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2024 DIGILAW 2464 (ALL)

Shiv Sharan v. State of U. P.

2024-12-05

ASHWANI KUMAR MISHRA, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : Ashwani Kumar Mishra, J. Heard Sri Kamal Krishna, learned Senior counsel assisted by Sri Ghan Shyam Das, learned counsel for the appellants, Sri Vikas Goswami, learned A.G.A. for the State and Sri Dur Vijay Singh, learned counsel for the informant. 2. These two appeals are directed against the judgment and order of conviction and sentence dated 11.10.2022 and 28.10.2022, passed by Special Judge SC/ST Act, IInd Additional District & Sessions Judge, Farrukhabad in Special Sessions Trial No. 08 of 2005, arising out of Case Crime No. 598 of 2003, Police Station Mohammadabad, District Farrukhabad, whereby the accused appellants Aneet, Badam, Roshan, Jarman, Rajendra, Shiv Sharan and Rishipal have been convicted and sentenced to life imprisonment under Section 302/149 IPC read with Section 3(2)(v) SC/ST Act alongwith fine of Rs. 10,000/- and in default of payment to undergo two years additional imprisonment; sentenced to five years rigorous imprisonment under Section 364 IPC alongwith fine of Rs. 5,000/- and in default of payment to undergo one year additional imprisonment; sentenced to five years rigorous imprisonment under Section 201 IPC alongwith fine of Rs. 5,000/- and in default of payment to undergo one year additional imprisonment and a fine of Rs. 5,000/- under Section 147 IPC and in default of payment to undergo three months additional imprisonment. All the sentences are to run concurrently. 3. The First Information Report in the present case has been lodged on 23.11.2003 at 06.10 p.m. on the basis of a written report made by the informant Ram Charan, who has been produced as PW-1 during trial. The allegation in the First Information Report is that at 09.00 a.m. on 17.11.2003, informant's nephew Ram Niwas was taken by the fellow residents of village, namely accused Rishipal, Shiv Sharan, Aneet and Badam to Kutchery (District Court) at Fatehgarh, whereafter nephew of informant did not return. Despite the efforts made the missing nephew could not be traced. On 19.11.2003, informant's brother Ram Prakash had gone to the house of Harinath Lodhi in his attempt to trace out his missing nephew. Harinath Lodhi was not present at home. So the informant's brother came to the house of Rajendra Singh, where accused Rishipal, Shiv Sharan, Sanjay and Rajeev shot dead informant's brother Ram Prakash. On 19.11.2003, informant's brother Ram Prakash had gone to the house of Harinath Lodhi in his attempt to trace out his missing nephew. Harinath Lodhi was not present at home. So the informant's brother came to the house of Rajendra Singh, where accused Rishipal, Shiv Sharan, Sanjay and Rajeev shot dead informant's brother Ram Prakash. After this incident accused Rishipal, Shiv Sharan, Aneet, Roshan and Badam alongwith Jarman son of Dafedar Lodhi, confessed to Suresh Yadav, Rakesh Yadav and Harinath Lodhi that on 17.11.2003, they have taken Ram Niwas and has done him to death. Later, Ram Prakash has also been done to death. The accused persons further stated that if anybody stood up against them they would not spare him. With these allegations the FIR came to be lodged in the present case. The written report on the basis of which FIR came to be lodged has been proved by PW-1. 4. Investigation in the present matter proceeded and on 19.12.2003, recovery was made of the clothes and shoes of missing nephew Ram Niwas on the pointing out of accused Shiv Sharan and Rishipal. These two accused also confessed that they have killed the deceased and his body has been buried on the river bank by digging a pit. The recovery memo of the pant, shirt and the pair of shoes has been exhibited during trial as Ex.ka.2. 5. It is admitted that neither the dead body of the deceased has been recovered nor his whereabouts have been found. The investigation ultimately concluded with submission of a charge-sheet against the accused persons on 18.1.2004 and 4.3.2004. Cognizance was taken in the matter by the concerned Magistrate whereupon the case was committed to the Court of Sessions and got registered as Special Sessions Trial No. 08 of 2005. The charges were framed against the accused under Sections 147, 364, 302/149, 201 I.P.C. as well as Section 3(2)(v) of SC/ST Act. Charges were read out to the accused, who denied their implications and demanded trial. 6. During the course of trial, the prosecution has produced the FIR; written report; recovery memo of pant shirt, shoes and charge-sheet etc. In addition to the documentary evidence the prosecution has produced the informant Ram Charan as PW-1, whereas, Anil has been produced as PW-2. Charges were read out to the accused, who denied their implications and demanded trial. 6. During the course of trial, the prosecution has produced the FIR; written report; recovery memo of pant shirt, shoes and charge-sheet etc. In addition to the documentary evidence the prosecution has produced the informant Ram Charan as PW-1, whereas, Anil has been produced as PW-2. PW-3 to PW-6 are formal police witnesses, who have proved the prosecution papers and disclosed the manner in which investigation has been conducted in the case. PW-6 notably is the Investigating Officer whose statement shall be dealt with in the matter, later. 7. The aforesaid evidence led by the prosecution in the present trial has been confronted to the accused, who have denied the prosecution evidence and have stated that on account of enmity between the families they have been falsely implicated. The defence has not produced any evidence on its behalf. On the basis of above evidence the trial Court has convicted the accused appellants and sentenced them, as per above. Thus aggrieved, these appeals are preferred by the accused appellants and are disposed of by this common judgment. 8. The basic facts of the case are already noticed above according to which the nephew of the informant was taken to the Kutchery (District Court) at Fatehgarh on 17.11.2003 at 09.00 a.m., whereafter he has not returned. It is also brought on record that the brother of the informant Ram Prakash had gone looking for the missing nephew Ram Niwas where he too was done to death by Rishpal, Shiv Sharan, Sanjay and Rajiv. So far as the murder of Ram Prakash is concerned, a separate trial has been conducted in which some of the accused appellants have been convicted and their appeals against the judgment of conviction and sentence is pending before this Court. The charge framed in the present trial does not relate to the murder of Ram Prakash and therefore, this Court is not required to refer to the evidence in that regard or make any observations which may impact the pending appeals relating to the offence of murder of Ram Prakash. We, therefore, confine our discussion to the charges framed against the accused persons i.e. in respect of disappearance of Ram Niwas and his alleged murder. 9. The prosecution case essentially relies upon the testimony of two witnesses i.e. PW-1 and PW-2. We, therefore, confine our discussion to the charges framed against the accused persons i.e. in respect of disappearance of Ram Niwas and his alleged murder. 9. The prosecution case essentially relies upon the testimony of two witnesses i.e. PW-1 and PW-2. PW-1 is the informant while PW-2 Anil is the witness of recovery of shoes and clothes of the missing boy Ram Niwas. Testimony of these two witnesses, therefore, forms the basis of the prosecution case and before proceeding any further it would thus be imperative for us to briefly refer to their testimony. 10. PW-1 in his examination-in-chief has stated that on 17.11.2003 at 09.00 a.m., his nephew Ram Niwas was taken by accused Rishipal, Shiv Sharan, Aneet and Badam to Kutchery (District Court) at Fatehgarh, whereafter, he has not returned. On 19.11.2003, informant's brother Ram Prakash, who was a Lekhpal, had gone to the house of Harinath Lodhi where he was not found. Informant's brother Ram Prakash then came to the house of Dr. Rajendra where Rishipal, Shiv Sharan, Sanjay and Rajiv shot him dead. After the above incident accused Rishipal, Shiv Sharan, Aneet, Badam, Roshan, Rajendra and Jarman made a confessional statement before Suresh Yadav, Rakesh Yadav, Harinath Lodhi, Amar Singh Lodhi and Chhotey Pradhan that they have killed Ram Niwas and his body has been done to death. Thereafter, Pairokar Ram Prakash has also been disposed. If anyone comes forward to depose against the accused they too would be dealt with in the same fashion. 11. When PW-1 enquired from accused Rajendra then he was informed that the accused persons have taken his nephew Ram Niwas from Bholepur. Accused Rajendra had helped other accused in abducting his nephew. Since accused were threatening the villagers therefore, PW-1 suspected the accused of killing his nephew. PW-1 has also proved the written report dated 23.11.2003, which was scribed by Omkar Singh. His statement was also recorded by the Investigating Officer. 12. In the cross-examination PW-1 has admitted that the fact about the disappearance of Ram Niwas came to his knowledge for the first time on 20.11.2003. Harinath Lodhi and Chhotey Pradhan were also present then. They were on cordial terms with each other. In his further cross-examination PW-1 has stated that his nephew disappeared on 17.11.2003. The fact that his nephew disappeared from Bholepur was told to him by several persons. Harinath Lodhi and Chhotey Pradhan were also present then. They were on cordial terms with each other. In his further cross-examination PW-1 has stated that his nephew disappeared on 17.11.2003. The fact that his nephew disappeared from Bholepur was told to him by several persons. Rakesh son of Ganga Singh had also told him of such fact. This witness, however, did not remember the name of other persons who gave him such information. He has stated that because of the murder of his brother Ram Prakash there was some delay in lodging the FIR. Four of the present accused namely, Rishipal, Shiv Sharan, Rajiv and Sanjeev are responsible for the murder of Ram Prakash. 13. The other prosecution witness is Anil (PW-2), who too has alleged that the accused persons have killed Ram Niwas. He has stated that in connection with the offence police had come to him and alongwith Shiv Sharan and Rishipal he had gone to the bushes near the power house from where two tamancha and three live cartridges were recovered. These two accused confessed that they have killed deceased Ram Niwas and Ram Prakash by these weapons. Recovery memo in respect of tamancha and live cartridges were prepared on which signatures of PW-2 were obtained. The recovery memo in respect of Tamancha and live cartridges however are not produced during the present trial. 14. Accused Rishipal and Shiv Sharan also claimed that they have concealed the shoes and clothes of the deceased Ram Niwas and they can show such place. These persons then led the police to Kali river and from the place identified by these two accused, clothes and shoes of deceased were extracted, which were identified by PW-2. The dead body of Ram Niwas was also searched at the place indicated by the accused but it could not be found/recovered. The recovery memo of clothes and shoes have been proved by PW-2. These materials have been exhibited during trial as Ex.Ka.1 to Ex.Ka.4. 15. In the cross-examination, Anil has stated that deceased was from his caste and lived in his village. Their houses were at a distance of 200 meters. He was not aware as to when the deceased Ram Niwas had been done to death. His disclosure made before Court about the disappearance of Ram Niwas is based upon the information furnished to him by the family members of Ram Niwas. Their houses were at a distance of 200 meters. He was not aware as to when the deceased Ram Niwas had been done to death. His disclosure made before Court about the disappearance of Ram Niwas is based upon the information furnished to him by the family members of Ram Niwas. Alongwith him, the police had called accused Rajendra also. He had however not seen the accused with deceased Ram Niwas. This witness has admitted that the recovery memo of Tamancha and live cartridges allegedly recovered on the pointing out of accused Shiv Sharan and Rishipal are not exhibited during the trial of the present case. 16. At this juncture, we may also refer to the statement of the Investigating Officer (PW-06), who has admitted that parcha No. 1 to 10 in the case diary has not been scribed by him and it only contains his signatures. The person who had scribed these parchas in the case diary has not been identified. The Investigating Officer moreover, has admitted that there is neither any disclosure statement of the accused persons on record nor recovery memo prepared in respect of Tamancha and live cartridges etc. is exhibited. The statement of Investigating Officer, in that regard, is reproduced herein below : 17. From the evidence of PW-1 it is abundantly clear that he himself has not witnessed the disappearance of Ram Niwas. He has stated in his cross-examination that Ram Niwas had disappeared from Bholepur. This fact was told to him by Rakesh son of Ganga Singh and other persons but neither Rakesh nor anyone else, in that regard, has been produced. In the cross-examination the witness has primarily alleged that missing nephew had gone alongwith accused Rajendra. 18. Though in the examination-in-chief it is alleged that accused Rajendra also helped other accused in disappearance of Ram Niwas but except for stating so, neither this witness has specified the place of disappearance of his nephew nor he is specific about seeing the missing nephew leaving with the accused. The testimony of PW-1, taken in its entirety, remotely suggests of evidence in the nature of last seen against accused. 19. The testimony of PW-1, taken in its entirety, remotely suggests of evidence in the nature of last seen against accused. 19. There is however, contradiction in the version of PW-1, inasmuch as in his examination-in-chief he is specific in implicating accused Rishipal, Shiv Sharan, Aneet and Badam as being the persons who had taken the missing nephew but in the cross-examination he has specified accused Rajendra as being the person, who had facilitated the disappearance of his nephew. In the cross-examination, PW-1 is not specific about the involvement of other accused persons. The evidence of last seen is thus not very inspiring. 20. The only other evidence on record is the recovery of clothes and shoes of the missing boy Ram Niwas. It is the prosecution case that accused Shiv Sharan and Rishipal led the police party alongwith PW-2 to the place where recovered items were concealed. What is however relevant to note here is that there is no disclosure statement of these two accused on record. The Investigating Officer has also admitted that there is no disclosure statement of accused Shiv Sharan and Rishipal, which led to the recovery of the clothes and shoes of the informant's nephew Ram Niwas. The recovery memo prepared in respect of the clothes and shoes is otherwise not supported by the evidence of any independent person. 21. The only witness of the recovery are police personnel. In the absence of there being any disclosure statement or the recovery having been proved by any independent person, we are not inclined to attach much importance to the recovery of clothes and shoes of Ram Niwas. 22. Apart from the testimony of above two witnesses there is no other evidence led by the prosecution in this case. 23. Though PW-1 has also stated that confessional statement was made by the accused before certain persons but the person before whom such confessional statement are made have not been produced. In its absence, the evidence remains hearsay in nature and thus not admissible in law. 24. The evidence on record once are taken in its entirety and carefully analysed we find that it only suggests that Ram Niwas has gone missing. His whereabouts are not ascertained. Neither any specific evidence has been led by the prosecution to show that he has been taken anywhere or whether at all he has been done to death. 24. The evidence on record once are taken in its entirety and carefully analysed we find that it only suggests that Ram Niwas has gone missing. His whereabouts are not ascertained. Neither any specific evidence has been led by the prosecution to show that he has been taken anywhere or whether at all he has been done to death. The evidence in that regard reveals inconclusiveness. 25. The only material to implicate the accused appellants is the statement of PW-1. His evidence in the nature of last seen is not inspiring. Reasons for such opinion of the Court has already been expressed above. The law is otherwise settled that merely on the strength of evidence of last seen the chain of circumstances required to be proved in a case of circumstantial evidence, would not be sufficiently connected. 26. The other evidence in the nature of recovery of clothes and shoes of the deceased are also not found proved. Such recovery otherwise fails to meet the requirement of law, inasmuch as there is no disclosure statement or recovery memo prepared in the presence of independent persons. In coming to such conclusion we rely upon the judgment of Supreme Court in Boby v. State of Kerala, 2023 SCC Online SC 50. 27. Admittedly this is a case based on circumstantial evidence. In order to prove such case of circumstantial evidence onus is upon the prosecution to connect the chain of circumstances such that it leads to hypothesis of guilt specifically attributed to the accused. 28. Five golden principles have been culled out for the purpose by the Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) SCC OnLine SC 138 in para 152 and 153 of the judgment which are reproduced : ''152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [ (1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [ (1972) 4 SCC 625 : AIR 1972 SC 656 ]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] : ''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. 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [ (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] ''Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.'' (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.'' 29. Once we analyse the evidence on the touchstone laid down by the Supreme Court in Sharad Birdhichand Sarda (supra) we find that chain of circumstances is not sufficiently connected such that it leads to the hypothesis of guilt exclusively attributed to the accused appellants and the chain is left incomplete. 30. The alternate hypothesis consistent with the innocence of accused appellants cannot be ruled out otherwise. In such view of the matter, the finding of conviction and consequential sentence of the accused appellants cannot be sustained. 31. We have also perused the judgment of trial Court and we find that various arguments advanced on behalf of accused appellants have not been dealt with, in correct perspective. Evidence on record of this case has not been carefully examined by the trial Court nor the inherent flaws in the evidence of PW-1 and inadequacacies in the evidence of recovery are noticed. Relevant aspects have not been factored in while convicting the accused persons. Evidence on record of this case has not been carefully examined by the trial Court nor the inherent flaws in the evidence of PW-1 and inadequacacies in the evidence of recovery are noticed. Relevant aspects have not been factored in while convicting the accused persons. We, therefore, cannot approve of the conclusions drawn by the trial Court against the appellants. 32. In that view of the matter, this appeal succeeds and is allowed. The judgment of conviction and sentence dated 11.10.2022 and 28.10.2022, passed by Special Judge SC/ST Act, IInd Additional District & Sessions Judge, Farrukhabad in Special Sessions Trial No. 08 of 2005, arising out of Case Crime No. 598 of 2003, Police Station Mohammadabad, District Farrukhabad is set aside. The accused appellants shall be released forthwith, unless they are wanted in any other case, subject to compliance of Section 437-A Cr.P.C.