Bala Krishna Narayana and Arvind Kumar Mishra-I, JJ.—The aforesaid appeals have been preferred by three appellants, namely, Anand Kumar Shukla, Smt. Kusum Lata @ Baby and Smt. Sharda Devi against the judgment and order of conviction dated 18.11.2003 passed by Additional Sessions Judge, court no. VIII, Shahjahanpur in Sessions Trial No.199 of 2001, State v. Anand Kumar Shukla and others, arising out of Case Crime No.494 of 2000, under Sections 302, 201 IPC, Police Station Kotwali, District Shahjananpur, whereby each of the appellants has been sentenced to life imprisonment and a fine of Rs.5000/- under Section 302/34 IPC. Similarly appellants have been sentenced to three years rigorous imprisonment coupled with a fine of Rs.500/- each under Section 201 IPC and, in case of default, in the above two offences, the concerned convicts shall have to suffer additional rigorous imprisonment for one year and one month, respectively. Both the sentences shall run concurrently.
2. Heard at length Sri Rajiv Lochan Shukla, Sri P.K. Singh, learned counsel for the appellants as well as Sri Rahul Mishra learned Amicus Curie and J.K. Upadhayay, Km. Meena, learned AGA for State and Mrs. Manju Thakur, Brief Holder for the State.
3. Facts of prosecution story has its genesis in the first information report lodged on 24.12.2000 at 4.30 p.m. at Kotwali, District Shahjananpur at Case Crime No.494 of 2000, under Sections 302, 201 IPC. The first informant is S.H.O. Jitendra Nath Singh. The incident is stated to have occurred in the morning at 4:00 a.m. on 24.12.2000. First information report proceeds to allege facts to the effect that the informant in company of other police personnel was busy at Jamuka tiraha (junction of three roads) in VIP duty. The reference of the same finds mention in general diary rapat no.14, 11.30 hours. It was around 1:00 p.m., one Commander jeep bearing no. UP 32 R-6711, being driven at high speed by its driver was coming from Shahjananpur side and going to Sitapur. When the jeep crossed the first informant he noticed some blood dropping down from the jeep. The first informant became apprehensive of the situation gave hot chase to the jeep and took-over the commander jeep in front of ''Gurri'' police outpost around 1.30 p.m. On inquiry being made from its driver, he disclosed his name Anand Shukla son of Kamlesh Shukla, resident of Village Baruwa, police station Azgain, District Unnao, (present address tenant of Sharda Devi, Mohalla Sinjai, police station Kotwali, Shahjananpur) and apologized in the presence of witness Satish Chandra Verma son of Lala Ram Verma R/o Barnai, P.S. Rowza, District Shahjananpur, whereupon search was made in the Commander Jeep in the presence of Satish Chandra Verma. On search being made one dead body, in two pieces, was recovered from rear side of jeep, the trunk having been found in a gunny bag almost naked except an underwear and the head above neck was kept in another small polythene bag somewhere under the seat in rear side of the jeep.
4. A memo of this recovery was prepared and inquiry was made from the driver Anand Shukla, whereupon he told that this dead body is that of Anoop Shukla son of Ram Kumar Shukla, resident of Bharkhani, police station Pali, district Hardoi. He also told that deceased (Anoop Shukla) is son-in-law of Sharda Devi. He was not on good terms with Sharda Devi and Smt. Kusum Lata @ Baby (wife of the deceased) on account of house of Sharda Devi. Relation of deceased with Smt. Kusum Lata @ Baby and Sharda Devi were not normal on account of dispute pertaining to house. The deceased had come over to Shahjananpur today at 3:00 a.m. Anand Kumar Shukla told that deceased has been killed by me in association with Smt. Kusum Lata @ Baby and Sharda Devi by chopping off his head with ''garasa'' at 4:00 a.m. in the morning. He was going to dispose of the dead body when the first informant caught him. Anand Kumar Shukla also told that he can get the garasa recovered, which was used for chopping off head and the other blood stained clothes kept at the house of Sharda Devi. When this information was furnished by accused Anand Kumar Shukla, then, S.I. Mahendra Singh and Ravish Chandra Katiyar were left over the place to take care of the jeep and to prepare the inquest report of the dead body on the spot and a wireless message was sent to SHO Kotwali regarding the incident. Thereafter the first informant Jitendra Nath Singh proceeded to locality Singai where house of Sharda Devi was located. The first informant started for mohalla Singai with Anand Kumar Shukla. As soon as they reached near State Bank Colony, they met with M.P. Kureel, the Incharge police station Kotwali who also accompanied them to the house of Smt. Sharda Devi. When they reached house of Sharda Devi, they found Sharda Devi and Kusum Lata @ Baby present in the house. Anand Shukla in the presence of first informant and other police personnel, asked them (Kusum Lata @ Baby and Sharda Devi) that secret has been unravelled. Blood stained clothes of Anoop Shukla, pillow cover and mattress should be handed over to the police. Anand Kumar Shukla also stated to them that he is handing over the garasa by which the neck was chopped off, while saying so, he proceeded towards his rented room, he was followed by the police. After reaching to his room, he took out ''garasa'' from taarnh (cemented shelf), which was containing blood staines. Similarly, Kusum Lata @ Baby also made recovery of blood stained clothes kept in a kanister and one blood stained cloth kept behind hand-pump. Likewise, Sharda Devi also gave one pillow cover, one bed-sheet and mattress.
5. The memo of each recovery was separately prepared on the spot and it was stated that Anand Shukla, Smt. Kusum Lata @ Baby and Smt. Sharda Devi have conjointly murdered Anoop Shukla, therefore, report be lodged and appropriate action be ensured. This written report is Exhibit Ka-2 on record.
6. Contents of written report were noted in the Check FIR No.412 of 2000 at police station Kotwali, District Shahjananpur at 24.12.2000 at 4.30 P.M., at Case Crime No.494 of 2000, under Sections 302, 201 IPC against the accused persons. Check FIR is Exhibit Ka-7 on record. On the basis of entries made in the Check FIR case was registered against the appellants in the concerned General Diary rapat no.31 at 16.30 hours under aforesaid section of IPC at the same police station. This general diary entry is Exhibit Ka-8 on record.
7. It is noteworthy that in this case before lodging of the first information report, a recovery memo of dead body of Anoop Shukla recovered from Commander Jeep was prepared by the first informant Jitendra Nath Singh. This recovery memo is Exhibit Ka-1.
8. In the same sequence of development (that led to the lodging of first information report), weapon - ''Garasa''- and other connected materials say clothes, piece of quilt, mattress, bed-sheet, pillow etc. were recovered from the place of occurrence from house of Sharda Devi. Memo of aforesaid weapon ''Garasa'' is Exhibit Ka-3. Memo of blood stained clothes of deceased-one vest and one jarsi and one piece of cloth-seeped with blood were recovered at the instance of accused appellant Smt. Kusum Lata @ Baby. This recovery memo is Exhibit Ka- 4. Similarily, recovery memo of quilt, mattress, bed-sheet and pillow is Exhibit Ka-5 on record.
9. The Investigating Officer also collected blood stained cemented piece from the place of occurrence (House of Sharda Devi) and he also took sample of cemented piece and prepared a memo of the same, which is Exhibit Ka-6 on record. It is reflected from record that after recovery of dead body from the Commander Jeep UP 32 R-6711, the inquest report was prepared by S.I. Mahendra Singh. Its preparation commenced at 15.15 hours and it was completed at 16.30 hours on 24.12.2000. This inquest report is Exhibit Ka-11.
10. Mahendra Singh also prepared certain papers for sending the body for autopsy. Photonash is Exhibit Ka-12. Police form-13 (challan dead body) is Exhibit ka-13, letter to C.M.O. Shahjahanpur is Exhibit ka- 14, specimen seal is Exhibit ka15. Relevant to note that preparation of inquest report and the aforesaid exhibited papers Exhibit Ka-12 to ka- 14 were prepared by S.I. Mahendra Singh before lodging of the first information report at 16.30 hours on 24.12.2000 at P.S. Kotwali, Shahjahanpur.
11. Record also discloses that autopsy on the dead body of the deceased Anoop Shukla son of Ram Kumar Shukla was conducted at mortuary Shahjahanpur on 25.12.2000 at 4 P.M. It was mentioned in the postmortem report that rigor mortis was passing over upper extremities and present over lower extremities. The doctor found following ante-motem injuries on the dead body:-
(1) Wound of circumference 38 cm, length 12 cm x 11 cm x through and through present over neck at the level of cervical 5th and 6th vertebra 2 cm above the suprasternal notch margin of wound clean cut. Bone cut clean cut. Head separated from the rest of body.
(2) Multiple abraded contusion over area of 20 cm x 6 cm external from top of left shoulder upto middle part of left arm of varying size 3 cm x 1 cm x 2 cm x 0.5 cm.
12. In the opinion of the doctor, the cause of death was stated to be shock and haemorrhage due to ante-mortem injuries. This postmortem examination report is Exhibit Ka-9 on record.
13. The recovered clothes and the weapon Garasha etc. were sent for chemical examination at Vidhi Vigyan Progshala, Agra, whereupon a report dated 16.5.2001 endorsed on 21.6.2001 was also obtained, which has also been kept on record.
14. Investigating Officer took various steps in completing the investigation and he also recorded statement of various persons and filed charge sheet (Exhibit Ka-10) against the present appellants under aforesaid sections of IPC at aforesaid crime number. Consequently, the case was committed to the court of Sessions from where it was made over for trial to the court of concerned Additional Sessions Judge, court no.VIII, Shahjahanpur.
15. Accused were heard on point of charge by the trial court and prima facie ground was found existing for framing charges under Sections 302, 201 IPC. Accordingly, charges were framed and explained to the accused, who denied the charges and opted for trial.
16. Consequently, the prosecution was asked to adduce its testimony whereupon the prosecution produced in all 8 witnesses. Brief reference of the same is as hereunder.
17. P.W. 1 is Jitendra Nath Singh, he is the first informant and he was S.H.O. of police station Rowza on 24.12.2000. He is said to have recovered the dead body and arrested appellant Anand Shukla and on his information, he came to ''Mohalla Singai'' from where he made certain recovery of weapon and clothes and got prepared different recovery memos. He also effected arrest of two lady accused from the house-the place of occurrence. He has proved written report Exhibit Ka-2.
18. P.W.2 is M.P. Kureel, who has testified fact of recovery in his presence from the house of Sharda Devi-one of the accused. He has also proved various material Exhibits-1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11.
19. P.W.3 is S.I. Shafeeq Ahmad Khan. He has testified that he along with first informant was present on the Jamuna Tri Crossing at the relevant point of time on 24.12.2000.
20. P.W.4 is Head Moharrir, who has proved Check FIR and the relevant GD entry as Exhibit Ka-7 and Ka-8, respectively.
21. P.W.5 is V.P. Singh, Medical Officer who conducted postmortem examination on the dead body of deceased Anoop Shukla on 25.12.2000 and has proved postmortem examination report as Exhibit ka-9.
22. P.W. 6 is Alok Shukla, the child witness aged about 13 years. He is stated to be star witness, who has seen the occurrence/commission of murder of his father Anoop Shukla.
23. S.S.I. Gambhir Singh is P.W.7. He is the Investigating Officer. He has described the various steps taken by him for completing the investigation and he has proved, inter-alia, preparation of site plan Exhibit Ka-9A besides, proving Charge sheet Exhibit Ka-10.
24. Mahendra Singh P.W.8 prepared inquest report Exhibit ka-11. Besides proving relevant papers Exhibit ka-12, 13, 14 and 15.
25. All these witnesses have been cross-examined by the defence/accused. Thereafter evidence for the prosecution was closed and the statement of the appellants recorded under Section 313 Cr.P.C. In their statement, accused persons have termed their implication false by the police and it has been specifically stated by Anand Kumar Shukla that Satish Verma and he himself are employed in the same firm. Satish Verma took him in the jeep for taking meal and took him to the police station Rowza where police arrested him and he was wrongly challaned. The other appellants Smt. Kusum Lata @ Baby and Smt. Sharda Devi have stated that they had gone outside on the day of incident and came back around 5 p.m. Police came over there and took them to police station Kotwali, from where they were sent to jail. The defence has not led any evidence, whatsoever.
26. Learned trial court after hearing both the sides on merit passed the aforesaid judgment and order of conviction dated 18.11.2003 against the appellants and sentenced all the accused to life imprisonment under Section 302/34 IPC and three years R.I. under Section 201 IPC coupled with fine of Rs.5000/- and Rs.500/- respectively with default stipulation.
27. Consequently, this appeal.
28. It has been claimed on behalf of the appellants that the entire case is outcome of shrewd handy work of the police and there is no reasonable evidence, which may prove or indicate complicity of the appellants in the commission of offence. Satish Verma is a tutored witness and he was arranged deliberately by the police in order to give thrust to its misdeeds and hollowness of the prosecution case stands exposed when it deliberately refrained from producing Satish Verma as a witness of recovery of the dead body in order to safeguard its position. This inaction on the part of prosecution is self speaking and needs no explanation.
29. The prosecution has tried to prove commission of murder by introducing child witness Alok Shukla P.W.6 and tried its best to establish charge of murder against the appellants but his testimony on the whole is tutored one and does not inspire confidence. His statement recorded under Section 161 Cr.P.C. by the Investigating Officer is in gross contradiction to what he has deposed before the trial court. He is wholly unreliable witness and his conduct under circumstance is most unnatural. The very commencement of the crime is deeply rooted in the recovery of Commander Jeep No. UP 32 R-6711 and the prosecution has failed out and out, to prove the factum of recovery of dead body from the aforesaid jeep. Factum of recovery of dead body is vitiated in the absence of any independent witness of recovery, in the absence of non-preparation of site plan of the place of recovery. Thus, it is still uncertain as to from where the police actually recovered the dead body of deceased Anoop Shukla. No police personnel from police outpost ''Gurri'' was present on the spot although the alleged recovery place is stated in front of Gurri police outpost. Thus, the very recovery of dead body itself becomes uncertain and suspicion.
30. The entire prosecution testimony is silent on point of VIP duty roster. There is no proof of any such VIP duty or movement. Neither any circular nor any order issued by any administrative authority pertaining to VIP duty in the area has been placed for reliance before the trial court. Recovery of dead body is extremely improbable and doubtful on the highway. Every action was taken by the police in a mechanical way, clandestinely, in utmost hurry which smacks of guess work. The recovery memos pertaining to the three appellants whereby weapon and blood stained clothes and other materials are stated to have been recovered do not bear signature of accused persons and the signature of police officials concerned has been deliberately made on each page at far below a place than the place from where the signature normally ought to have been made after the write up was over. Place of signature of police officials on recovery memos is self speaking that things have been done in perfunctory manner and things have been tried to be adjusted mechanically.
31. There are certain interpolations in the signatures of witnesses in inquest report. Question No.3 put to accused Anand Kumar Shukla is in form of judicial confession and it shows that trial court is biased and relying on it. This way, proceeding of trial court becomes prejudiced. Similar, questions have been put to other two appellants and question no.3 has been covertly as judicial confession putting in garb of statement under Section 313 Cr.P.C. In the absence of any site plan of the place of recovery of jeep and dead body, the connectivity of the jeep in the offence and the place of recovery of dead body itself becomes doubtful.
32. The motive assigned for committing offence is very weak. No strong and apparent motive has been suggested for committing the crime. Whatever motive has been suggested by the prosecution is not befitting in the circumstances of the case and there is no proof of any such motive for committing the crime. Motive has been tried to be elicited from confession of accused. In this case motive is not established. There is no motive on the part of Anand Kumar Shukla to commit the crime and so is the case with the other two ladies accused Smt. Kusum Lata @ Baby and Smt. Sharda Dixit. In order to skip motive, the prosecution introduced child witness P.W.6 and claimed him to be an eye-witness of the incident. Except that witness, there is no any other independent witness. There is no corroborative testimony regarding Anand Kumar Shukla being tenant of Smt. Sharda Devi. No proper chemical examination has been conducted. Blood stains found have purposely not been tallied with the blood stained clothes of deceased. Non matching of blood with blood group of deceased indicates planting of clothes and weapons. Prosecution deliberately produced eye-witness account in order to fix time of death.
33. In the postmortem examination report, it has been suggested by the doctor that rigor mortis was passing over upper extremities. As per Modi jurisprudence, in such circumstances, duration of death would vary from 24 to 48 hours. Therefore, the time the death is also most uncertain. Development of the case right from 1.30 p.m. on 24.12.2000 upto the lodging of first information report indicates only fill in the blanks exercise done by the police. The distance from the place of recovery of dead body to the police station is about 7-8 kms from the place where police is stated to have chased the jeep. The place of occurrence also falls almost at the some distance. Then as per respective distance of places the timings have been tried to be fixed in order to plug loopholes, which is exposed under the circumstances of the case.
34. On seeing blood dripping down from the jeep, it was chased and stopped but accused Anand Kumar Shukla was not under custody at that point of time. Therefore, recovery of dead body cannot be brought within the purview of Section 27 of the Evidence Act. There is no evidence regarding dripping of blood from jeep. Even the jeep was not produced for inspection. Therefore, search and recovery of jeep and dead body becomes illegal. This way, things have been tried to be done in a mechanical way.
35. Further, a question mark is raised on the factum of recovery from the house in question for various reasons. The house in question is not in exclusive possession of accused Anand Kumar Shukla but also in possession of others. All doors of the house were opened when the police came to the house. Similarly, the recovery made against accused Kusum Lata @ Baby cannot be brought under purview of Section 27 of the Evidence Act. There was no animosity between husband and wife and therefore, Kusum Lata @ Baby had no occasion to cause such ghastly murder of her own husband. Case of the prosecution is false and reasonable doubtful in the prosecution case is pervading overwhelmingly.
36. Sri Rahul Mishra, amicus curiae for the appellant Smt. Sharda Dixit has adopted aforesaid arguments and has further added that P.W.6 Alok Shukla is a tender child who is solitary eye-witness. His testimony alone would suggest that the entire case is fabricated and handy work of police. The recovery is tainted and the FIR is ante-timed. Fact that the deceased took food around 3 p.m. and thereafter he went for sleep stands belied by the postmortem report because small intestine was vacant. Under the circumstances, it is most unnatural that P.W.6-child witness, on the admonition of Anand Kumar Shukla while he watched the incident, went to sleep in baramda. This conduct is highly improbable and unnatural. His statements given before trial court are contradictory to the statement recorded under Section 161 Cr.P.C. Description regarding incident that the leg of the deceased were caught by Sharda Devi, but no injury whatsoever was found on legs.
37. Thus, medical evidence is not corroborated with the testimony of witnesses. In presence of eyewitness, Section 106 of Evidence Act goes into oblivion and it cannot be resorted to. In this context, confession of the co-accused cannot be relied on against other appellant-Sharda Devi. Recovery as brought before the trial court is legally not admissible and there is no explanation as to why Anand Kumar Shukla is assisting the other two ladies in the very commission of the offence.
38. Kumari Meena and Narendra Singh Yadav, learned AGAs have in reply submitted that the entire incident is self speaking right from the moment when the dead body was recovered and recovery of weapon and blood stained clothes and other articles were made from the place of occurrence (House of Sharda Devi). Recovery is consistent and within the ambit of Section 27 of the Evidence Act. Police had no motive to falsely implicate the appellants. Injuries of garhasa is very much on the dead body. In so far as motive is concerned, it is relegated to the background in view of eyewitness account of the incident given by the prosecution witness P.W.6. He is a natural witness. The place of occurrence i.e. the house of Smt. Sharda Devi has been proved by the testimony of P.W.6-Alok Shukla. The prosecution has proved charges beyond reasonable doubt.
39. Also considered above rival submissions.
40. The moot point involved for consideration primarily relates to the fact whether the prosecution has been able to prove its case beyond reasonable doubt or not?
41. In order to ascertain veracity and authenticity of the prosecution case, it would be better and convenient that holistic view of the case is taken and consistency of circumstances vis-a-vis evidence of prosecution witnesses is also analysed by us.
42. We may began with the first information report, Exhibit Ka-2. This first information report was lodged by Jitendra Nath Singh, who happened to be SHO of police station Rowza, district Shahjahanpur on 24.12.2000. As per contents of FIR, the first informant in company with other police personnel at that point of time around 11.30 a.m. was on VIP duty. However, it is profusely reflected from record that no such proof has been brought on record regarding any VIP duty of first informant on such date i.e. 24.12.2000. In this regard, no worthy order of any authority whatsoever has been brought on record and explanation given by all the prosecution witnesses on this point including the first informant is sketchy and evasive. The content of FIR further reflects that around 1:00 p.m., one Commander Jeep UP 32 R- 6711 was seen coming from Shahjahanpur side and going towards Sitapur and blood was dripping from the jeep. The first informant after seeing blood dripping from jeep gave chase to the jeep and overtook the same in front of ''Gurri'' police outpost around 1.30 p.m. On inquiry being made, name from the driver it was disclosed that he is Anand Kumar Shukla son of Kamlesh Shukla, resident of Village Barua, police station Azgain, District Unnao, (present address tenant of Sharda Devi in Mohalla Sinjai, police station Kotwali, district Shahjananpur). He apologized in presence of witness Satish Chandra Verma son of Lala Ram Verma R/o Bannai, P.S. Rowza, District Shahjananpur.
43. On search being made in the jeep, one headless almost necked dead body except an underwear on body was recovered from a gunny bag kept in the rear side of jeep. In the same jeep, head above neck of the dead body was recovered in a polythene bag, which was kept in a wallet. The first informant prepared a recovery memo of dead body and inquired about the same, whereupon, Anand Kumar Shukla told that this dead body is that of Anoop Shukla son of Ram Kumar Shukla, resident of Bharkhani, police station Pali, district Hardoi and he is son-in-law of his landlady Sharda Devi. It was stated that his relation with Smt. Kusum Lata @ Baby were strange on account of some dispute regarding house of Sharda Devi. He came over to Shahjahanpur from Delhi this morning around 3 a.m. He in the company with Smt. Kusum Lata @ Baby and Sharda Devi committed murder of Anoop Shukla in a preplanned manner around 4:00 a.m. today (24.12.2000) and he was going to dispose of the dead body with this jeep. He also stated that he can give him ''garhasa'' by which neck of Anoop Shukla was chopped off.
44. Further, he stated that blood stained clothes of deceased can also be recovered from the house of Sharda Devi and Kusum Lata @ Baby. Thereafter the first informant left the dead body and the jeep in custody of S.I. Mahendra Singh and Constable Raveesh Chandra Katiyar and instructed them to prepare inquest report and a wireless message was sent to SHO Kotwali regarding the incident. He proceeded to the house of Sharda Devi situated in Mohalla Sinjai along with police personnel and accused Anand Kumar Shukla. On way, near State Bank Colony, M.P. Kureel, SHO Kotwali met him who also accompanied him along with police force to the house of Sharda Devi. Both Kusum Lata @ Baby, Sharda Dixit and other co-accused were present in the house. As soon as Anand Kumar Shukla arrived there, he asked them to handover the blood stained clothes of deceased, bed sheet and mattress etc. as secrecy has been detected. He handed over ''garhasa'' and thereafter recovery of garhasa was made from the ''taarnh'' (cemented shelf upper side in room) of the room inside the house and Kusum Lata @ Baby also got recovered blood stained clothes of deceased from kanister and she also gave a piece of cloth from behind the hand-pump. Sharda Devi also got recovered one bed sheet and mattress and recovery memos of all above articles were prepared by the first informant.
45. In the backdrop of such scenario, a bare perusal of the recovery memos regarding the weapon, clothes, bed sheets etc., Exhibit Ka-3, 4 and 5 respectively disclose fact that in all the three recovery memos, the signatures of SHO Kotwali Shahjahanpur, M.P. Kureel have been marked at extreme right place near at the bottom of the page of each recovery memo, whereas, some gap exists in between the last line of the recovery memo and signature of M.P. Kureel P.W.2. Obviously, Shiv Kishore Bajpayee is witness in all the three aforesaid recovery memos. He is resident of Malkhana Moreh Kasba, police station Kotwali, Shahjahanpur and Manoj Mishra, the another witness is resident of Anand Puram Colony Kasba and P.S. Kotwali, Shahjahanpur.
46. It is obvious that no person from the locality Sinjai was asked for being witness to the fact of recovery. Although as per prosecution testimony, almost all the persons of the locality had gathered on the spot during recovery. It is reflected from testimony of M.P. Kureel P.W.2 on page 34 of paper book, wherein he has stated that he did not call any person from near the house, however, people of the locality had arrived on the spot. As stated by S.I. Shafeeq Ahmad Khan at page 42 of the paper book. "ikl iM+ksl D;k iwjk eksgYyk vk x;k FkkA"
47. Moreover, all the recovery memos Exhibit Ka- 3, 4 and 5 are silent on the point as to under what circumstances people of the locality, who had gathered on the spot were not asked to become witness to fact of recovery.
48. Further, all the recovery memos (Ex. Ka-3, Ka-4 and Ka-5) do not bear signature or thumb impression of the respective accused. Thus, the signature of the SHO Kotwali P.W.2 M.P. Kureel on the recovery memo and particularly the place on which it has been made, generates doubt on the genuineness and authenticity of these recovery memos-Exhibit Ka-3, 4 and 5. In the absence of independent witness though available on the spot to the police they were not asked to be witness to fact of recovery generates doubt. The entire recovery memos thus become doubtful when these do not contain signature of the concerned accused from whom recovery was effected. The recovery memo Exhibit Ka-5 does not contain any recital regarding arrest of the accused. It does not spell the name of the accused from whom the recovery was made. Thus, this recovery memo is hit directly by the provisions of Section 27 of the Evidence Act.
49. For the reasons aforesaid and in view of absence of signatures of the accused persons on these recovery memos and signature of the SHO Kotwali at remote corner of the pages of various recovery memos creates doubt and affects adversely the authenticity of the same and as such the same legally not admissible under Section 27 of the Indian Evidence Act and cannot be read against the accused persons. Thus the prosecution has not been able to establish fact of recovery of weapon used in the offence and after articles so recovered from the place of occurrence-house of Sharda Devi.
50. Now, we may consider the meritorial aspect of the case. What a blunder the prosecution has committed in this case particularly relating to recovery of jeep and the dead body of Anoop Shukla. No doubt the statement and the testimony of P.W.1 would have inspired confidence had he also prepared site plan of place of recovery of dead body and the jeep. It has also come in the testimony that the blood trickled out and dropped from the jeep, but no such attempt was ever made by the Investigating Officer or the first informant Jitendra Nath Singh, SHO Rowza, District Shahjananpur to collect such blood stained spots or soils, as the case may be. Absence of any site plan of the place of recovery of dead body of Anoop Shukla vitiates factum of recovery as claimed by the prosecution. It has also come in the testimony of the prosecution witnesses that no blood stains were found inside the jeep. This statement is most improbable under circumstances of the case, because as per testimony, the blood dropped from the jeep when the first informant (P.W.1) spotted the jeep and he gave hot chase to the Commander jeep and took-over the same in front of Gurri police outpost at 1.30 p.m. but it also generates suspicion on point of recovery of jeep and dead body that no police personnel from Gurri police outpost arrived on the spot or marked his presence at that point of time. This also creates lot of doubt in the authenticity of prosecution version regarding recovery of jeep and dead body in front of Gurri police outpost. Therefore, the genesis and theory of recovery of dead body from in front of Gurri Police outpost has not been proved. Similarly, statement of witnesses that no blood stains were found in the jeep is fair enough to give way to fact that no such recovery was ever effected from the jeep.
51. Now, we may consider the eyewitness account testimony of the prosecution. We have before us Alok Shukla P.W.6-the son of deceased Anoop Shukla. He is aged about 13 years. His testimony was recorded on 25.4.2013 and the incident occurred on 24.12.2009, therefore, at the relevant point of time, this witness must have been around 10 years of age. However, his competency has been tested by the trial court and in the opinion of the trial court he was a competent witness. His testimony regarding the incident appears on page-49 of the paper book.
"vkt ls nks lky pkj eghus igys dh ckr gSA eSa vius ?kj ij jkr esa cjkens esa lks jgk FkkA lnhZ dk ekSle FkkA ikik esjs jkr esa vk, Fks] ml le; eSa tkx x;k FkkA ikik [kkuk [kkdj lks x, Fks] fQj eSa Hkh lks x;kA mlds ckn jkr esa [kViV dh vkokt gqbZ vkSj eSa tkx x;k FkkA rc eSaus dejs esa ns[kk fd vkuUn] esjh eEeh o ukuh esjs ikik dks xaMkls ls ekj jgs FksA vkuUn eqfYte ds ikl xaMklk FkkA esjh eEeh ikik dk flj idM+s Fkh vkSj ukuh us ikik ds iSj idM+ j[ks FksA rc vkuUn us eq>s ns[k fy;k vkSj eq>ls dgus yxk fd tYnh tkdj lks tkvks ugha rks rqedks Hkh ekj Mkysaxs vkSj eSa Mj dj lks x;kA
lqcg eSa 8&9 cts txk FkkA"
52. In cross-examination, he has testified two facts what he has actually seen. He has denied suggestion that he ever gave any statement to the I.O. that he could not see the assailant as to who killed his father. If the Investigating Officer had recorded any such statement, he could not give any reason for the same. Testimony given in the examination-in-chief brings out a case that all the three appellants were seen together while they were committing the crime around 4:00 a.m.- by this child witness. But in the statement of Investigating Officer i.e. S.S.I. Gambhir Singh P.W.7., the statement so given in the examination-in-chief by this child witness is contradicted by his testimony given before trial court. The Investigating Officer has stated in his cross-examination that Alok Shukla has given statement "fd eSaus fdlh dks ugha ns[k ik;k fd fdlus ekj Mkyk" He has further deposed in his cross-examination that Alok Shukla gave statement "ikik fnYyh ls dc vk,] eq>s ugha ekywe eSa lks jgk FkkA tc iqfyl okys x, rks irk pykA"
53. Meaning thereby that child witness Alok Shukla P.W.6 has not given any statement that he was an eye-witness of the occurrence and that occurrence in fact took place around 4:00 a.m. and was caused by the three appellants. His statement recorded by the Investigating Officer is in complete contrast to what he has deposed before the trial court. Thus, Alok Shukla P.W.6 the star eye-witness looses credibility and is not worthy of credit and he appears to have been tutored as such wholly unreliable witness and such testimony cannot be believed and acted upon under the facts and circumstances of the case.
54. We may also observe that the very recovery memo of jeep and dead body Exhibit Ka-1 prepared by the first informant also bears signatures of Satish Chandra Verma son of Lala Ram Verma. In his examination, P.W.1 has expressed his ignorance regarding fact that he does not know whether Satish Chandra is an employee of Dayal Fertilizer. He expressed his ignorance regarding fact that Satish Chandra Verma is an employee of the same jeep, whereas, in the statement of Anand Shukla recorded under Section 313 Cr.P.C., it has been specifically stated that Satish Chandra Verma is an employee of Dayal Fertilizer and he took him to the police station on pretence of taking food.
55. The testimony of P.W.1 in regard to aforesaid witness Satish Chandra Verma stands exposed by the testimony of Investigating Officer P.W.7 Gambhir Singh, who has testified in his cross-examination on page-55 of paper book that Satish Chandra had stated in his statement that he is an employee of Dayal Fertilizer and the accused (Anand Kumar Shukla) was also an employee in the same company and he knew him.
56. Further, on page 56 of paper book, Investigating Officer has stated that he did not visit the place from where the dead body was recovered and he did not prepare any site plan of that place. Therefore, it is obvious that no one witnessed the incident. Therefore, the entire testimony of so called eye-witness Alok Shukla P.W.6 appears to be arranged and has been adduced with a view to give thrust to prosecution case. In presence of such eye witness account, applicablility of Section 106 Indian Evidence Act becomes redundant. It cannot be assumed that in case eye-witness account fails the Court may fall back and have recourse to provisions of Section 106 Indian Evidence Act, 1872. How can first informant feign ignorance that he does not know Satish Chandra Verma when he was an employee of Dayal Fertilizer. His testimony reflects that number of people were passing through the road from where the jeep and dead body was recovered. But no independent witness was either asked or arranged to be an witness to fact of recovery. Similarly, the so called place of occurrence in the absence of establishment of recovery of weapon and clothes etc. becomes doubtful and as per statement of the first informant Jitendra Nath Singh on page-27 of the paper book, all the rooms from where recovery was made were open rooms. Meaning thereby that the rooms were neither bolted nor locked. How is it possible that murder was committed early in the morning around 4:00 a.m. still no arrangement was made for either locking or bolting the room by the accused persons. Further, the conduct of eye-witness Alok Shukla is most unnatural under the circumstances of the case. Assuming it to be; that he saw the incident around 4:00 a.m. and at the admonition of Anand Shukla, he went for sleep is unbecoming of a boy of tender age who saw such ghastly murder scene. Here we may take note of his contradiction regarding statement given to the I.O. and the deposition made before court as confronted in his cross-examination on page-50 of paper book. Specific contradiction in his statement was refused like the one when he says that he could not know as to when his father came from Delhi because he was sleeping. He came to know about the incident only when the police arrived and as per testimony on record, it is admitted fact that police arrived at the house of Sharda Devi around 3:00 p.m. on 24.12.2000. Further on the same page he has testified that he was told by counsel about what he has to state before the court. This way tutoring of witness is self-evident. Therefore, this witness is highly tutored, and at the cost of repetition, we may observe that the so called eye-witness is wholly unreliable.
57. Further, in the presence of eye-witness account though motive is relegated to background of the case, however, the motive imputed for commission of the offence is so trivial that a man of ordinary prudence would hardly act on it and would cause death of a person. Motive suggested is confined to the ambit that the relationship between deceased and his wife Kusum Lata @ Baby had strained on account of dispute pertaining to house of Sharda Devi. But there is no worthy evidence in regard to such motive particularly core of dispute except suggestion and statement only. There were several tenants occupying the house of Sharda Devi, but they have not been produced by the prosecution in order to authenticate fact of recovery of weapon and blood stained clothes from house of Sharda Devi.
58. The contention raised to the extent that the police personnel tried to give coherence to the incident carries force. In fact the incident was not seen by anyone though so claimed by the prosecution. In fact the place of recovery of jeep and dead body becomes suspicious and in the absence of preparation of any site plan of the place of recovery no credence can be given to the place of recovery of dead body. Prosecution case is further shattered by non-production of independent witness to fact of recovery of blood stained clothes and the weapon allegedly used in the commission of offence and non-examination of Satish Chandra Verma, the witness of Exhibit ka-1- recovery memo of jeep and dead body.
59. We may further observe that the rigor mortis was passing off upper extremities and was present over lower extremities. This way the duration of death may vary from 24 hours to 48 hours, as per dictum of Modi Medico Jurisprudence.
60. Factum of recovery from the house of Sharda Devi for the aforesaid various reasons becomes tainted and hit by Section 27 of the Indian Evidence Act. It would be pertinent to take note of fact that Anand Kumar Shukla had neither any motive nor any occasion to commit any such ghastly murder along with other two lady accused and the entire prosecution remained silent about the motivating force, which impelled Anand Kumar Shukla to commit such a crime. There is no whisper in the entire prosecution case that Anand Kumar Shukla ever entered into any illicit relationship with any of the two lady co-accused.
61. The prosecution case is full of hollowness and full of loopholes, facts coming out from prosecution testimony and the attendant circumstances of this case generate doubt on the authenticity and veracity of the prosecution case. There are so many inherent shortcomings in the prosecution case, which hit to the root of charges framed against the appellants. The first informant has made his presence casual on the road when he allegedly sighted the jeep on the high way. But no circulation, no order or authority was produced to confirm the fact that the first informant was in fact on VIP duty on 24.12.2000.
62. S.I. Shafeeq Khan P.W.3 merely stated in his testimony on page 39 of the paper book that there was some dispute between Sharda Devi and Anoop Shukla (deceased) and, therefore, they in company with Kusum Lata @ Baby committed murder of Anoop Shukla. Here, we may observe that there was no occasion for Kusum Lata @ Baby to kill her husband and what type of dispute existed between Sharda Devi and Anoop Shukla has not been explained by the prosecution.
63. In this case, the facts and circumstances are so roughly scattered that it is hard to make a coherence of the same merely by putting one circumstance over the another. If one circumstance is taken to be correct and acted upon then the same is confronted with certain reasonable queries, which queries create substantial loophole in the prosecution case, which renders the prosecution case suspicious and doubtful.
64. It appears that the police agency particularly the investigating agency involved in the investigation of this case has deliberately worked out the case on guess. How alarming is the fact that the place of recovery of dead body though stated to be in front of Gurri police outpost, however, no site plan of the place of recovery of dead body/jeep was prepared by the Investigating Officer nor any pain was taken by any of the higher police authorities to remove this material lacuna. The point is when the place of recovery of dead body itself is dubious and this is starting point of the entire episode from where the other instances of this case follow then obviously the foundation of the case goes which invariably collapses the entire prosecution case. Needless to say anything on testimony of P.W.6 as discussed above, the same appears to be wholly unreliable. It appears that this witness has been thrust-ed upon by the prosecution in order to create a case of direct testimony.
65. Now, the final outcome suggests that it is a case which is based neither on circumstantial evidence nor on direct testimony and the exercise done by the investigating agency creates eternal vacuum in prosecution story for which none but the prosecution alone is to be blamed.
66. It is cardinal principle of criminal jurisprudence that the prosecution is required to prove its charge beyond reasonable doubt against the accused and in case, the prosecution fails to prove the charge beyond reasonable doubt then the accused would be entitled to benefit of doubt and they are to be acquitted and no conviction can be recorded on such testimony, which is not inspiring confidence and is tainted.
67. Learned trial Judge adopted casual approach and could not appraise evidence on record qua the circumstances of the case and misread the statement of various prosecution witnesses, therefore, judgment and order of conviction dated 18.11.2003 passed by Additional Sessions Judge, court no. VIII, Shahjahanpur in Sessions Trial No.199 of 2001, State v. Anand Kumar Shukla and others, under Sections 302/34, 201 IPC, Police Station Kotwali, District Shahjananpur arising out of Case Crime No.494 of 2000 is not sustainable in the eye of law and is hereby set aside.
68. For the reasons aforesaid, it is obvious that the aforesaid three appeals carry force and the same are allowed. The appellants are in jail. They shall be set at liberty forthwith if they are not wanted in connection with any other case after complying provisions of Section 437-A Criminal Procedure Code.
69. Let a copy of this order be certified to the trial court concerned for information and necessary follow-up action.
