denied the suggestion that because of Paramhans he was falsely deposing. 18. P.W.7 Constable Balram Mishra has stated that he was posted in October, 1981 at police station Rampur Karkhana, District Deoria. He denied the suggestion that he was working with Paramhans and further denied the suggestion that because of Paramhans he was falsely deposing. 18. P.W.7 Constable Balram Mishra has stated that he was posted in October, 1981 at police station Rampur Karkhana, District Deoria. On 4.10.1981, he had gone along with Sub Inspector Shamsher Singh to village Kathwalia where the Sub Inspector had taken the dead body into his custody and got photographs of the same and conducted the inquest proceedings also. Thereafter the dead body was sealed and was given into his custody for taking the same for post mortem. The said dead body was without head. He took the same in a sealed condition to District Hospital Deoria for post mortem and handed over to the doctor. 19. P.W. 8 Constable Srikant Rai has deposed that he was posted at police station Rampur Karkhana in October, 1981. On 6.10.1981, he accompanied Sub Inspector to village Kathwalia where the head of a male person was recovered. The Sub Inspector got photographs of the same and conducted the inquest proceedings. Thereafter, the Sub Inspector had given him the head in a sealed condition to hand over the same for post mortem. He had taken the head for post mortem at Deoria and handed over the same to the doctor along with necessary papers in a sealed condition. He did not know the name of the photographer, who had taken the photographs nor his shop. 20. P.W. 9 Ram Nagina Tiwari has deposed before the trial court that he knew the deceased Vidhya as he was a resident of his village Satiyawan. Before the murder, he had seen the deceased in his village while he was going for his personal work from his village to Kasya. He was going by a jeep and in the said jeep on the back he saw accused Jata Shankar, Madan Singh, the deceased Vidhya and one Rajendra Pathak, who are present in the Court today, were sitting. On an enquiry being made by him from accused Jata Shankar as to where they were going, it was told to him that they were going to purchase a cow at Taluka and they had gone with him upto Kasaya. After three days he heard that Vidhya, who was going on the jeep has been murdered. On an enquiry being made by him from accused Jata Shankar as to where they were going, it was told to him that they were going to purchase a cow at Taluka and they had gone with him upto Kasaya. After three days he heard that Vidhya, who was going on the jeep has been murdered. He identified the head of the deceased to be of deceased Vidhya from photographs (Ex. Ka. 1). The Investigating Officer has taken his statement after two days at police station at 10:00 a.m. and shown the photographs of the decapitated dead body and photographs of head. He did not know accused Rajendra Pathak from before. Accused Jata Shankar had told him about Rajendra Pathak on the same day when they were going in the Jeep. He stated that the deceased Vidhya was neither having mustache nor beard. He was at initial stage of his age as he was aged between 14-15 years. He has stated that he did not seen the photographs of the dead body at any point of time and had seen the photographs of the head which he identified. He stated that he did not plough the agricultural field of deceased Vidhya on Batai. The agricultural field of accused Madan Singh and the deceased Vidhya was partitioned on the spot and on the documents also. He denied the suggestion that the deceased Vidhya had given his agricultural field to him on 'Batai' which was taken by accused Madan Singh. He denied the suggestion that on account of enmity he is falsely deposing. 21. P.W. 10 Sitaram during his examination before the trial court has given the statement that deceased Vidhya, who was resident of his village was known to him. The accused Madan Singh was the cousin brother of deceased Vidhya. The parents of deceased Vidhya have expired and his elder brother had gone somewhere after becoming maniac and is not traceable. The deceased Vidhya and accused Madan Singh had separated their agricultural field. The deceased Vidhya had given some portion of his agricultural land to Raghunath Dhobi on Batai and on rest of the same he used to plough himself. On the account of the said fact, the accused Madan Singh was annoyed from deceased Vidhya. Accused Jatashankar is the friend of accused Madan Singh, who is resident of his village. The deceased Vidhya had given some portion of his agricultural land to Raghunath Dhobi on Batai and on rest of the same he used to plough himself. On the account of the said fact, the accused Madan Singh was annoyed from deceased Vidhya. Accused Jatashankar is the friend of accused Madan Singh, who is resident of his village. He also identified the photograph of the head of the deceased (Ex. Ka.-1) to be that of deceased Vidhya. In his cross examination, he has stated that he had heard the news that Vidhya has been murdered. He has seen photographs of the head and his statement was recorded by the Investigating Officer under section 161 Cr.P.C. He has informed the police after seeing Ex. Ka.-1 that the recovered head to be that of deceased Vidhya. He denied the suggestion that he had taken the agricultural filed of deceased Vidhya on Batai and accused Madan Singh had got the same released. He denied the suggestion that Ex. Ka.1 which is photograph of the deceased is not of deceased Vidhya and further denied the suggestion that on account of ill will he is deposing against the accused persons. 22. P.W. 11 Dr. Shyam Lal Baranwal had deposed before the trial court that he was posted as Medical Officer in district Hospital Deoria on 6.10.1981 and the on said date an unknown dead body was received by him which is brought by Constable Girija Shankar Mishra and Constable Balram Mishra of police station Rampur Karkhana, Deoria. He has performed the post mortem of the said unknown dead body. The said dead body was of a person aged about 25 years and duration of death was 2-3 days prior to the post mortem. He found following ante mortem injury on the dead body:- 1. Incised wound encircling the whole of neck at the level of 4th cervical vertebra cutting the whole of neck along with the under lying structure cleanly through & through. The part of neck and head above the level of injury not present. Margins of the wounds are clean cut of the underlying structure are also clean cut. Blood clots present at and around the injury. On internal examination he found that all the four bones of sternum were joint to each other. Stomach was empty. The large intestine was full of fecal matter. Urinary bladder was empty. 23. Margins of the wounds are clean cut of the underlying structure are also clean cut. Blood clots present at and around the injury. On internal examination he found that all the four bones of sternum were joint to each other. Stomach was empty. The large intestine was full of fecal matter. Urinary bladder was empty. 23. As per his opinion, the cause of death is shock and hemorrhage as a result of ante mortem injury. 24. He has proved copy and original of the post mortem report as Exs. Ka.-4 and 5 and according to him, the death had taken place in the night between 3/4.10/1981. 25. In his cross examination, he has stated about the duration of death between 10-12 hours. 26. P.W. 12 Hafizullah Ansari, who is the Photographer and has taken the photographs of the dead body and head of the deceased on 4.10.1981 and 6.10.1981 at the instructions of police of police station Rampur Karkhana, District Deoria, had stated that the dead body was lying in the field without head. The photographs of the dead body which he had taken on 4.10.1981 was not proper because of the fault of Camera and thereafter on 6.10.1981, he had taken the photographs of the head at the instructions of police of police station Rampur Karkhana. He had taken the photographs of the head from different angles and the said photographs were proved as Ex. Ka 2 and 3. He has also prepared negative of the same. He had deposed in his cross examination that the bill of the photographs of the dead body and the head which he had taken, i.e., Rs. 60/- has been submitted by him but payment of the same has not been made. The Investigating Officer did not record his statement under section 161 Cr.P.C. He denied the suggestion that he had not taken any photographs and under the influence of police he is deposing against the accused persons. 27. P.W. 13 Dr. M.S. Azam has stated before the trial court that he was posted as Medical Officer in District Hospital Deoria on 7.10.1981 and on the said date at about 11 a.m., an unknown head was received by him in a sealed condition from Constable Srikant Rai and Homeguard Ram Dev of police station Rampur Karkhana, District Deoria, who have brought the same for post mortem. The age of the severed head was about 16 years, the same was old and in a very decomposed condition. The maggots were found on it and there was long Choti on it. He found following injuries on his head:- 1. Incised wound of 36 cm. in circumference with Head completely chopped off at the level 4th cervical vertebra- all the vessels nerves spinal cord at the level of 4th cervical with trachea & esophagus. Cut off through & through at the level of 4th cervical vertebra. Margins sharply clean cut. 28. Duration of which according to him was four days prior to the post mortem, cause of death is ante mortem injuries. As per his opinion the possibility of dead is 3/4.10.1981 in night. He has proved the post mortem report as Ex. Ka. -16. In his cross examination, he has deposed that the face of the head was badly disfigured. 29. P.W. 14 Shamsher Singh has stated that he was posted as Station Officer in October, 1981 at police station Rampur Karkhana, District Deoria. He has proved the chik F.I.R. as Ex. Ka. 2 which was prepared by Constable Vishwa Nath Prasad Gupta and also the G.D. dated 4.10.1981 on which the Chik F.I.R. was endoresed and proved the same as Ex. Ka-7. He had taken the investigation of the case on 4.10.1981 F.I.R. of which was lodged in his presence. He had also deposed that he has gone to the spot along with other police personnel on receiving the information of decapitated dead body of a unknown person and also got the photographs of the same through the Photographer and prepared inquest (Ex. Ka. 1) of the same which is under his writing and signatures. Thereafter, he sent the dead body for post mortem by Constable Girija Shankar, Balram Mishra and Chaukidar Ramjeet to district Hospital Deoria and prepared the necessary papers regarding the same which were proved by him as Exs. Ka. 8 to 14. He recorded the statements of Panch witnesses, i.e., the informant and others. He made a spot inspection of the place of occurrence and prepared the site plan and proved the same as Ex. Ka. 15. Took blood stained earth and plain earth from the place of occurrence prepared its recovery memo and proved the same as Ex. Ka. -16. He recorded the statements of Panch witnesses, i.e., the informant and others. He made a spot inspection of the place of occurrence and prepared the site plan and proved the same as Ex. Ka. 15. Took blood stained earth and plain earth from the place of occurrence prepared its recovery memo and proved the same as Ex. Ka. -16. Fard recovery memo of the blood stained earth and plain earth of the place of occurrence from where the dead body was recovered and proved the same as Ex. Ka. 17. Recovery memo of Lungi from which the shredded head was covered as Ex. Ka.-18. Recovery memo of Gamchha recovered between the field of Makai and Arhar of accused Durga Mishra as Ex. Ka.- 19. He has also stated that he has taken into custody the head which was recovered near the river and got the photographs of the same through Photographer, prepared the inquest and sent the same for post mortem. He has proved the same as Exs. Ka. 20 to 23 and supurdgi and recovery memo of torch Ex. Ka. 25. He recorded the statements of Jarai, Naresh, Ram Autar, Darshan, Indrajeet, Madan and Lallan etc. under section 161 Cr.P.C. on 6.10.1981. On 7.10.1981, he also took the statements of Photographer Hafiz Ullah and Constable Srikant Rai. On 16.10.1981, he had taken the statement of Constable Balram Mishra, who had taken the head and dead body of the deceased for post mortem and after recording the statements of accused, he submitted charge-sheet against the accused persons which he proved as Ex. Ka. 26. In his cross examination, he has deposed that he has not taken the custody of photographs Ex. Ka. 1 to 3 as on asking, the Photographer has informed that the photographs of the dead were not clear nor he has taken negative of the same. There was no signature on the said photographs of the Photographer and he has not got the same shown to any witness. He has also not given the money to the Photographer as the same is to be paid by the Cashier. He stated that he has attested the bill of the Photographer. He had taken the 161 Cr.P.C. statements of the witnesses, Ram Nagina Tiwari, Sudama, Sitaram and Vyas Singh and Raghunath on 7.10.1981 only once. He has also not given the money to the Photographer as the same is to be paid by the Cashier. He stated that he has attested the bill of the Photographer. He had taken the 161 Cr.P.C. statements of the witnesses, Ram Nagina Tiwari, Sudama, Sitaram and Vyas Singh and Raghunath on 7.10.1981 only once. He has further deposed that he has shown the photographs of the recovered dead body and the head to the villagers of village Kahwalia and Satiyawan but none had identified the same. He denied the suggestion that he has done all the investigation by sitting at the police station. 30. The learned trial court after going through the evidence led by the prosecution and the defence version has convicted the accused appellant Jata Shankar along with two other accused, namely, Durga Mishra and Madan Singh, who died during the pendency of the present appeal. 31. Heard Sri Satendra Kumar Singh and Chandra Prakash Mishra and Jai Narain, learned A.G.A.-I for the State and perused the record. 32. Learned counsel for the appellant submits that the appellant has been implicated in the present case only on account of the fact that he happens to be the friend of accused Madan Singh. There is no motive for the appellant to commit the crime as the same, if any, was with co-accused Madan Singh. The case rests on circumstantial evidence. He argued that the deceased, who was the cousin of accused Madan Singh was aged about 14-15 years as per the evidence of prosecution witness, namely, Ram Nagina Tiwari, who is also the witness of last seen but as per the post mortem report the decapitated dead body which was recovered on 4.10.1981 from the field of Paramhans was of an unknown person aged as has been stated by the doctor about 25 years. Two days thereafter the head which was recovered near the river was identified by P.W. 9 Ram Nagina Tiwari and P.W. 10 Sitaram, who after seeing the photographs of the same which were taken by Photographer under the instructions of Investigating Officer, have stated that it was the head of the deceased Vidhya. He vehemently argued that as per the evidence of P.W. 13 Dr. M.S. Azam, who has conducted the post mortem of the said head, the same was of an unknown person aged about 16 years. He vehemently argued that as per the evidence of P.W. 13 Dr. M.S. Azam, who has conducted the post mortem of the said head, the same was of an unknown person aged about 16 years. Moreover, the face of the said head which was recovered was badly disfigured, hence it was not possible for the two witnesses to identify the same. He next submitted that even if the head is taken to be that of the deceased Vidhya, the dead body which was recovered on 4.10.1981 was of a person aged about 25 years and there is no conclusive proof that the head which has been recovered was of the dead body of the persons which was of deceased Vidhya and the finding recorded by the trial court regarding the same is against the evidence on record, hence the conviction and sentence of the appellant is liable to be set aside by this Court on this ground alone. He further argued that as per the evidence of the Investigating Officer, who has stated that when he has shown the dead body and the head of the deceased to the villagers of village Kathwalia and Satiyawan including the witnesses then none have identified the same and the evidence given by P.W. 9 and 10 for identifying the head to be that of the deceased is contradictory to that of the Investigating Officer-P.W. 14. So far as the evidence of P.W. 1 Madan is concerned it has been argued that he has only seen the appellant and the accused Madan and one accused who were coming from the North side of the river in the morning at 4:30 a.m. and thereafter he heard about lying of the dead body in the field of Paramhans on 4.10.1981 which shows that there was no occasion for him to be witnessing the said accused in the early hours of the morning and it appears that he was having some animosity with the accused Durga Mishra and he was deposing under the pressure of Paramhans, who had contested the election of Pradhan against accused Durga Mishra. Similarly it was argued on behalf of the appellant that the other witness of last seen P.W. 9 Ram Nagina Tiwari, who had seen the deceased Vidhya in the company of accused Jata Shankar, Madan and Rajendra Pathak as they were going in the same jeep in which the witness was going for some personal work and when a query was made by the said witness by appellant as to where they were going it was told to him that they were going to purchase a cow. He submitted that even if the statement of P.W. 9 is also taken into account except the evidence of last seen there appears to be no other incriminating evidence against the appellant to show that he participated in the crime. In this regard he also argued that so far as evidence of P.W. 2 Sudama is concerned he happens to be the resident of the village of the deceased and has stated that he is also a witness of last seen and seen the deceased coming along with the appellant and accused Madan Singh, who were going to purchase a cow. He pointed out towards the evidence of P.W. 4 Innar, who has informed the police about the recovery of a head near the river on the basis of which the police arrived and drawn the attention of the Court towards his cross examination, in which has stated that the head which was recovered could not be identified as swelling was found on it. P.W. 5 Darshan, who was also examined by the trial court has stated that before the recovery of the dead body he has seen the appellant Jata Shankar along with accused Madan Singh and two other persons going into the house of accused Durga Mishra and on the next day he had seen only three persons coming out of the house and the fourth one was not seen, hence he suspected that the fourth person was the deceased Vidhya. He argued that even if the statement of the said witness is taken into account then it is not clear whether it was the deceased, who had accompanied them to the house of accused Durga Mishra or not. He argued that even if the statement of the said witness is taken into account then it is not clear whether it was the deceased, who had accompanied them to the house of accused Durga Mishra or not. He submitted that the evidence of the said witness also does not appear to be reliable one as he also used to work for Paramhans, who was inimical to the accused Durga Mishra and under his pressure he was deposing against the accused. P.W. 6 Ram Autar, who is also a witness and has seen the appellant Jata Shankar accused Madan Singh two persons going into the house of accused Durga Mishra a day prior to the recovery of the dead body of the deceased but on the same day he saw only three persons coming out from the house in the next morning. He stated that out of four persons, who were seen by him in the house of accused Durga Mishra, he did not know two persons. Thereafter, he heard that a decapitated dead body was found in the field of Paramhans on which he went to see the same thus, he argued that from the evidence it is clear that there is only the evidence of last seen against the appellant with the deceased. He vehemently urged that the trial court acquitted the two accused Rajendra Pathak and Radhey Shyam on the same evidence and so far as appellant is concerned, his participation in the present case has not been established beyond reasonable doubt from the prosecution evidence, hence the appellant is also entitled to be acquitted by this Court and his conviction and sentence be set aside. 33. On the other hand, learned A.G.A. has opposed the arguments of learned counsel for the appellants and submitted that there appears to be sufficient evidence against the appellant showing his participation in the crime along with co-accused Durga Mishra and Madan Singh. 33. On the other hand, learned A.G.A. has opposed the arguments of learned counsel for the appellants and submitted that there appears to be sufficient evidence against the appellant showing his participation in the crime along with co-accused Durga Mishra and Madan Singh. He submitted that the appellant being the friend of accused Madan Singh and nephew (Bhanja) of accused Durga Mishra had also motive to commit the crime and in this regard he has stated that soon after the incident, the accused Madan Singh, who had returned after few days of the incident had taken the belongings from the house of the deceased and was putting the same into his own house and further moved an application for mutating his name in the revenue record on the agricultural field of deceased Vidhya thus he argued that as there was evidence of last seen and motive against the appellant, who murdered the deceased Vidhya with co-accused, therefore, the trial court has rightly convicted and sentenced the appellant and his appeal is liable to be dismissed by this Court. 34. After having considered the submissions advanced by learned counsel for the parties and perused the record. 35. The present case rests on circumstantial evidence as it appears from the record that the motive which has been suggested for the crime is to co-accused Madan Singh, who happened to be the cousin of deceased Vidhya as it appears from the prosecution evidence that the deceased Vidhya's elder brother had became maniac and gone somewhere leaving his house and the parents of the deceased Vidhya have also expired. The deceased Vidhya, who had separated his agricultural field from accused Madan Singh and given some portion of the same on 'Batai' to one Raghunath Dhobi and rest was ploughed by him which was disliked by accused Madan Singh, who wanted to grab the agricultural land of the deceased, hence the motive to commit the murder as it appears from the prosecution evidence is to accused Madan Singh and not to the appellant. His implication in the present case has been shown only on account of the fact that he happened to be the friend of accused Madan Singh though it appears from the statement of accused Madan Singh recorded under section 313 Cr.P.C. that he denied any friendship with the appellant Jata Shankar Pandey. His implication in the present case has been shown only on account of the fact that he happened to be the friend of accused Madan Singh though it appears from the statement of accused Madan Singh recorded under section 313 Cr.P.C. that he denied any friendship with the appellant Jata Shankar Pandey. It has also been pleaded by the defence that the deceased Vidhya has not been murdered or killed and he too because of some mental disorder had gone somewhere leaving his house. He has not been seen being murdered by any of the prosecution witnesses of fact, by the accused persons. The dead body and the head which were recovered from open place, i.e., dead body from the field of Paramhans on 4.10.1981 and the shredded head was recovered on 6.10.1981 from river side; neither the dead body was of known person nor the shredded head which was recovered could be identified by any person as is evident from the evidence of P.W. 14-Investigating Officer. Moreover, the dead body of unknown person recovered was aged about 25 years as is apparent from the post mortem report of the same and the head which was recovered as per the opinion of the doctor was of a person aged about 16 years and to say that the decapitated dead body and the shredded head which were recovered were of the deceased Vidhya has not been proved beyond reasonable doubt by the prosecution though P.W. 9 and 10 have stated that they identified the said shredded head to be that of deceased Vidhya but taking into account the statement of P.W. 13 Dr. M.S. Azam, who has stated that the face of the shredded head which was recovered was badly disfigured, hence in such a situation, the identification of the same by P.W. 9 and 10 appears to be a doubtful one. M.S. Azam, who has stated that the face of the shredded head which was recovered was badly disfigured, hence in such a situation, the identification of the same by P.W. 9 and 10 appears to be a doubtful one. Moreover, P.W. 14 Sub Inspector Shamsher Singh, the Investigating Officer in his cross examination has deposed before the trial court that when the head and the dead body was shown to the villagers of village Kathwalia and Satiyawan including the witnesses, no one could identify the same and the finding recorded by the trial court on the said fact also does not sound to reason as the trial court on the basis of 'Modi medical jurisprudence' has tried to fix the identity of the dead body and head to be that of the deceased Vidhya and it has failed to take into account that the dead body which was recovered was of a male persons aged about 25 years whereas the head was of a male person aged about 16 years as per the opinion of the two doctors, who have conducted the post mortem of the same. The evidence of last seen by P.W. 9 and 10 also goes to show that they have only seen the deceased in the company of the accused persons and the appellant and when the dead body and the head were recovered they suspected that it was the deceased Vidhya and have been murdered by the appellant and the accused persons without there being further any incriminating evidence to show against the appellant coupled with the evidence of last seen thus their evidence cannot be said to be sufficient which may require the conviction of the appellant in the present case for the murder of the deceased. 36. In view of the foregoing discussion, the conviction and sentence recorded by the trial court against the appellant for the offence in question is against the evidence on record and it has failed to record the chain of circumstances which may conclusively prove towards the guilt of the appellant thus the conviction and sentence of the appellant Jata Shankar Pandey in the present case is hereby set aside. 37. The appeal on behalf of appellant Jata Shankar Pandey stands allowed. 38. The appellant Jata Shankar Pandey is stated to be on bail. He need not surrender, his bail bond and sureties stand discharged. 39. 37. The appeal on behalf of appellant Jata Shankar Pandey stands allowed. 38. The appellant Jata Shankar Pandey is stated to be on bail. He need not surrender, his bail bond and sureties stand discharged. 39. It is further directed that the appellant Jata Shankar shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C. 40. Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance.