Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Absence Or Weakness Of Motive Is Not Fatal, If The Prosecution Evidence Is Worthy Of Reliance.
JUDGEMENT TITLE : Ram Chandra Gupta Vs. State Of U.P. On 28/11/2008 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 1517 OF 1999
CORAM : Hon'ble Barkat Ali Zaidi,J. And Hon'ble Vijay Kumar Verma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD


Reserved




Criminal Appeal No. 1517 Of 1999

Ram Chandra Gupta Aged 63 Year
son Of Vishwanath Prasad Gupta
resident Of S-4/90 Ardali Bazar
Police Station Cantt. District Varanasi .... Appellant-accused

versus
State Of Uttar Pradesh .... Respondent


And

Criminal Appeal No. 1516 Of 1999

Pankaj Kumar Gupta Aged 28 Year
son Of Ram Chandra Gupta
resident Of S-4/90 Ardali Bazar
Police Station Cantt. District Varanasi .... Appellant-accused

versus

State Of Uttar Pradesh .... Respondent

And

Criminal Appeal No. 1463 Of 1999

Atul Pandey Alias Babloo Aged 28 Year
son Of Jai Nath Pandey
resident Of B-3, Varuna Pul , P.W.D. Colony
Police Station Cantt District Varanasi .... Appellant-accused

versus

State Of Uttar Pradesh .... Respondent

And

Government Appeal No. 3111 Of 1999

State Of Uttar Pradesh ...... Appellant
versus

Pawan Kumar Gupta Son Of Sri Ram Chandra Gupta
S/ 4 90, Western Portion, Ardali Bazar, Police Station Cantt.
District Varanasi .... Respondent-accused

AND

Criminal Revision No. 1372 Of 1999

Ashok Kumar Gupta
son Of Vishwa Nath Prasad
resident Of S-90-1, Ardali Bazar
Police Station Cantt. District Varanasi .... Revisionist (informant)

versus
1.State Of U.P.
2.Ram Chandra Gupta
son Of Vishwanath Prasad

3.Pawan Kumar Gupta Aged 31 Year

4.Pankaj Kumar Gupta
both Sons Of Ram Chandra Gupta
All Resident Of S-4/90 Ardali Bazar
Police Station Cantt. District Varanasi

5.Atul Pandey Alias Babloo
son Of Jai Nath Pandey
resident Of Type B-3 P.W.D. Colony
Varuna Pal Public Station Cantt. Varanasi ...Respondents (accused)
------------
Hon'ble Barkat Ali Zaidi, J.
Hon'ble Vijay Kumar Verma. J.

(By Hon'ble Barkat Ali Zaidi, J.)

1.The Aforenoted Three Criminal Appeals And A State Appeal, As Also A Revision By The Complainant Arise Out Of The Same Incident And Are, Herewith Being Decided By This Judgment.
2.The Case (Sessions Trial No. 624 Of 1995) Was Decided By Sessions Judge, Varanasi On 29.5.1999 Who Convicted The Accused Ram Chandra Gupta, Pawan, Pankaj And Atul Pandey Alias Babloo Under Sections 302, 120-B, 201 I.P.C. And Sentenced Them To Imprisonment For Life And Acquitted Accused Pawan Kumar Gupta.
3.A Thirteen Year Old Boy Amit Was Done To Death 13 Years Ago. A Regrettable Co-incident, At Both Ends, Of The Spectrum. A Factual Matrix May Be Unfolded.
4.The Prosecution Version Is That On 17.8.1995 In House No. S-4/90 Ardali Bazar, Varanasi, The Complainant Ashok Kumar Of This Case Was Living With His Family Including His Deceased Son Amit Kumar And Running A Gas Agency In A Shop Comprising Part Of This House. Accused Ram Chandra Who Is The Elder Brother Of Complainant Lived Separately Along With His Family Including His Sons Accused Pawan And Pankaj In Another Portion Of This House And Ran A Restaurant In The Name Of 'Amrit Sagar'. It Is Said That Complainant And Ram Chandra Had Three More Brothers And Before Partition Of Their Ancestral Property In 1952, 1985-1986 They Ran A Joint Business Under The Name Of 'Bajrang Corporation' In Which Each Brother Contributed Rs. 17,500/-. It Is Said That Accused Ram Chandra Had Taken Out Some Money From The Joint Business By Which He Purchased A Shop In 1979 Which Was Opposed By The Complainant. The Accused Ram Chandra Is Said To Be Peeved On This Ground, And He Also Felt Jealous, Because The Business Of Complainant Was Flourishing.
5.It Is Alleged That On 17.8.1995 Around 8 O'clock In The Night After Closing His Shop, The Complainant (P.W. 1) Called Amit, But There Was No Response, Thereafter, He Launched A Search For His Son, But Amit Could Not Be Found. He Continued To Search His Son And He And His Wife Remained Waiting For Amit The Whole Night, Standing On The Balcony Of Their House. The Next Morning The Complainant Went Out To Search His Son. When He Returned, Accused Ram Chandra Informed Him That The Dead- Body Of Amit Was Lying In The Freezer Of His Restaurant. On Reaching There, The Complainant And His Nephew Found The Dead- Body Of Amit Lying In The Freezer In The Underground Cellar Of The Restaurant. Thereafter, The Complainant Went To Police Station Cantt. District Varanasi And Lodged An F.I.R. (Ext. Ka. 4) At 7.30 O' Clock In The Morning, In Which Accused Ram Chandra And His Family Were Named As Killers Of The Deceased Amit.
6.The Investigation Of The Case Was Assigned To P.W. 8 S.S.I. Ram Swaroop Shakya, Who Proceeded To The Spot And In Presence Of Public Witnesses By Preparing Panchayatnama Lash (Ext. Ka. 2) And Relevant Papers, Recovered The Dead-body Of Amit From The Deep Freezer Kept In The Cellar Of The Restaurant And Sent The Dead- Body For Post-mortem Examination And Seized The Chappals Of The Deceased Found Inside.
7.The Post-mortem Examination Of The Deceased Was Conducted By Dr. S.K. Tripathi On 18.8.1995 Around 6 O' Clock In The Evening, Who Found Following Ante Mortem Injuries On The Person Of Deceased:-
External Injuries:
1.Ligature Mark 14 Cm. X 3 Cm. 5 Cm. Found On The Upper 2/3 Of Neck Over Thyroid, Hyoid And Trachea Level With Multiple Contusion Of Irregular Size And Shaped. Some Oval Localized Found In The Front And Right Side Of Neck Area. On Cut- Upto Oesophagus All Soft Tissues Found Congested And Contused With Haematoma.
2.Contusion ½ Cm. X 2 Cm. On The Chin Right Side. 1 Cm. Outer To Mid Line.
3.Contusion 2 Cm. X 1 Cm. On The Left Thigh Outer Aspect.
4.Contusion 3 Cm. X 1 Cm. On The Left Knee At Outer Aspect.
5.Contusion 4 Cm. 2 Cm. On The Left Leg Outer Aspect.
6.On Opening The Scalp- Haematoma Found With Contusion Localised At Four Places. - One At Right Fore-head, One At Right Parietal And One Each At Both Occipital Areas And Found With Haematoma In Full Thickness Of Scalp. Diffused Haematoma Found In All Over Scalp. Right Temporalis Muscle Also Contused With Clotted Blood.
on Cut- To Cranium- Brain Membrane Found Contused. Congested With Extra-dural. Sub-dural Sub-arachnoid Haematoma/haemorrhages.

Internal Injuries:

1.Head And Neck

Scalp-livid (congested And See Injury As Discussed).
Skull- N.A.D. (no Abnormality Detected)
2.Membranes- Congested (highly Congested)
3.Brain- Congested( ++++) With Extra-dural Haemorrhage Found On Right Occipital Area, Sub-dural Haemorrhages And Sub-arachnoid Haemorrhages Found All Over Brain.

Thorax

1.Pleura- Congested( +++++)
2.Larynx-congested Trachea- Contused.
3.Lungs- Congested With Patechial Haemorrhagic Patches On The Surfaces (++++).
Pericardium- Congested
Heart- 150 Grams Empty
Vessels- Over Neck Area Right Jugular Vain Carotid Walls
and Fascia Found Contused,.
The Neck Muscles- Sternocledomastoid Muscle At Thyroid Level Found Contused With Haematoma.
Hyoid Muscle Found Contused.


As Indicated In The Post-mortem Report (Ext. Ka.1) Dr. S.K. Tripathi Opined That The Death Of Amit Was Caused By Asphyxia And Coma As A Result Of Head Injury And Intra Cranial Haemorrhage.


8.The Investigation Of The Case Changed Hands On 24.8.1995, And Was Entrusted To S.I. P.W. 9 Yogendra Misra, Who Was Later On Transferred On 1.9.1995 And The Investigation Then Came To P.W. 11 S.I. Sarad Chand Pandey, Who After The Receipt Of Post-mortem Report On 17.9.1995 Submitted A Charge-sheet Ext. Ka. 12 Against Ram Chandra And His Sons Pankaj And Pawan Kumar And Accused Atul Pandey In The Court Of Chief Judicial Magistrate Varanasi.
9.In Their Statements Under Section 313 Cr. P.C. Of The Accused, Nothing More Was Said, Except A Bare Denial Of Every Aspect Of The Prosecution Story, That Was Put To Them. No Explanation Was Offered About Recovery Of The Dead-body Form Freezer In The Restaurant. Accused Ram Chandra Further Pleaded That He Was Implicated Due To Animosity, While His Sons Accused Pankaj And Pawan Pleaded That They Were Implicated Because They Were Sons Of Ram Chandra.
10.The Plea Of Atul Pandey Was That His Father Was A Tenant In House No. 3/256 Since 1969 To 1993, Which Was In Possession Of His Father At The Time Of Incident, The Complainant Was Trying To Get The House Vacated And His Household Things Were Thrown Out Of The House Forcibly Ultimately, Which Was Opposed By His Father, And After Persuading The Investigation Officer, He Has Been Falsely Implicated In The Crime.
11.To Prove Its Case, The Prosecution Examined Informant P.W. 1 Ashok Kumar Gupta, P.W. 2 Rais Ahmad, P.W. 3 Suresh Chand Seth, P.W. 4 Haseen Uddin, P.W. 5 Ram Naresh Gupta, P.W. 6 Dr. S.K. Tripathi, P.W. 7 Head Constable Shailendra Kumar Pandey, P.W. 8 S.S.I. Ram Swaroop Sakya, P.W. 9 S.H.O. Yogendra Singh. P.W. 10 Ram Kewal, And P.W. 11 Inspector Sharad Chand Pandey.
12.Accused Ram Chandra, In His Defence, Examined D.W. 1 Suresh Chand Gupta, A Junior Engineer, His Brother-in-law D.W. 2 Amrit Lal, While, D.W. 3 Kush Kumar Singh, Deputy Jailor, District Jail Varanasi Was Examined In His Defence By Accused Atul Pandey.
13.The Trial Court Found Ram Chandra Gupta, His Son Pankaj Kumar Gupta And Atul Pandey Guilty And Convicted Them, And Acquitted Pawan Kumar Gupta.
14.We Have Heard Sri Satish Trivedi, Senior Advocate, Assisted By Sri Anubhav Trivedi, Dr. Abida Syed., Amicus Curie For Appellant Pankaj, Sri J.S. Sengar, And Sri M.P. Yadav, Advocates For Appellant Atul Pandey Alias Ballu And Sri G.C. Chaturvedi, Senior Advocate, Assisted By Sri Sumit Gopal, Advocate For The Revisionist Complainant And Sri Karuna Nand Bajpai, Addl. Government Advocate For The State.
15.The Trial Court Arrived At A Right Conclusion In Inferring Guilt Against The Accused Ram Chandra, But The Reasoning Adopted By Him Was Not Sanctified, By Recourse, To Provisions Of Law. The Relevant Provisions Of The Indian Evidence Act, Are Sections 106 And 114, Which Are As Follows :

"106. Burden Of Proving Fact Especially Within Knowledge.- When Any Fact Is Especially Within The Knowledge Of Any Person, The Burden Of Proving That Fact Is Upon Him.

114. The Court May Presume Existence Of Certain Facts.- The Court May Presume The Existence Of Any Fact Which It Thinks Likely To Have Happened, Regard Being Had To The Common Course Of Natural Events, Human Conduct And Public And Private Business, In Their Relation To The Facts Of The Particular Case."

16.The Combined Effect Of The Provisions Is That, In Cases Where Only The Accused Can Have Knowledge About The Incriminating Circumstances, It Is For Him To Explain, And If He Does Not Do So, An Inference Of Guilt May Be Drawn. The Law On The Point Is Well Established, But, If There Is Need For Reinforcement Of The Same, By Reference Of Case Law, Supreme Court Cases (i) Raj Kumar Tamkar Versus State Of Bihar And Another 2007 (1) (Scale) 19, (ii) Trimukh Maroti Kirkan Versus State Of Maharashtra 2007 S.C.C. 1 (Crl.) 80 May Be, Referred To.
17.In This Case, It Is Established Beyond All Doubt, That The Dead- Body Was Recovered From The Deep Freezer In The Restaurant Of Accused Ram Chandra And The Freezer Was In The Underground Cellar Of The Restaurant. There Is The Evidence Of Investigation Officer P.W. 8 S.S.I. Ram Swaroop Sakya, Who Recovered The Dead- Body From The Freezer In The Restaurant Of Accused Ram Chandra, And Prepared Panchayatnama Ext. Ka. 2, In Which All Particulars And Details Of The Dead- Body Were Mentioned. There Is Also The Evidence Of P.W. 5 Ram Naresh, In Whose Presence The Dead- Body Was Recovered By The Investigation Officer From The Freezer In The Restaurant, Of Accused Ram Chandra, Who Has Testified About The Same, And Whose Signatures Appear On Panchayatnama Ext. Ka. 2.
18.There Is No Denial By The Accused Ram Chandra That The Dead- Body Was Not Recovered From The Freezer In His Restaurant. In Reply To A Question About The Same Under Section 313 Cr. P.C., The Accused Ram Chandra Stated, That He Does Not Know About The Same And The Police Had Taken Him Away.
19.It Is Thus Established, That The Dead- Body Of The Deceased Was Recovered From The Freezer In The Restaurant Of Accused Ram Chandra, And It Was For Him To Explain, How It Happened To Be There, And Since No Explanation Whatsoever Had Been Offered By Him About The Same, An Inference Of Guilt Against Him Has To Be Drawn.
20.It Needs, However, To Be Clarified That The Restaurant Was ­owned By Accused Ram Chandra And Was Run By Him, As, Is The Evidence On Record. There Is No Mention In The F.I.R. Or In The Prosecution Evidence That His Son Accused Pankaj Was Also Engaged In Running The Restaurant With His Father. The Mere Fact, That Pankaj Was In Restaurant At Any Particular Time, Or Informed The Deceased About The Telephone Number, Will Not Suffice To Show, That It Was A Restaurant Being Run Jointly By The Father And Son, Together. An Inference Of Guilt Under Section 106 Or 114 Indian Evidence Act, Cannot, Therefore, Be Drawn Against The Son Accused Pankaj.
21.It Was Argued By The Counsel For The Accused Ram Chandra That Restaurant Was The Part Of A Building In Which Accused Ram Chandra And His Family Members Were Residing, And, It Can Not, Therefore, Be Said That The Restaurant Was In Exclusive Possession Of Accused Ram Chandra And An Inference Of Guilt Cannot Be Drawn Against Him Under The Aforenoted Provisions. The Argument Is Unsustainable, Because, The Restaurant Even Though Was Part Of The Building Comprising The Restaurant, It Was A Separate Entity And The Mere Fact That It Was A Part Of A Big Building, Can Not Be Used Or Utilized, To Say That The Restaurant Was Not In Exclusive Possession Of Its Owner. It Is Not Unusual In Big Cities For A Building, To Have Many Shops On The Ground Floor And Residences On The First Floor, But Each Shop Is Separate, And Cannot, For Such Purposes, Be Considered Forming Part Of He Whole Building.
22.It Was Pointed Out By The Counsel For The State With Regard To The Involvement Of Accused Pankaj That Accused Pankaj Had Come To The Shop Of Deceased Amit To Inform Him About The Telephone Number Of The Generator Dealer. The Deceased Amit Is Said To Have Rang Up Generator Dealer, But The Number Was Found To Be Wrong, And Thereafter, The Deceased Went To The Restaurant Of Accused To Tell Pankaj That The Number Was Wrong, And To Find Out The Correct Number, And Was Not Seen, Thereafter. This Evidence Does Not Have The Ring Of Truth, And Has All The Elements, Of Graft.
23.However, Even If, We Accept This Evidence, It Will Not Implicate Accused Pankaj With The Commission Of The Crime, Because, The Evidence Is Not Incriminating. The Mere Fact That The Accused Pankaj Was In The Restaurant When Deceased Went To Meet Him, Cannot Be Considered An Incriminating Feature, Because He Must Be Going Into The Restaurant Off And On As It Was Adjacent To His Father's Shop And As Appears From The Circumstances Unfolded In The Case. To Implicate A Person In The Commission Of A Murder, We Need More Solid And Substantial Evidence And This Evidence Is Patchy And Flimsy.
24.The Trial Court Had Dilated Extensively On The Question, Whether The Murder Had Taken Place Elsewhere And The Dead- Body Was Brought From There And Kept In A Freezer. It Appears That The Trial Court Referred To This Matter On The Basis Of The Arguments Advanced Before It, But It Should Be Noticed That There Was Neither Any Suggestions In This Regard To Any Of The Prosecution Witnesses Nor Was Any Defence Evidence Led About The Same. Any Such Suggestion In The Context Of The Circumstances Is Wholly Out Of Place. Why Would The Dead- Body Of The Deceased Be Brought From Elsewhere And Kept In The Freezer Here, Since Anybody Could Have Realised That The Recovery Of The Dead- Body From The Restaurant Of The Accused, Would Be Prima-facie Inculpatory Evidence.
25. The Counsel For The State And Informant Further Referred To The Extra-judicial Confession Of Accused Ram Chandra Made To P.W. 2 Rais Ahmad. In This Connection, The Statement Of P.W. 2 Rais Ahmad, About What The Accused Ram Chandra Said, Is As Follows:-

"I Have Committed A Blunder By Committing Murder Of Amit. He Said That There Is A Property Dispute Between Him And Ashok And We Were Fed Up With It. I Am Tired Of The Case Relating To Property. The Dispute Regarding Property Was Not With Ashok But Others. On 17.8.1995 I Along With My Sons Pawan And Pankaj, And Atul, A Friend Of Pankaj, Hatched A Conspiracy To Kidnap Amit Son Of Ashok For A Ransom Of Rs. 5 Lacs. Pursuant To This Plan, My Son Pankaj Brought Amit The Son Of Ashok To The Restaurant At 7.30 In The Evening. Soon Thereafter, Atul Pandey Threatened Amit To Come Outside. Amit Cried And Then Atul And Pankaj Tied His Neck With A Wire, And Hit His Head Against The Wall, In Consequence Amit Died, And Then Pankaj, Pawan And Atul Put His Dead- Body In The Freezer And Closed It. He Said That He Was Not Allowing The Persons To Come Inside By Standing At The Door. Soon Thereafter, Atul And Pankaj Went To The Durga Kund On His Moped With A View To Take The Dead- Body There, But As The People In Mohalla Were Awake During The Night, They Could Not Shift The Dead- Body. On 27.4.1996 Around 8 O' Clock Ram Chandra And Pawan After Their Release From Jail Had Arrived At His House And Threatened Him To Desist From Giving Evidence And To Give In Writing, That He Knows Nothing, About The Matter, Otherwise, You Will Be Dealt With In The Same Way Witnesses In Dhimakund Episode Were Dealt With. When I Said, That I Will Disclose Truth, They Beat Me With Kicks And Fists. I Had Made A Report About The Same On 27.4.1996 At Police Station Cantt. A Copy Of The Chick F.I.R. Received From There Was Handed Over By Me To Ashok, Which Ashok, Later On Filed In The Supreme Court For Cancellation Of Bail."
26.In Connection With This Statement, It Needs To Be Mentioned That The Trial Court Has Disbelieved This Witness ( P.W. 2) And Rightly So, Because There Seems No Reason, Why Accused Ram Chandra Will Go To This Witness And Make A Confession Of This Nature. The First Information Report Referred To By This Witness, Filed By Him Against Ram Chandra And Pawan, Is Not On Record.
27.Similar Is The Situation Against Atul Pandey. He Is A Rank Outsider And Just The Friend Of Accused Pankaj. Why Will He Involve Himself In The Commission Of Murder Of An Innocent Boy ? There Is No Cogent Evidence From The Side Of Prosecution About The Same. The Trial Court Was Wholly Unjustified In Convicting Accused Atul, And He Was Highly Unlikely, To Involve Himself In The Murder, Only To Please A Friend. It Will Also Be Seen, That The Investigation Officer P.W. 8 S.S.I. Ram Swaroop Who Was The First Investigation Officer Has Stated That There Was No Evidence Available Against Atul Till 24.8.1995. Thereafter, The Investigation Was Transferred To P.W. 9 S.I. Yogendra Misra, He Has Also Stated, That No Evidence Was Collected Against Accused Atul Pandey Except The Fact That He Recorded His Statement. He Has Also Stated That The Said Investigation Officer S.S.I. Ram Swaroop Also Did Not Collect Any Evidence Against Accused Atul Pandey. There Is Also No Specific Mention In The Charge-sheet As To What Evidence There Is Against Accused Atul Pandey. This Will Show That The Prosecution Was Not Able To Find Any Evidence Against Accused Atul. It Was Also Pointed Out By The Counsel For The State Regarding The Statement Of Atul Under Section 313 Cr. P.C. That His Father Was A Tenant Of Complainant Ashok And Complainant Wanted To Evict Him, And That Is Why He Has Been Implicated In The Crime. This Was A Plea, Which Was Raised From The Side Of The Accused Atul, To Show That It Was For This Reason, That Atul Pandey Was Implicated In This Case. The Prosecution, On The Contrary, Wants To Utilise It, As A Motive On The Part Of Atul To Commit The Murder. The Prosecution Wants In This Manner To Convert The Defence Plea In The Prosecution Evidence. They Have Not Produced Any Such Prosecution Evidence On Their Own. Even If, We Accept This Prosecution Contention, The Motive Is Far Too Remote And Unworthy Of Credit, Because Only On The Basis Of A Dispute About The House, Atul Pandey Will Not Commit The Murder Of The Son Of The Landlord.
28.In Consequence, Both The Accused Pankaj And Atul Cannot Be Held Guilty Of Involvement In The Commission Of The Crime.
29. A Revision Filed By The Complainant Ashok, And An Appeal Filed By The State Against Accused Pawan Are Also Under Hearing Along With These Appeals. In Response To The Same, It Needs To Be Mentioned That The Only Evidence Against Accused Pawan, Who Is Son Of Accused Ram Chandra Is That He Was Present At The Restaurant Along With His Father On The Night Preceding The Recovery Of The Dead- Body, And Told P.W. 1 Ashok Kumar, That The Deceased Was Not Inside The Restaurant At The Time, When P.W. 1 Was Searching The Deceased In The Night. The Trial Court Rightly Found That This Evidence Alone Is Insufficient To Inculpate The Accused Pawan In The Offence And Consequently, Acquitted Him. On The Basis Of This Evidence, It Cannot Be Inferred That The Accused Pawan Was Aware Of The Fact, That The Deceased Had Been Killed And The Dead- Body Was Inside The Freezer Of The Restaurant. We, Certainly Need Some More Evidence And Some Overt Act To Implicate An Accused. In The Case Of Ram Pal And Another Versus State Of U.P. 2008 (IV) S.C.J. 288, The Principle That The High Court Should Be Slow To Interfere In A Finding Of Acquittal Recorded By The Trial Court Was Reiterated. In The Case Of Syed Peda Aowlia Versus The Public Prosecutor, High Court Of Andhra Pradesh 2008 (IV) Supreme Court Decided On 13.6.2008, It Was Mentioned That The Principle To Be Followed By An Appellate Court "In Considering An Appeal, The Judgment Of Acquittal Is To Interfere Only When There Are Compelling And Substantial Reasons For Doing So."
30.There Are, Thus, No Sufficient Or Substantial Reasons To Differ From The View Taken By The Trial Court About The Acquittal Of Accused Pawan Kumar.
31.It Was Argued By The Counsel For The Accused That, If At All Accused Ram Chandra Was To Be Convicted, He Could Be Convicted Only Under Section 201 I.P.C. The Following Cases Were Cited By The Counsel For The Accused In This Connection:-
Ghazi And Others Versus State (A.I.R. 1966 Allahabad 142)
Dinesh Borthakur Versus State Of Assam 2008 (3) S.C.C. 39
Subhash Chand Versus State Of Rajasthan 2002 S.C.C. (Cri) 256
32.None Of These Cases Are Of Any Help To The Accused Because Each Depends Upon Its Own Circumstances, And The Inference Of Guilt Has To Be Drawn On The Basis Of The Facts Of The Case In Accordance With Law. The Argument Of The Learned Counsel That The Accused Ram Chandra Could Not Be Convicted Under Section 302 I.P.C. Is Not Sustainable. It Has Already Been Mentioned Earlier That In View Of Sections 106, 114 Evidence Act, The Burden Was On The Accused To Clarify, How The Dead- Body Of Amit Happened To Be In The Freezer Of His Restaurant, And Since He Was Owner And In Possession Of Restaurant, And Since No Explanation Has Been Given By Him About The Same, An Inference Of Guilt Under Section 302 Indian Penal Code Has To Be Drawn Against Him.
33.In View Of The Aforementioned Discussion, It Is Only Accused Ram Chandra, Who Has To Be Held Guilty While The Accused Pankaj And Atul Pandey Deserve To Be Acquitted. The Appeal, As Regards Accused Ram Chandra, Is Accordingly Dismissed While That Of Accused Pankaj And Atul Pandey Is Allowed. They Are Held Not Guilty Of The Charge Levelled Against Them And Are Accordingly Acquitted. Their Bail Bonds Are Cancelled And Sureties Are Discharged.
34. The Revision Filed By The Complainant Ashok Kumar And The Appeal Filed By The State Against The Acquittal Of Accused Pawan Kumar, Which Were Integrated With This Appeal, Are Dismissed.

Dated: 28.11.2008


(Per Hon'ble Vijay Kumar Verma,J)
I Have Had The Advantage Of Perusing The Judgment Proposed By My Esteemed Senior Brother Hon'ble Barkat Ali Zaidi, J. Although I Agree With His Lordship's Opinion Regarding Dismissal Of Crl. Appeal Appeal No. 1517 Of 1999 Preferred By The Accused Ram Chandra Gupta Against His Conviction And Sentence Awarded By The Learned Sessions Judge Varanasi Vide Judgment & Order Dated 29.05.1999 Passed In S.T. No. 624 Of 1995 (State Vs. Ram Chandra Gupta & Others) And Dismissal Of Government Appeal No. 3111 Of 1999 Preferred By The State Of U.P. Against The Acquittal Of Co-accused Pawan Kumar Gupta As Well As Dismissal Of Crl. Revision No. 1372 Of 1999 Preferred By The Complainant Ashok Kumar Gupta For Enhancing The Sentence By Awarding Death Sentence To The Convicted Accused Ram Chandra Gupta, Pankaj Kumar Gupta And Atul Pandey @ Babloo, But I Could Not Persuade Myself To Agree With The Findings Of My Senior Brother About Allowing Of Crl. Appeal Nos.1516 Of 1999 And 1463 Of 1999 Preferred By The Accused Pankaj Kumar Gupta And Atul Pandey @ Babloo And Acquitting Them After Setting Aside Their Conviction And Sentence Awarded By The Trial Court Vide Aforesaid Impugned Judgment. For The Reasons Given Below, In My Opinion, Criminal Appeals Preferred By The Accused Pankaj Kumar Gupta And Atul Pandey @ Babloo Are Also Liable To Be Dismissed.
2.Like "Tandoor Kand" Of Delhi, A "Freezer Kand" Had Taken Place In Varanasi City Of Uttar Pradesh In The Month Of August, 1995, In Which An Innocent Boy Aged About 13 Year Was Brutally Murdered And Thereafter His Dead Body Was Concealed In The "Deep Freezer" Of A Restaurant.
3.The Facts Of The Case Have Been Narrated By My Senior Brother In His Judgment. Hence I Need Not Repeat All The Facts In Detail, Which Led To The Trial Of The Accused Persons In Case Crime No. 391 Of 1995 Of P.S. Cantt, Varanasi. After Submission Of The Chargesheet And On The Case Being Committed To The Court Of Session For Trial, Charges Under Section 302/201 Both Read With Section 34 And Section 120-B Of Indian Penal Code (in Short 'the I.P.C.')were Framed Against All The Accused Namely Ram Chandra Gupta, Pawan Kumar Gupta, Pankaj Kumar Gupta And Atul Pandey @ Babloo, To Which They All Pleaded Not Guilty And Claimed To Be Tried.
4.As Mentioned In Para 11 Of The Judgment Of My Senior Brother, The Prosecution In Order To Bring Home The Charges To The Accused Persons Examined Eleven Witnesses In All. The Accused Ram Chandra Gupta Also Examined Three Witnesses In His Defence, Names Of Which Have Been Mentioned In Para 12 Of The Judgment Of My Senior Brother.
5.The Deceased Amit Kumar Was The Son Of The Complainant Ashok Kumar Gupta (P.W.1), Who Is Real Brother Of The Accused Ram Chandra Gupta. The Accused Pankaj Kumar Gupta And Pawan Kumar Gupta Are The Sons Of Ram Chandra Gupta. The Accused Atul Pandey @ Babloo Is Not Concerned With This Family, But He Is Said To Be The Friend Of The Accused Pankaj Kumar Gupta. Shorn Of Unnecessary Details, The Case Of Prosecution As Appearing From The First Information Report Ext. Ka 4 Lodged By The Complainant Ashok Kumar Gupta At P.S. Cantt, Varanasi On 18.08.1995 At 7.30 A.m. And Unfolded By Him During Trial In His Statement, Is That The Deceased Amit Kumar Wanted To Purchase A Generator, For Which He Had Asked The Accused Pankaj Kumar Gupta To Give Telephone Number Of Some Generator Agency. It Is Alleged That When On 17.08.1995 The Complainant And His Son Amit Kumar Were Sitting On Their Shop, Which Has Been Detailed And Described In The Judgment Of My Senior Brother, The Accused Pankaj Kumar Gupta Came On Their Shop At About 7.00 Or 7.15 P.m. And Gave Telephone Number Of Some Generator Agency To Amit Kumar. The Accused Atul Pandey Was Also Standing Outside The Shop At That Time. Pankaj Kumar Gupta Had Some Talks With Atul Pandey And Then He Went Away To The 'Amrit Sagar Restaurant', Which Was Being Run By His Father Ram Chandra Gupta In The Same Building At First Floor. When Amit Kumar Made Call On The Telephone Number Furnished By The Accused Pankaj Gupta, The Said Number Was Found False. Immediately Thereafter Amit Kumar Went Inside The Restaurant To Ascertain The Correct Telephone Number From Pankaj Kumar Gupta. Thereafter Amit Was Not Seen Coming Out From The Restaurant. When After Closing The Shop At About 8.00 P.m., The Complainant Called His Son Amit, There Was No Response From The Restaurant. Accused Ram Chandra Gupta Was Standing At That Time At The Door Of His Residential Portion Situated At The First Floor Of The Same Building Adjacent To The "Amrit Sagar Restaurant And Milk Bar". The Complainant Inquired From Ram Chandra Gupta Whether Amit Is There In The Restaurant Or Not. The Accused Ram Chandra Gupta Stated That Amit Kumar Is Not There In The Restaurant. Search For Amit Was Made In The Whole Night, But In Vain. In The Next Morning When Search For Amit Was Being Made, The Accused Ram Chandra Gupta Told The Complainant That He Has Been Informed By Somebody On Telephone That Dead Body Of Amit Kumar Is Kept In The 'deep Freezer' Of The Restaurant. On This Information The Complainant And His Nephew Sumit Went Along With Ram Chandra Gupta Near The Deep Freezer Of Amrit Sagar Restaurant And When Ram Chandra Gupta Opened The Freezer, They Saw That The Dead Body Of Amit Was Kept There In The Freezer. Thereafter The Complainant Went To P.S. Cantt, Varanasi And Lodged The FIR. After Registration Of The Case, Investigating Officer S.I. Ram Swarooop Shakya (P.W.8) Along With Other Police Personnel Came At The Place Of Occurrence And Recovered The Dead Body Of Amit Kumar From The Deep Freezer Of 'Amrit Sagar Restaurant' Of The Accused Ramesh Chandra Gupta. Thereafter, Inquest Proceedings On The Dead Body Was Conducted And The Dead Body In Sealed Condition Was Handed Over To The Police Constables Who Carried The Same For Post-mortem Examination, Which Was Conducted On 18.08.1995 At 6.00 P.m. By Dr. S.K. Tripathi (P.W. 6) Vide Post-mortem Report Ext. Ka 3. The Ante-mortem Injuries And Other Facts Have Been Mentioned In The Judgment Of My Senior Brother. This Is The Entire Case Of The Prosecution.
6.Before Adverting To The Arguments Advanced By The Learned Counsel For The Parties, I Shall At The Threshold Point Out That In The Present Case There Is No Direct Evidence About Committing The Murder Of Deceased Amit Kumar And The Prosecution Rests Its Case Solely On Circumstantial Evidence. The Hon'ble Apex Court In A Series Of Decisions Has Consistently Held That When A Case Rests Upon Circumstantial Evidence, Such Evidence Must Satisfy The Following Tests:
(i) The Circumstances From Which An Inference Of Guilt Is Sought To Be Drawn, Must Be Cogently And Firmly Established;
(ii) Those Circumstances Should Be Of Definite Tendency Unerringly Pointing Towards Guilt Of The Accused;
(iii) The Circumstances, Taken Cumulatively, Should Form A Chain So Complete That There Is No Escape From The Conclusion That Within All Human Probability The Crime Was Committed By The Accused And None Else; And
(iv) The Circumstantial Evidence In Order To Sustain Conviction Must Be Complete And Incapable Of Explanation Of Any Other Hypothesis Than That Of The Guilt Of The Accused And Such Evidence Should Not Only Be Consistent With The Guilt Of The Accused But Should Be Inconsistent With His Innocence.[see Gambhir Vs. State Of Maharashtra, AIR 1982 SC 1157'], See Also Rama Nand V. State Of Himanchal Pradesh AIR 1981 SC 738, Prem Thakur Vs. State Of Punjab AIR 1983 (20) ACC 189 (SC), Earabhadrapa V. State Of Karnataka AIR 1983 SC 446, Gyan Singh Vs. State Of Punjab AIR 1987 SC 1921 And Balvinder Singh Vs. State Of Punjab AIR 1987 SC 350.

7.As Far Back As In 1952 In Hanumant Govind Nargundkar V. State Of M.P. (AIR 1952 Sc 3443, It Was Observed Thus:-
" It Is Well To Remember That In Cases Where The Evidence Is Of A Circumstantial Nature, The Circumstances From Which The Conclusion Of Guilt Is To Be Drawn Should In The First Instance Be Fully Established, And All The Facts So Established Should Be Consistent Only With The Hypothesis Of The Guilt Of The Accused. Again, The Circumstances Should Be Of A Conclusive Nature And Tendency And They Should Be Such As To Exclude Every Hypothesis But The One Proposed To Be Proved. In Other Words, There Must Be A Chain Of Evidence So Far Complete As Not To Leave Any Reasonable Ground For A Conclusion Consistent With The Innocence Of The Accused And It Must Be Such As To Show That Within All Human Probability The Act Must Have Been Done By The Accused."
8. A Reference May Be Made To A Later Decision In Sharad Birdhichand Sarda V. State Of Maharashtra 1984 (4) SCC 116 = AIR 1984 SC 1622. Therein, While Dealing With Circumstantial Evidence, It Has Been Held That The Onus Was On The Prosecution To Prove That The Chain Is Complete And The Infirmity Or Lacuna In Prosecution Cannot Be Cured By False Defence Or Plea. The Conditions Precedent In The Words Of This Court, Before Conviction Could Be Based On Circumstantial Evidence, Must Be Fully Established. They Are (SCC Pp. 185, Para 153):
(i) 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'
(ii) 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;
(iii) The Circumstances Should Be Of A Conclusive Nature And Tendency;
(iv) They Should Exclude Every Possible Hypothesis Except The One To Be Proved; And
(v) 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.
9. We May Also Make A Reference To A Decision Of This Court In C. Chenga Reddy V. State Of A.P., 1997 JIC 258 (SC) = 1996 (10) SCC 193, Wherein It Has Been Observed Thus:
"(21). In A Case Based On Circumstantial Evidence, The Settled Law Is That The Circumstances From Which The Conclusion Of Guilt Is Drawn Should Be Fully Proved And Such Circumstances Must Be Conclusive In Nature. Moreover, All The Circumstances Should Be Complete And There Should Be No Gap Left In The Chain Of Evidence. Further, The Proved Circumstances Must Be Consistent Only With The Hypothesis Of The Guilt Of The Accused And Totally Inconsistent With His Innocence."
10. Bearing The Above Principles Of Law Enunciated By The Hon'ble Apex Court, I Have Scrutinized Scrupulously And Examined Carefully The Circumstances Appearing In This Case Against The Accused Persons. My Senior Brother Hon'ble Barkat Ali Zaidi J, In His Proposed Judgment Has Upheld The Conviction Of The Accused Ram Chandra Gupta Taking Help From Section 106 And 114 Of The Indian Evidence Act, Which Have Been Reproduced In Para 15 Of The Judgment. Having Gone Through The Entire Evidence On Record Carefully, In My Considered Opinion, The Analogy Which Has Been Applied By My Senior Brother In Upholding The Conviction Of The Appellant-accused Ram Chandra Gupta For Committing The Murder Of Deceased Amit Kumar And Concealing His Dead Body In The Deep Freezer Of Restaurant, Would Equally Be Applied In The Case Of Appellants-accused Pankaj Kumar Gupta And Atul Pandey @ Babloo Also, Because On The Basis Of Cogent And Reliable Evidnece Of P.W. 1 Ashok Kumar Gupta, It Is Fully Established Beyond Reasonable Doubt That His Son Amit Kumar (deceased) Wanted To Purchase A Generator And In That Connection He Had Asked The Accused Pankaj Kumar Gupta To Give Telephone Number Of Some Generator Agency And It Is Also Fully Proved Beyond Reasonable That On 17.08.1995 At About 7.00 Or 7.15 P.m., When The Complainant And His Son Amit Were Sitting On Their Shop, The Accused Pankaj Kumar Gupta Had Come There And He Had Given A Telephone Number Of Some Generator Agency To The Deceased, But When The Deceased Made Call On That Telephone Number, It Was Found False. On The Basis Of Reliable Evidence Of P.W.1, It Is Also Fully Proved That Immediately Thereafter, The Deceased Had Gone To Amrit Sagar Restaurant To Ascertain Correct Telephone Number Of Generator Agency From Pankaj Kumar Gupta, But He Did Not Come Back Thereafter. It Is Also Established From The Testimony Of This Witness That At That Time The Accused Atul Pandey Was Also Standing Outside The Shop And After Furnishing Telephone Number To The Deceased, The Accused Pankaj Kumar Gupta Had Some Talks With Atul Pandey And Then He Went Away To Amrit Sagar Restaurant. From The Statement Of P.W.1, It Is Also Established That In The Morning The Accused Ram Chandra Gupta Had Told Him That Somebody Has Informed Him On Telephone That Dead Body Of Amit Is Kept In The Freezer Of Restaurant. It Is Also Proved On The Basis Of The Statement Of P.W.1 That Thereafter On Opening The Freezer By The Accused Ram Chandra Gupta, The Dead Body Of Deceased Was Found Kept In Deep Freezer Of The Amrit Sagar Restaurant, Which Was Subsequently Recovered From There By The Investigating Officer In Presence Of The Public Witnesses. There Is No Serious Dispute About The Recovery Of The Dead Body Of The Deceased From The Deep Freezer Of Amrit Sagar Restaurant. In Addition To The Evidence Of P.W. 1 Ashok Kumar Gupta, The Fact Of Recovery Of Dead Body From Freezer Has Been Proved From The Evidence Of P.W. 5 Ram Neresh Gupta, Who Is The Witness Of Inquest Proceedings And Investigating Officer S.I. Ram Swaroop Sakya P.W. 8. On The Basis Of Reliable Testimony Of P.W. 1, This Fact Is Also Established Beyond Reasonable Doubt That When He Had Inquired From The Accused Ram Chandra Gupta About Amit, He Had Stated That Amit Is Not There In The Restaurant. From The Testimony Of P.W. 1 It Is Also Established Beyond Reasonable That When Amit Was Found Missing, Search For Him Was Continued To Be Made In The Whole Night And Mohalla People Had Also Gathered There. As Such On The Basis Of The Testimony Of P.W. 1, It Is Fully Proved Beyond Reasonable Doubt That The Deceased Amit Kumar Had Gone To Amrit Sagar Restaurant On 17.08.1995 At About 7.15 P.m. To Ascertain Correct Telephone Number Of Generator Agency From The Accused Pankaj Kumar Gupta And He Was Not Seen Alive Thereafter And Ultimately On Giving Information By The Accused Ram Chadra Gujpta About Keeping His Dead Body In The Deep Freezer Of Amrit Sagar Restaurant, The Dead Body Was Recovered By The Investigating Officer In The Morning Of 18.08.1995.On The Basis Of The Testimony Of P.W. 1 And Other Witnesses Examined By The Prosecution, My Senior Brother Has Rightly Upheld The Conviction Of Appellant Accused Ram Chandra Gupta, With Which I Fully Agree.
11. So Far As The Complicity Of The Appellant-accused Pankaj Kumar Gupta In The Incident Of Committing Murder Of Amit Kumar And Concealing His Dead Body In The Deep Freezer Of Amrit Sagar Restaurant Is Concerned, There Is Sufficient Circumstantial Evidence To Show That He Was Present In Amrit Sagar Restaurant On 17.08.1995 At About 7.15 P.m. At The Time When The Deceased Amit Kumar Had Gone There To Ascertain Correct Telephone Number Of Generator Agency From Him. In Addition To The Evidence Of P.W. 1, There Is Testimony Of P.W. 4 Hasinuddin Against The Accused Pankaj Kumar Gupta. The Poultry Farm Of This Witness Is Situated Behind The Building In Which The Complainant And Accused Ram Chandra Gupta With Their Family Members Used To Reside. P.W. 4 Hasinuddin Has Stated In His Statement Recorded On 07.08.1997 In Trial Court That On 17.08.1995 At About 7.30 P.m. He And His Friend Mohd. Sadir Had Gone To Take Tea In Amrit Sagar Restaurant Of The Accused Ram Chandra Gupta And When They Reached There, The Accused Ram Chandra Gupta Met Them Outside The Restaurant And He Told That Restaurant Is Closed. It Is Further Stated By This Witness That Thereafter They Both Went To Kutchehari And When After Taking Tea They Were Going To Their Houses And Reached Near Amrit Sagar Restaurant, They Saw The Gathering Of People There And When He Made Inquiry As To Why The People Have Assembled There, He Came To Know That Son Of Ashok Kumar Gupta Is Missing And Is Not Tracable. It Is Further Stated By P.W. 4 In His Statement At Page 38 Of The Paper Book That When On 17.08.1995 At About 7.30 P.m. He Had Gone To Amrit Sagar Restaurant With His Friend Sadir And Ram Chandra Gupta Was Found Standing There, The Accused Atul Pandey And Pankaj Gupta Were Coming Out From Restaurant In Perplexed Condition And After Sitting On The Moped Standing Outside, They Both Went Away Towards The City.
12. Both These Witnesses Viz P.W. 1 And P.W. 4 Were Subjected To Lengthy Crass-examination, But Nothing Could Be Elicited From Their Mouth So As To Discard The Credit-worthiness Of Their Statements. As Such On The Basis Of The Cogent, Consistent And Reliable Testimony Of The P.W. 1 And P.W. 4 It Is Fully Proved Beyond Reasonable Doubt That The Accused Pankaj Kumar Gupta Was Present In The Restaurant At Or Near About The Time When The Murder Of Deceased Amit Kumar Appears To Have Been Committed. The Learned Trial Court After Making Thorough Scrutiny Of The Entire Evidence On Record Has Rightly Convicted The Accused Pankaj Kumar Gupta Also For The Murder Of Deceased Amit Kumar And Concealing His Dead Body In The Deep Freezer Of Restaurant.
13. The Accused Pankaj In His Statement Recorded Under Section 313 Cr.P.C. Has Not Furnished Any Explanation About Availability Of The Dead Body Of Deceased Amit Kumar In The Deep Freezer Of His Father's Restaurant. Being Present In The Restaurant At Or Near About The Time Of Committing Murder Of Deceased, The Accused Pankaj Kumar Gupta Was Also Required To Explain The Circumstances As To How The Dead Body Was Kept In The Deep Freezer Of Amrit Sagar Restaurant, But As I Have Mentioned Above, No Explanation Whatsoever Has Been Furnished About This Fact By This Accused In His Examination Under Section 313 Cr.P.C. Therefore, Taking Recourse To The Provisions Of Section 106 Of The Indian Evidnece Act, The Appellant-accused Pankaj Kumar Gupta Would Also Be Held Liable For The Murder Of Deceased And Concealing His Dead Body In The Deep Freezer With A View To Screen Him And Other Accused From Legal Punishment. Admittedly, There Was Long Standing Enmity Between The Complainant Ashok Kumar Gupta And His Real Brother Accused Ram Chandra Gupta. This Matter Has Been Dealt With By My Senior Brother In His Judgment And Hence It Is Not Necessary To Repeat The Facts Leading To The Enmity Between These Two Families. It Has Come In The Evidence Of P.W. 1 Ashok Kumar Gupta That Due To Janmasthami Festival, Amrit Sagar Restaurant Was Closed On The Fateful Day And All The Servants Were Given Holiday. It Has Also Come In The Testimony Of This Witness That The Wife Of Ram Chandra Gupta, His Daughters And Younger Son Were Not Present In The House In The Fateful Night, As They Had Gone In Some Relation. Therefore Having Regard To All These Facts, The Findings Of Conviction Of Appellant-accused Pankaj Kumar Gupta Does Not Surfer From Any Error Of Fact Or Law.
14. Although The Accused Pawan Kumar Gupta Was Also Living In The Joint Family With His Father Ram Chandra Gupta, But The Only Evidence Against Him Is That When Search For The Deceased Was Being Made After 8.00 P.m., He Was Also Present In The Gathering At The Restaurant. Barring This Evidence, There Is No Other Direct Or Circumstantial Evidence Against The Accused-respondent Pawan Kumar Gupta To Establish His Complicity In The Incident Of Murder Of Deceased And Concealing His Dead Body In The Deep Freezer. Accused Pawan Kumar Gupta Was Not Seen Inside His House Or Restaurant By Any Witness At Or About The Time Of Committing Murder Of Deceased. There Can Be No Presumption That Pawan Kumar Was Also Present In The Restaurant At The Time When The Deceased Had Gone There To Take Correct Telephone Number From The Accused Pankaj Kumar Gupta. Having Regard To The Evidence Led By The Prosecution, The Learned Trial Court Giving Sound Reasons In The Impugned Judgment Has Acquitted The Accused Pawan Kumar Gupta Of All The Charges Labelled Against Him. My Senior Brother Also Has Upheld His Acquittal In His Proposed Judgment, With Which I Also Agree, Because The Findings Recorded By The Learned Trial Court Regarding Acquittal Of The Accused Pawan Kumar Gupta Cannot Be Said To Be Perverse Or Unreasonable. It Is Settled Law That If Two Views About The Evidence Can Be Taken And If The Trial Court Has Taken A Particular View For Recording The Findings Of Acquittal Of The Some Accused And If The View Taken By The Trial Court Is Neither Perverse Nor Unreasonable, Then The Appellate Court Would Not Be Justified In Making Interference In The Findings Of Acquittal Recorded By The Trial Court. There Are Large Number Of Decisions On This Settled Principles Of Law, But I Do Not Think It Proper To Further Burden This Judgment By Making Reference Of Such Cases. Hence I Am Also Not Inclined To Upset The Findings Of The Acquittal Of The Accused Respondent Pawan Kumar Gupta Recorded By The Trial Court In The Impugned Judgment, But So Far As The Appellant-accused Pankaj Kumar Gupta Is Concerned, He Cannot Be Exonerated From Being Convicted For The Offence Of Committing Murder Of Deceased Amit Kumar And Concealing His Dead Body In The Deep Freezer Of His Father's Restaurant Merely On The Ground That He Was Not The Owner Of The Restaurant. In My Considered Opinion, The Ownership Of The Restaurant Or Building In Which It Was Situated Is Hardly Material To Convict The Accused Pankaj Kumar Gupta In Present Case Having Regard To The Evidence Led By The Prosecution Against Him, Because It Was The Accused Pankaj Kumar Gupta Who In The Planned Manner In Conspiracy With His Father Ram Chandra Gupta And His Friend Atul Pandey Had Given A Wrong Telephone Number Of Generator Agency To The Deceased Amit Kumar With The Intention Of Inviting Him To Amrit Sagar Restaurant To Ascertain The Correct Telephone Number. This Plan Became Successful, As The Deceased Was Done To Death By Strangulation When He Went To Amrit Sagar Restaurant To Ascertain Correct Telephone Number Of Generator Agency From The Accused Pankaj Gupta At The Time When The Appellant-accused Atul Pandey And Ram Chandra Gupta Were Also Present There In The Restaurant. Since The Restaurant Was Closed On That Day, No Outsider Was Present In The Restaurant At The Fateful Time. Therefore, The Possibility Of Committing The Murder Of Deceased By Some Outsider And Concealing His Dead Body In The Deep Freezer Is Impossible. It Is Also Not Possible That After Committing Murder Of Deceased Somewhere Else In The City, The Dead Body Was Brought To Restaurant And Was Concealed By Some Outsider In The Deep Freezer Of Amrit Sagar Restaurant. No Outsider Would Think To Bring The Dead Body Of The Deceased To Conceal The Same In The Deep Freezer Of Amrit Sagar Restaurant After Committing His Murder Somewhere Else In The City. Both These Possibilities Are Completely Ruled Out. The Learned Trial Court Also Has Dealt This Matter In Detail In The Impugned Judgement, With Which I Fully Agree. Excluding The Possibilities Of Committing Murder Of Deceased By Some Outsider After Coming In The Restaurant And Concealing His Dead Body In The Deep Freezer Of The Restaurant Or Bringing The Dead Body From Outside After Committing Murder Somewhere Else And Then Concealing Dead Body In The Freezer, In The Absence Of Any Explanation Furnished By The Appellants-accused Ram Chandra Gupta, Pankaj Kumar Gupta And Atul Pandey Regarding The Availability Of The Dead Body In The Deep Freezer And Recovery Thereof On Furnishing Information By Ram Chandra Gupta As Stated By P.W. 1, The Only Inference That Can Be Drawn Having Regard To All The Circumstances Mentioned Herein-above, Would Be That The Murder Of The Deceased Was Committed By These Three Convicted Appellants-accused And In My Considered Opinion They Have Been Rightly Convicted By The Learned Trial Court Vide Impugned Judgment.
15. So Far As The Complicity Of The Accused-appellant Atul Pandey In The Commission Of Murder Of Deceased Amit Kumar And Concealing His Dead Body In The Deep Freezer With A View To Screen Him And Other Accused From Legal Punishment Is Concerned, It Was Contended By His Counsel That This Accused Had No Motive To Commit The Murder Of Deceased And He Has Falsely Been Roped In This Case. It Was Also Contended On Behalf Of The Appellant-accused Atul Pandey That He Had No Concern With These Two Families And Being The Outsider He Would Not Indulge Himself In The Heinous Crime Like Murder Without Any Motive. I Am Not Impressed With These Contentions. On The Basis Of The Cogent And Reliable Testimony Of P.W. 1, This Fact Is Established Beyond Reasonable Doubt That Atul Pandey Was Present Out Side Of The Shop At The Time When The Accused Pankaj Kumar Gupta Had Come There To Give Telephone Number Of Generator Agency To The Deceased On His Demand. On The Basis Of The Reliable Testimony Of P.W. 4 Hasinuddin, It Is Fully Proved Beyond Reasonable Doubt That At About 7.30 P.m. On 17.08.1995, Atul Pandey And Pankaj Gupta Were Seen By This Witness Coming Out From The Restaurant In Perplexed Condition And They Both Went Away Towards City After Sitting On The Moped, Which Was Standing Outside. Regarding The Testimony Of P.W. 4, It Was Submitted That This Witness Had Not Told The Investigating Officer That When Atul Pandey And Pankaj Gupta Were Coming Out From The Restaurant, They Were In A Perplexed Condition. This Matter Has Been Dealt In Detail In The Impugned Judgement And I Fully Agree With The Findings Recorded By The Learned Trial Judge On This Matter. When The Witness Is Interrogated By The Investigating Officer Under Section 161 Cr.P.C., He Gives Answer Only To Such Questions Which Are Put To Him By The Investigating Officer. Therefore, The Testimony Of P.W. 4 Regrading Seeing The Accused Atul Pandey And Pankaj Gupta Coming Out From The Restaurant In Perplexed Condition On 17.08.1995 At About 7.30 P.m. Cannot Be Discarded On The Ground That At The Time Of His Interrogation By The Investigating Officer, He Had Not Uttered The Word 'perplexed Condition' (Ghabaraye Huey). Giving Sound Reasons The Learned Trial Court Has Rightly Convicted The Appellant-accused Atul Pandey Also For Committing The Murder Of Deceased Amit Kumar And Concealing Dead Body In The Deep Freezer Of Amrit Sagar Restaurant In The Conspiracy With Co-accused Ram Chandra Gupta And His Son Pankaj Kumar Gupta, Because His Presence In The Amrit Sagar Restaurant At Or About The Time When The Deceased Had Gone There To Ascertain Correct Telephone Number Of Generator Agency From Pankaj Kumar Gupta Is Fully Established Beyond Reasonable Doubt On The Basis Of Reliable Testimony Of P.W.1 And P.W. 4. Just After Reaching Of Deceased In The Restaurant, His Murder Appears To Have Been Committed In The Room Where Deep Freezer Was Kept. It Is Not The Case Of Accused Atul Pandey Or Pankaj Kumar Gupta That When They Left The Restaurant, Amit Kumar Was Alive. Atul Pandey And Pankaj Gupta Could Say That When They Left The Restaurant On 17.08.1995 At About 7.30 P.m., The Deceased Was There In The Restaurant In Alive Condition, But No Such Statement Has Been Made By These Accused Under Section 313 Cr.P.C. The Accused Atul Pandey Was Also Required To Furnish Explanation About The Murder Of Deceased Amit Kumar And Availability Of His Dead Body In The Deep Freezer Of Amrit Sagar Restaurant. As Stated Herein-above, The Murder Of Deceased Was Committed At Or About The Time When All The Three Convicted Accused Persons Were Present There In The Restaurant. The Accused Ram Chandra Gupta Alone Could Not Commit Such Heinous Crime Of Committing Murder Of Deceased And Then To Conceal His Dead Body In The Deep Freezer Of His Restaurant. This Ghastly Crime Was Certainly Committed By More Than One Person. It Has Come In Evidence That Atul Pandey Is The Friend Of Accused Pankaj Gupta. Although The Accused Atul Pandey Has Stated About The Enmity Between His Family And Complainant Ashok Kumar Gputa, But He Has Not Furnished Any Explanation About The Murder Of Deceased Amit Kumar, Which Appears To Have Been Committed At The Time When This Accused Was Also Present There In Amrit Sagar Restaurant. Therefore, Taking Recourse To Section 106 Of Indian Evidence Act And Having Regard To The Evidence Led By Prosecution, An Inference Of Committing The Murder Of Deceased By The Accused Atul Pandey And Co-accused Ram Chandra Gupta And Pankaj Kumar Gupta Would Be Drawn, As No Explanation About The Availability Of Dead Body In Deep Freezer Of Restaurant Has Been Furnished By Any Of These Accused. In My Opinion, The Accused Atul Pandey Cannot Be Exonerated From The Charges Levelled Against Him Merely On The Ground That He Is Outsider And Is Not Concerned With The Amrit Sagar Restaurant. As I Have Stated Herein-above Also, The Matter Of Ownership Of Restaurant Is Hardly Material In Present Case For Establishing The Complicity Of The Accused Persons In The Commission Of Murder Of The Deceased Amit Kumar And Concealing His Dead Body In Deep Freezer Of Amrit Sagar Restaurant. Therefore, In My Considered Opinion, The Appeal Preferred By The Appellant-accused Atul Pandey Also Deserves To Be Dismissed.
16. Regarding The Complicity Of The Accused Atul Pandey In The Alleged Incident Of Murder Of The Deceased Amit And Concealing His Dead Body In The Deep Freezer Of Amrit Sagar Restaurant, It Was Further Contended By His Counsel That There Was No Motive For This Accused To Commit The Murder Of An Innocent Boy Without Any Reason. Learned Counsel For The Accused-appellants Ram Chandra Gupta And Pankaj Kumar Gupta Also Submitted That These Accused Too Had No Motive To Commit The Murder Of The Deceased And They Also Have Been Falsely Implicated In This Case Due To Enmity. It Was Contended By Sri Karuna Nand Bajpai, Learned AGA, On This Point That On The Basis Of The Reliable Evidence On Record This Fact Is Borne Out That There Was Long Standing Enmity Between The Complainant Ashok Kumar Gupta And His Real Brother Accused Ram Chandra Gupta And This Was Sufficient Motive For The Appellant Ram Chandra Gupta And His Sons To Commit The Murder Of Deceased. It Was Further Submitted By The Learned AGA That From The Statement Of The Appellant Atul Pandey Recorded Under Section 313 Cr.P.C., This Fact Is Borne Out That There Was Enmity Prior To This Incident Between His Family And The Complainant Ashok Kumar Gupta And Hence There Was Motive For This Accused Also To Commit The Murder Of Deceased. Having Gone Through The Material On Record, I Find Sufficient Force In The Aforesaid Submissions Made By The Learned AGA. From The Statement Of PW.1 Ashok Kumar Gupta, This Fact Is Established That There Was Enmity Between Him And Accused Ram Chandra Gupta Prior To This Incident. In Their Statements Recorded Under Section 313 Cr.P.C. Also, The Accused Persons Have Stated That They Have Been Falsely Implicated In This Case Due To Enmity. As Such From The Statements Of The Accused Persons Under Section 313 Cr.P.C. Itself, It Is Established That There Was Enmity Between Them And The Complainant. The Accused Atul Pandey Has Given Reasons Also In Answer To Question No. 37 Of His Statement About The Enmity Between His Father And Complainant. From The Answer Given By The Accused Atul Pandey To Question No. 37, This Fact Is Borne Out That His Father Jai Nath Pandey Was Tenant Of The Complainant Ashok Kumar Gupta In House No. 3/256 During The Period 1969 To 1993 And Prior To This Incident, The Complainant Had Thrown Out The House Hold Goods Of His Father As Well As Other Tenant Smt. Sharda Devi From Their Tenanted Accommodation. This Fact Is Also Borne Out From The Answer Of Atul Pandey To Question No. 37 That At The Time Of This Incident Also, His Father Had Locked The Room Of His Tenancy And The Complainant Was Making Efforts To Get That Room Vacated. As Such This Fact Is Borne Out That Prior To The Incident The House Hold Goods Of The Father Of The Accused Atul Pandey Were Thrown Out From His Tenanted Accommodation By The Complainant. This Was Sufficient Motive For The Accused Atul Pandey To Take Revenge Of The Insult Of His Father From The Complainant And His Family Members. Therefore, It Can Not Be Said In This Case That There Was No Motive For The Accused Persons To Commit The Murder Of Deceased.
17. Moreover, The Prosecution Cannot Always Lead Evidence Regarding The Actual Motive Of Committing The Crime By The Culprits, Because Some Times The Motive Remains Hidden In The Mind Of Culprits. The Following Observations Made By The Hon'ble Apex Court Regrading Motive In The Case Of Nathuni Yadav And Others Vs. State Of Bihar And Another 1997 (34) ACC 576 (SC) Are Worth Mentioning:-
46."Motive For Doing A Criminal Act Is Generally A Difficult Area For Prosecution. One Cannot Normally See Into The Mind Of Another. Motive Is The Emotion Which Impells A Man To Do A Particular Act. Such Impelling Cause Need Not Necessarily Be Proportionally Grave To Do Grave Crimes. Many A Murders Have Been Committed Without Any Known Or Prominent Motive. It Is Quite Possible That The Aforesaid Impelling Factor Would Remain Undiscoverable. Lord Chief Justice Chambell Struck A Note Of Caution In 'Reg V. Palmer' Thus: "but If There Be Any Motive Which Can Be Assigned I Am Bound To Tell You That The Adequacy Of That Motive Is Of Little Importance. We Know, From Experience Of Criminal Courts That Atrocious Crimes Of This Sort Have Been Committed From Very Slight Motives; Not Merely From Malice And Revenge, But To Gain A Small Pecuniary Advantage, And To Drive Off For A Time Pressing Difficulties."

18. In The Case Of State Of Himanchal Pradesh Vs. Jeet Singh 1999 (38) ACC 550 (SC) The Hon'ble Apex Court Has Made The Following Observations:-
45."No Doubt It Is A Sound Principle To Remember That Every Criminal Act Was Done With A Motive But Its Corollary Is Not That No Criminal Offence Would Have Been Committed If The Prosecution Has Failed To Prove The Precise Motive Of The Accused To Commit It. When The Prosecution Succeeded In Showing The Possibility Of Some Ire For The Accused Towards The Victim, The Inability To Further Put On Record The Manner In Which Such Ire Would Have Swelled Up In The Mind Of The Offender To Such A Degree As To Impel Him To Commit The Offence Cannot Be Construed As A Fatal Weakness Of The Prosecution. It Is Almost An Impossibility For The Prosecution To Unravel The Full Dimension Of The Mental Disposition Of An Offender Towards The Person Whom He Offended."

19. In The Case Of Molu & Others Vs. State Of Haryana ARI 1976 SC 2499 It Was Observed By The Hon'ble Apex Court That "sometimes The Motive Is Clear And Can Be Proved And Sometimes, However, The Motive Is Shrouded In Mystery And It Is Very Difficult To Locate The Same. If, However, The Evidence Of The Eye-witnesses Is Credit-worthy And Is Believed By The Court Which Has Placed Implicit Reliance On Them, The Question Whether There Is Any Motive Or Not Becomes Wholly Irrelevant".
20. Regarding Motive For Commission Of Crime, The Hon'ble Apex Court Has Observed As Under In The Case Of Sruesh Chand Bahri Vs. State Of Bihar AIR 1994 SC 2420:-
48."Sometimes Motive Plays An Important Role And Becomes A Compelling Force To Commit A Crime And Therefore Motive Behind The Crime Is A Relevant Factor For Which Evidence May Be Adduced. A Motive Is Something Which Prompts A Person To Form An Opinion Or Intention To Do Certain Illegal Act Or Even A Legal Act But With Illegal Means With A View To Achieve That Intention. In A Case Where There Is Clear Proof Of Motive For The Commission Of The Crime It Affords Added Support To The Finding Of The Court That The Accused Was Guilty For The Offence Charged With. But It Has To Be Remembered That The Absence Of Proof Of Motive Does Not Render The Evidence Bearing On The Guilt Of The Accused Nonetheless Untrustworthy Or Unreliable Because Most Often It Is Only The Perpetrator Of The Crime Alone Who Knows As To What Circumstances Prompted Him To A Certain Course Of Action Leading To The Commission Of The Crime."

In View Of The Observations Made In The Aforecited Cases, Weakness Of Motive On The Part Of The Accused Persons To Commit The Murder Of Deceased Is Hardly Material.
21. Drawing Our Attention Towards The Order Dated 25.08.1995 Passed By The Incharge CJM Varanasi On The Application Of The Accused Atul Pandey For Making Surrender In The Aforesaid Case And Report Dated 24.08.1995 Ext. Kha 8, Of P.S. Cantt Varanasi, It Was Further Contended By The Learned Counsel For The Accused Atul Pandey That There Was No Evidence Till 24.08.1995 For Showing The Complicity Of The Accused Atul Pandey In The Commission Of Murder Of Deceased Amit Kumar And It Was For This Reason That The Application Moved By The Accused Atul Pandey For Making Surrender In This Case Was Rejected By The Incharge CJM Varanasi Vide His Order Dated 25.08.1995 After Perusing The Report Of P.S. Cantt, Varanasi. It Was Also Submitted By Learned Counsel For The Accused Atul Pandey That Statements Of The Complainant And Other Witnesses Were Recorded In The Case Diary After 24.08.1995 And All The Statements Were Made Ante-dated And Thereafter, False Charge-sheet Was Submitted Against This Accused Without Any Evidence. Having Gone Through The Report Ext. Kha 8 Of P.S. Cantt, Varanasi And Order Dated 25.08.1995 Passed By The Incharge CJM Varanasi On Surrender Application Of Accused Atul Pandey, I Find No Force In The Aforesaid Contention. In The Report Dated 24.08.1995 Ext. Kha 8, P.S. Cantt, Varanasi, It Is Only Mentioned That No Cognizable Offence Is Registered At P.S. Cantt, Varanasi Against Atul Pandey. There Is Nothing Wrong In This Report As The Accused Atul Pandey Was Not Named In The FIR Of This Case. On The Basis Of This Report, The In-charge CJM Varansi Had Declined To Take The Accused In Custody On The Basis Of His Surrender Application, Which Was Rejected Vide Order Dated 25.08.1995, But On This Ground It Cannot Be Said That The Statements Of The Complainant And Other Witnesses Were Recorded In The Case Diary By The Investigating Officer After 24.08.1995. Whatever Report Was Given By The Sub-inspector Of P.S. Cantt, Varansi On 24.08.1995 Was His Personal Opinion, Which Is Not Binding On This Court And On The Basis Of The Report Ext. Kha 8 It Cannot Be Said That There Was No Evidence Against The Accused Atul Pandey In The Case Diary Till 24.08.1995. The Name Of The Accused Atul Pandey Had Figured In The Statements Of Complainant Ashok Kumar Gupta And Witness Hasinuddin, Which Were Recorded On 18.08.1995 By The Investigating Officer. Opinion Differs From Person To Person. The Sub-inspector Who Submitted The Report Dated 24.08.1995 Ext. Kha 8 Might Be Of The Opinion That There Was No Sufficient Evidence Against The Accused Atul Pandey To Take Any Action Against Him In This Case, But Subsequently On The Basis Of The Same Evidence, Another Investigating Officer Has Rightly Submitted Charge-sheet. Even The Judges Of High Court And Supreme Court Take Dissenting View On The Same Issue. Therefore On The Basis Of The Report Ext. Kha 8 Of P.S. Cantt, Varansi, It Cannot Be Said That The Accused Atul Pandey Has Been Falsely Implicated In This Case Without Any Evidence.
22. It Was Further Submitted By The Learned Counsel For The Appellants-accused That There May Be Suspicion About Committing The Murder Of Deceased By The Accused Persons, But Merely On The Basis Of Suspicion, The Appellants-accused Cannot Be Convicted For The Murder Of Deceased, Because Suspicion Howsoever Strong Cannot Take The Place Of Proof. It Was Also Submitted On Behalf Of The Appellants That Evidence Led By The Prosecution Is Not Worthy Of Reliance And Hence Conviction Of The Appellants-accused On The Basis Of Said Evidence Is Bad In Law. In Support Of These Submissions, The Learned Counsel For The Appellants And Learned Amicus Curiae Dr. Abida Syeed Have Drawn Our Attention Towards The Following Cases:-
i. Sarwan Singh Rattan Singh Vs. State Of Punjab AIR 1957 SC637.
ii. Mahesh Chandrer Vs. State Of Delhi AIR 1991 SC 1108
iii. Kuldeep Singh & Others Vs. State Of Rajasthan (2000 (2) JIC 188 (SC).
iv. Ganesh Bhavan Patel & Another Vs. State Of Maharashtra AIR 1979 SC 135.
v. Lakshman Prasad Vs.State Of Bihar AIR 1981 SC 1388.
vi. Kanhai Mishra @ Kanhaiya Mishra Vs. State Of Bihar(2001 (1) JIC 863 (SC.
Vii. Inderjit Singh & Another Vs. State Of Punjab AIR 1991 SC 1674.
viii. Satish Vs. State Of U.P. (2003 (2)JIC 918(All).
iX. Mani Ram Vs. State Of U.P. (2004 (1) JIC519 (All) (LB).
X. Vikramajit Singh @ Vicky (2007(2) JIC 372 (SC)
xi. Aher Raja Khima Vs. State Of Saurashtra (S( AIR 1956 SC 217.
xii. Biri Singh & Others Vs. State Of U.P. 1989 A Cr.R.460 (Alld).
Xiii. Dinesh Borthakur Vs. State Of Assam (2008)3 SCC (Cri) 39 And
xiv. Ghazi & Others Vs. State 1966 Crl. L.J. 369 (Alld).

23. I Have Carefully Gone Through The Rulings Referred To Above. There Is No Dispute Regarding The Observations Made In These Rulings, But Keeping In View The Aforesaid Discussion And The Evidence Led By The Prosecution In Present Case, These Rulings, Which Are Distinguishable On Facts, Do Not Render Any Assistance To The Appellants-accused In This Case.
24. Sri Karuna Nand Bajpai, Learned AGA, Vehemently Contended On Behalf Of The State Of U.P. That On The Basis Of The Reliable Evidence Of P.W. 1 And P.W. 4, The Presence Of The Appellants-accused Ram Chandra Gupta, Pankaj Kumar Gupta And Atul Pandey As Well The Respondent-accused Pawan Kumar Gupta In The Restaurant At Or About The Time Of Murder Of Deceased Has Been Fully Established Beyond Reasonable Doubt And Hence Having Regard To The Provisions Of Section 106 Of Indian Evidence Act, An Inference Would Be Drawn Against All These Accused That Only They Had Committed The Murder Of Deceased, Because They Have Failed To Furnish Any Explanation Regarding Availability Of The Dead Body In The Deep Freezer Of Amrit Sagar Restaurant. In Support Of This Submission, Sri Bajpai Has Drawn Our Attention Towards The Following Cases:-
i Ahluvaliya & Others Vs.State 1995 Cri. LJ 3511 (Madras High Court).
ii. Sucha Singh Vs. State Of Punjab 2001 Cri. LJ. 1734.
iii. State Of Andhra Pradesh Vs. Gangula Satya Murthy AIR 1997 Supreme Court 1588.
iv. State Of W.B. Vs. Mir Mohammad Omar & Others 2000 Supreme Court Cases (Cri.) 1516.
v. Trimukh Maroti Kirkan Vs. State Of Maharashtra 2007 (57) ACC 938.

25. I Have Already Held That The View Taken By The Learned Trial Court In Recording The Findings Of Acquittal Of The Accused-respondent Pawan Kumar Gupta Cannot Be Said To Be Perverse Or Unreasonable. Therefore, Interference By This Court In The Findings Of Acquittal Of Respondent-accused Pawan Kumar Gupta Will Not Be Justified. However, Having Regard To The Discussion Made Herein-above About The Evidence Led By The Prosecution, In My Considered Opinion, The Aforesaid Submission Made By The Learned AGA Has Got Force And Must Be Accepted About The Convicted Appellants-accused Named Above. As Stated Herein-above, The Learned Trial Court After Proper Appreciation Of The Evidence Has Rightly Convicted The Appellants-accused Ram Chandra Gupta, Pankaj Kumar Gupta And Atul Pandey For Committing The Murder Of Deceased Amit Kumar And Concealing His Dead Body In The Deep Freezer Of Amrit Sagar Restaurant With A View To Screen Themselves From Legal Punishment, Because Their Presence In The Restaurant At Or About The Time When The Murder Of Deceased Was Committed Is Fully Established On The Basis Of The Cogent And Reliable Evidence Of P.W. 1 And P.W. 4. Therefore, Having Regard To The Provisions Of Section 106 Of Indian Evidence Act, These Appellants-accused Were Required To Furnish Explanation About Availability Of The Dead Body In The Deep Freezer Of Restaurant, But As Stated Herein-above, They Have Totally Failed To Furnish Any Explanation About Availability Of The Dead Body In The Deep Freezer And Hence The Only Inference That Can Be Drawn Would Be That These Accused After Making Conspiracy Had Committed The Murder Of Deceased Amit Kumar Near The Deep Freezer And Thereafter, They Concealed His Dead Body In The Freezer With A View To Screen Themselves From Legal Punishment. Giving Cogent Reasons And Discussing The Evidence In Detail, The Learned Trial Court Has Concluded That The Murder Of Deceased Appears To Have Been Committed Near The Deep Freezer In The Same Room Where It Was Kept, As Hawai Chappals Of The Deceased Were Also Found In The Freezer. I Fully Agree With This Finding Of The Learned Trial Court. Had The Murder Of Deceased Was Committed Somewhere Else, His Hawai Chappals Would Not Have Been Brought For Keeping In The Deep Freezer. From The Latrine Bathroom Of The Said Room A Piece Of Rubber Tube, Which Might Have Been Used In The Commission Of Murder, Was Also Recovered By The Investigating Officer. The Presence Of The Hawai Chappals Of The Deceased In The Deep Freezer And Availability Of The Piece Of Rubber Tube In The Latrine Bathroom Of The Room Show That Murder Of Deceased Amit Was Committed In The Same Room And Thereafter The Dead Body Was Kept With Hawai Chappals In The Deep Freezer.
26. Although P.W. 2 Rayeesh Ahmad Was Examined By The Prosecution To Prove The Extra Judicial Confession Of The Appellant-accused Ram Chandra Gupta About Committing The Murder Of Deceased Amit Kumar By The Accused Atul Pandey And Pankaj Gupta, But Giving Cogent Reasons, The Learned Trial Court Has Rightly Discarded The Evidence Of This Witness. I Am Also Of The Considered Opinion That The Evidence Of The Witness Rayeesh Ahmad Regarding Alleged Extra Judicial Confession Of Ram Chandra Gupta Is Not Worthy Of Credence. Rayeesh Ahmad Was Not In The Position To Save The Accused Persons From Police. Therefore, There Was Hardly Any Occasion For The Accused Ram Chandra Gupta To Make Any Confession Before The Witness Rayeesh Ahmad. The Statement Of The Witness Rayeesh Ahmad Was Recorded By The Investigating Officer On 19.08.1995. According To That Statement The Alleged Extra Judicial Confession Is Said To Have Been Made By The Accused Ram Chandra Gupta Before This Witness In The Morning On 19.08.1995, Whereas In His Statement Recorded In The Trial Court As P.W.2, Rayeesh Ahmad Has Stated That The Accused Ram Chadra Gupta Had Come To His House In The Morning Of 18.08.1995 To Make The Alleged Confession. On This Ground Also No Reliance Can Be Placed On The Alleged Extra Judicial Confession Of The Appellant- Accused Ram Chadra Gupta.
27. Having Regard To The Discussion Made Herein-above, There Is No Scope To Make Any Interference In The Conviction And Sentence Of The Appellants-accused Ram Chandra Gupta, Pankaj Kumar Gupta And Atul Pandey. Interference By This Court In The Acquittal Of The Respondent-accused Pawan Kumar Gupta Will Also Not Justified For The Reasons Which I Have Mentioned Herein-above.
28. Regarding The Sentence, It Was Submitted On Behalf Of The Prosecution That Extreme Penalty Of Death Sentence Should Be Awarded In This Case, As Without Any Reason The Accused Persons Have Brutally Murdered An Innocent Boy. On The Contrary, Learned Counsel For The Appellant-accused Atul Pandey Submitted That Age Of This Accused Was Below 16 Years On The Date Of Occurrence And Hence Extending The Benefit Of Juvenile Justice(Care And Protection Of Children) Act 2000. (in Short 'the Juvenile Justice Act 2000'), His Sentence Should Be Quashed. For This Submission Reliance Has Been Placed On The Cases Of Jayendra And Another Vs. State Of U.P. 1981 SCC (Cri.) 809, Gopi Nath Ghosh Vs. State Of West Bengal 1984 SCC (Cri.) 428, Kunwar Bahadur And Others Vs. State Of U.P. 1981 SCC (Cri) 275, Bhola Bhagat And Others Vs. State Of Bihar 1997 (35) ACC 835 (SC) And Upendra Kumar Vs. State Of Bihar 2005 (2) JIC 2 (SC).
29. Having Regard To The Facts And Circumstances Of The Case, In My Opinion, Extreme Penalty Of Death Sentence Is Not Required, As This Case Is Not One Of The Rarest Of The Rare Case.
30. Five Judges Bench Of The Hon'ble Apex Court Summarising Earlier Decisions Has Held In The Case Of Pratap Singh Vs. State Of Jharkhand And Another 2005 SCC (Cri) 742 That It Is The Date Of Commission Of The Offence (not The Date When The Offender Is Produced Before The Competent Authority Or The Court) For Determination Of His Age Whether He Was Juvenile Or Otherwise. So The Date Of Commission Of The Offence Is The Crucial And Material Date In This Regard, Which In The Present Case Would Be 17.08.1995. The Plea Of The Accused Atul Pandey Being Juvenile Was Taken In Trial Court Also At The Time Of Seeking Bail. Copy Of Mark- Sheet Of High School Examination Was Filed At That Time. Date Of Birth Of Atul Pandey Is 15.07.1979. On The Basis Of The Date Of Birth As Mentioned In High School Mark-sheet, The Age Of Accused Atul Pandey On The Date Of Occurrence Was More Than 16 Years And Hence He Was Not Juvenile On That Date, As Juvenile Justice Act 1986 Was Applicable At That Time. According To Section 2 (h) Of That Act, 'Juvenile' Means A Boy Who Has Not Attained The Age Of Sixteen Years Or A Girl Who Has Not Attained The Age Of Eighteen Years. Hence The Accused Atul Pandey Being Not Juvenile Under Juvenile Justice Act 1986 Is Not Entitled To Claim Any Benefit Under Juvenile Justice (Care And Protection Of Children) Act 2000. In This Regard, Reference May Be Made To The Case Of Ranjeet Singh Vs. State Of Haryana 2008 (63) ACC 130 (SC), In Which Earlier Decision Of The Case Of Jameel Vs. State Of Maharashtra 2007 (57) ACC 1064 (SC) Has Been Referred. In Similar Case, Benefit Of Juvenile Justice Act 2000 Was Not Given By The Hon'ble Apex Court To The Accused Who Was Not Juvenile On The Date Of Occurrence Under Juvenile Justice Act 1986, Being More Than 16 Years. In Present Case Also, The Age Of The Appellant Accused Atul Pandey As Per His High School Mark-sheet Was More Than Sixteen Years On The Date Of Occurrence. Therefore, Having Regard To The Law Laid Down By The Hon'ble Apex Court In The Case Of Ranjeet Singh Vs. Statte Of Haryana (supra), The Sentence Of Accused Atul Pandey Can Not Be Quashed By This Court, As Benefit Of Juvenile Justice Act 2000 Can Not Be Extended To Him. No Plea Of The Appellant-accused Pankaj Kumar Gupta Being Juvenile Under Juvenile Justice Act 1986 Was Raised Before Us In This Appeal. Therefore, There Is No Scope To Make Any Interference In The Sentence Awarded By The Trial Court To The Accused-appellants.
31. Consequently, The Criminal Appeals Preferred By The Appellants-accused Ram Chandra Gupta, Pankaj Kumar Gupta And Atul Pandey @ Babloo Are Hereby Dismissed And Their Conviction And Sentence Awarded By The Trial Court Are Affirmed. All These Appellants Are Undergoing Sentence In Jail. They Shall Be Kept There To Serve Out The Remaining Sentence.
Government Appeal No. 3111 Of 1999 And Criminal Revision No.1372 Of 1999 Are Also Hereby Dismissed.
32. Before Parting, I Must Express My Appreciation For The Exceptionally Brilliant Manner In Which Sri Karuna Nand Bajpai, Learned A.G.A. Argued The Case On Behalf Of The State Of U.P. His Complete Command On Law And Facts Both Rendered Invaluable Assistance To The Court.
Dated: 28th November 2008.
v.k.updh
(continued On Page 45)


By The Court
There Is Difference Of Opinion Between Us About The Conviction And Sentence Of The Appellants-accused Pankaj Kumar Gupta And Atul Pandey @ Babloo. Therefore, As Provided Under Section 392 Cr.P.C. The Matter Will Be Laid By The Office Before Hon'ble The Chief Justice For Nominating Third Hon'ble Judge To Hear The Appeal Of These Accused-appellants.

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