JUDGMENT RESERVED IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 298 of 2001 (Old No. Criminal Appeal No. 1608 of 1993) Rishipal, Son of Badan Singh, R/o Bhaila Khurd, Police Station – Deoband, Saharanpu. …………Appellant. Versus State. …………Respondent. Sri S.P.S. Panwar, Sr. Advocate, assisted by Sri H.C. Pathak & Sri Sachin Panwar, learned Advocate for the appellant. Sri Tumul Nailwal, learned AGA and Sri M.A. Khan, learned Brief Holder, for the State. Hon’ble Prafulla C. Pant, J Hon’ble Dharam Veer, J (Per Hon’ble Prafulla C. Pant, J) This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (hereinafter referred as Cr. P.C.) is directed against the judgment and order dated 13.09.1993 passed by III Additional Sessions Judge, Dehradun, in Sessions Trial No. 65 of 1988, whereby the appellant – Rishipal has been convicted under Section 302, 364, 201, 171 and 420 of Indian Penal Code, 1860, (hereinafter referred as I.P.C.). The accused appellant is sentenced to imprisonment for life and to pay fine of Rs. 3,000/- under Section 302 I.P.C., imprisonment for life under Section 364 I.P.C., rigorous imprisonment for a period of two years under Section 201 I.P.C., rigorous imprisonment for a period of two months under Section 171 I.P.C. and rigorous imprisonment for a period of 5 years under Section 420 I.P.C. by the trial court. 2. Heard learned counsel for the parties and perused the entire lower court record. 3. Prosecution case is that on 01.07.1987 accused /appellant Rishipal cheated the complainant Dr. Mohd. Alam (PW 2), dishonestly inducing him to deliver a car, registration no. URM 2348 (make Fiat), and cash of Rs. 15,000/- to him, at No. 1, Circular Road, Police Station – Dalanwala, Dehradun and on the very day at about 1.30 p.m. while taking the car and the cash, the accused / appellant abducted Abdul Mabood, brother of the complainant with intention to commit his murder. It is alleged by the prosecution that sometime thereafter, between 01.07.1987and 02.07.1987 Abdul Mabood was murdered near a canal on Kairana Panipat Road, in District – Panipat. It is further alleged that the accused / appellant with intention to cause of disappearance of offence threw the dead body of Abdul Mabood in the Canal. A report (Exhibit A 3) was lodged by Dr. Mohd. Alam on 06.07.1987 at 19.13 hours with Police Station – Dalanwala, against the accused / appellant which is registered as Crime No. 185, relating to offence punishable under section 406, 419, 420, 365 I.P.C.. Since the accused while cheating, said to have disclosed his name – “Captain Ravindra Pal Singh Rana”, the check report (Exhibit A 67) on the basis of First Information Report was prepared shows the name of the accused as above. PW 17 Sub Inspector – Muzaffar Ali started the investigation. He interrogated the witnesses, got arrested the accused, recovered Fiat Car registration no. URM 2348 from Panipat, some letters written by accused / appellant, and also recovered stone (Exhibit 1) on 15.08.1987. However, further investigation was taken up by Incharge Inspector – Mr. J.P.Sharma (PW 18) who inspected the site recovered pieces of pants of accused / appellant from Panipat, took scrapping of black paint of car from the side of the bridge where the car got dashing. He has further recovered some more letters written by accused, and on completion of investigation submitted chargesheet (Exhibit A 74) against the accused / appellant - Rishipal Singh for his trial in respect of offence punishable under Sections 364, 302, 201, 420, 170 and 171 I.P.C.. 4. The Chief Judicial Magistrate, Dehradun, on receipt of chargesheet on 07.11.1987, after supplying necessary copies to the accused / appellant as required under Section 207 Cr.P.C. committed the case to the Court of Sessions for trial. The Sessions Trial appears to have been transferred to the Court of III Additional Sessions Judge, Dehradun. The said court on 29.04.1988, after hearing the prosecution and defence framed charge of offences punishable under Section 420, 364, 302, 171 and 201 I.P.C. to which accused Rishipal pleaded not guilty and claimed to be tried. On this prosecution got examined PW 1 – Raees Ahmad, who saw accused in the shop of the complainant; PW 2 – Dr. Mohd. Alam, complainant; PW 3 – Hari Om, who has last seen Abdul Mabood in the car with accused, PW 4 – Jiledar Singh (declared hostile), PW 5 – Hizfur Rahman brother of Abdul Mabood; PW 6 – Anees Ahmad, who has corroborated that accused used to introduce himself as Captain Rana; PW 7 - Akash Garg, resident of Panipat; PW 8 - Badloo Ram, resident of Panipat; PW 9 Jai Bhagwan, resident of Panipat; PW 10 - Ajit Chopra, resident of Panipat; PW 11 - Tejveer Singh, resident of Panipat; PW 12 - Subhash Sharma, witness of recovery; PW 13 - Rajveer Singh, resident of Gurgaon; PW 14 - Dharam Singh, resident of Gurgaon; PW 15 - Chandra Raghav alias Munna, minor who accompanied the accused and Abdul Mabood in the Car from Dehradun; PW 16 - Kanti Kumar Scientific Officer, Forensic Laboratory; PW 17 – Muzaffar Ali, who started the investigation; PW 18 - J.P. Sharma, who concluded the investigation and PW 19 - Ramanand Pandey, another Scientific Officer of Forensic Laboratory, Agra. The oral and documentary evidence adduced by prosecution was put to the accused by the Trial Court, in reply to which, he alleged that evidence adduced against him to be false. However, he did not deny hand writing in some of letters. In defence, on behalf of accused / appellant DW 1 - Yashveer Singh, brother of the accused and; DW 2 - Constable Om Prakash, who proved the copy of extract of General Diary (Exhibit B 2), were got examined. The prosecution after hearing the parties, found the accused / appellant guilty of charges of offence punishable under Sections 302, 364, 201, 171 and 420 of I.P.C. on 08.09.1993 and thereafter, heard on sentence on 13.09.1993 and sentenced the convict to imprisonment for life and to pay fine of Rs. 3,000/- under Section 302 I.P.C., imprisonment for life under Section 364 I.P.C., rigorous imprisonment for a period of two years under Section 201 I.P.C., rigorous imprisonment for a period of two months under Section 171 I.P.C. and rigorous imprisonment for a period of 5 years under Section 420 I.P.C.. Aggrieved by the said judgment and order passed by III Additional Sessions Judge, Dehradun this appeal was preferred by the convict in the Allahabad High Court on 16.09.1993 where it was admitted on 21.09.1993. The appeal is received by transfer to this Court under section 35 of U.P. Re-Organization Act, 2000 (Central Act 29 of 2000). 5. As far as charge of murder is concerned, this is a case of circumstantial evidence but with regard to the other charges there is ocular testimony of the witnesses examined on behalf of prosecution. First we take up charge of offences relating to cheating, abduction, impersonation and causing disappearance of evidence. 6. PW 1 – Raees Ahmad, who is resident of Kota Rajasthan states that on 30.06.1987 he had come to Dehradun to take some payment from PW 2 – Dr. Mohd. Alam at the house no. 1, Circular Road, Dehradun. He met accused / appellant there. The witness further states that accused appellant told PW 2 – Dr. Mohd. Alam that he needs his car, as he has to go to Indian Military Academy (hereinafter referred to as I.M.A.) to meet one Major Deepa. With the accused / appellant there was a boy named Munna (PW 15). They took the car of Dr. Mohd. Alam and came back. In the night, they stayed with Dr. Mohd. Alam. Accused / appellant told Dr. Alam that he is constructing 50 rooms house at Meerut and he wanted to have Rs. 15,000/- from Major Deepa for purchasing marble but could not meet her. He (accused / appellant) requested Dr. Alam (PW 2) to give a loan of Rs. 15,000/- so that he can purchase some coolers and fans, and promised that he would return the money soon. PW 1 - Raees Ahmad further states that on 01.07.1987 Dr. Alam withdrew money from Bank and paid it to the accused / appellant. Whereafter, he (accused / appellant) took car, make Fiat, registration no. URM 2348 from Dr. Alam at about 2.00 p.m. – 2.30 p.m. and went along with Abdul Mabood promising that he along with Abdul Mabood would return on next day. The witness further states that at that time accused / appellant was wearing black pants and grey colour T-Shirt. PW 1 - Raees Ahmad further told that when on 2nd – 3rd of July, 1987 accused / appellant and Abdul Mabood did not return, he along with PW 2 – Dr. Mohd. Alam went to I.M.A. and on enquiry found that there is no one named Major Deepa in the Academy nor was there any Captain R.P. Rana. In the cross examination, this witness has stated that he had trade / commercial relations with Dr. Mohd. Alam for the last 4 – 5 years before incident. 7. PW 2 – Dr. Mohd. Alam, complainant states that he belongs to Makrana, Rajasthan and doing business of sale of stone at Dehradun. He has his godown at 1, Circular Road, Dehradun. The witness further states that earlier he used to do his business near Sapna Cinema in Saharanpur. PW 2 further states that Abdul Mabood was his brother. When the business did not run well he shifted his business to Dehradun. The witness further states that his brother Abdul Mabood used to see closing work in Saharanpur. PW 2 Dr. Alam told the court that accused / appellant, in the year 1986 came with Abdul Mabood to him and Abdul Mabood introduced the accused / appellant as Captain Sahab, who needs a large quantity of stone. It is further stated by him that Abdul Mabood told him that in 1985, engraving on stone was got done by the accused / appellant through him (Abdul Mabood). The witness PW 2 further states that he had left Abdul Mabood at Saharanpur for some time at his business place for the reason that though the business had been closed in Saharanpur but certain payments were yet to be received from the parties. PW 2 - Dr. Alam told the court that he met accused / appellant for the first time in the year 1986 and at that time the accused / appellant was in Army Uniform with 3 Stars on his shoulder. He had fixed name plate on the pocket showing his name “R.P. Rana”. When the accused / appellant told Dr. Alam (PW 2) that he was constructing a big house in Shastri Nagar, Meerut, and needs large quantity of stone, the witness PW 2 enquired from him as to how he happened to have so much of money to construct such a big house, on which the accused / appellant told him that his father is retired Major General. He further told that two of his brothers are Brigadier and Wing Commander and all the family members jointly getting constructed the house in Meerut. After said meeting, according to the PW 2 - Dr. Alam states that accused / appellant wrote letters to him including inland letters (Exhibit 2 and 3). In the letter (Exhibit 3), the accused / appellant had shown his address C/o retired Major General. According to the witness, the accused / appellant also got sent yet another letter (Exhibit 4) in June, 1987 purporting to have been sent from Willington Staff College, Chennai. But when the PW 2 sent his reply to one of the letters, it was received back with the endorsement incomplete address. On 24.06.1987, the accused / appellant came Dehradun in the Army Uniform of Captain and stayed in the house of Dr. Alam but on that day, he (PW 2 - Dr. Alam) had to leave for Rajasthan. When the witness PW 2 returned from Rajasthan on 30.06.1987, he was told by Abdul Mabood that “Captain R.P. Rana” accused / appellant has again come with a boy named Munna (PW 15) regarding whom he (accused / appellant) told that the boy is the son of his brother who is Wing Commander. According to PW 2 Dr. Alam on 30.06.1987 the accused / appellant took his car to I.M.A. with the excuse that he has to meet one Major Deepa. He returned at about 9.00 p.m. – 10.00 p.m. At that time, Raees Ahmad PW 1 was also present in the house of PW 2 – Dr. Alam. 8. PW 2 – Dr. Alam further stated that on 30.06.1987 in the evening accused / appellant discussed the matter with him relating to purchase of Kota Stone and also sought a loan for a sum of Rs. 15,000/- in the presence of PW 1 - Raees Ahmad. The witness further explains that as accused / appellant developed good acquaintance with him as such, he agreed to give the loan of Rs. 15,000/- to the accused / appellant for which on the next day, he withdrew money from Punjab National Bank, Branch – Welhame School and gave him Rs. 15,000/-. Thereafter, again accused / appellant took fiat car registration no. URM 2348 from witness PW 2 and went to I.M.A. canteen with Munna (PW 15). After his return from there, he enquired about Abdul Mabood and expressed his desire to take him (Abdul Mabood) with him. Thereafter, he along with Munna (PW 15) took Abdul Mabood at about 2.00 p.m. – 2.30 p.m. and left by Car registration no. URM 2348 (belonging to Dr. Mohd. Alam). On his way, the were seen in the car by witness PW 3 – Hari Om. PW 2 - Dr. Alam has further stated that in his car which was taken by the accused / appellant, there was a Brief Case and Water Cooler kept in it. He has identified the recovered items water cooler (Exhibit 5). This witness has also stated that the accused / appellant at that time was wearing black pants and grey coloured T-Shirt. PW 2 further narrated story and told that on 02.07.1987 when neither the accused / appellant nor Abdul Mabood returned, he PW 2 accompanied by Raees Ahmad went to I.M.A. to enquire about Major Deepa but no one could be traced. On 04.07.1987 again PW 2 Dr. Alam went with Raees Ahmad to I.M.A. and returned empty handed and on 05.07.1987 they tried to find whereabouts of accused / appellant and Abdul Mabood and went to Muzaffarnagar. On 06.07.1987, the two went to MCO Office, Roorkee, where one Lieutenant Colonel Singh, on seeing the letters shown by the witness (PW 2) purporting to have been written by the accused / appellant, told that no such officer was there. On this the witness PW 2 met retired Captain Lakhbir Singh and placed before him letters purported to have been written by Captain R.P. Singh. He (retired Captain Lakhbir Singh) told him that it appears that some cheating has been committed with him (PW 2). He advised Dr. Mohd. Alam (PW 2) to report the matter to the police. 9. Complainant Dr. Mohd. Alam (PW 2) further states that on 06.07.1987, he went to Police Station – Dalanwala, got lodged the First Information Report (Exhibit A 3). PW 2 – Dr. Mohd. Alam further stated that on 07.07.1987, he got published a ‘missing’ report of his brother Abdul Mabood in the newspaper but with no result. On 11.07.1987, he received two letters, purporting to have been sent by Captain R.P. Rana in which it was shown that Abdul Mabood has gone to Mumbai with the brother of the accused / appellant and they will come back by 20th – 25th of July. The letters received were dated 03.07.1987 (Exhibit 6) and 05.07.1987 (Exhibit 7) and thereafter, on 25.07.1987, the witness PW 2 received yet another letter (Exhibit 9) purporting to have been sent by the accused / appellant in which it was written that Abdul Mabood will come back by 30.07.1987. Meanwhile, during investigation, witness PW 2 went with Sub Inspector – Muzaffar Ali (PW 17) the investigating officer to Deoband and met Badan Singh Pundir, father of the accused / appellant, where photograph of his son (accused / appellant), was identified by PW 2 - Dr. Mohd. Alam as one that of accused / appellant. The said photograph is (Exhibit 10) on the record. Thereafter, the witness PW 2 went along with police to Muzaffarnagar in search of the accused / appellant but of no avail. PW 2 – Dr. Alam further stated that on 01.08.1987 he accompanied Sub Inspector Muzaffar Ali (PW 17) the Investigating Officer, to Panipat where the car of Dr. Alam was recovered. There he came to know that accused / appellant had cheated the owner of Venvest Industry by promising him that he had to purchase large quantity of clothes. The witness has further narrated that registration number of the car taken by the accused / appellant was found changed as URL 4225, the recovery memo Exhibit A 5 is also proved by the witness. He also told that water cooler (Exhibit 5), which was taken with the vehicle by the accused / appellant was also recovered from the garage of Ajit Chopra (PW 10), owner of the Venvest Industry. The witness further proved that in his presence the stone (Exhibit 1) was recovered by the police from village of the accused / appellant in which names of the accused / appellant and his family members got engraved through Abdul Mabood by the accused / appellant. PW 2 Dr. Alam has further stated that meanwhile on 30.07.1987, he went along with police to Babina a place where the accused / appellant was actually posted. 10. The above statements of PW 1 - Raees Ahmad and complainant PW 2 Dr. Alam get corroboration from the statement of PW 15 – Chandra Raghav alias Munna, a young boy of 16 years on the date when his statement was recorded (the statement is recorded after two years from the incident). The said witness has stated that on 29.06.1987 accused / appellant Rishipal came to his village and asked him to accompany to Mussourie. He further stated that on 30.06.1987 at about 3.00 p.m. – 4.00 p.m. he reached Dehradun along with the appellant. There both of them stayed with Dr. Alam (PW 2). The witness confirms that accused / appellant did talk about purchase of some items with the complainant Dr. Alam (PW 2). He also confirms that he along with accused / appellant and Abdul Mabood came in the Car of Dr. Alam from Dehradun to Saharanpur. PW 15 - Chandra Raghav alias Munna further stated that the car was driven by accused / appellant. He confirms that there was water cooler and brief case were kept in the car. According to this witness accused / appellant left him at Saharanpur after promising that he (accused / appellant) and Abdul Mabood would come back to take him but they did not come. Chandra Raghav alias Munna (PW 15) has further stated that when no one turned up, he went to the village of the accused / appellant where father of the accused / appellant told him that accused / appellant had already gone to Delhi, thereafter, the witness PW 15 went to Delhi all alone and there from went to his village. This witness identified the photograph of Abdul Mabood, and he also told that the car in which accused / appellant took him had registration no. URM 2348. 11. PW 3 – Hari Om has also corroborated the statement of the complainant Dr. Alam (PW 2) by stating that accused / appellant, who introduced himself as Captain R.P. Rana, had also once came to his godown in Circular Road, on 24.06.1987. Witness - PW 3 further corroborated that on 01.07.1987, he saw accused / appellant going in car of Dr. Alam along with Abdul Mabood and Munna (PW 15). PW 5 – Hafizur Rahman, real elder brother of Abdul Mabood has stated that accused / appellant, who introduced himself as Captain Rana once came to his shop in Saharanpur and expressed desire to get names engraved in marble piece on which he sent his brother Abdul Mabood for that work. PW 6 – Anees Ahmad, who runs furniture shop near Sapna Cinema in Saharanpur, also stated that accused / appellant introduced himself as Captain and he had seen him once in the shop of PW 5 - Hafizur Rahman. 12. PW 7 - Akash Garg is proprietor of Naval Cinema of Panipat. He has stated that accused / appellant came to him and introduced himself as “Army Officer”. He has further stated that when he (accused / appellant) came to him he introduced a boy who was accompanying him as servant. When photograph paper no. 29 A is shown to this witness, he identified the photograph of Abdul Mabood as one who was introduced by the accused / appellant as his servant. PW 8 - Badloo Ram is peon of Naval Cinema, Panipat, who has corroborated the statement of PW 7 – Akash Garg that accused / appellant came at Cinema hall and introduced himself as Captain Rana. He also identified the photograph 29 A as that of the boy (Abdul Mabood) who was accompanying with accused / appellant. PW 9 - Jai Bhagwan is resident of Village – Dabrakhedi, Panipat. This witness has stated that one ASI (Assistant Sub Inspector) Anoop Singh came with the accused / appellant and asked him to leave him (accused / appellant) in the Farm of Devi Singh. The witness has further stated that at that time accused / appellant was in the uniform of Captain. PW 9 – Jai Bhagwan has further stated that the accused / appellant was left by him at the house of Devi Singh but after 3 – 4 days he came to him and requested him to permit to stay in his house to which he agreed. Next day the accused / appellant was left by PW 9 – Jai Bhagwan to Panipat where both of them went to Akash Garg (PW 7). PW 9 further stated that after couple of days accused / appellant came along with a boy with him in black fiat car and told that he would be staying in the night in the house of Akash Garg. The accused / appellant had further told him that his officer one Colonel Arora is coming from Jhelum Express and he had to receive him along with Akash Garg and the witness Jai Bhagwan (PW 9) and Ajit Chopra at railway station, Panipat. But no one came there and the accused / appellant got made announcement through public address system but to no avail. According to this witness PW 9 accused / appellant asked for lending Rs. 1000/- leaving the black fiat car at the factory premises of the witness. On this Ajit Chopra (PW 10) of Venvest Industry, was consulted and permitted the accused / appellant to leave the car there. The accused / appellant thereafter told the witness that he was going to Delhi to meet Colonel Arora. The witness corroborated the fact that the police recovered the car from Venvest Industry’s premises. The witness has further corroborated that the piece of black pants of the accused / appellant (Exhibit 15) was also recovered by the police. PW 10 – Ajit Chopra corroborated the above statements of PW 9 – Jai Bhagwan. PW 11 - Tejveer Singh is son of PW 9 – Jai Bhagwan and he has also corroborated the statements of the above witnesses. PW 12 – Subhash Sharma, resident of Panipat is witness of recovery of another piece of black pants of accused / appellant (Exhibit 17) in respect of which memorandum (Exhibit A 8) was