Partly allowed

Sandeep Kumar v. State of U.P.

Allahabad HC25 Jul 2023CRLA/1137/2015

Case brief

AI extract

What is this about?

High Court Appeals against conviction for murder and kidnapping for ransom. The bench affirmed the conviction of the appellant due to strong circumstantial evidence including dead body recovery and ransom calls from his mobile, but set aside his wife's conviction due to lack of independent incriminating evidence.

What did the court decide?

Criminal Appeal by Sandeep Kumar dismissed; Criminal Appeal by Smt. Manju allowed; she is set free on bail; Government Appeal against acquittal of Vipin Kumar dismissed.

Sandeep Kumar Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:148213-DB

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Court No. - 46

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Case :- CRIMINAL APPEAL No. - 1137 of 2015 Appellant :- Sandeep Kumar Respondent :- State of U.P. Counsel for Appellant :- Ramesh Chandra Yadav,Saurabh Yadav Counsel for Respondent :- Govt.Advocate,A.Z.Khan

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Connected with

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Case :- CRIMINAL APPEAL No. - 1116 of 2015 Appellant :- Smt. Manju Respondent :- State of U.P. Counsel for Appellant :- J.H. Khan,Amicus Curiae,Gulrez Khan,Ranesh Chandra Yadav,Sunil Dubey,W.H. Khan Counsel for Respondent :- Govt.Advocate,Sumit Goyal

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And

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Case :- GOVERNMENT APPEAL No. - 1938 of 2015 Appellant :- State of U.P. Respondent :- Vipin Kumar And 2 Others Counsel for Appellant :- Govt.Advocate Counsel for Respondent :- Anil Kumar Mishra,Ramesh Chandra Yadav

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Hon'ble Ashwani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.

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Criminal Appeal No.1137 of 2015 is filed by the accused appellant Sandeep Kumar whereas Criminal Appeal No.1116 of 2015 is filed by accused appellant Smt. Manju challenging the judgment and order dated 9.2.2015/11.2.2015, passed by Additional Sessions Judge, Court No.4, Saharanpur, in Sessions Trial No.708 of 2011 (State Vs. Sandeep Kumar and two others), arising out of Case Crime No.407 of 2011, Police Station Nakud, District Saharanpur, whereby accused appellants Sandeep Kumar and Smt. Manju have been convicted and sentenced to life imprisonment alongwith fine of Rs.5,000/- each under Section 302/34 IPC and on failure to deposit the fine to undergo additional imprisonment for one

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year each; life imprisonment alongwith fine of Rs.5,000/- each under Section 364 IPC and on failure to deposit the fine to undergo additional imprisonment for one year each; and seven years rigorous imprisonment alongwith fine of Rs.5,000/- each under Section 201 IPC and on failure to deposit the fine to undergo additional imprisonment for six months each. All the sentences are to run concurrently. Thus aggrieved, the appellants are before this Court.

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This judgment in addition to the above appeals also disposes of Government Appeal No.1938 of 2015, in so far as the accused Sandeep Kumar and Smt. Manju have been acquitted of the charges levelled against them under Section 364-A IPC.

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Facts, giving rise to the aforesaid appeals, are that a missing report was lodged by one Suresh Kumar (PW-10), who happens to be the father of the deceased, informing that the deceased had gone to the house of his maternal uncle Pankaj Kumar (PW-2) for spending summer vacations on 20.5.2011. On 5.7.2011, at about 5.30 in the evening, the deceased had gone to the forest alongwith PW-2 and returned by 6.00 pm. He was sitting on the wall in front of the house and had gone somewhere without intimating the family members. Since the deceased could not be traced, as such the missing report was lodged describing the age of the missing boy as 11-12 years, who was a student of Class 5^th . The clothes worn by him were also specified. This missing report is Ex. Ka-13.

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It appears that despite best endeavours the deceased could not be traced. The grandfather of the deceased namely Jagpal (PW-1) then lodged the first information report on

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16.7.2011 at 2.00 pm stating that his grandson Saurabh (deceased) had passed Class 5^th and had gone to the house of his maternal uncle from 20.5.2011 alongwith his mother. He had gone to eat mangoes in the grove with his maternal uncle, which was at a distance of about 150 metres. After return he was lastly seen sitting on the boundary and has not been seen thereafter. Apprehension was expressed that the grandson of the informant has been kidnapped and the unknown miscreants could have killed him. The first information report was then lodged under Section 364 IPC as Case Crime No.407 of 2011. The FIR has been Exhibited as Ex.Ka-5.

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The investigation proceeded in the matter and the accused Sandeep, Smt. Manju and Vipin were ultimately arrested on the basis of a confession made by them before Satish Kumar (PW-3), who was the earlier Village Pradhan. On the interrogation made from the arrested persons the police received information which led to recovery of a dead body from the Gher (bounded courtyard) of accused Sandeep vide recovery memo (Ex.Ka-7). The recovery on the pointing out of accused Sandeep was made late in the evening in light of Petromax, which has also been exhibited vide Ex.Ka-3. Spade has also been recovered on the pointing out of the accused, which is exhibited as Ex.Ka-6. The recovery of dead body on the pointing out of accused Sandeep is exhibited as Ex.Ka-7. The dead body was found in rotten state, which was concealed a few feet below the surface.

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Inquest was carried out on 7.8.2011 at 9.30 pm, as per which the accused Sandeep has killed the deceased after his abduction for ransom. The dead body of the deceased has been identified by Naresh Kumar (PW-8) and Jaipal Singh (not

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produced). The dead body was also identified by PW-2. The skeleton and other body parts recovered were sealed and sent for postmortem, which has been conducted by Dr. Praveen Kumar Bansal (PW-4).

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As per the postmortem report the dead body was in rotten state. Smell was found. Insects were also found. The skin and soft tissues have disappeared and even the internal body parts were in rotten state. Eyes of the deceased were missing. As per the doctor the deceased was found wearing a T-shirt and a Pant. In the opinion of the doctor the approximate time of death was about 3-4 weeks and the cause of death apparently was strangulation. However, no ligature mark was discernible. The investigation proceeded further and PW-2 informed the Investigating Officer that he had received a ransom letter on 20.7.2011 (paper no.8/2). PW-2 further informed the Investigating Officer that he also had received a telephonic call on 24.7.2011 at 9.27 am from Mobile No.9627958036 enquiring about the receiving of ransom letter. A call was also received from the same number in the night and subsequent contacts were made from the same number enquiring as to whether the demanded ransom had been arranged or not?

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The Investigating Officer made necessary enquiries and also obtained a call detail record, which showed that contact was made on the mobile number of PW-2 i.e. 9720577268. After recording the statement of witnesses and collecting other materials the Investigating Officer submitted chargesheet against the three accused under Section 364-A, 302, 201 IPC on 7.9.2011.

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The concerned Magistrate took cognizance and committed the case to the court of sessions, where it got registered as Sessions Trial No.708 of 2011. The concerned court framed charges against two accused Sandeep and Smt. Manju under Sections 364-A, 302/34, 201 IPC on the charge of murder of deceased Saurabh for ransom. Charge against the third accused Vipin was framed under Section 364-A IPC.

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Trial proceeded in the matter, where the informant Jagpal appeared as PW-1 and supported the prosecution version, as per which his grandson (deceased), aged about 12 years, had gone to his maternal uncle’s house and was lastly seen on 5.7.2011 at about 6.00 pm sitting on a boundary near the road and was not seen thereafter. He has also stated that his son had informed him that a ransom letter was received on 20.7.2011. He has also proved the written report, on the basis of which FIR itself has been lodged.

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Pankaj Kumar has apeared as PW-2, who is the maternal uncle of the deceased and has fully supported the prosecution version. He has disclosed his Mobile No.9720577268 and has deposed that a ransom call was received from Mobile No.9627958036 on 24.7.2011 at 9.27 in the morning. The caller enquired as to whether the letter has been received in respect of missing child and the witness responded in affirmative. The caller stated that he would again call. On the same day another call was made at 10.37 pm from the same number and enquired as to whether Rs.15 lacs was arranged or not. He was also threatened not to disclose such facts to the police. Telephonic call was again received on 27.6.2011 and 28.7.2011 and the caller was informed that amount arranged is

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short by Rs.2 lacs. This witness has also proved the ransom letter (Paper No. 8/2). An objection was raised to the admissibility that the letter produced was a photocopy. This witness has also proved the register of the mobile shop owner, who had sold Mobile No.9627958036 to the accused Sandeep. In the cross-examination this witness has stated that there existed provision of call recording in the mobile phone but he had not recorded the ransom call. He also admitted that between 20.7.2011 to 8.8.2011 he had not informed the Investigating Officer that he could identify the caller from his call. The witness has also denied the suggestion that Vipin was in Panipat, Haryana between 20.7.2011 to 30.7.2011. This witness has been extensively cross-examined but the defence has not been able to shake the credibility of the witness.

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Satish Kumar has been produced as PW-3, who is also the Pradhan of the village. He knew the deceased. He also identified the accused Sandeep and Vipin. He has alleged that on 7.8.2011 he had gone to Petrol Pump for getting fuel for his motorcycle at about 6.00 in the evening when the two accused Sandeep and Vipin met him and confessed about the crime committed by them and sought his intervention for their protection. The witness informed such facts to the police, who took the accused in custody. In the cross-examination PW-3 has denied the suggestion that he is making a false statement and that accused were arrested earlier and the arrest memo is ante-time. He has also denied the suggestion that accused Sandeep was arrested from his house on 4.8.2011.

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PW-4 is Dr. Praveen Kumar Bansal, who has conducted the autopsy of the deceased and has proved the postmortem report. Constable Madanpal Singh has appeared as PW-5 and

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has proved the check FIR as also the GD, wherein the contents of written report have been recorded at 2.00 pm on 16.7.2011.

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PW-6 Mahendra Singh is a witness to the recovery of dead body. He has clearly stated that accused Sandeep took the police and the witness to his house and indicated the place beneath which the dead body was concealed by him. He has also proved the inquest report, which contains his signatures as a witness. This witness has stood firm even in his extensive cross-examination. He has also explained location of his house vis-a-vis that of the house of the accused.

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SI Rajveer Singh is PW-7, who has deposed that the arrested accused Sandeep had confessed of committing the murder of the deceased and had expressed his desire to get the dead body recovered from his house. He has also stated that on the information of the accused Sandeep the police personnel alongwith other witnesses came to the house of the accused Sandeep and the dead body was recovered, on his pointing out, from a few feet below the surface. He has also proved the recovery of dead body. This witness has also stated that the inquest report was prepared in his presence and that the dead body was sealed and was handed over to Constable Manoj Kumar and Constable Mahendra Singh for postmortem.

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Naresh Kumar has appeared as PW-8, who is an independent witness from the village and has proved the recovery of dead body from the house of the accused. He has also identified the dead body. This witness has also been crossexamined and has remained firm in his deposition.

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Witness Mohan Kumar is PW-9, who runs a mobile shop in

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the name of Suraj Communication. He has stated that accused Sandeep was known to him as he had a TV shop in the village. He has stated that two SIM cards were purchased by Sandeep being Nos.9627958036 and 9627957991. These two SIMs were got activated on 13.5.2011. The accused had assured to provide his identity papers but he failed to provide such details and ultimately he utilized the identity papers of one Salman as being the person to whom SIM card no.9627958036 was issued. This witness has also produced the register, which contains details of sale of SIM cards by him to various persons. The original register provided by him during the course of investigation has also been exhibited as Ex.Ka-36. The original register has also been produced before us and we have perused the same. The register clearly contains reference of Mobile No.9627958036 as having been sold to Sandeep son of Om Prakash, R/o Nangla Maphi. This witness has also been crossexamined and has stated that the concerned SIM No.9627958036 is not in the name of Salman but is in the name of accused Sandeep. He has also stated that unless identity papers are furnished the SIM gets de-activated. This witness failed to specify the period/date when he had furnished the ID of Salman in respect of the SIM issued to accused Sandeep. He also feigned ignorance with regard to ID used by him in respect of other SIM sold to Sandeep.

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In the cross-examination PW-9 has identified his signatures at page no.35 of the register, marked as Ex.Ka-36. He has admitted that some of the columns are left blank as those SIMs were not sold to anyone. He has denied the suggestion that a false register has been produced on the asking of the police.

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PW-10 is Suresh Kumar, who happens to be the father of the deceased and has fully supported the prosecution case.

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PW-11 is Rakesh, who is also a resident of the same village and has stated that at the time when the deceased was seen sitting on the boundary last, the accused Smt. Manju was standing on her door. In the cross-examination this witness has also explained the location of the houses. He has stated that the boundary on which the deceased was sitting was of the house of Pankaj (PW-2) and was in front of the house of the accused Sandeep.

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SI K.P. Singh has appeared as PW-12, who is the Investigating Officer and has proved the various steps taken during the course of investigation. He has proved the receiving of ransom letter and also elaborated upon the receipt of register maintained by the mobile shop owner in respect of sale of SIM in question. This witness has also been cross-examined. He has proved the recovery of dead body on the pointing out of the accused. However, in the cross-examination he has stated that he made no endeavours to take in his possession the ID used for issuance of SIM. He has also admitted that he had not interrogated Salman in respect of SIM No.9627958036.

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Prem son of Sri Narsingh has been produced as PW-13, who is also a resident of the same village and has joined the search party to locate the deceased after he had gone missing.

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Retired Inspector, Kiranpal Singh has appeared as PW-14, who had conducted the investigation in this case and had submitted the chargesheet against the accused and has also proved the chargesheet filed against the accused persons. This

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witness has been cross-examined with reference to the site plan, wherein the house of Pankaj has not been shown. This witness had commenced investigation from 8.8.2011.

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Constable Madanpal Singh has appeared as PW-15 and has proved GD in respect of registration of missing report. In the cross-examination he has stated that no application except 5.7.2011 and 16.7.2011 was received.

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B.N. Pashar has appeared as PW-16, who had conducted investigation in the matter and had also arrested the accused on 7.8.2011 at 4.30 pm from the Petrol Pump at Ambehta and has also proved the recovery of two mobile from the accused. He has stated that accused Sandeep had informed him that he has lost his private job and was in financial distress after he became jobless. The accused claims to have informed the witness that he had called the deceased inside the house on the pretext of offering mangoes and tied his hands and feet. Since the deceased kept raising an alarm, as such the witness feared for his security and strangulated the deceased. He also informed the Investigating Officer about concealing the dead body in a pit near the boundary of his house and has put waste materials on it. In the cross-examination the concerned witness has stated that telephonic contact in respect of the ransom has been established by the CDR report. The witness has denied that all proceedings for arrest etc. has been made sitting in the police station itself. The witness has also testified that confession was made by accused in his custody.

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The evidence thus led by the prosecution against three accused was confronted to them for recording their statement under Section 313 Cr.P.C. The accused Sandeep Kumar denied

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the allegation made against him and feigned ignorance about various evidence relied upon him in respect of the accusation. He has lastly urged that police called him from his house on 4.8.2011, which fact was disclosed by his brother to the police personnel and that he is in fact innocent. Similarly, co-accused Smt. Manju has also denied the allegations levelled against her during the course of trial and has denied reference of various evidence led by the prosecution. She has also stated that she was arrested from her house on 4.8.2011 in respect of which intimation was given to higher police personnel.

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On behalf of defence, evidence has been led of Mahipal Singh (DW-1). He has stated that on 7.8.2011 Vipin, Satish and Raj Kumar came to him and informed that a phone had been received from the police post at Imlie. He claims that police personnel ascertained the identity of Vipin and took him from Haridwar. In the cross-examination he has stated that Vipin was on his Bike.

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Amit Kumar has appeared as DW-2. He is the brother of accused Sandeep. He works as Lineman in the electricity department and claims to have received information on 5.8.2011 about the fact that his brother has been taken by the police. He came on 6.8.2011 and was informed by the police personnel that some interrogation are being made from the accused brother and he shall be released shortly. He claims to have sent information to S.S.P., Saharanpur on 7.8.2011 at about 2.00 pm about the arrest of his brother.

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On the basis of materials placed on record during the course of trial the court below vide its judgement under challenge has come to the conclusion that the prosecution has

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succeeded in establishing the guilt of accused appellants Sandeep and Smt. Manju and has consequently convicted and sentenced them as per above.

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The court below has essentially relied upon following incriminating material to hold the accused appellants guilty:-

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(i) The fact that dead body of the deceased has been recovered from the bounded courtyard (Gher) of accused Sandeep;

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(ii) Evidence had surfaced about ransom call made by accused Sandeep from his mobile to PW-2;

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(iii) The ransom letter sent to PW-2 for arranging a sum of Rs.15 lac or else the deceased would be done to death;

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(iv) Confessional statement made by an accused Sandeep to the effect that he was unemployed and was in financial distress;

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(v) The deceased was lastly seen near the house of accused Sandeep;

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(vi) Evidence has also surfaced to indicate that accused Smt. Manju was seen near the deceased, when he was lastly seen sitting on the boundary wall.

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On the basis of such incriminating materials bought on record against the accused the court below opined that the chain of events stood clearly connected so as to support the hypothesis of guilt of the accused and that no other alternative hypothesis consisting with the innocence of accused existed on record. In light of such findings returned by the court below the accused appellants have been convicted and sentenced. The court below, however, opined that the prosecution has not been able to establish guilt of accused Vipin of committing offence under section 364A IPC and consequently, he has been acquitted of the charges levelled against him. The prosecution case that Vipin had called from mobile/sim of accused Sandeep

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for ransom and that his voice was identified by PW-2 is not found to have been proved. Aggrieved by the judgement of court below the above two criminal appeals have been preferred by the two accused Sandeep and Smt. Manju. Government appeal has been filed by the State insofar as the accused Vipin has been acquitted of the charges under section 364A IPC.

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On behalf of accused appellants, Sri R. C. Yadav, learned Amicus Curiae and Sri Saurabh Yadav, Advocate have strenuously urged that the prosecution has failed to establish the guilt of two accused on the basis of evidence brought on record. It is argued that the recovery of dead body is doubtful inasmuch as accused Sandeep was arrested by police on 04.08.2011 itself and that the recovery apparently is planted. It is also contended that the sim card/number from which ransom call was allegedly made was actually in the name of Salman and the implication of accused Sandeep for the purposes is wholly unreliable. It is further argued that the testimony of PW9 is not convincing and reliable inasmuch as his statement that the identity of Salman was used by him is not believable because as per law identity is to be put of the person to whom the sim card is sold and not anyone else. It is also contended that the ransom letter has also not been proved nor there is any material to indicate that ransom was paid and, therefore, the prosecution has failed to prove the charges levelled against the accused appellants on the basis of evidence led in the matter.

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Smt. Archana Singh, learned A.G.A. for the State and Sri A. Z. Khan, Advocate for the informant strenuously urged that the court below has correctly appreciated the evidence on

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record which completely establishes the guilt of accused appellant beyond reasonable doubt.

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In the context of above submissions made at the bar, this Court is required to examine as to whether the prosecution has succeeded in establishing the guilt of accused appellants beyond reasonable doubt or not? The legality of sentence awarded to accused appellants is also required to be determined by us. This Court is also required to examine as to whether the court below was justified in holding that the offence under section 364A IPC is not made out against the accused Vipin.

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After hearing counsels for the parties and perusing the materials brought on record, including the court below records, we find that this is a case based on circumstantial evidence. There is no ocular testimony to prove the guilt of the accused appellants in the matter. Law with regard to case of circumstantial evidence has been elaborately discussed by the Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116, wherein the Court has evolved five essential features to exist to establish such a case. Para 152 to 154 of the judgement are reproduced hereinafter:-

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“152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):

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"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive

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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 far 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."

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A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:

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"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

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(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,

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(3) the circumstances should be of a conclusive nature and tendency.

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(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.

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These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

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The records clearly reveal that the deceased had come to

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the house of his maternal uncle during summer vacations alongwith his mother. He (deceased) was lastly seen in the company of PW-2, who took him to the mango orchard, and it is after his return that the deceased was seen sitting on the boundary situated in front of the house of accused Sandeep. The time when the deceased was seen last has been specified as 05.30 PM on 05.07.2011. The missing report was lodged on 06.07.2011 wherein the clothes worn by the deceased were clearly specified. The time of disappearance was also mentioned. A first information report against unknown persons

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has then been lodged on 16.07.2011 expressing apprehensions by the informant that his grandson has been kidnapped and may be done to death. The prosecution version with regard to disappearance of the deceased from the close proximity of the accused is, therefore, clearly inferred from the materials placed on record.

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Records further reveal that the deceased could not be traced and ultimately his dead body has been recovered only after the arrest of accused Sandeep and Vipin on the pointing out of accused Sandeep.

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Learned counsels for the appellants have emphatically argued that the recovery is doubtful as the accused Sandeep was arrested by the police on 04.08.2011 itself and has falsely been shown to have been taken in custody on 07.08.2011 at about 02.00 PM and only thereafter the arrest of accused was shown to have been made on 07.08.2011 at 04.30 PM. This argument is strongly denied by learned A.G.A. and the counsel for the informant, who contends that in fact the arrest of accused has been made only on 07.08.2011. We have given our thoughtful considerations to the rival submissions made in this regard. We find that not much will turn upon the time and date of arrest of accused inasmuch as the factum of date of arrest will have limited purpose to subserve i.e. with regard to disclosure made by him to police of his complicity in the matter.

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The evidence on record has been minutely scanned by us to find that the accused Sandeep clearly made a statement before the police personnel of his desire to get the recovery of deceased made on his pointing out. This statement was made on 07.08.2011. The police personnel alongwith independent

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persons of the village i.e. PW-8 Naresh Kumar, have thereafter arrived at the house of accused Sandeep. The witnesses have clearly stated that the accused Sandeep indicated an open place in his bounded courtyard, at a distance of about 15 paces from the boundary, where he had hidden the dead body. It is on such pointing out of the accused Sandeep that the dead body has been recovered from beneath the surface in the bounded courtyard of the accused Sandeep. The testimony of witnesses are clearly consistent on the aspect of recovery. Though they have been cross-examined but no inconsistencies have been shown with regard to recovery of dead body from beneath the surface in the bounded courtyard. This circumstance is an important circumstance to implicate the accused Sandeep. The circumstances relating to recovery has been confronted to the accused but he has not been able to come up with any explanation in respect of such recovery. Since the recovery is otherwise within the bounded courtyard of his house the accused was expected to explain the circumstances leading to such recovery, particularly by virtue of section 106 of the Indian Evidence Act, which the accused has failed to discharge.

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Though an argument is made with regard to identity of the deceased but we find little force in it, inasmuch as PW-2, PW-8 and other villagers have clearly identified the dead body of the deceased from the clothes worn by him and also from the looks of corpus itself. The identity of deceased is thus clearly established.

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The other important circumstances against the accused is with regard to use of his mobile phone for making ransom call to PW-2. PW-2 in his testimony has clearly disclosed that he

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received ransom call from sim/mobile no.9720577268 on 24.07.2011 inquiring about receiving of ransom letter. Subsequent calls were also received from the same mobile number. The ransom letter has also been provided to the Investigating Officer and its copy has been produced during the course of trial and has been marked as paper no.8/2. The ransom letter makes a demand of Rs.15 lac for securing release of the deceased.

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The appellants contend that in fact the sim/mobile no.9720577268 does not belong to accused Sandeep, rather it was issued in the name of Salman. This aspect of the matter has been considered by the court below and evidence in that regard have been produced before us. It is not in issue that the sim/mobile no.9720577268 has been issued by Suraj Communication, which is a concern owned by PW-9. This witness has clearly stated that sim/mobile no.9720577268 was issued to accused Sandeep. Apart from the number from which ransom call was received another sim card was also sold to Sandeep by PW9 on 13.05.2011. As per PW-9 he knew accused Sandeep and on his assurance that he would provide identity papers, later, that the sim card was issued to him. PW-9 has further stated that identity papers were not provided to him and he utilized the identity paper of Salman for issuing sim/mobile no.9720577268 to the accused. The original register produced and marked as Material Exhibit-2 during trial has also been perused by us which would clearly go to show that sim/mobile no.9720577268 has in fact been issued to Sandeep. The call record details of sim/mobile no.9720577268 has also been produced during trial and marked as Exhibit Ka.33 (paper no.12/1). Such call record details would go to

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show that contact was made from the sim owned by Sandeep to PW-2 at 09.27 PM on 24.07.2011 and again on the same night. Contact was also made on subsequent dates i.e. 26.7.2011 and 28.07.2011. The evidence of PW-9 coupled with CDR as also the ransom letter clearly proves that the ransom call was made by Sandeep to PW-2, demanding ransom to secure release of the deceased.

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The evidence has also been placed on record to show that the accused Sandeep had lost his employment and was in financial distress. This also is a circumstance which establishes need of finance for him to look after his family consisting of his wife and two children. The events that have been proved by the prosecution, taking cumulatively, leads us to the conclusion that court below was right in holding that chain of events leading to the hypothesis of guilt attributed to the accused Sandeep is completed. The court below is also justified in returning a finding that no hypothesis consisting with the innocence of accused is shown to have existed in the facts of the present case. Neither the recovery of dead body from house of accused Sandeep has been explained by the accused nor there is any other suggestion that the dead body was planted in his house by anyone else. This is an extremely important circumstance and coupled with the circumstance of making of ransom call from the sim/mobile number of the accused Sandeep it completes the chain when we notice the fact that accused Sandeep was otherwise in dire financial distress having lost his job. We are, therefore, of the considered opinion that the finding returned by the court below with regard to conviction of accused Sandeep under sections 302/34, 364, 201 IPC and his attempt to suppress the evidence

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is fully established on record. In such circumstances, the conviction and sentence of the accused Sandeep vide judgment impugned is affirmed.

¶106

So far as the accused Smt. Manju is concerned, we find only two circumstances against her to exist on record. The first circumstance is that she is the wife of accused Sandeep whose guilt has been established. The other circumstance is that she was seen standing near her gate when the deceased was found sitting on the boundary. In our opinion, these two circumstances, taking cumulatively, would not justify the conviction and sentence of accused Smt. Manju for the offence alleged against her. Neither there is any recovery on the pointing out of accused Smt. Manju nor there is any other incriminating circumstance to implicate her. Merely because she is the wife of accused Sandeep would not justify an inference of her complicity in the offence. In that view of the matter the conviction and sentence of accused Smt. Manju is set aside.

¶107

So far as the implication of accused Vipin is concerned, we find that the findings returned by the court below in acquitting the accused are well founded, inasmuch as there are no circumstances established against such accused so as to justify his conviction and sentence under section 364A IPC. There is neither any recovery from such accused nor any other circumstances which may justify his implication. The limited role assigned to him is of making ransom call from sim/mobile no.9720577268 of accused Sandeep. The voice of Vipin is not proved of being ransom caller. There is otherwise no recovery of any amount paid to accused Vipin. In such circumstances, we affirm the findings returned by the court below in acquitting the accused Vipin.

¶108

¶109

In view of the aforesaid discussion and deliberations, Criminal Appeal No.1137 of 2015 filed by accused Sandeep Kumar fails and is dismissed.

¶110

Criminal Appeal No.1116 of 2015 filed by accused Smt. Manju succeeds and is allowed. She is reported to be on bail and therefore her bail bonds and sureties shall stand discharged and she shall be set free, unless she is wanted in any other case, subject to compliance of section 437-A Cr.P.C.

¶111

Government Appeal No.1938 of 2015 filed by the State against acquittal of accused Vipin and for enhancement of punishment of accused Sandeep Kumar and Smt. Manju also fails and is dismissed.

¶112

We record our appreciation for the assistance rendered by Sri Ramesh Chandra Yadav, learned Amicus Curiae in arguing the appeals and, therefore, he shall be entitled to payment of fee as per rules of the High Court Legal Services Committee.

¶113

Order Date :- 25.7.2023 Anil/Ashok Kr.

¶114

(Syed Aftab Husain Rizvi,J.) (Ashwani Kumar Mishra,J.)

¶115

Digitally signed by :- ANIL KUMAR PATEL High Court of Judicature at Allahabad

Sandeep Kumar v. State of U.P.

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Sandeep Kumar v. State of U.P.

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