Mohd. Shafi @ Pappu & Others vs State Of U.P. on 24 May, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

A.F.R.

Case :- CRIMINAL APPEAL No. – 6751 of 2007

Appellant :- Mohd. Shafi @ Pappu Others

Respondent :- State Of U.P.

Counsel for Appellant :- C.P. Singh,Noor Mohammad,P. Upadhaya,Santosh Kumar Upadhyay,Shiv Prasad

Counsel for Respondent :- Govt. Advocate

AND

Case :- CRIMINAL APPEAL No. – 6604 of 2007

Appellant :- Ahmad

Respondent :- State Of U.P.

Counsel for Appellant :- C.P. Singh,N.K. Sharma

Counsel for Respondent :- Govt. Advocate

Hon’ble Bharat Bhushan,J.

Hon’ble Shailendra Kumar Agrawal,J.

(Delivered by Hon’ble Bharat Bhushan, J.)

1. Appellants Mohammad Shafi alias Pappu, Rafiq, Fakaru, Ahmad and Rahimuddin have preferred aforementioned criminal appeals against judgment and order dated 15.9.2007 passed by Additional Sessions Judge (Fast Tract Court No. 2), Gautam Buddh Nagar in Sessions Trial No. 123 of 2001 (State versus Jameel and others) arising out of Case crime no. No. 91 of 2000 under section 396 read with Section 149 Indian Penal Code (in short, IPC), Sections 412, 201, 420 IPC, read with Section 149 IPC, Police Station (in short, P.S.) Surajpur, District Gautam Buddh Nagar and appellants were sentenced to life imprisonment and fine of Rs. 50,000/- under section 396 read with section 149 IPC with default stipulations; rigorous imprisonment for ten years and fine of Rs. 5,000/- with default stipulation under section 412 IPC; three years rigorous imprisonment and fine of Rs. 5,000/- under section 201 IPC with default stipulation under section 201 IPC; and three years rigorous imprisonment and fine of Rs. 5,000/- with default stipulation under section 420 IPC.

2. Appellants were, however, acquitted under section 307 IPC read with section 149 IPC.

3. Both the appeals have been heard together and are being decided by a common judgment.

4. Prosecution story, in brief, is that one Balwan Singh (PW-1) lodged an First Information Report (in short, FIR) on 26.9.2000 at P.S. Surajpur alleging that on 25.9.2000 his deceased driver Manoj and deceased conductor Devendra loaded “dust” (Kachchi Badarpur) in their dumper no. H.R. 38-D 8447 from village Pali, P.S. Ballabhgarh District Faridabad (Haryana). One Ravinder (PW-2) also boarded that vehicle along with two unknown persons. They left for village Sutyana and unloaded the ‘dust’ (Kachchi Badarpur) on the road and left. Thereafter they did not reach home.

5. The aforesaid report was filed against deceased driver Manoj, deceased conductor Devendra and

Ravindra on 26.9.2000 as Case crime no. 91 of 2000 under section 406 IPC at Police Station Surajpur, District Gautam Buddh Nagar.

6. The aforesaid complainant Balwan Singh (PW-1) thereafter, furnished another written information (Ex.Ka.-2) to Station House Officer (in short, S.H.O.), P.S. Surajpur that two unknown persons booked his Dumper No. H.R. 38-D 8447 with deceased driver Manoj and deceased conductor Devendra who took the “dust” (Kachchi Badarpur) in the aforesaid Dumper from village Pali Crusher Zone for Lucknawali. PW-2 Ravindra also boarded this vehicle from village Anangpur District Faridabad (Haryana). At Sutyana turn, unknown companions requested the driver/conductor to unload the “dust” (Kachchi Badarpur) at D.I.G. Farm, therefore, they turned the dumper towards that road in a forest ahead of village Sutyana. Two-three additional unknown persons, apparently associates of two earlier unknown persons also boarded the dumper.

7. At this stage, 4-5 unknown persons were inside the vehicle along with deceased driver and deceased conductor. As soon as PW-2 Ravindra got down from the vehicle to open its Dala, the unknown miscreants already on damper jumped upon Ravindra PW-2 and strangulated him with a piece of cloth (Scarf/Safi). These miscreants left PW-2 Ravindra in an agricultural field assuming him to be dead. Luckily PW-2 Ravindra survived and therefore, was able to witness the subsequent events.

8. It is said that these miscreants also strangulated and killed deceased Manoj and deceased Ravindra from the same (Scarf/Safi). Their cloths were taken off and both the deceased were left only in their underwears. The miscreants took the dumper with them. It appears that this information was communicated by PW-2 Ravindra to complainant Balwan Singh (PW-1), whereupon Balwan Singh along with PW-4 Veer Singh, Jagat Singh (PW-3), Dayanand etc. went to the place of occurrence.

9. Complainant Balwan Singh (PW-1) clarified that he was under the wrong information that his vehicle was misappropriated by Manoj (deceased driver) and Devendra (deceased conductor). Information furnished by Ravindra (PW-2) on his return cleared the situation.

10. The Police of P.S. Surajpur commenced investigation immediately. Samples of blood stained earth and simple earth were taken vide Fard Ex.Ka-4 on 30.9.2000. Sri Omkar Nath Sharma (PW-10) the then S.H.O. Surajpur along with P.W.8 Sub-Inspector (In short, S.I.) Sanjay Kumar Sharma, Assistant Sub Inspector (in short, A.S.I.) Ramesh Chandra Sharma (P.W.9), A.S.I. Brijpal Singh, Constable Police, Constable Nafeesuddin received information during their petrol duty in industrial area from informant regarding activities of miscreants involved in the stated murder and dacoity. Police personnel went near factory and were able to arrest 4 persons at 2:30 pm with damper number HR-38 D-8447 while three miscreants managed to flee from the spot. The arrested miscreants were Jamil Ahmad, Mohammad Shafi @ Pappu, Ahmad, Faqru. These arrested persons also disclosed the identities of three other accused who had run away from the spot. Names of Rafiq, Rahimuddin and Firoj were allegedly mentioned by these said miscreants.

11. It appears that Scarf/Safi (Gamchha) was recovered from Mohammad Shafi @ Pappu during his arrest. The arrest Memo (Ex.Ka-8) discloses that apart the Safi/scarf used in the murder of two deceased, an iron implement and raggmal (emery paper) and a box of paint were also recovered from the arrested persons. A Scarf/Safi was also recovered from agricultural field (Ex.Ka.-10). A sample of “Dust” (Kachcha Badarpur) (Ex.Ka.-11) was also taken from the dust unloaded by accused persons.

12. Appellants Rafiq and Rahimuddin were taken on police remand and taken to factory. Clothes of deceased Manoj and Devendra were recovered at their instance. Incidentally, no public witness was taken during this recovery (Fard Ex.Ka.15).

13. Inquest proceedings were conducted. Inquest report of deceased devendra (Ex.Ka.-2) and that of deceased Manoj (Ex.Ka.-3) are available on record.

14. The corpses of Devendra and Manoj were sent for autopsy. The autopsy was conducted on 28.9.2000 in the afternoon. Following injuries were found on the person of deceased Devendra (Ex.Ka.-18) and deceased Manoj (Ex.Ka.-19):-

Injuries found on the person of deceased Devendra :

“1. Ligature mark 35cm. X 1 1/2cm all around the neck, underneath capillary hemorrhage found and hyroid bone fracture in middle part of neck.

2. Abrasion 2cm. X 1 1/2cm. In right side chest.”

Injuries found on the person of deceased Manoj :

1. Ligature mark all arouind the neck 2½cm wide 34 cm in large in midde part of neck, face, ligature mark, hyorid bone fractured. Toungue protrueo. Eyes swollen congested.

15. On conclusion of investigation, charge-sheet under sections 396, 307,412,201,420 IPC was filed against six persons including one Jamil Ahmad (non-appellant). The trial stood abated against co-accused Jamil due to his death vide order dated 23.7.2007.

16. The then Additional Sessions Judge Gautam Buddh Nagar framed charges against appellants under section 396 read with section 149 IPC, section 307 read with section 149 IPC, sections 412,201 and 420 IPC on 29.10.2002. The accused persons denied charges and desired to be tried.

17. Prosecution adduced evidence of PW-1 Balwan Singh (complainant), PW-2 Ravindra (injured-eye witness), PW-3 Jagat Singh, PW-4 Veer Singh, PW-5 Kartar Singh, PW-6 Sher Singh, PW-7 Sukhvir Singh, PW-8 S.I. Sanjay Kumar Sharma (conducted inquest proceedings), PW-9 Head Constable Promoted (in short, H.C.P.) Ramesh Chandra Sharma, PW-10 S.I.Omkar Nath Sharma (I.O.) and P.W.11 Dr. J.R. Jiyani (conducted autopsy).

18. The statements of appellants were recorded under section 313 Criminal Procedure Code (in short, Cr.P.C.) wherein they denied all the allegations and claimed false implication by Police in order to quickly show resolution of a very heinous crime. On conclusion of the trial, the then Additional Sessions Judge (Fast Tract Court No.-2) Gautam Buddh Nagar convicted and sentenced the appellants, as aforesaid. This judgment is under challenge before this Court.

19. Heard Sri C.P.Singh, Advocate, for all the appellants and Sri Rajiv Misra, learned Additional Government Advocate (in short, A.G.A.) for the State.

20. Learned counsel for the appellants has argued that incident was not witnessed by any witness and that names of miscreants were not known to the witnesses prior to the incident and yet no formal test identification Parade (in short, T.I.) was conducted. The information furnished by complainant in the shape of FIR (Ex. Ka.-1) and (Ex.Ka.-2) were made available on the basis of information received by others. Counsel for the appellants has submitted that failure to hold T.I. is fatal to the prosecution case inasmuch as the testimonies of witnesses were recorded after almost three years, therefore, identification of miscreants in the court would not be suffice.

21. Learned counsel for the appellants has also argued that witnesses of inquest have testified in a contradictory manner thereby creating doubt on their presence during inquest proceedings. The recovery of dumper has not been proved by trustworthy evidence. The submissions is that FIR was ante-timed and manipulated.

22. Per contra, learned A.G.A. Sri Rajeev Misra has argued that two persons were assassinated for stealing the dumper. This grave offence has been proved by the prosecution evidence. Learned AGA has admitted laches on the part of Investigating Officer (in short, I.O.) but he has argued that these laches are not sufficient to discard the entire prosecution evidence.

23. In this case, first FIR (Ex.Ka-1) was lodged by complainant Balwan Singh (PW-1) on 25.9.2000. A perusal of this FIR would reveal that Balwan Singh was not aware of fate of his dumper till the registration of FIR (Ex.Ka-1), for the simple reason that FIR, in fact, was registered against deceased driver Manoj and deceased conductor Devendra under section 406 IPC.

24. The contents of the FIR (Ex.Ka-1) clearly establish that the dumper of complainant Balwan Singh (PW-1) had been siphoned off by his driver and conductor in cahoot with PW-3 Ravindra. Contents of FIR can be summarized as follows:-

A. That Balwan Singh a resident of village Pali, P.S. Ballamgarh, owned a H.R. 38-D 8447 on 25.9.2000.

B. That deceased Manoj was driver on the aforesaid dumper truck and deceased Devendra was conductor on the said vehicle.

C. On 25.9.2000 this vehicle collected “dust” (Kachcha Badarpur) from one of the crushers at Pali.

D. Deceased Manoj had friendship with Ravindra (PW-2) a resident of village Anangpur. This “dust” (Kachcha Badarpur) was booked by two unknown persons.

E. That driver Manoj also requested Ravindra to accompany them.

F. The “dust” (Kachcha Badarpur) was laid on the road and thereafter, vehicle was not found till at least registration of this FIR on 26.9.2000 at 3.30pm.

G. The FIR reveals that complainant Balwan Singh till then was not aware of stated murder of Manoj and Devendra as well as of their innocence. The fact is that FIR registered under section 406 IPC indicates that complainant Balwan Singh suspected involvement of his driver Manoj, conductor Devendra and Ravindra (PW-3) in this disappearance of his dumper-truck at least till 3:30pm on 26.9.2000.

H. That on the next day i.e. 27.9.2000, another information (Ex.Ka-2) was furnished by Balwan Singh (PW-1) scribed by Vinod Kumar of village Anangpur wherein in a different and much more grave story of crime was given. This second information says that dumper-truck was booked by two unknown persons with the malicious intention.

I. It further says that these two unknown persons appeared to be “Muslims” and that PW-2 Ravindra was also taken in by deceased Manoj and Devendra but these two unknown “Muslim” persons requested the driver to turn the vehicle from Sutyana turn towards DIG farm for unloading the “dust” (Kachcha Badarpur). The vehicle was then taken towards Sutyana jungle where two-three additional persons were also present. They asked the driver to unload the “dust” (Kachcha Badarpur) on this particular point (DIG farm). As Ravindra got down from the vehicle to open its “Dala” he was strangulated with a scarfs (Gamchcha/Safa). Ravindra fell down and his assailants believed him to be dead, but luckily Ravindra survived and kept on witnessing the incident wherein both Manoj driver and Devendra conductor were also strangulated with scarf (Gamchcha/Safa). Both of them were disrobed. Only underwear was left on them, thereafter, they disappeared along with dumper.

25. This second information (Ex.Ka.-2) further says that Ravindra (PW-2) came back in the morning of 27.9.2000 to the residence of complainant and informed him about the entire incident. Complainant gathered several persons including PW-3 Jagat Singh, PW-4 Veer Singh, and Pratap Singh resident of village Anangpur , P.S. NIT Faridabad etc. and went to Sutyana Forest where they discovered the corpses of deceased Manoj and deceased Devendra. PW-1 Balwan Singh also wrote that unfortunately he had wrong suspicion regarding involvement of his driver and conductor in disappearance of his dumper while the actual incident was this.

26. This second information has been signed by Balwan Singh (PW-1). This is neither the statement under section 161 Cr.P.C. nor FIR within the meaning of Indian Evidence Act. Second information furnished on 27.9.2000 to the Police can only be treated as previous statement which can only be used for limited purpose during criminal trial.

27. The testimony of PW-1 Balwan Singh and PW-2 Ravindra are quite revealing. The testimony of PW-1 Balwan Singh reveals that he was not present at the time of booking of his vehicle. Admittedly, he was at his residence when two unknown persons loaded ‘dust’ (Kachcha Badarpur) in his vehicle. His residence is admittedly located about 15 km. away in Koli Mohalla. He has admitted the fact that he was not aware of identities of two unknown persons and destination of loaded dumper till 6:30 – 7:00pm on 25.9.2000. He claims to have reached the crusher at night at 9:00pm on 25.9.2000. This witness has admitted that he was not aware of quantity of ‘dust’ (Kachcha Badarpur) loaded and identities of unknown persons and destination.

28. His evidence on record reveals that Ravindra reached the residence of complainant in the morning at about 8:00am on 27.9.2000. The complainant claims that he was all alone at that point of time. Ravindra (PW-2) was wearing torn clothes and had sustained contusions etc. with reddish lines around his neck. Interestingly, this witness has also claimed that Ravindra did not accompany him to give second information to P.S. Surajpur in the shape of Ex.Ka.-2.

29. PW-2 Ravindra has given a different story but before that it would be appropriate to discuss the evidence of PW-3 Jagat Singh and PW-4 Veer Singh. Jagat Singh has testified that he along with Veer Singh and several other persons were sitting at the residence of deceased driver Manoj in the morning of 27.9.2000, when dumper owner Balwan Singh (PW-1) and his companions Dayanand, Kartar Singh etc. came at the residence of deceased Manoj. All of them were having conversation. Suddenly, PW-2 Ravindra also came at the residence of deceased Manoj in miserable condition and communicated entire incident to people present at the residence of deceased Manoj. PW-4 Veer Singh has also said almost same thing except refusing to confirm the presence of Balwan Singh and his companions.

30. PW-1 Balwan Singh, complainant, claims that PW-2 Ravindra approached him at his residence on 27.9.2000 at 9:00am. This evidence is available in paragraph-4 of page 21 of the paper book. In paragraph-4, PW-1 Balwan Singh claims that Ravindra reached his residence at 9:00am and informed him about miscreants’ attempt to kill him and also about the murder of deceased Manoj and Devendra. But on page-24 of paper book, time was changed. This time complainant said that Ravindra reached him in the morning at 8:00am while he was sitting all alone at his residence.

31. We have already discussed that Balwan Singh (PW-1) lives in Koli Mohalla in village Pali while residence of deceased Manoj is located at village Anangpur. PW-2 Ravindra says that he came from P.S. Surajpur to village Anangpur directly. PW-3 Jagat Singh says that complainant Balwan Singh was at the residence of deceased Manoj at village Anangpur when (PW-2) Ravindra came there. While Balwan Singh (PW-1) says that Ravindra approached him at his residence at about 8:00-9:00am in the morning. The distance between Anangpur and village Pali is about 7-8 km. as stated by PW-3 Jagat Singh which indicates significant discrepancy between testimony of various witnesses. It is pertinent to point out that according to Balwan Singh (PW-1), he became aware of the incident only after receiving information from PW-2 Ravindra. Admittedly, he was not aware of murder of deceased Manoj and Devendra till Ravindra himself communicated this information to him.

32. The aforesaid evidence would naturally establish one fact that complainant Balwan Singh (PW-1) was not aware of this incident till 8:00-9:00am in the morning on 27.9.2000. He has himself admitted this fact during his testimony. But we carefully examine the contents of FIR (Ex. Ka.-1), it would disclose two interesting facts. Firstly, this FIR was lodged on 26.9.2000 supposedly without any knowledge of incident; secondly, PW-2 Ravindra had accompanied deceased Manoj from village Anangpur and that the vehicle was taken by two unknown persons to village Sutyana. But complainant was not aware of the destination of vehicle, as admitted by him, during his testimony.

33. We have already discussed his admission that he was not earlier aware of identities of persons and destination of vehicle. He has admitted that dumper was taken by unknown persons from crusher at village Pali for unknown destination. He has also admitted that Ravindra boarded the vehicle from village Anangpur. The question arises how come Balwan Singh (PW-1) became aware of presence of Ravindra on the vehicle and the fact that dumper had been booked for village Sutyana inasmuch as he was unaware of these facts till his meeting with Ravindra on 27.9.2000.

34. The details enshrined in the FIR (Ex. Ka.-1) indicates that he was aware of not only the destination of vehicle but also the fact that PW-2 Ravindra himself had accompanied deceased driver Manoj and deceased conductor Devendra. But, still this FIR was filed under section 406 IPC, meaning thereby, that something is amiss in the prosecution story.

35. This, in fact, gives weight to the allegation of learned counsel for the appellants that FIR was ante-timed. If FIR was ante-timed, then necessary question would be why was it done ? There is no explanation for this except indicating manipulation in the FIR. This FIR (Ex.Ka.-1) contains certain information which was admittedly not available to complainant Balwan Singh (PW-1) on 26.9.2000.

36. PW-2 Ravindra has himself given a third story. To appreciate his contention, it would be appropriate to reproduce the relevant portion of his testimony :-

^^cnek’k mDr okjnkr esa 56 FksA cnek’kksa esa ls vkt dh rkjh[k rd eSa fdlh dk uke ugha crk ldrk D;ksfd eSa muds uke ugh tkurkA^^

—————————————————————————————————

^^e`rdks dh yk’k esjs lkeus ugha feyh FkhA eSa Fkkuk lwjtiqj ls lh/ks vius ?kj pyk x;k Fkk] fn0 2592000 dks ‘kke dks gh vius ?kj pyk x;k Fkk] fQj dgk fd 2692000 dks x;k FkkA

eSa ?kcjk;k gqvk Fkk] eSus ?kj ij gh djhc nks fnu rd vkjke fd;k FkkA nks fnu ckn es eSa ;k esjs ifjokj tuksa esa ls dksbZ Hkh esjs lkFk o eukst o nsosUnz ds lkFk ?kVuk dh f’kdk;r djus ;k lwpuk nsus dgh ugh x;sA eqs ;g tkudkjh ugha Fkh fd bl ?kVuk dh ckor Fkkus ij dksbZ fjiksVZ gks x;h gS ;k ugh] eqs ;g Hkh irk ugha fd fjiksVZ fdlus dhA fdldh fjiksVZ ij ;g eqdnek py jgk gSA

37. The above testimony discloses that Ravindra managed to reach P.S. Surajpur from the place of occurrence and thereafter reached his residence at village Anangpur in Faridabad. He claims that he rested for two days and did not visit anyone. In fact, he showed his ignorance about lodging of the FIR. His testimony does not say that he gave any information to P.W.1 Balwan Singh (complainant) either at his resident situated at Koli Mohalla in Pali village or at the residence of deceased Manoj in presence of PW-3 Jagat Singh, PW-4 Veer Singh, and several others.

38. Now, we have three stories regarding source of information of incident to Balwan Singh (PW-1). Balwan Singh says that he received information at his residence located at Mohalla Koli in village Pali in the morning at about about 8:00-9:00am on 27.9.2000 while PW-3 Jagat Singh says that Balwan Singh visited residence of deceased Manoj in the morning of 27.9.2000 and thereafter, Ravindra also came to the residence of Manoj and narrated the entire story.

39. Strangely, PW-2 Ravindra does not accept either contention. He has denied parting with this information to PW-1 Balwan Singh either at his own residence or at the residence of deceased Manoj Singh. He claims that he did not visit any place after coming back from P.S. Surajpur. He showed his ignorance about lodging of the FIR and yet interesting thing is that FIR contains the information which simply was not available to Balwan Singh prior to his stated meeting with Ravindra. In addition to that, the information (Ex. Ka.-2) given to P.S. Surajpur by Balwan Singh (PW-1) on 27.9.2000 contains the full prosecution story, supposedly communicated by PW-2 Ravindra. But, Ravindra was not even aware of lodging of FIR. According to him, he did not give any information to Balwan Singh on 27.9.2000.

40. The prosecution evidence contains one fatal flaw in their story. PW-2 Ravindra has specifically asserted that miscreants strangulated him at the place of occurrence and he was, in fact, first victim of miscreants. He became conscious after few minutes of incident. The miscreants considered him dead and that is why he was saved. The evidence of PW-2 Ravindra further says that he remained silent and pretended to be dead. He was thrown in Chari (fodder) field but managed to witness the strangulation of Manoj and Devendra from this Chari field. He claims that he was lying in this Chari field through-out in the night and quietly went to P.S. Surajpur in the morning and then narrated the entire story to the Police personnel at P.S. Surajpur in the morning. The incident had occurred in the night on 25.9.2000 in the jungle at village Sutyana. Ravindra was lying in Chari field through-out in the night. Obviously, he managed to reach P.S. Surajpur in the morning of 26.9.2000. He claims that Police did not believe initially him and arrested him. They only released him in the evening after verifying his information. This portion of his testimony is reproduced below :-

^^tc xkM+h ¼MEQj½ cSd djds eky mrkj jgs Fks rHkh eqs f[kM+dh esa ls ,d vkneh us [khap fy;k vkSj nwljs us esjs xys esa QUnk] lkQh ls Mkyk Fkk ftlls esjk ne ?kqVus yxk vkSj fQj eqs [ksr esa [khapdj ys x;s tgkW eqs ejk gqvk ledj NksM+ dj pys vk;sA xys esa fdlus QUnk Mkyk Fkk mldks gkftj vnkyr eqyfteku es ls ugh igpku ldrk D;ksafd ,dne Vds ls [khpk Fkk vkSj QUnk Mkydj xyk ?kksV fn;k Fkk blfy;s ugha igpku ik;k FkkA FkksM+h nsj esa tc eqs gks’k lk vk;k rks eSa pqipki mBdj Tokj ds [ksr esa dks Hkkx x;k vkSj iwjh jkr eSa Tokj ds [ksr esa gh jgkA lqcg ogka ls fudy dj eSa pqipki Fkkuk lwjtiqj igqWpk fQj eSaus ogkW lkjk okd;k crk;k] fQj iqfyl esjs lkFk ?kVuk LFky rd vkbZA iqfyl us esjh ckr dk fo’okl ugha fd;k vkSj mYVk cUn dj fy;kA ‘kke dks tc mUgsa ?kVuk dh lPpkbZ irk iM+h rks eqs NksM+ fn;kA^^

41. The aforesaid testimony knocks the bottom of the prosecution case. If P.S. Surajpur was in possession of information of PW-2 Ravindra in the morning of 26.9.2000 and Ravindra (PW-2) was in the custody of Police on 26.9.2000, then lodging of FIR (Ex.Ka.-1) on 26.9.2000 at 3:30pm becomes a strange development because this FIR means that PW-1 Balwan Singh was present at the Police Station Surajpur prior to 3:30pm on 26.9.2000. At this time, PW-2 Ravindra was also in the custody of Police of P.S. Surajpur and yet this FIR was lodged at 3:30pm without disclosing the fact of arrest of Ravindra but this does account for two information exclusively in possession of Ravindra that Ravindra had accompanied deceased Manoj and Devendra and that “dust” (Kachcha Badarpur) was unloaded near village Sutyana. It appears that FIR was lodged by Balwan Singh (PW-1) after receiving information from Ravindra at P.S. Surajpur.

42. This conclusion also accounts for the claim of PW-2 Ravindra that police did not believe his story initially and he was released only in the late evening after verifying the information. This further accounts for admission of PW-1 Balwan Singh wherein he has admitted that second information (Ex.Ka-2) furnished 27.9.2000 was given at the instance of police personnel at P.S. Surajpur. We believe that it would be appropriate to reproduce this very important admission of PW-1 Balwan Singh, which is as follows:-

^^;g dguk lgh gS fd fjiksVZ izn’kZ d2 iqfyl Fkkuk lwjtiqj ds dgus ls fy[kkbZ gSA

;g dguk lgh gS fd bl dsl ds fdlh eqfYte dk uke eqs irk ugha FkkA eSaus tks Hkh eqfYteku dk fooj.k fn;k gS og iqfyl okyksa ds crkus ij fn;k gSA^^

43. The very fact that FIR (Ex.Ka.-1) was obviously filed after meeting PW-2 Ravindra at P.S. Surajpur but without disclosing the said fact indicates an attempt to manufacture and create evidence. The fact that FIR (Ex.Ka.-1) was lodged under section 406 IPC primarily against deceased Manoj, Devendra and Ravindra even after meeting Ravindra in the case substantiate the claim of PW-2 Ravindra that police did not believe his story initially.

44. The recovery of dead bodies of Devendra and Manoj too is shrouded in mystery. According to P.W.-2 Ravindra, the entire information of murder of Devendra and Manoj was furnished to the police of P.S. Surajpur on 26.9.2000. Ravindra was disbelieved and taken into custody. He further says that police verified his information and released him on 26.9.2000 at 3:30pm. The report (Ex.Ka.1 ) was lodged without containing information of murder of Manoj and Devendra, meaning thereby that dead bodies were not recovered till then.

45. PW-2 Ravindra admittedly was released in the evening and he went to his resident at village Anandpur in the evening of 26.9.2000, meaning thereby that dead bodies were recovered after 3.30pm and before the night fall on the same evening. Unfortunately, this fact does not find support from available evidence on record. PW-2 Ravindra, the star witness of prosecution says that he received information of recovery of dead bodies from Jowar field after 2-3 days though he was not present at the time of recovery of the dead bodies.

46. On the other hand, PW-1 Balwan Singh says that he received this information from Ravindra in the morning of 27.9.2000 at his residence while PW-3 Jagat Singh and PW-4 Veer Singh say that they received this information at the residence of Manoj from PW-2 Ravindra in the morning of 27.9.2000. Place of receiving this information is discrepancy ridden. But, one thing is clear that all these three witnesses confirm that this information was furnished in the morning of 27.9.2000. All these three witnesses have also claimed that they went to place of occurrence and discovered the dead bodies of Manoj and Devendra on 27.9.2000.

47. PW-3 Jagat Singh and PW-4 Veer Singh have stated that several persons were present at the time of recovery of dead bodies. PW-9 H.C.P. Ramesh Chand Sharma and PW-8 Sanjay Kumar Sharma have testified that dead bodies were recovered on 27.9.2000 but the question is why was PW-2 Ravindra released from the police custody in the evening of 26.9.2000 if the dead bodies had not been recovered by then ? Ravindra had informed the Police of P.S. Surajpur about the murder of deceased Manoj and Devendra in the morning of 26.9.2000. The Police of course did not believe him but PW-2 says that he was released in the evening after verifying his information and how can one verify the information of murder of two persons ?

48. Obviously the recovery of dead bodies from the jungle of village Sutyana would have been conclusive evidence. But, if the Police of P.S. Surajpur had verified the presence of dead bodies of deceased Manoj and Devendra or recovered their dead bodies in the evening of 26.9.2000, then why was Ravindra not taken to the place of occurrence ? Or why was whole charade showing recovery of dead body in the morning of 27.9.2000 and recording of any information in the shape of Ex. Ka.-2 prior to this recovery at P.S. Surajpu done ? This further indicates an attempt to manufacture, invent and create evidence.

49. We have carefully examined the prosecution evidence very minutely. We find that Police personnel have manufactured, invented and created evidence at every stage. But most fatal flaw in the prosecution evidence is that FIR (Ex.Ka.-1) was filed against two unknown persons who had booked the dumper. The second information (Ex.Ka.-2) shown to have been furnished on 27.9.2000 also talks of two unknown persons. Two unknown persons booked dumper for transporting “dust” (Kachcha Badarpur) to Sutyana forest. Another 2-3 unknown persons directed unloading of “dust” (Kachcha Badarpur) at near D.I.G. Farm in Sutyana jungle. The informations continuously talk of unknown persons who were involved in murder of deceased Manoj and Devendra. They also tried to murder Ravindra as per prosecution story. No names were mentioned by Balwan Singh despite receiving information from Ravindra (PW-2).

50. The evidence of complainant Balwan Singh also indicates that he was not aware of identities of miscreants even till furnishing of second information in the shape of Ex. Ka.-2. His entire evidence refers to unknown persons and not a single word has been mentioned about roles of the present appellants. At fag end of his testimony, he only said that he knew Jamil Rahimuddin, and Shafi but no role was attributed to them.

51. PW-2 has mentioned the names of Mohammad Shafi @ Pappu and Jamil initially. Later on, he mentioned names of Fakhru and Rafiq etc. But, it is clear from his evidence that he was not aware of identity of any of the miscreants.

52. We have already concluded that both the reports (Ex. Ka.1) and other information (Ex.Ka.-2) were definitely furnished to the police after receipt of information from Ravindra. It is apparent that even Ravindra did not know the identify of accused persons otherwise both these communication to the Police would have reflected few names.

53. PW-2 Ravindra, in fact, is only witness, who claims to have seen the incident. Therefore, only his evidence is relevant for determination of involvement of appellants in the stated crime. But examination of his testimony discloses that even he was not aware of identities of miscreants despite his feeble attempt to involve the appellants. The relevant portion of his testimony is reproduced is as follows :-

^^?kVuk ds nks rhu fnu ckn eukst o nsosUnz dh yk’k ogh Tokj ds [ksrksa esa ls cjken gksuk] eqs ekywe gqvk FkkA eqyfte gkftj vnkyr vgen dks ns[kdj dgk fd eSa ugha igpku ik jgk gWw fd ;g ?kVuk esa ‘kkfey Fkk ;k ughaA vU; O;fDr ;fn dksbZ gS rks lkeus vkus ij igpku ldrk gWwA^^

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xokg us vfHk;qDr gkftj vnkyr jgheqn~nhu dks ns[kdj dgk fd vfHk;qDrx.k esa ;g ‘kkfey Fkk ;k ugha eSa ugh igpku ik jgk gWwA blds vykok eqs ;g ugha ekywe fd eukst o nsosUnz dh yk’k dc cjken gqbZ vkSj vfHk;qDrx.k dSlsdSls idM+s x;sA bl fo”k; esa ;fn iqfyl us esjk dksbZ C;ku fy[kk gS mldh otg ugha crk ldrk fd dSls c;ku fy[k fy;kA^^ ^^bl dsl esa tks cnek’k iqfyl us cuk;s muds uke irk eSa ugha tkurk vkSj u gha eSaus fdlh eqyfte dks buds uke irs iqfyl dks crk;sA ^^cnek’k mDr okjnkr esa 56 FksA cnek’kksa esa ls vkt dh rkjh[k rd eSa fdlh dk uke ugh crk ldrk D;ksafd eSa muds uke ugha tkurkA^^ ————————————————————————————————— ^^eqs ;g Hkh tkudkjh ugha gSa fd tgkW ij eukst o nsosUnz dh gR;k gqbZ Fkh] ogkW ls dkSu eqyfte MEQj dks ys x;k FkkA ?kVuk LFky ij tks Hkh cnek’k Fks os fugRFks Fks ;k ugha] eqs ugha ekyweA eSaus cnek’kksa ds gkFkksa esa dksbZ vlykg ughs ns[kkA^^ ——————————————————————————————————— ^^bl ?kVuk ls igys eSa xkWo lqR;kuk ;k ?kVuk LFky ij dHkh ugha vk;kA vfHk;qDrx.k dks eSaus ?kVuk ls igys dHkh ugha ns[kk vkSj u gh eSa budks dHkh f’kuk[r fd;kA vkt eSa eqyfteku dks vnkyr esa igyh ckj ns[k jgk gWwA^^ 54. The aforesaid testimony completely and finally demolishes the prosecution case. The prosecution has produced only one witnesses for establishing involvement of appellants in the stated crime but this witness has refused identification of appellants in the said crime. The incident occurred in the year 2000 and testimony of PW-3 Ravindra was recorded after almost 4 years when he identified miscreants for the time in the court room. No formal T.I. was conducted by the Police. 55. We feel that failure to hold the T.I. is absolutely fatal to the prosecution case especially in the light of fact that testimony of only eyewitness Ravindra was recorded after four years. We must point out that striking feature of testimony of Ravindra is that he did not provide any identification marks or disclosed special feature of any of the miscreants. It is true that failure to hold T.I. does not necessarily make identification in the court inadmissible. But it certainly weakens the probative value of such identification especially if the identification in the court is done after several years. 56. Ordinarily, identification of an accused for the first time in the court by a witness should not be relied upon, the same being from its nature is a weak evidence unless corroborated by previous identification in the T.I. or any other evidence. The purpose of T.I. parade is to test the observation grasp memory, and capacity to recapitulate what the witness has earlier seen. If witness identities the accused for the first time in the court after a long lapse of time, the probative value of such uncorroborative evidence becomes minimal. We believe that as a rule of evidence, this identification is unsafe to rely on such a piece of evidence. 57. In this case, PW-2 Ravindra has himself stated that incident occurred in darkness in Sutyana jungle. He has, in fact, admitted that he was unconscious for few minutes. He was lying in Chari field. We do not feel that he was in a position to witness the incident in his mental condition. The fact that he was lying through-out in the night in Chari field indicates that he was too frightened to move even after departure of miscreants with dumper from the place of occurrence. He waited till morning to go to P.S. Surajpur where he was taken into custody. Admittedly, he remained with Police of P.S. Surajpur for almost 12 hours. 58. Strangely, this witness was not medically examined. This fact has also been admitted by Ravindra (PW-2), therefore, story that there was an attempt to murder Ravindra by miscreants is not supported by any medical evidence. We just to have take Ravindra’s words for it. His failure to attribute specific role to miscreants also lends weight to argument that even his presence at the place of occurrence is doubtful. 59. Original prosecution story and evidence of PW-2 Ravindra say that miscreants had taken away the clothes of deceased persons and they were left with only underwears. But, this story has not been supported by PW-3 Jagat Singh, who claims to have party to the group of people, who recovered the corpses of Manoj and Devendra. He has testified that at the time of recovery of the dead bodies of Manoj and Devendra, they were wearing clothes which creates doubt about presence of PW-3 Jagat Singh at the time of recovery of corpses. This is also contrary to the story of PW-2 Ravindra who says that he did not accompany any one for recovery of deceased. Even the evidence of PW-4 Veer Singh is contrary to the testimony of PW-3 Jagat Singh, who has said that PW-1 Balwan Singh, the owner of dumper, was sitting at the residence of Manoj on 27.9.2000 in the morning when PW-2 Ravindra came at his residence and communicated the entire information. But, PW-4 Veer Singh has denied it. He has said that they were sitting at the residence of Manoj when Ravindra (PW-2) came and informed them about the incident. But Veer Singh disputed the arrival of PW-1 Balwan Singh. The relevant portion of his evidence is reproduced below :- ^^?kVuk LFky ij eSa] txr flag] bejr flag] jru] tSlh lkFk x;s FksA cyoku flag dks eSa ugha tkurk] u gh cyoku flag esjs lkFk ?kVuk LFky ij x;kA eSaus dHkh cyoku flag dks ugha ns[kkA^^ 60- We have also carefully examined the evidence about arrest of four miscreants on 30.9.2000. PW-8 Sanjay Kumar Sharma has testified that he had arrested four miscreants, namely, late Jamil, appellant Mohammad Shafi, appellant Rafiq and appellant Fakhru on the information furnished by informant on 30.9.2000 at 2:30pm. Three unidentified persons fled from the spot, meaning thereby that three persons allegedly ran away from the spot. Their names were furnished by arrested accused. No T.I. parade was held for establishing identifies of those persons. 61. The police personnel have not been able to give reason for arrest of these persons except bald statement that they were arrested on the information furnished by unknown informant. No public witness was taken. We do not believe that recovery of dumper was made from these accused persons. In any case, the recovery would have only implicated appellants Mohammad Shafi, Rafiq and Fakhru as Jamil has already died. The whole attempt of the Police to create, invent and manufacture evidence in order to somehow implicate appellants diminishes the value of this arrest and so called recovery. In absence of any independent evidence to support this recovery, we do not feel comfortable in acceptting this evidence. 62. Considering all the facts and circumstances of the case, we are convinced that there is no satisfactory evidence against any of the appellants. We believe that appellants have been wrongly convicted and therefore, appeals are liable to be allowed. Therefore, both CRIMINAL APPEAL No. – 6751 of 2007 (Mohd. Shafi @ Pappu Others and State Of U.P.) and CRIMINAL APPEAL No. – 6604 of 2007 2007 (Ahmad versus State of U.P.) are allowed. The judgment and order dated 15.9.2007 passed by Additional Sessions Judge (Fast Tract Court No. 2), Gautam Buddh Nagar in Sessions Trial No. 123 of 2001 arising out of Case crime no. No. 91 of 2000 under section 396 read with Section 149 Indian Penal Code, Sections 412, 201, 420 IPC, read with Section 149 IPC is set aside. The appellants Mohd. Shafi @ Pappu, Fakaru, and Ahmad are said to be in jail. They be set on liberty forthwith. Appellant Rafiq and Rahimuddin are on bail. They need not surrender. 63. Office is directed to certify this judgment to the concerned court through Sessions Judge, Gautam Buddh Nagar within two weeks. The concerned court shall send the compliance report within one month thereafter. 64. A copy of the judgment be placed in both the appeals.

Dated: 24.5.2017

SU.

 

 

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