1

Reserved

A.F.R.

CRIMINAL APPEAL NO. 7757 OF 2009

Manish …............ Appellant

Vs.

State of U.P. …................. Respondent

CONNECTED WITH

CRIMINAL APPEAL NO. 7825 OF 2009

Mahesh Chandra and another ...... Appellants

Vs.

State of U.P. …................. Respondent

CONNECTED WITH

CRIMINAL APPEAL NO. 7398 OF 2009

Devendra and another ......... Appellants

Vs.

State of U.P. …................. Respondent

CONNECTED WITH

CRIMINAL APPEAL NO. 7895 OF 2009

Sandeep and others ........... Appellants

Vs.

State of U.P. …................. Respondent

Hon'ble Sheo Kumar Singh, J.

Hon'ble Vinod Prasad, J.

(Delivered by Hon’ble Vinod Prasad J.)

In this cluster of four appeals, in all eight appellants Devendra A-1,

Murad Ali A-2, Manish A-3,Mahesh Chandra A-4, Kali Ram A-5, Sandeep A-

6,Pradeep A-7,and Mahendra A-8, have challenged the judgment of their

conviction and order of sentence dated 23.11.2009 passed by Additional

Sessions Judge, Court No. 9, Ghaziabad in S.T. No. 284 of 2007, State Vs.

Sandeep and others, relating to P.S. Garhmukteshwar, District Ghaziabad.

By the impugned judgment, learned trial Judge has convicted all the

appellants herein for offences u/Ss 120-B, 302/149, 364, 201 I.P.C. and

has sentenced them to life imprisonment with Rs. 10,000/- fine and in

Neutral Citation No. - 2014:AHC:14169-DB

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default of payment of fine to serve one year additional imprisonment for

each of the two offences u/Ss 120B and 302/149 I.P.C., seven years RI

with Rs. 5,000/- fine under section 364 I.P.C., the default sentence being

six months additional imprisonment, four years RI with Rs. 2,000/- fine,

the default sentence being three months additional imprisonment under

section 201 I.P.C. with further direction that all the aforesaid sentences of

each of the appellants shall run concurrently.

Precursor of the incident stated concisely, as was slated in the

written / chik FIR Exts. Ka-1 and Ka-2 and later on divulged during the

Sessions Trial by the fact witnesses Smt. Saroj P.W. 1, Rajiv Kumar P.W. 2,

Harvir Singh P.W. 3, Mohd.Dilshad P.W.8 are that the informant Smt. Saroj

wife of Brij Kishore P.W.1 is originally resident of village Bachhlauta, her

native village, but later on she came to reside in village Keshopur Sathla

district Bulandshahar. She had two sons Rajiv Kumar P.W. 2 and Sanjai and

a daughter Smt. Seema (deceased) who was married to the appellant

Sandeep A-6 S/o appellant Mahendra A-8 and brother of appellant Pradeep

A-7. Informant’s house in village Bachhlauta was trespassed/ illegally

grabbed by Lallu, Dhanattar and Pradeep. An eviction suit was filed by the

informant to reclaim possession of her aforesaid house, which was pending

in Hapur Court, district Ghaziabad. On family front, marital relationships

between the spouses Sandeep A-6 and deceased Seema ran riot so much

so that husband A-6 had filed a divorce suit against Seema. Seema at her

end firstly filed an application u/s 156(3) Cr.P.C. being application No. 25 of

2004 (paper No. 85 Ga) and later on also lodged criminal case No. 25 of

2004, Seema vs. Sandeep, u/s 498-A I.P.C. and ¾ D.P. Act, in the Court of

A.C.J.M., Hapur(Paper No. 86 Ga, 87 Ga and 88 Ga).

In this hostile backdrop it is alleged that on 5.4.2006, informant

Smt. Saroj accompanied with deceased and her son Rajiv Kumar P.W.2 had

gone to Hapur court to attend civil litigation regarding Bachhlauta house.

Outside court campus they spotted a white Ambassador Car DDQ 902 and

two motor cycles parked close by. A-3,A-6,A-7&A-8 were sitting inside the

car having a dialogue with outside standing accused appellants A-1,A-2,A-4

and A-5. In the court premises informant met appellant husband Sandeep

A-6, along with Lallu and Amit, who told her to settle the dispute.

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Informant therefore permitted deceased Seema to accompany A-6 to have

compromise talks. During this period PW2 went away to a chemist shop to

purchase some medicines. Seema went away to have such a conversation

and P.W.1 remained in the Court veranda waiting for her return. Seema

however did not return after a long gap of time on which,PW1&2 vainly

searched for her and they both then went to the police station where they

met only a gate keeper as other police personnel were on duty in Chaiti

Adhey festival. P.W. 1 and P.W.2 then returned to their village Keshopur

Sathla and again unsuccessfully searched for Seema. Their efforts to

contact her on her mobile phone No. 9411230893, in the evening, was also

in vain although P.W.2 over heard on phone sound of a moving car and a

person saying to pull up the window and car door and shut the mouth of

Seema. Same day at again 8 p.m. PW 1&2 went again to the police station

but at that time also only gate keeper was present and no police personnel

met them but they had given a written report at the police station

regarding missing of Seema. Following day when informant and PW2 had

gone to the police station they found police personnel reading a NEWS

paper, who informed them that a woman corpse has been discovered in

Hiranpur jungle. On contacting police of Garhmukteshwar on phone by the

police of P.S. Hapur, it was informed that the cadaver of the woman was

already dispatched to the District Head Quarter at Ghaziabad. Informant,

accompanied with her husband and son came to Ghaziabad mortuary

where they identified recovered corpse to be of that of their daughter

Seema. Postmortem on her cadaver was conducted and thereafter the

body was cremated by the informant and her relatives. Subsequent to all

this that a typed report Ext. Ka-1 was got prepared by the informant Smt.

Saroj P.W.1 and carrying it informant came to P.S. Garhmukteshwar where

she lodged her report on 7.4.2006 at 8.30 P.M. as crime no. 115 of 2006,

under sections 364, 302, 201, 120-B I.P.C.

HCP Padam Singh P.W. 4 registered the crime by preparing chik FIR

Ext. Ka-2 and GD No. 43. Ext. Ka-3.

S.I. Satendra Singh P.W. 6 of P.S. Garhmukteshwar along with

constable Neel Dhwaj and Veersen had come to the government tube well

where the dead body of the deceased was lying and after appointing

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inquest witnesses had conducted inquest on the cadaver of the deceased

on 5.4.2006 between 7.30 to 10 P.M. vide Ext. Ka-5. Other relevant papers

of Police Form No. 13, photo lash, letter to CMO, seal mohar, report to SSI

were also prepared simultaneously, which all are exhibits Ka-6 to Ka-10.

Deceased corpse along with the inquest memo and above to referred

documents were handed over to the aforesaid constables Neel Dhwaj and

Veersen to be carried to the mortuary for autopsy purposes.

Investigation into the crime initially was conducted by in-charge

Inspector K.N. Singh of P.S. Garhmukteshwar. After transfer of investigation

to P.S. Hapur, SSI R.K. Singh conducted further investigation and from him,

Ajit Singh Chaman, in-charge Inspector Garhmukteshwar P.W. 7 took over

the investigation on 11.6.2006. He noted down the call details of the

deceased Mobile No. 9411230893. He dispatched the reminder for getting

the results of viscera report, which was dispatched on 1.7.2006. On

11.8.2006, viscera report was received to P.W. 7, who copied the same into

the GD. On 26.8.2006, P.W. 7 recorded the interrogatory statements of the

informant Smt. Saroj P.W.1, Rajiv Kumar P.W.2 and Harvir Singh P.W.3.

Subsequent thereto, on 27.8.2006, P.W.7 arrested appellants Mahesh

Chandra A-4, ManishA-3, Kali RamA-5 and Pradeep A-6 and from their

possession, car having registration No. DDQ 902 and from possession of

appellant ManishA-3, a sim card No. 9412549268 was recovered. From the

possession of appellant Mahesh Chandra A-4,a Nokia mobile phone 1110 of

grey colour having sim card no. 9719794788 and mobile having IMEI

no.356636001910406 were recovered. Arrested accused were brought to

P.S. Garhmukteshwar, and their statements were recorded. On 30.8.2006,

accused Devendra A-1 was arrested and from his possession motorcycle

no. U.P. 12D-2585 was recovered. Accused Murad Ali A-2 was arrested on

7.9.2006 and his statement was note in the case diary.P.W.7on the basis of

call details concluded that the mobile recovered belonged to A-4 and from

the aforesaid mobile other accused, in conspiracy with each other, had

called Seema (deceased) at Chandi temple and from there she was

abducted and later on done to death in Hiranpur jungle and her cadaver

was disposed off. On 3.10.2006 autopsy Dr. K.N. Tiwari was interrogated

and his statement was recorded.

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On 4.10.2006, P.W.7 Investigating Officer applied for issuance of

NBWs and 82/83Cr.P.C.processes against accused SandeepA-6 and

MahendraA-8.SandeepA-6 later on surrendered in court and his statement

was recorded and at his disclosure statement, Mohd. Dilshad P.W.8 to

whom Sandeep A-6 is alleged to have sold the mobile phone of the

deceased was interrogated. Wrapping up the investigation, ultimately

charge sheet no.240 of 2006 was submitted by P.W.7 on 24.11.2006 vide

Exhibit Ka-10 against all the appellants. P.W.7 has also proved spot

inspection map Exhibit Ka-11 prepared by his predecessor investigating

officer K.N. Singh.

Autopsy on the cadaver of the deceased was performed by Dr.

K.N.Tiwari P.W.5 on 6.4.2006 at 2 P.M. vide Exhibit Ka-4. In the estimation

of the doctor, deceased was 38 years of age and half to one and half day

had lapsed since she was murdered. Deceased had an average built body

and rigor mortis was present all over her cadaver. Her eyes were congested

and closed and no sign of decomposition was found on her dead body.

Blood stained froth was coming out from nostrils and her nails were

cyanosed. However no ante mortem injury was detected by the doctor on

the dead body. In his opinion, doctor has categorically stated that “cause

of death could not be ascertained Viscera preserved”. In viscera stomach

and its contents, pieces of intestine, spleen, one kidney, pieces of liver,

preservative were preserved. Deceased right and left lungs, brain,

pancreas, spleen and kidneys were congested. 100 ml of semi digested

food was present in her esophagus whose walls were also congested.

Viscera report dated 15 July2006, however indicated that no poison

was found in the parts of the body sent for examination.

On the strength of submitted charge sheet accused were summoned

and since disclosed offences were exclusively triable by Sessions Court,

learned C.J.M. Committed the case to the Court of Session where it was

registered as S.T. No.284 of 2007, State vs. Sandeep and others, before

Sessions Judge, Ghaziabad on 8.3.2007. Aforesaid Sessions Trial was

transferred to Additional Sessions Judge Court no.9.

Learned trial Judge charged the appellants with offences under

sections 120B, 364, 302/149 and 201 IPC on 3.7.2007. All the appellants,

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after being read over and explained the charges, abjured them and

claimed to be tried and consequently Sessions trial procedure was

resorted to establish their guilt.

In the trial prosecution rested it’s case on oral testimonies of eight

witnesses including those of informant Smt. Saroj PW1,Rajiv

KumarPW2,Harvir Singh PW3 and Mohd. Dilshad PW8 as fact witnesses.

Formal witnesses are HCP Padam Singh PW4, Dr. K.N.Tiwari PW5, S.I.

Satendra Singh PW6, and I.O. Ajit Singh Chaman PW7. It also relied upon

documentary evidences of phone call details and other exhibits.

Since, P.W.1 and P.W.2, both are witnesses of the same facts

therefore, we take stock of their evidences cumulatively. Both of them

besides divulging facts already slated herein above further testified that

four and half months after the incident that A-4 had come to them at

about noon and stayed with them about half an hour during which he had

disclosed other appellants to be real perpetrators of the crime, which fact

can be get verified by hearing accused conversation at Sardar Hotel,

Nanpur, where all the accused were to collect. However PW1 admitted that

such a disclosed information was never conveyed by her to any other

person including co villagers but to check the truth of said disclosure she

(informant) had send both her sons to the said hotel, who both after

reaching at the said hotel covered their faces and lied down in an adjacent

hut. After sometimes on three motorcycle all the appellants arrived at the

hotel and started inter se conversations about the payment of money and

amidst that talks that the accused appellants had divulged their

involvement into the murder of the deceased, which conversations were

overheard by the sons who both relayed it to the informant. Both the

witnesses confirmed that civil suit was contested with Lallu and Dhanattar.

PW1 further admitted that the incident had occurred on 5th whereas dead

body was discovered on 6

th

but the F.I.R. Exhibit Ka-1 was lodged on 7

th

April arraigning only four persons as culprits, who were Pradeep A-7, Lallu,

Dhanattar and Amit. Both the witnesses, PW1&2 were confronted with

various omissions and contradictions occurring in FIR and their

interrogatory statements u/s 161 Cr.P.C. to which, they both had failed to

offer any explanation. PW1 further deposed that she was interrogated by

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the I.O. four months after the incident. Informant further stated that while

searching Seema she had inquired from the shopkeepers near the court,

who had informed her that a lady was talking with a man and thereafter,

had gone with him. Both the witnesses, while maintaining that the

deceased Seema was taken away on the pretext having a compromise

talks and was done to death. P.W. 1 also deposed that when deceased had

gone with the accused then PW2 was not present as he had gone to a

chemist shop to purchase medicine. Ten minutes after seems had left that

PW1/ informant had inquired about her(Seema) but she was not traceable.

PW1 & 2 further stated that they had tried in vain to contact the deceased

on her mobile in the evening. Informant however was unable to disclose

the persons who had accompanied her to lodge the report and name of the

typist and the time of lodging of the F.I.R. She was suggested that to save

the persons of Bachhlauta that she had falsely implicated the appellants

and had testified a mendacious story and that she had never gone to the

court nor Mahesh(A-4) had approached her nor had informed her

regarding the murder. She was also suggested that no statement of her

was recorded by the I.O. and she had no knowledge about the incident

and her statements are false.

Rajiv Kumar P.W.2, attour the testimonies of the informant PW1,

further deposed that on the incident date they had started from their

house at 8 A.M. and had arrived in Hapur court at 10 A.M. Regarding

compromise, Amit, Lallu and Sandeep had call them. P.W.2 further

admitted that he had not informed the I.O. regarding the appellants

presence outside the court gate, their names and regarding the

ambassador car. He admitted that when the deceased was taken away, he

was not present at the spot as he had gone to purchase medicines. PW2

further testified that on the disclosure statement of Mahesh Chandra (A-

4), he along with his brother had gone to Sardar Hotel on 25.8.2006 at 7

P.M., reaching there in 2-2 ½ hours at a distance of 10 kilometers. From

Garh, the said hotel is 10/15 kilometers. He had admitted that while going

to Sardar hotel, police station Garh will fall in the way and from Garh Bus

station, police station is only half a kilometer. They had lied down in an

adjacent hut covering their faces to hear accused conversations. He also

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admitted that the accused persons were in a tin shed and he and his

brother were in the hut adjacent to the shed. 20 or 30 other people were

present at the hotel. He admitted that after hearing accused conversations

at the hotel he had not informed the police/I.O. but had informed only to

his mother. On three motorcycles accused had arrived and amidst their

talks they had divulged the entire episode. He further deposed that he and

his brother had lied for two or three hours and in between this period

neither the owner nor any employee of the hotel made any inquiries from

them. He was unable to disclose the area of the hut in which he was lying

as well as time when accused had left the hotel. He was suggested that he

had never gone to the Sardar Hotel and he was stating a myth. PW2 has

admitted matrimonial litigation between Seem and A-6 to A-8 and also

confirmed civil litigation with Lallu, Dhanattar, Pradeep and Amit. He

clarified that Pradeep, with whom the civil litigation is pending is a different

person than the appellant Pradeep A-7. According to him for compromise

Lallu, Amit and Sandeep had approached his mother. P.W.2, however,

showed lack of knowledge about lodging of FIR by his mother PW1 and he

candidly stated that I.O. had not interrogated him. Significant omissions

regarding parking of ambassador car outside the court precinct and other

facts have been put to him but P.W.2 could not offer any viable explanation

for the same. He further admitted hearing of conversations on phone, but

that fact too was not told to the I.O. under section 161 Cr.P.C. He was

suggested that he had never gone to the hotel nor had heard any

conversation and at the tutoring of the counsel, he was deposing falsely.

P.W.2 was unable to detail the place where they had searched for Seema.

He further admitted that Hapur police station is 70/80 paces away from the

court and at the police station, on 5.4.2006, except gatekeeper they had

not met any police personnel and to the gate keeper they had not

informed about the elopement of Seema. PW2 also admitted that even to

their counsel also they had not informed regarding missing of Seema,

which happening had occurred prior to mid noon. PW2 also deposed that

on the incident date they had arrived their village at 5 or 6 P.M. and

thereafter along with his mother and brother they had again returned to

the police station at 8 P.M. but at that time also they had not met any

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police personnel. He made a significant statement that on the incident

date, when they had gone to police station at 8 P.M. they had given a

written report regarding the incident which was handed over by his mother.

His brother Sanjay was with him at that time. He also admitted that a

divorce suit has been filed by Sandeep A-6 against his sister along with an

earlier case and subsequent thereto, that Seema had lodged the case of

dowry harassment. He was suggested that he was deposing falsely and the

accused appellants have been arraigned as culprits after due consultation

and deliberations. Concerning Mahesh, P.W.2 had further evidenced that he

did not know him from before and Mahesh himself had introduced himself

to him. Regarding accused Manish A-3, Devendra A-1, Kali Ram A-5 this

witness has stated that he did not know them since before and it was

Mahesh A-4, who had informed him about them. P.W.2further evidenced

that he had not informed the episode concerning Mahesh A-4 and his

confession to the police nor he had informed it to the Village Pradhan or

respectable persons of his locality.

Coming to the evidence of P.W.3 Harvir Singh, it is discernible that

he had stated that at 2-1/2 P.M. while he was heading towards market,

then near Chandi temple, he had seen Seema along with Sandeep A-6,

Devendra A-1, Murad Ali A-2 and Kali Ram A-5 in an ambassador car

proceeding towards Garh. He had further deposed that after some time he

had seen Pradeep A-7 and Mahesh Chandra A-4 also going towards the

same direction on a motorcycle. He further stated that the police had

interrogated him after four and a half months of the incident. In his cross-

examination, he admitted that he had been a witness for the informant

P.W.1 in a Hapur case. PW3 also stated that he had a conversation with the

informant P.W.1 in village Sadhala at her house ten days prior to his

interrogation by the police u/s 161 Cr.P.C. and at that time informant was

all alone. P.W.3 further testified that in between the incident and giving

statement to the police he could not know about the incident nor could

come to know the names of the accused. He was suggested that he was

giving a false statement and he was a perjurer. He was also suggested that

he had never seen the deceased in the company of the appellants. He also

deposed that he came to know regarding murder of the deceased after

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four months and regarding last seen evidence he had divulged it only to

the informant and to nobody else in the village. He also stated that he had

not shown the place where he had last seen Seema along with the accused

to the I.O. nor the I.O. had asked him to show that spot. He also admitted

that he had not informed the last seen evidence even to his family

members. He was also suggested that being a pet witness of the informant

that he was stating a mendacious version.

Formal witnesses have stated those very facts, which have already

been registered herein above and therefore, we eschew repetition, except

the statement of the I.O. Ajeet Singh Chaman P.W.7 concerning the sim

card and the mobile. According to the I.O. he had collected the call details

of mobile of the deceased and had tallied it with the Sim Card of accused

Mahesh Chandra A-4 having Sim Card No.9719794788. According to the

call details, from the mobile Sim of the deceased a call was given at the

Sim Card of accused A-4. From the mobile of Mahesh Chandra A-4

conversations were also made regularly with Manish A-3 on his mobile. The

call details are material Exhibit-2 and 3. Regarding selling of mobile phone,

I.O./PW7 had informed that the deceased mobile phone was sold by

Sandeep A-6 to Dilshad P.W.8. It was also deposed by P.W.7 that prior to

him two other I.Os. had investigated the case and informant was

interrogated by the first I.O. This witness has proved the omissions and

contradictions appeared in the testimonies of the fact witnesses and has

made a categorical statement that during investigation it was not brought

to his knowledge that on the incident date any chatti arraha festival was

organized in Garh. I.O. further made a statement that neither informant

nor any other witness had informed him regarding organization of said

festival and absence of police constables at the police station because of

the aforesaid reason and therefore the FIR could not be lodged on the

incident date. He further confirmed that the informant had told him that

because of the greed of the house accused had murdered her daughter

and therefore, they should be punished severely. I.O. affirmed

interrogatory statements under Section 161 Cr.P.C. of the informant

wherein she had stated that Pradeep, Lallu and Dhanattar because of the

house dispute had murdered the deceased and to conceal her cadaver had

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thrown it in village Garh. Incident spot was not shown by the informant to

the I.O. P.W. 7 further affirmed statements of many shopkeepers but we

eschew penning down those depositions as the same are wholly irrelevant.

Regarding call details from the mobile I.O. has stated that he had not

verified the ownership of the mobile phone alleged to be that of the

deceased. I.O. has also admitted that from appellants A-6 to A-8 no

recovery has been made relating to crime. He had further admitted that he

had not prepared the site plan of the hotel nor he had investigated the

enmity with Bachhlauta villagers. He was suggested that he had not

prepared any site plan of last seen place because no such fact had ever

occurred. I.O. had not interrogated any person of the mobile company

department. He further stated that accused A-4 is a resident of village

Sangal, Manish A-3 resided in Shahjahanpur, Murad Ali A-2, Kali Ram A-5

and Devendra A-1 were residents of village Saulda. I.O. had no clue about

the distance in between these villages. I.O. had admitted that in the FIR

Kali Ram A-5, Manish A-3, Mahesh Chandra A-4, Devendra A-1, Murad Ali

A-2were not named and his predecessor investigators had also not

collected any evidence against these persons. P.W.7 was suggested that on

insufficient evidences he had charge-sheeted the appellants.

Turning towards the evidence of Mohammad Dilshad P.W.8, he was

declared hostile and was cross-examined and he made a categorical

statement that the calls made by him from the Sim Card and mobile set

were due to repairing purposes. He has denied his 161 Cr.P.C. statement

and had refuted prosecution allegation that Sandeep A-6 had sold him the

mobile belonging to the deceased.

In their examinations under Section 313 Cr.P.C. all the accused

pleaded a common defence of their false implication. Sandeep A-6,

Pradeep A-7 and Mahendra A-8 stated that they have been falsely

implicated because deceased had left A-6 due to his poverty. From the

nuptial knot they had a son. Therefore, informant due to hostile psyche

had arraigned them as accused and the witnesses had deposed a

mendacious story.

As stated in the opening paragraph of this judgment, learned trial

Judge believed the prosecution case and therefore, convicted the

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appellants of the framed charges under Section 120B, 302/149, 364 and

201-A IPC and have sentenced them accordingly vide impugned judgment

and order dated 23.11.2009, which decision has now been called in

question in the instant appeal.

On the above factual matrix that we have heard Sri P.N. Mishra, Sri

V.P. Srivastava, learned senior counsels for the appellants, Sri H.P. Singh,

learned counsel for the informant and Sri Sangam Lal Kesharwani, learned

AGA for the State, for and against this appeal.

Assailing the impugned judgment, both the learned senior counsel

strenuously urged that it is a case of no evidence. The entire evidences

singularly and cumulatively indicates and establishes only motive to

commit the crime and nothing thereafter. None of the fact witnesses,

informant PW1, her son PW2 and P.W. 3, who is the witness of last seen,

are trustworthy and reliable witnesses nor their testimonies are convincing

and confidence inspiring. Descripencies are galore in oral evidences with

vital loopholes and, therefore, cannot be relied upon. Both the mother and

the son P.W. 1&P.W.2, have contradicted each other on most pivotal

aspects about the incident signifying untrustworthiness of their

depositions. There is absolutely no evidence on record that anybody had

seen the deceased going with the appellants from the court premises or

from it’s vicinity. No oral and documentary evidences were filed by the

prosecution to establish that on the date of the incident any date was fixed

in the civil suit, which was pending between the informant and Lallu,

Dhanattar and Pradeep concerning her house in village Bachhlauta.

Evidence of Investigating Officer unerringly depicts that the explanation

offered for delayed lodging of FIR and informing the police is mendacious

and a fib. No festival was going on and, therefore, statement of both P.W.

1 and P.W. 2 that they had not met with any police personnel at the police

station on the incident date is absolutely false. Deceased was never forced

by any of the appellants to accompany him and/or they and, therefore,

charge of abduction and / or kidnapping is not established at all. No force

was applied nor any threat was hurled and consequently conviction u/s 364

I.P.C. is illegal and unsustainable. It was at the instance of her mother

that Seema accompanied Sandeep A-6 to have a compromise talk. This

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circumstance in no way is incriminating and culpable. It is further

submitted that the allegation that on the mobile phone, P.W. 2 had heard

regarding pulling the window pains and the door of the car is all false and

afterthought. Mobile phone of the deceased in fact was never recovered

and the entire story has been fabricated by the police. It is next urged that

the evidence of P.W. 3 is absolutely false and his entire testimony vetted

searching only leaves an impression that he is a planted and a tutored

witness and he had never seen the deceased in the company of the

accused. No physical injury was found on the cadaver of the deceased to

indicate that she was physically assaulted and was done to death. Viscera

report also does not indicate administering of poison to her and, therefore,

cause of deceased death lies in a realm of uncertainty and consequently it

cannot be concluded even for a moment that deceased was murdered.

When autopsy doctor P.W. 5 was examined at the first instance on

3.4.2008, he was unambiguous that cause of deceased death was

unknown and to pinpoint and ascertain it that her viscera was preserved.

Six months thereafter prosecution has recalled the postmortem doctor to

get it elicited from him that the deceased had died because of vasovagal

shock (all of a sudden death) but even that fact do not anoint guilt of any

of the appellant conclusively and convincingly. Further more doctor was

uncertain on the point as he opined that due to vasovagal shock, death

may or may not occur and hence there is absence of reliable evidence that

the deceased met homicidal death at the hands of the appellants.

Regarding mobile phone calls, it neither proved the charge of murder nor

are relevant and the time factor between call details and the incident,

leaves no manner of doubt that the entire prosecution story is cooked up

and fabricated. It is next urged that the learned trial Judge completely

ignored significant evidences crumbling prosecution edifice and has

concentrated only on truncated version to convict the appellants and,

therefore, the impugned judgment should not be sustained and the

appeals filed by the appellants be allowed and they be acquitted of all the

charges and be set at liberty.

Learned AGA to the contrary submitted that the circumstances

brought on the record by the prosecution indicate that the deceased was

14

taken away from the Court campus in an ambassador car and subsequently

was murdered and her corpse was disposed off. Since, it is not a case of an

eye witness account, prosecution has successfully brought on record the

motive, last seen evidence against the appellants and, therefore, the

charge of murder has been established beyond any shadow of reasonable

doubt and appellants' appeal sans merit and deserves to be dismissed.

We have pondered over rival submissions and have gone through

the entire oral and documentary evidences exists on the record carefully

and searchingly. It is a case based on circumstantial evidence regarding

which there are innumerable judicial pronouncements crystallizing law

succinctly and lucidly and the trite law which now has emerged is that in

cases based on circumstantial evidence, each ring of circumstance woven

together must present a complete chain and it must be a pointer only to

the guilt of the accused without admitting any other hypothesis or

exception. Unless these two facets are established, in a case rested on

circumstantial evidence, guilt of the accused cannot be taken to be

established. It is impossible to register each of those precedent cases but

for the sake of convenience, it will be appropriate to take stock of some of

those judicial pronouncements and we herein below refer some of them

countenancing above slated expounded law:-

In Paramjeet Singh versus State of Uttarakhand:AIR 2011

SC 200 it has been held by the apex court as under:-

“14. Though a conviction may be based solely on circumstantial

evidence, this is something that the court must bear in mind while deciding

a case involving the commission of a serious offence in a gruesome

manner. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC

1622, this Court observed that it is well settled that the prosecution's case

must stand or fall on its own legs and cannot derive any strength from the

weakness of the defence put up by the accused. However, a false defence

may be called into aid only to lend assurance to the court where various

links in the chain of circumstantial evidence are in themselves complete.

This Court also discussed the nature, character and essential proof

required in a criminal case which rests on circumstantial evidence alone

and held as under :

(1) The circumstances from which the conclusion of guilt is to be drawn

should be fully established;

(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;

15

(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.”

In Ramesh Bhai and Anr. v. State of Rajasthan:AIR 2009

SC(Suppl) 1482 it has been held as under:-

“5. It has been consistently laid down by this Court that where a

case rests squarely on circumstantial evidence, the inference of guilt can

be justified only when all the incriminating facts and circumstances are

found to be incompatible with the innocence of the accused or the guilt of

any other person.(See Hukam Singh v. State of Rajasthan (AIR 1977 SC

1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316);

Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v.

Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab

(AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC

1890). The circumstances from which an inference as to the guilt of the

accused is drawn have to be proved beyond reasonable doubt and have to

be shown to be closely connected with the principal fact sought to be

inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR

1954 SC 621), it was laid down that where the case depends upon the

conclusion drawn from circumstances the cumulative effect of the

circumstances must be such as to negative the innocence of the accused

and bring the offences home beyond any reasonable doubt.

6. We may also make a reference to a decision of this Court in C. Chenga

Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been

observed thus :

"In a case based on circumstantial evidence, the settled law is that the

circumstances from which the conclusion of guilt is drawn should be fully

proved and such circumstances must be conclusive in nature. Moreover, all

the circumstances should be complete and there should be no gap left in

the chain of evidence. Further the proved circumstances must be

consistent only with the hypothesis of the guilt of the accused and totally

inconsistent with his innocence....".

7. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was

laid down that when a case rests upon circumstantial evidence, such

evidence must satisfy the following tests :

"(1) the circumstances from which an inference of guilt is sought to be

drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly

pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete

that there is no escape from the conclusion that within all human

probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be

complete and incapable of explanation of any other hypothesis than that of

16

the guilt of the accused and such evidence should not only be consistent

with the guilt of the accused but should be inconsistent with his innocence.

8. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was

pointed out that great care must be taken in evaluating circumstantial

evidence and if the evidence relied on is reasonably capable of two

inferences, the one in favour of the accused must be accepted. It was also

pointed out that the circumstances relied upon must be found to have

been fully established and the cumulative effect of all the facts so

established must be consistent only with the hypothesis of guilt.

9. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence"

(Chapter VI) lays down the following rules specially to be observed in the

case of circumstantial evidence: "(1) the facts alleged as the basis of any

legal inference must be clearly proved and beyond reasonable doubt

connected with the factum probandum; (2) the burden of proof is always

on the party who asserts the existence of any fact, which infers legal

accountability; (3) in all cases, whether of direct or circumstantial evidence

the best evidence must be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be

incompatible with the innocence of the accused and incapable of

explanation, upon any other reasonable hypothesis than that of his guilt,

(5) if there be any reasonable doubt of the guilt of the accused, he is

entitled as of right to be acquitted".

10. There is no doubt that conviction can be based solely on circumstantial

evidence but it should be tested by the touchstone of law relating to

circumstantial evidence laid down by this Court as far back as in 1952.

11. In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh,

(AIR 1952 SC 343), wherein it was observed thus-

: "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 be 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."

12. A reference may be made to a later decision in Sharad Birdhichand

Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing

with circumstantial evidence, it has been held that onus was on the

prosecution to prove that the chain is complete and the infirmity of lacuna

in prosecution cannot be cured by false defence or plea. The conditions

precedent in the words of this Court, before conviction could be based on

circumstantial evidence, must be fully established. They are :

(1) the circumstances from which the conclusion of guilt is to be drawn

should be fully established. The circumstances concerned 'must' or 'should'

and not 'may be' established;

(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

17

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.”

When facts of present appeal are vetted in consonance with above

parameters of law and facts are analyzed it becomes evident that so far as

motive is concerned appellants A-6 to A-8 namely Sandeep, Pradeep and

Mahendra could have a motive to annihilate the deceased but

simultaneously informant and her son also could have motive to falsely

implicate the appellants as well because of matrimonial dispute. Motive

being a double edged weapon and for both the factions it existed ,

therefore in our view nothing much turns on that. However we are of the

opinion that without any immediate reason it was not such a compelling

reason for the appellants to pick up the deceased from the court premises

and do away with her. Husband A-6 had already filed a divorce suit against

her, which was pending adjudication therefore it is not appealing, albeit not

impossible, for the family to involve themselves in such a crime. Since from

the facts of the present appeal, motive appears to very weak that we have

looked for corroboration from other circumstances and sources to judge

the guilt of the appellants. In that endeavour, after vetting through the

evidences what transpires and emerges is that none of the fact witnesses

are wholly reliable nor their testimonies are convincing and creditworthy.

Ab initio, it is established that FIR, Ext. Ka-1 is a typed FIR which was

lodged after discovery and performance of last rights of the deceased.

Thus it is not an FIR which was lodged in haste and therefore glaring

omissions and contradiction occurring in it will have significant effect on

the veracity and genuineness of the prosecution story. Summating oral

evidence of the informant PW1 she had stated that while going to the

Court, she had spotted a parked ambassador car with four people sitting

inside it and rest of the four accused standing outside where two

motorcycles were parked and conversations between them were going on

but then all these facts neither finds place in the FIR Ext. Ka-1 nor were

18

stated to the I.O. by the informant and thus are significant

embellishments on which no reliance can be placed. All this are nascent

versions stated for the first time during the trial. Further PW1 has not

evidenced that she had seen the deceased in the company of all the

appellants to consider last seen evidence as an incriminating circumstance

against all the appellants. What is of importance is that although P.W.1 has

deposed that along with Sandeep A-6 two other accused Lallu and Amit

were also present when the deceased had gone to have a compromise

conversations with them but on her instructions during investigation I.O.

did not find any evidence against Lallu and Amit nor had charge sheeted

them nor they have been prosecuted. Additionally, there is dearth of

evidence that deceased boarded inside any car much less to say the

ambassador car alleged to have been parked near the court. From inside

court precinct there is total absence any evidence regarding movement of

the deceased nor the informant and her son had seen the deceased in the

company of the appellants so much so that it's prosecution own version

that when deceased went with some persons to have settlement talks PW2

was not present and he had gone to a chemist shop to purchase medicine

and hence on this feeble and unconvincing last seen evidence there

remains a single testimony only of PW1. Coupled with above uncoming fact

what is totally missing in the prosecution evidence is as to whether any

date was fixed in the civil suit on the incident date or not? No convincing

documentary evidence worth in name was brought on record by the

prosecution. An innocuous natural and neutral circumstance of being

present outside the court compound having a dialog amidst each other is

not an incriminating circumstance at all unless it is attached with some

other culpable circumstance. Further accompanying a single accused who

was the husband to have a compromise talks is neither incriminating nor

culpable.

Coming to last seen evidence divulged by P.W.3, we have no

hesitation in rejecting his testimonies in it's entirety for the reasons that

admittedly the said evidence was disclosed four and half months after the

incident by PW3 who was wholly a chance witness. Attour, in between the

incident and passing of four and half months, Harbir Singh P.W.3 had not

19

divulged the last seen story to anybody not even to his family members or

to the police. He was interrogated by the I.O. only after a gap of

aforementioned long period and, therefore, it will be hazardous and dicey

to place reliance on such an evidence. P.W.3 seems to be a partisan

witness as he has been a witness for the informant in an earlier case as

well. Moreover according to PW3 he had informed the informant about last

seen evidence ten days prior to his interrogation by the police, then why

he kept this evidence close to his chest for such a long period of ten days.

Even if we accept the testimony of P.W.3 for the sake of argument then in

absence of any viable explanation for not informing the police for all these

ten days makes this witness wholly unreliable and got up. No explanation

has been offered by the prosecution for concealing the last seen evidence

from the police for these another ten days. P.W.3 further evidenced that

informant had met him alone at her house and prior to it he was

unbeknown about the murder of the deceased is an explanation which is

only to be discarded rather than accepted. This witness had not gone away

to anywhere and had remained at his house all along and therefore it

cannot be believed that he did not come to know about the murder of the

deceased for all these four and half months. All these statements seems to

be totally mendacious and feigned. It is P.W. 3's categorical statement that

prior to informing the informant he had not informed the police regarding

last seen evidence which also is a damaging circumstance against

acceptance of his evidence. He had not shown to the I.O. the place where

he had spotted Seema in the car along with appellants. He had not

informed even his family members regarding the aforesaid fact. This

witness has been rightly suggested that he had not seen the deceased in

the company of the appellants and whatever he had evidenced is all a

myth. Vetting through his entire evidence closely, we find him to be a

wholly unreliable witness and, therefore, in our opinion, there is no

evidence of last seen against the appellants in the present appeal.

Turning towards the conversations overheard on mobile phone, there

is contradiction in the statements of P.W. 1 and P.W. 2 both. Firstly, it is not

known whose voice has been heard by P.W.2 as he could not identify it and

secondly there is no evidence that the deceased ever boarded inside any

20

car. Moreover, overheard voices on mobile phone is in the nature of

hearsay evidence and therefore without any other circumstance

establishing that fact the said evidence does not countenance case of the

prosecution and are wholly insufficient to establish the guilt and charge of

murder against the appellants.

Coming to another circumstance regarding the confessional

statements made by Mahesh Chandra A-4, the said evidence, according to

prosecution case itself was surfaced after four and half months of the

incident. This period is too long for us to place any reliance on such an

extra judicial confessional statement that to which is exculpatory and

without any immediate reason. The statement of a co-accused cannot be

read against another co-accused and, therefore, the disclosure statements

by Mahesh A-4 to the informant is wholly inadmissible and no reliance can

be placed on such an evidence. We do not mean to say that approver’s

evidence can in no circumstances be relied upon but what we impress

upon is that disclosure statement by A-4 does not lead to any inference

about guilt of the appellants as no description about the manner and mode

of murder disclosed by A-4 was brought on record by the prosecution. His

too general statements without specific revelations that the appellants had

perpetrated the incident is wholly insufficient to hold guilt of a murder

charge proved to the hilt. Prosecution had not endeavoured to bring on

record the exact revelation about the conversations between informant and

A-4 and hence in our view prosecution does not gain any benefit of his

evidence. Further confession by A-4 seems to be motivated for ulterior

motives and seems to have been given because of his greed for money on

which no reliance can be placed. Why A-4 kept silent for so long is

sufficient to discard his so called confessional disclosure. It has been held

in Kailash versus State of U.P.: AIR 1994 SC 470 :-

“4. It can be seen that the second circumstance, namely, the extra-

judicial confession is the main circumstance on which the prosecution case

hinges P.W. 10 speaks about the extra-judicial confession. He belongs to

village Gugauli Khurd within the limits of the same police station. The

village of the accused is situated at about one mile from there. He deposed

that 18 to 20 days after the murder the accused came to him at about

5.30 p.m. and he was looking depressed and sad and he stated that he

had committed a blunder that he had murdered the deceased and after

21

that he had gone to his brother in Punjab and that P.W. 10 is a man of

influence in the area and that he should save him. On that very night the

Investigating Officer came to him and enquired and he informed him what

has happened. This is all the evidence about the so-called extra-judicial

confession. In the cross-examination P.W. 10 admitted that a case under S.

307 was instituted against him in the same Police Station and 8 or 10

months back the case was thrown out because it was a false case and final

report in that case was also filed by the police.

5. We have carefully gone through the evidence of P.W. 10. We find that

the same does not inspire confidence. It is also stated by this witness that

the accused, might have opposed his brother in the elections. Be that as it

may, we do not find any reason as to why the accused after 20 days

should go to P.W. 10 who himself is an accused in another case and make

a confession. The suggestion made by the defence that P.W. 10 was

deposing at the instance of police is not without force. This circumstance is

of doubtful nature and if this circumstance is not to be taken into

consideration. Then on the basis of other circumstances even if they are

accepted, the case against the accused does not stand established. In the

case of circumstantial evidence all the circumstances should be established

by independent evidence and they should form a complete chain bringing

home the guilt to the accused without giving room to any other

hypothesis. In this case we find many missing links.”

In State of Rajasthan versus Chhotey Lal: (2011)14 SCC

303 it has been laid down as under:-

“7. Furthermore, the High Court also noticed that the extra-judicial

confession, alleged to have been made by the accused to PW 3, was

neither reliable nor worthy of credence. There was no occasion or

attendant circumstances for the accused to make the extra-judicial

confession to the witnesses. The FIR itself was lodged after a period of

two days from the date of knowledge. The recovery of dead body after a

considerable delay at the disclosure statement of the accused would lose

its significance and evidentiary value inasmuch as in Ext. P-42 (the paper

pasted on the temple wall), it was stated that the dead body was lying in a

well. Thus, this was a fact commonly known.”

Further in Sk Yusuf versus State of West Bengal: AIR 2011

SC 2283 it has been held :-

“28. Both Nurul Islam (PW 11) and Ali Hossain (PW 13) are chance

witnesses as they alleged to be in Shyamsundar Bazar on that date for

marketing and none of them had regular business in that bazaar. The

Court while dealing with a circumstance of extra-judicial confession must

keep in mind that it is a very weak type of evidence and requires

appreciation with great caution. Extra-judicial confession must be

established to be true and made voluntarily and in a fit state of mind. The

words of the witness must be clear, unambiguous and clearly convey that

the accused is the perpetrator of the crime. The “extra-judicial confession

22

can be accepted and can be the basis of a conviction if it passes the test of

credibility”.

So far as hearing of inter se accused conversation by P.W.2 and his

brother is concerned, the said evidence is hearsay and is inadmissible.

Moreover, it is too gibberish and weird and seems to be wholly absurd and

puerile to accept that after commission of the murder all the accused will

conglomerate at Sardar Hotel in the evening only to confess entire murder

episode committed by them in such a loud voice so as to be audible to the

persons lying in a nearby hut. No details of conversations or what

transpired during conversation in exact words has been brought on the

record and hence such an evidence can only be bracketed as hearsay

evidence and nothing more. Such type of evidence is wholly inconsistent

with the natural human conduct and it will be imprudent to place any

reliance on such a version. Statement of P.W.2 regarding the aforesaid fact

therefore is untrustworthy and we hereby discard it in it's entirety.

Post mortem report does not establishes conclusively that deceased

was subjected to murder by physical violence although, her internal organs

were found congested but the cause of her death could not be ascertained.

Drawing presumption against the accused to establish a serious charge of

murder to the hilt is not desirable and sanctified in law. Vasovagal attack

also called neurocardiogenic syncope does not conclusively establishes

homicidal death. It is a malaise mediated by the vagus nerve. When it

leads to syncope or "fainting", it is called a vasovagal syncope, which is the

most common type of fainting. Vasovagal syncope more commonly affects

young adults. There are different syncope syndromes which all fall under

the umbrella of vasovagal syncope. The common element among these

conditions is the central mechanism leading to loss of consciousness. The

differences among them are in the factors that trigger this mechanism.

Episodes of vasovagal response are typically recurrent, and usually occur

when the predisposed person is exposed to a specific trigger. Prior to losing

consciousness, the individual frequently experiences early signs of

symptoms such as lightheadedness, nausea, the feeling of being extremely

hot or cold (accompanied by sweating), ringing in the ears (tinnitus), an

uncomfortable feeling in the heart, fuzzy thoughts, confusion, a slight

23

inability to speak/form words (sometimes combined with mild stuttering),

weakness and visual disturbances such as lights seeming too bright, fuzzy

or tunnel vision, black cloud-like spots in vision, and a feeling of

nervousness can occur as well. The symptoms last for a few seconds

before the loss of consciousness (if it is lost), which typically happens when

the person is sitting up or standing. When sufferers pass out, they fall

down (unless this is impeded) and, when in this position, effective blood

flow to the brain is immediately restored, allowing the person to regain

consciousness; if the person does not fall into a fully flat, supine position,

and the head remains elevated above the trunk, a seizure may result from

the blood's inability to return quickly to the brain. Fainting occurs with the

loss of oxygen to the brain. Vasovagal syncope occurs in response to a

trigger, with a corresponding malfunction in the parts of the nervous

system that regulate heart rate and blood pressure. When heart rate slows,

blood pressure drops, and the resulting lack of blood to the brain causes

fainting and confusion. Typical triggers for vasovagal episodes include

prolonged standing or upright sitting, standing up very quickly, stress

directly related to trauma, Stresses, P.O.T.S.(Postural Orthostatic

Tachycardia Syndrome), any painful or unpleasant stimuli, Trauma (such as

hitting one's funny bone), Venipuncture, High pressure on or around the

chest area after heavy exercise, severe menstrual cramps, arousal or

stimulants, e.g. sex, tickling or adrenaline, sudden onset of extreme

emotions, lack of sleep, dehydration, hunger, exposed to high

temperatures, random onsets due to nerve malfunctions, pressing upon

certain places on the throat, sinuses, and eyes, use of certain drugs that

affect blood pressure, such as cocaine, alcohol, marijuana, inhalants and

opiates, violent coughing, serotonin level, swallowing, Low blood sugar etc.

and consequently it cannot be said with any amount of certainty that the

deceased died of homicidal death by violence and hence we conclude

that the deceased was not done to death by the appellants as vasovagal

shock is not definite and conducive proof of homicidal death by violence.

Conclusion otherwise drawn by the learned trial Judge, therefore cannot be

upheld and has to rectified.

Mobile phone story as was detailed by the I.O. already stated herein

24

above does not establishes the charge of murder and, therefore, in our

opinion, it has been rightly argued by the appellants' counsel that it is a

case of no evidence.

The case of the defence is that to save the culprits of the house

dispute namely, Lallu, Dhanattar and Pradeep, who all were initially named

as suspected culprits in the FIR, that appellants have been falsely

implicated is not without substance. There are many uncertain and

unsatisfactory aspects of the prosecution case, which compels us to take a

view different from that of the learned trial Judge and they are firstly, that

in the F.I.R. only four accused Pradeep, Lallu, Dhanattar and Amit were

named and not the appellant and complicity of those accused were found

to be false. F.I.R. was lodged after the discovery of the corpse of the

deceased and performing her last rites. It is a typed F.I.R. and, therefore, it

cannot be argued that the F.I.R. was lodged with promptness. In our view,

if the informant had no suspicious on the present appellant at the time of

lodging of her FIR and subsequently for ulterior motives that she changed

her stand then no reliance can be placed on her version otherwise there

was no difficulty for her to name the appellants as the suspected culprits

and perpetrators of the crime in her F.I.R., which was lodged on the third

day of the incident and following day of the discovery of the cadaver of the

deceased. The second unsatisfactory aspects is that there is contradiction

between the evidences of P.W.1 and P.W.2 concerning each pivotal facts

about the incident and glaring omissions occurring in the statements of the

witnesses. At page 11 of the impugned judgment, learned trial Judge

himself has recorded that informant had not informed the I.O. that

Sandeep A-6 wanted to have compromise talk with the deceased. On the

contrary, informant had stated to the I.O. that because of the lust for

house that her daughter has been taken away by Lallu, Sandeep (not the

present appellant A-6), Dhanattar on the pretext of a compromise talk and

thereafter they had murdered the deceased and had disposed off her

corpse. The evidence of P.W.2 regarding hearing of conversation of the

accused at Sardar hotel has been contradicted by Surendra Singh D.W.1

examined by the appellants. Learned trial Judge completely ignored that

the testimony of P.W.2 concerning his over hearing conversations between

25

the accused inter se is a hearsay evidence, inadmissible in evidence and,

therefore, cannot be relied upon and to the contrary he has held that on

the basis of retracted extra judicial confession participation of the accused

in the crime is established, which opinion is contrary to the too well settled

legal proposition. Learned trial Judge has further relied upon the evidence

of Harbir Singh P.W.3 regarding last seen evidence. It has already been

discussed that the said evidence surfaced four and half months after the

incident embalmed with greed for money without divulging it to anybody at

any earlier point of time and, therefore, it is difficult to place any reliance

on such a version. We therefore find the opinion by the learned trial Judge

at page 12 of the impugned judgment wholly unacceptable and, therefore,

we take a contrary view and to PW3 Harbir Singh anoint the character of

his being a got up witness. Learned trial Judge has further committed an

error in relying upon mobile phone conversation and selling of the mobile

phone to P.W.8. Firstly, Dilshad P.W.8 had turned hostile and had not

supported the prosecution version and secondly he had completely denied

his interrogatory statement under section 161 Cr.P.C. From his deposition,

the charge of murder is not establish. It is indubitable in law that

suspicion howsoever grave cannot take the place of proof. Learned trial

Judge has wrongly relied upon 161 Cr.P.C. statement of P.W.8 to hold

appellants guilty. Previous statement of witness can be used only for the

purposes of contradiction when the maker of the statement enters into the

witness box and for no other purpose and, therefore, the reasons

mentioned at internal page 20 of the impugned judgment by the learned

trial Judge are contrary to the well settled principles of criminal law.

Without disclosing actual revelations and conversations merely connecting

two mobile numbers is no evidence of murder and therefore, opinion by

the learned trial Judge that the mobile phone calls establishes guilt of the

accused is wrong and uncalled for and hence cannot be countenanced.

Learned trial Judge has further held that since there is no evidence of

natural death of the deceased, therefore, crime is proved, as has been

recorded at internal page 21 of the impugned judgment, is too

preposterous a preposition to be affirmed. Prosecution has to prove its

charge beyond all reasonable doubt and guilt of the accused has to be

26

established to the hilt and once the prosecution has miserably failed to

conclusively established the manner and cause of the deceased death, no

charge under Section 302 IPC can be said to be established against the

accused. Learned trial Judge not only fell in error but has committed

glaring mistakes in holding otherwise.

Wrapping up our discussion, for the reasons slated herein above, we

are of the opinion that the prosecution has miserably failed to establish

guilt of the accused and all the connected appeals by all the appellants

deserves to be allowed.

Resultantly Criminal Appeal No.7398 of 2009, Devendra and another

Vs. State of U.P., Criminal Appeal No.7757 of 2009, Manish Vs. State of

U.P., Criminal Appeal No. 7825 of 2009, Mahesh Chandra and another Vs.

State of U.P. and Criminal Appeal No.7895 of 2009 Sandeep and others Vs.

State of U.P. all are allowed. Conviction of all the eight appellants Devendra

A-1, Murad Ali A-2, Manish A-3, Mahesh Chandra A-4, Kali Ram A-5,

Sandeep A-6, Pradeep A-7 and Mahendra A-8 through impugned judgment

and order dated 23.11.2009 recorded by Additional Sessions Judge, court

no.9, Ghaziabad in S.T. No.284 of 2007, State Vs. Sandeep and others,

relating to police station Garhmukteshwar, District Ghaziabad, is hereby set

aside and all the aforesaid appellants are acquitted of all the charges

framed against them.

Appellants Devendra A-1, Murad Ali A-2, Kali Ram A-5, Sandeep A-6,

Pradeep A-7, Mahendra A-8 are on bail. They need not surrender, their

personal and surety bonds are hereby discharged. Appellants Manish A-3

and Mahesh Chandra A-4 are in jail. They are directed to be released from

jail forthwith unless they are wanted in any other case.

Let a copy of this judgment be certified to the learned trial Judge for

follow up action at his end.

Dt.29.1.2014

Arvind/Tamang/-