Dismissed

state of up v. Surendra @ Kukka and 3 others

Allahabad HC26 Jul 2024GOVA/208/2024

Case brief

AI extract

What is this about?

Government Appeal against acquittal in a murder case. The Court examined circumstantial evidence, delay in F.I.R., hostile witnesses, and lack of independent corroboration for the alleged illicit relationship motive. The Court found the trial court's acquittal correct as the prosecution failed to prove the case beyond reasonable doubt. Leave to appeal and the appeal were rejected.

What did the court decide?

Application for leave to appeal and the appeal dismissed. Acquittal of respondents maintained.

state of up vs Surendra @ Kukka and 3 others — Quashing and FIR | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:165019-DB

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Court No. - 48

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Case :- GOVERNMENT APPEAL No. - 208 of 2024

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Appellant :- State of U.P. Respondent :- Surendra @ Kukka And 3 Others Counsel for Appellant :- A. K. Sand

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Hon'ble Siddharth,J. Hon'ble Subhash Chandra Sharma,J.

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Heard Sri Prem Shankar Prasad, learned A.G.A.-I for the State and perused the material on record.

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The present application for leave to appeal has been filed against the judgment and acquittal order dated 08.02.2024 passed by the Additional District and Session Judge, Court No. 9, Saharanpur in Sessions Trial No. 196 of 2005 (State Vs. Surendra @ Kukka and others) arising out of Case Crime No. 372 of 2004 under Section 302 I.P.C., P.S. Kotwali Mandi, District Saharanpur by which learned trial court has acquitted the accused persons Surendra @ Kukka, Munfait, Sanjay and Chaman Saini.

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Facts in brief are that on 13.11.2004 at about 8 p.m. the informant and his son Anuj Kumar Gupta, neighbour Savist Kumar and Mahendra Rana were sitting at his shop. In the mean time, Chaman Saini and Sanjay (the friends of his son Anuj Kumar Gupta) went there to meet him and after having conversation on a lonely place they took Anuj Kumar Gupta with them telling that, he would come back after a while. All the three persons went away on motorcycle Hero Honda, Splendor bearing No. U.P. 11 7721. On the next day, Anuj did not come back at which he made query to Chaman and Sanjay who told him not to worry and assured that Anuj would come back. He made search of Anuj Kumar Gupta but could not find him. On 16.11.2004 dead body of Anuj was found lying in a garden at Shyamsunder Kheda, Shankerpuri Road Canal. There were signs of injuries on his neck, stomach and chest. His motorcycle was missing. The accused Chaman Saini and Sanjay were named in the F.I.R. for committing his murder.

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After investigation, accused Sanjay and Chaman Saini were exonerated and charge sheet was filed against the Surendra @ Kukka and Munfait on the basis of which cognizance was taken by the learned trial court and after compliance of Section 207 Cr.P.C.

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charges were framed against these persons under Section 302/34 I.P.C. Later on, accused Chaman Saini and Sanjay were summoned by the learned trial court in exercise of powers under Section 319 Cr.P.C. for trial under Section 302 I.P.C. and charges were framed against them on 22.11.2022 which they denied and claimed for trial. The prosecution examined P.W. 1 Gaurav @ Gauri, P.W. 2 Mahendra, P.W. 3 Krishna Kumar, P.W. 4 Rajesh Kumar Garg, P.W. 5 Dr. Pramod Kumar Tyagi, P.W. 6 D.S.P. Shamsher Singh, P.W. 7 Retired Sub Inspector Roopchand Yadav.

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The learned trial court, after conclusion of prosecution evidence recorded the statements of accused persons under Section 313 Cr.P.C. and opportunity for defence-evidence was given and they adduced the evidence in defence.

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After hearing the arguments by prosecution and the accused persons, the learned trial court passed the judgment and order in question while acquitting the accused persons of the charges since the prosecution could not prove its case beyond reasonable doubt.

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Against the aforesaid judgment and order present application for leave to appeal has been filed by the State under Section 378(3) Cr.P.C.

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Learned A.G.A. submitted that in this case the deceased Anuj was taken away by Chaman Singh and Sanjay from the shop of the informant on 13.11.2004 at about 8 p.m. in presence of informant himself thereafter, Anuj did never return. On query both the accused-persons did not disclose the whereabouts of Anuj but gave assurance of his return. On 16.11.2004 dead body of Anuj was found in a garden. There were several injuries on the person of the deceased. The police did not investigate the case in proper way as a result, exonerated the accused Sanjay and Chaman Saini and implicated only two accused-persons Surendra @ Kukka and Munfait on the ground that Anuj had illicit relationship with the sister of accused Surendra @ Kukka. Chaman and Sanjay both were friends of Surendra @ Kukka. Due to illicit relation between the deceased and sister of Surendra @ Kukka he was enraged. This was the motive with the accused Surendra @ Kukka to commit murder of Anuj with other co-accused persons those were his friends. On account of ulterior motive, the police exonerated Chaman and Sanjay. When trial started and prosecution witnesses were examined before the learned court, on the basis of statement of the informant, Surendra @ Kukka and Munfait were also summoned under Section 319 Cr.P.C. During trial the witnesses proved all the prosecution papers and the doctor conducting post-

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mortem of the deceased also proved the ante-mortem injuries. In this way, the prosecution proved its case before the learned trial court beyond reasonable doubt but the learned trial court did not consider and appreciate the evidence on record in proper way and acquitted the accused-persons of the charges which makes the finding recorded by the learned trial court perverse warranting interference by this Court in this appeal and the judgment and order passed by the learned trial court dated 08.02.2024 is liable to be set aside and the accused-persons/respondents are to be punished.

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We perused the judgment and order passed by the learned trial court and also the material present on trial court record.

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In the present case, the occurrence took place on 13.11.2004 at about 8 p.m. when the deceased Anuj Kumar Gupta was taken away by the accused Sanjay and Chaman Saini on motorcycle from the shop of informant and his dead body was found on 16.11.2004 in the garden of Shyamsunder Kheda at Shankerpuri Road Canal. In the mean time, no any missing report or information regarding the aforesaid incident was given by the informant Krishna Kumar to the police station. During this period of three days he made query to accused Chaman Saini and Sanjay who assured him about the deceased Anuj Kumar Gupta to come back. In this way, there is delay of three days in lodging F.I.R./missing report at police station concerned.

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The prosecution examined P.W. 1 Gaurav @ Gauri, P.W. 2 Mahendra Rana, P.W. 3 Krishna Kumar as witnesses of fact and P.W. 4 Rajesh Kumar Garg as an inquest witness. Other witnesses P.W. 5 to 7 are formal witnesses. P.W. 1 Gaurav @ Gauri turned hostile and nothing could be found in his cross-examination by the learned Prosecutor in support of the prosecution case. P.W. 2 Mahendra stated before the court about the fact that the deceased Anuj Kumar Gupta was taken away by accused Sanjay and Chaman Saini from the shop of informant on 13.11.2004 and he was also present there. What happened thereafter is unknown except the fact of recovery of dead body from the garden. During cross-examination this witness did also not clearly support the aforesaid version but stated that no any incident occurred in his presence even he could not tell the date of the incident. Even he denied the fact that his statement was recorded by I.O. This witness also denied the fact that there was any dispute between the accused Sanjay and the informant Krishna Kumar or their family. In this way, the present witness is only witness of the fact that deceased was taken away by the accused Sanjay and Chaman Saini

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from the shop of the informant. P.W. 3 Krishna Kumar is informant who introduced a new story as was disclosed by the I.O. during the course of investigation. He deposed that there was illicit relation between the deceased Anuj Kumar Gupta and the sister of accused Surendra @ Kukka that was the reason Surendra @ Kukka nurtured animosity with Anuj Kumar Gupta. Accused Chaman Saini and Sanjay who were friends of Surendra @ Kukka took away the deceased on 13.11.2004 at about 8 p.m. in the presence of Mahendra Rana and Savist Kumar but he did not return back on which he made query with them who assured about his return before evening but he didn't. On 15.11.2004, he again made query and the same assurance was given by them but on 16.11.2004 a dead body was found lying in a garden at Shyamsunder Kheda, Shankerpuri Road Canal. He went there and identified the dead body of his son having injuries. During cross-examination he accepted that the fact of illicit relation of Anuj Kumar Gupta and Meenu was not mentioned by him in the report and the friendship between the accused Chaman Saini, Sanjay and accused Surendra @ Kukka was also not disclosed. He also accepted that he mentioned the name of Chaman Saini and Sanjay in the report for committing murder of the deceased. He also stated that the fact of illicit relation was mentioned in the F.I.R. but this is not so. He also accepted the fact that prior to the incident there was no any dispute between him and the accused Chaman Saini and Sanjay or their family members. Lastly, he stated that he mentioned the names of accused Chaman Saini and Sanjay since he saw them with Anuj Kumar Gupta and there was no any other reason for naming them. From the testimony of P.W. 3 Krishna Kumar, informant there appears no involvement of accused Surendra @ Kukka and Munfait and no any story of illicit relation between the deceased and the sister of Surendra @ Kukka was mentioned except the name of accused Chaman Saini and Sanjay.

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During the course of investigation the involvement of accused Chaman Saini and Sanjay was found to be false and as a result no charge sheet was filed against them. On the other hand, the I.O. Shamsher Singh who was examined as P.W. 6 brought the names of accused Surendra @ Kukka and Munfait for committing murder of the deceased Anuj Kumar Gupta. He arrested accused Surendra @ Kukka and Munfait after recording the statement of accused Surendra @ Kukka who introduced a new story of illicit relationship between the deceased and his sister. This was the reason the accused Surendra @ Kukka made contact with coaccused Munfait and provided two knives and ambushed near road canal since they knew that Anuj Kumar Gupta used to go to pick

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up his brother on the wine shop at Vishwas Nagar daily in the night and then he to return being intoxicated. At about 11 p.m. in the night Anuj Kumar Gupta came back there and with him they went into the garden with the motorcycle and started gambling. In the mean time, both of them stabbed the deceased Anuj Kumar Gupta with knife and done him to death. Thereafter, they washed the knives at a tube-well and concealed them in the water intake. On the basis of this confessional statement of accused Surendra @ Kukka both the accused persons were brought on the spot by the I.O. and two knives were recovered from the aforesaid place those were sent to F.S.L. for analysis on which human blood was found. On the basis of confessional statement of accused Surendra @ Kukka and Munfait and recovery of knives he filed charge sheet against them and excluded the accused Chaman Saini and Sanjay. The I.O. also stated before the learned trial court during his crossexamination that he came to know about the fact of illicit relation between the deceased and the sister of accused Surendra @ Kukka, from Sukhbir and Rishi Pal but this disclosure of illicit relationship by Sukhbir was not mentioned by him during the course of investigation.

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The motive of murder of the deceased by Surendra @ Kukka and Munfait as shown by I.O. is based only on the confessional statement of accused Surendra @ Kukka. Rishi Pal has not been examined by the prosecution in support of this fact about illicit relationship between the deceased and the sister of accused Surendra @ Kukka. On the contrary the witness Rishi Pal was examined by defence as D.W. 2. He deposed before the learned trial court that police told him the name of deceased Anuj Kumar Gupta. He was not known to him and he also stated that he did not disclose any fact about the murder before the police. How it mentioned this fact he did not know. In this way, the story of illicit relation between the sister of accused Surendra @ Kukka and the deceased remains unsupported. Except the confessional statement of accused Surendra @ Kukka there is no any other evidence on record to establish the fact that he with co-accused Munfait committed murder of the deceased. Likewise accused Chaman Saini and Sanjay were also not seen by any person while committing murder of the deceased and even during the course of investigation the involvement was found to be false, therefore, they were exonerated but summoned under Section 319 Cr.P.C. by the learned trial court on the basis of statement of P.W. 3 Krishna Kumar the informant that the deceased was taken away by them on 13.01.2004 at about 8 p.m. from his shop. There is no mention of this fact in the statement of I.O. that these two accused-persons

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were also present on the spot where the murder of the deceased was committed by other co-accused persons namely Surendra @ Kukka and Munfait. There is no any independent witness said to be present at the time of recovery of knives from the water intake at the instance of accused-persons.

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The total prosecution case depends on circumstantial evidence. For conviction on the basis of circumstantial evidence it is necessary that the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. 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. The circumstances should be of a conclusive nature and tendency. They should exclude every possible hypothesis except the one to be proved and 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 done by the accused. Further it is well settled that where on the evidence two possibilities are available, one of which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.

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On thorough scrutiny of evidence on record we find that there is no any motive with accused Sanjay and Chaman Saini to commit murder of the deceased either mentioned in F.I.R. or disclosed by the informant Krishna Kumar. Even there was no any animosity between the family of these accused-persons and the informant. Except the statement of the informant that both these accusedpersons took away the deceased from his shop at 8 p.m. on 13.11.2004 whose dead body was found on 16.11.2004 lying in a garden but no any missing report/F.I.R. was filed at the police station till recovery of dead body. During the course of investigation their involvement was also found not to be established. These accused-persons were not seen by any other person at the time of commission of murder of the deceased on the place of occurrence. In this way, their involvement in commission of murder cannot be said to be proved beyond reasonable doubt.

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So far as the involvement of accused Surendra @ Kukka and Munfait is concerned, the motive for committing murder of the deceased to accused Surendra @ Kukka remains unestablished since there is no any evidence on record to show that there was such illicit relation except the story as put forth by the I.O. on the

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basis of confessional statements of accused Surendra @ Kukka and Rishi Pal whereas Rishi Pal denied about the fact of illicit relationship between the deceased and the sister of accused Surendra @ Kukka when he was examined as D.W. 2 before the learned trial court. In this way, the motive to accused Surendra @ Kukka and Munfait can also not be said to be proved beyond reasonable doubt. The recovery of knives at the instance of these two accused-persons in absence of any independent witness also cast doubt. There is no any other evidence on record to show their involvement in commission of murder of the deceased. As a result, we are bound to conclude that the prosecution could not prove its case beyond reasonable doubt based on circumstantial evidence and the chain of circumstances is not of conclusive nature to exclude every possible hypothesis and so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused.

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In view of the above aforesaid facts and analysis of evidence on record and the perusal of judgment and order passed by the learned trial court, there appears no any kind of infirmity or perversity in the finding recorded by the learned court while acquitting the accused persons/respondents, therefore, it does not warrant interference by this Court, as a result, application for leave to appeal is liable to be rejected. Hence the application for leave to appeal is hereby rejected and consequently, the appeal is also dismissed .

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Trial court record be remitted back to the learned trial court.

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Order Date :- 17.10.2024 Suraj Srivastav

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Digitally signed by :- SURAJ SRIVASTAVA High Court of Judicature at Allahabad

state of up v. Surendra @ Kukka and 3 others

Case brief

What is this about?

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state of up v. Surendra @ Kukka and 3 others

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