Dismissed

State of U.P. v. Ankit and 2 Ors.

Allahabad HC25 Mar 2019GOVA/833/2018

Case brief

AI extract

What is this about?

This court in a Government Appeal examined the trial court's acquittal of accused persons in a murder and abduction case involving serious injuries. The court upheld the acquittal, finding the trial court's view reasonable due to gaps in the prosecution's proof of abduction, lack of forensic ballistics linking the recovered pistol to the injuries, and incomplete evidence regarding weapon recovery.

What did the court decide?

The Government Appeal was dismissed; leave to appeal was rejected; the acquittal of the accused was upheld.

State of U.P. Vs Ankit and 2 Ors. — Cheque Dishonour | Allahabad HC (2019)

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Court No. - 1

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Case :- GOVERNMENT APPEAL No. - 833 of 2018

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Appellant :- State Of U.P. Respondent :- Ankit And 2 Ors. Counsel for Appellant :- G.A.

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Hon'ble Ramesh Sinha,J. Hon'ble Dinesh Kumar Singh-I,J.

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1. The present Government Appeal has been filed by the State against the judgement and order dated 01.09.2018 passed by learned Sessions Judge, Firozabad in S.T. No. 572 of 2014 (State of U.P. Vs. Ankit & 2 others) connected with S.T. No. 0000573 of 2014 (State of U.P. Vs. Ankit) by which the accused-respondents have been acquitted for offences under Sections 364, 302, 201 I.P.C. and Sections 25/27 Arms Act arising out of Case Crime Nos. 641 of 2013 and 653 of 2013, Police Station Sirsaganj, District Firozabad.

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2. Heard Sri Pawan Shukla, learned A.G.A. for the State and perused the lower court record.

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3. The prosecution story in brief is that as per the allegations made in the FIR by complainant PW1 Ashish Yadav who submitted a written report in police station Sirsaganj narrating that on 08.12.2013, an incident of marpeet took place between his brother Nitesh Kumar (deceased) and accused-respondents Ankit son of Om Prakash @ Prakash Chandra, Shanker son of Dileep Kumar with respect to a girl. Thereafter, the matter was later on settled among them. After two days, i.e. on 10.12.2013 at about 07.00 p.m. in the evening, when the complainant was present in his house along with his brother Nitesh Kumar, father Baleshwar Singh and mother Smt. Kasha Devi, the accused-respondents Ankit and Shanker came there and called his brother on which he went outside. His family members also followed him outside and saw that the aforesaid accused-respondents asked his brother to accompany them in a D awat (feast). Thereafter, they took his brother Nitesh Kumar from his house to attend the said Dawat (feast). The informant further stated that his brother Nitesh Kumar went with the aforesaid two accused-respondents on his own motorcycle No. UP-83H-608. The accused-respondents also

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went along with his brother on the same motorcycle as pillion riders.

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4. Thereafter, when his brother Nitesh Kumar did not return back to his house till 09.00 p.m. on the said date, then he and his family members became worried and made an effort to call Nitesh Kumar on his mobile numbers 9997828374 and 8864959269 but the said numbers were found to be switched off. The complainant and his family members made a search of Nitesh Kumar and when his whereabouts could not be traced out, then they inquired about him from the accused-respondents Ankit and Shanker about his missing from their company on which, they told them that Nitesh Kumar will come back by tomorrow. When his brother did not return back even on the next day, then the complainant again asked the accused-respondents about his brother Nitesh Kumar but they did not give any satisfactory reply. The complainant and his family members suspected of some mishappening.

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5. Hence, a missing report of Nitesh Kumar was lodged at PS Sirsaganj against the aforesaid two accused-respondents after two days but the mother of the deceased in her statement had stated that the information of this incident was given by her on 11.12.2013 to the concerned police station but there was no response from the police. On the basis of the said written report Ex.Ka-1 submitted by the complainant/informant Ashish Yadav at PS Sirsaganj on 12.12.2013, an FIR was registered as Case Crime No. 641 of 2013 under section 364 IPC against the accusedrespondents Ankit and Shanker and a chick FIR Ex. Ka-14 was also prepared. Its contents were also recorded in the GD which is Ex. Ka-15 on the same day i.e. on 12.12.2013.

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6. A news item was published in the newspaper that an unclaimed dead body was found lying in the field of one Prem Singh and it was brought to police station Baah. On receiving the said information, the complainant along with his family members reached the said police station. They further received the information that the corpus has been sent to mortuary of District Agra. Then they reached there and on 15.12.2013, they identified the said dead body to be that of Nitesh Kumar. Thereafter, an additional report of this fact was also given by the complainant Ashish Yadav in writing at PS Sirsaganj on 15.12.2013 and it was narrated in the

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said report that the complainant lodged an FIR about the missing of his brother Nitesh Kumar on 12.12.2013 but his dead body was recovered from a jungle of Bateshwar area which has been identified by him to be that of his brother. From the dead body, it was apparent that the deceased was murdered with sharp-edged weapons and with fire arms and his body was thrown away in the field to destroy the evidence of commission of offence.

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7. PW6 Sub-Inspector Chhote Lal after getting the information about the dead body of an unknown person lying in the field of one Prem Singh, reached at the spot and conducted the inquest proceedings and prepared the inquest report which is marked as Ex.8 after appointing punches, witnesses for panchayatnama of the deceased. Other papers such as photo-nash Ex. Ka-9, letter to R.I. Ex. Ka-10, challa-nash Ex. Ka11 and letter to C.M.O. Ex. Ka-12 were also prepared. After conducting the inquest proceedings, the dead body of the deceased Nitesh Kumar was properly kept in a sealed cover at the spot and thereafter sent to District Hospital for its postmortem examination. The postmortem was carried out in the District Hospital, Agra by PW7 Dr. Pravin Garg. He proved the same as Ex. Ka-13. In the opinion of the doctor, the deceased died due to shock and haemorrhage as a result of ante-mortem injuries. No fire-arm injuries were found on his person and he found the following ante-mortem injuries:

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8. " 1) The forehead was suppressed towards right side of face

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9. 2) Maxilla bone of and Mandible bone towards right side were broken.

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10. 3) Wound on neck (deep) was 12x3.0 cm whose edge was ill defined.

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11. 4) Wound on right side abdomen 1 cm above umbilicus 10 cm x 1.0 cm whose edge was also ill defined."

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12. In the internal examination, it was found that scalp bones (temporal, frontal and parietal) were broken, brain was lacerated, bone of eye towards right side was also broken. Mouth, tongue and larynx were normal. Ribs were normal. Both chambers of chest were empty and small intestine of stomach was lacerated. Liver and kidney were paled. Urinary bladder was empty. Fecal matter was present in large intestine. The gallbladder was half full.

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13. PW 13 Constable Suresh Chandra, on the basis of the additional written

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report Ex. Ka-2 dated 15.12.2013 as was submitted by the complainant Ashish Yadav about the murder of his brother and recovery of his dead body, added offence under sections 302/201 IPC in the present case and contents of the same were also recorded in GD Ex. Ka-27 on the same day i.e. 15.12.2013. PW 12 Narendra Singh inspected the place of occurrence at the pointing out of the complainant and prepared the site plan Ex. Ka-26.

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14. During the course of investigation, accused Shanker Thakur, Shivansh Gupta were arrested on 16.12.2013 and on their pointing out, the Investigating Officer recovered ashes of burnt clothes, one pair of socks, some parts of motorcycle i.e. headlight and its cover which was not connected with the motorcycle of the deceased and the weapon banka used in the murder of the deceased Nitesh Kumar which was proved in the Court and the aforesaid items were exhibited as Ex. Ka-3, Ex. Ka-4 and Ex. Ka-5 respectively. The recovery memo of blood stained earth, simple soil and also of Alto car as shown were recovered and proved as Ex. Ka-6 and Ex. Ka-7 respectively.

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15. The Investigating Officer recorded the statement of inquest witnesses and other witnesses and after completing other formalities, submitted the chargesheet Ex. Ka-18 under sections 364, 302, 201 IPC. The trial court after committal proceedings, framed charges against accusedrespondents Ankit, Shanker and Deepak Tiwari for offences under sections 364, 302, 201 IPC who denied the charges, pleaded not guilty and claimed their trial.

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16. The prosecution examined as many as 16 witnesses viz. PW1 Ashish Yadav, PW2 Baleshwar Singh, PW3 Smt. Kasha Devi, PW4 Ranvir Singh, PW5 Arves Kumar, PW6 Retd. S.I. Chhote Lal, PW7 Dr. Pravin Garg, PW8 HCP Harish Chandra, PW9 S.I. Prakash Chandra, PW 10 S.I. Dheeraj Pal Singh, PW 11 Ravindra Babu Yadav, PW 12 Narendra Singh, PW 13 Const. Suresh Chandra, PW 14 Const 1386 Ashok Kumar, PW 15 Jayendra Singh and PW 16 Const. 1571 Akhilesh Kumar.

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17. After closing of prosecution evidence, statements of accused persons under section 313 Cr.P.C. were recorded in detail followed by description of the circumstances enumerated from the prosecution evidence which

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accused persons stated to be totally false. Further, they also stated that the witnesses are falsely deposing against them and they have not committed any offence.

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18. Learned A.G.A. Sri Pawan Shukla vehemently argued that acquittal of the accused-respondents no. 1, 2 and 3 by the trial court appears to be wrong as there were sufficient evidence against them and the trial court misread the evidence on record and has wrongly acquitted them. Hence, the impugned judgment and order dated 01.09.2018 passed by learned Sessions Judge, Firozabad is liable to be set aside and the accused be convicted and sentenced by this Court.

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19. From perusal of the impugned judgment and order passed by the trial court, it is apparent that after examining the evidence of PW1 Ashish Yadav, PW2 Baleshwar Singh and PW3 Smt. Kasha Devi who are brother, father and mother of the deceased respectively who are also the witnesses of last seen and the evidence of PW4 Ranvir Singh who happens to be the uncle of the deceased, trial court came to the conclusion that the theory of the deceased being taken by the accusedrespondent nos.1 and 2 from his house has not been established and proved by the prosecution because as per their evidence, the deceased admittedly was lastly seen in the company of one Ashish resident of Enar Islamiya School. The said three witnesses have admitted before the trial court that Ashish told them that after the Dawat (feast), the deceased Nitesh Kumar left for his house. Hence, in these circumstances, the trial court found that there was a gap in the evidence of last seen when the deceased was lastly seen in the company of Ashish.

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20. Moreover, Ashish was neither made an accused nor produced in Court and the person named Munna Lal who arranged the Dawat (feast) was also not produced by the prosecution. The trial court is of the opinion that the evidence of witnesses of fact is not reliable and credible and the chain of circumstances was not so complete which could conclusively establish that it were accused-respondent nos. 1, 2 and 3 who were guilty of murder of the deceased.

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21. The iron banka which was recovered at pointing out of the accused Shanker and Shivanshu Gupta (declared juvenile) also could not be

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proved whether the same was used in crime in question or not as it was never sent to Forensic Science Laboratory for its examination. So far as the recovery of a country made pistol with two live cartridges of 315 bore from the accused-respondent no.1 Ankit is concerned, the same was also found to be false plantation as the deceased did not receive any firearm injury on his person. Moreover, the recovery of parts of motorcycle i.e. head light and head light cover at the pointing out accused Shanker Thakur and Shivanshu Gupta also not found to be established as the said recovery is not admissible as it is a joint recovery of murder weapon i.e. iron banka and there is no evidence about the fact of disclosure who first informed the Investigating Officer to get the said recovery made.

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22. The trial court after recording the evidence of PW7 Dr. Pravin Garg has opined that the deceased died due to shock and haemorrhage as a result of ante-mortem injuries but in his cross examination, he further opined that the injuries found on the dead body of the deceased could also be caused in an accident. PW7 further stated that the dead body was decomposed and was smelling. It was soaked in mud and the age of the deceased was assessed after determination to be 28 years old. Once, the family members of the deceased deposed that the deceased was aged about 20 years, hence, the identity of the dead body whether it was of the deceased Nitesh Kumar or of someone else also could not be established.

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23. During the course of trial, no other independent witness has been produced to prove the arrest of the accused-respondents and recovery of weapons from them. No public witness was searched out at the spot to make the arrest lawful and other mandatory provisions of Cr.P.C were also not followed by the Investigating Officer. The recovered fire-arm was also not examined in the FSL so that it can be ascertained that the recovered fire-arm was fit for firing and the same was used for firing. It has not been proved that accused-respondent Ankit could have fired by the police persons or could have used it for committing the murder of the deceased. Although there is no such evidence on record and further there was no mark of fire-arm injury on the body of the deceased as per the statement of PW7 Dr. Pravin Garg. It has also not been proved by the prosecution that after abducting the deceased, the accused-respondents

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thrown his dead body in the jungle of Bateshwar in order to destroy the evidence and screening them from the clutches of law.

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24. Thus, the trial court came to the conclusion that prosecution has failed to prove its case beyond reasonable doubt against the accused-respondent nos. 1 to 3 regrading abduction and murder of the deceased and also of the charge under section 25/27 Arms Act against accused-respondent Ankit and thus, acquitted them of the charges.

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25. From the foregoing discussions and after examining the grounds of acquittal of the accused-respondents by the trial court, we are of the opinion that the accused-respondents have rightly been acquitted and the view taken by the trial court was a possible view which does not suffer from any perversity of fact or law which may call for any interference by this Court.

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26. Hence, leave to appeal is rejected and Government Appeal is dismissed accordingly.

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(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order Date :- 25.3.2019 Madhurima

State of U.P. v. Ankit and 2 Ors.

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State of U.P. v. Ankit and 2 Ors.

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