Munna Kumar Upadhyaya @ M.Upadhyaya vs State Of A.P.Tr.Pub.Prosecutor

2. One Shri Baldevraj Seth was working as Chief Track Engineer, South Central Railway. He was living in Bungalow No.100, Railways Officer’s Colony, South Lalaguda of Secunderabad, the official residence allotted to him along with his family members, i.e., his wife, Prabha Seth, son, Master Rishab Seth and daughter Kanika Seth. Accused Chandra Bhushan Upadhyay (Accused No.1) was working as office peon in South Central Railways, Secunderabad and was attached to the bungalow of Shri Baldevraj Seth for the last 7 years. Accused No.1 was married in the year 1997 and was residing in the servant quarters of the said bungalow. In fact, he had been given two servant quarters. Accused No.1 was arrogant, evasive and in the habit of revolting against Smt. Prabha Seth who was a strict person and demanded better performance of duties by accused No.1. The wife of accused No.1, on the occasion of dussehra festival, went to her native place in Bihar, to which all the accused belong. After her departure, accused No.1 became more arrogant. Nearly a week before the occurrence, Smt. Prabha Seth had scolded accused No.1 for his shabby looks and had asked him to have a haircut. This aggravated the grudge of accused No.1 towards her. On the very next day, accused No.1 met his elder brother’s son, Munna Kumar Upadhyay (Accused No.2), his brother-in-law, Maheshwar Upadhyay (Accused No.4) and their friend, Monu Singh (Accused No.3). As already noticed, all of them belong to the same village in the State of Bihar. Accused No.3 was working in Bharat Steels. Because of the serious grudge of accused No.1 towards Smt. Prabha Seth, they all planned to kill the entire family of Shri Baldevraj Seth and to decamp with the gold ornaments, etc.

3. In furtherance to their plan, accused No.1 is stated to have purchased two knives from a road side hawker in the market. He also told Accused Nos.2 to 4 to come to the bungalow in the morning of the next Monday to execute their plan. On 17th March, 2003, at about 9.30 a.m., Baldevraj Seth left for his office. At about 10 a.m., accused No.2 to 4 came to the entrance of the bungalow, not permitting their entry from the main gate, accused No.1 took them to the bathroom in the back varandah and closed the door. Accused No.1 closed all the doors from inside. He did not permit the washerwoman to come inside the house and gave her clothes from outside. When the maid servants who used to come to the house everyday to clean the house, came at their respective times, they were sent back by accused No.1 on the pretext that Smt. Prabha Seth wanted the house to be cleaned with acid and phenyl and therefore, they should come on another day. A carpenter, Janagama Maheshwar, PW23 had also come to the premises for fixing some poster beds. However, accused No.1 did not permit him to come into the house and when the carpenter insisted on completing the work, accused No.1 told him that Smt. Prabha Seth was not well and does not want to be disturbed. At about 10.30 a.m., Smt. Prabha Seth went into the bathroom. ACCUSED NO.1 went to the room of Master Rishab, who was watching the television, and on the pretext of showing him something, called him to another bathroom. When Rishab reached the bathroom, accused Nos.2 to 4 held the boy while accused No.1 cut his throat, as a result of which he died instantaneously. His body was kept in the bathroom itself. Thereafter when Smt. Prabha Seth came out of the bathroom, accused No.1 immediately attacked her and accused No.3, Monu Singh, opened fire on her with a countrymade pistol. When she was trying to get free from the grip of accused No.1, there was a scuffle and because of the resultant misfire, accused No.3 himself received injury on his leg. Then, accused No.1, with the knife, succeeded in cutting the throat of Smt. Prabha Seth. Thereafter, the accused shifted her body also to the bathroom. Accused No.1 cleaned the blood stains from the room and watched for Kanika Seth, daughter of Baldevraj Seth, to arrive. She arrived at 11.45 a.m. from the school. When she pressed the call button, accused No.1 directed her to enter from the back door. The moment she stepped in, accused Nos.2 and 4 held her and accused No.1 cut her throat with a knife, as a result of which she collapsed. Her body was then shifted to the bathroom. After killing these three members of the family, they ran towards the bedroom, opened the almirah, took gold ornaments like necklace, chains, rings, wrist watch and net cash of Rs.44,560/-, which they distributed among themselves.

4. Accused No.3, Monu Singh was bleeding as a result of the bullet injury that he suffered. The other accused took him to the premises of Bharat Steel, where he was working as a security guard. There, one Shashidhar Pandey advised them to take accused No.3 to a doctor. The doctor, after observing the injury of accused No.3, asked them to shift the patient to Gandhi Hospital, Secunderabad. In fact, the doctor helped them to get admitted and receive the treatment. accused No.1 gave Rs.2,000/- to the said doctor for medical expenses and after giving that money, accused Nos.1, 2 and 4 left the place. Accuse No.1 sent away Pandu, the watchman, who had come to the residence of Baldevraj Seth, on the pretext of securing sweets. At about 6.50 p.m., Baldevraj Seth, returned from his office to his bungalow. He noticed that the lights of the bungalow were off. As a routine, the driver used to bring the briefcase of Baldevraj Seth inside the bungalow, but on that day, he was prevented from doing so by Accused No.1, who brought the briefcase inside himself. Baldevraj Seth, entered the house and immediately thereafter, accused fired at him and killed him. After killing him, he shifted his body also into the bathroom and cleaned the floor of the hall with phenyl and acid. He called Smt. Anju, accused No.5, who is his sister and was residing with him, to clean the floor, whereafter accused No.1 went away to Mahindra Hills to meet his brother in law. Thereafter, accused Nos.1, 2 and 4 returned to the bungalow and found that Pandu, the watchman was sleeping in the guardroom at the main gate. The accused waited there and at about 11 p.m. and then they took the car from the garage, shifted the dead bodies to the car putting the body of Baldevraj Seth in the dickey of the car. Accuse Nos.1 and 2 took the car near the railway garage. They also dumped their blood stained clothes, as well as those of the deceased, in the car. After taking the car near the railway tracks at SP Nagar, Malkajgiri, and parking there, accused Nos.1 and 2 came back to Tarnaka to buy petrol. Accused No.2 purchased ten litres of petrol at Osmania University filling station, Tarnaka. They brought the petrol to the place where the accused had parked the car, put the petrol on the car and burnt the dead bodies with the car.

5. Thereafter, accused No.1 returned to the bungalow. Upon returning, in the next morning at 6 a.m., the accused informed the neighbour, one Sanjay Kumar Mishra (PW3) and others that Baldevraj Seth had gone with his family for dinner outside, on 17th March, 2003 at about 7.30 p.m. and did not return again. On 18th March, 2003 at about 6.45 a.m., Municipal Counsellor, PW-1 made a report in Malkajgiri Police Station stating that he had come to know that a car was in flames at SP Nagar Road, Malkajgiri, near Railway water tank. The Maruti car was completely burnt and some dead bodies were found in the car, so PW-1 requested the police to take necessary action. Upon this, Sub-Inspector of Police, Malkajgiri, PW-47 registered a case under Sections 302, 201 IPC noted the engine No. and chassis No. of the vehicle and thereby traced the owner. The dog squad was also put into service. In the meanwhile, the Chief Engineer along with other senior officers visited the spot and informed the police that one Meenal Seth, PW-12, the other daughter of Baldevraj Seth, was on the way from Delhi to Hyderabad in Rajdhani Express and had telephoned them stating that she was calling the phone numbers of the family members, but no one was responding. Thus, he had sent his peon to the house of Baldevraj Seth. However, accused No.1 had given him the same excuse that he had given to the neighbours that the family had gone out. In the morning, he had been told that the family had not returned. The dead bodies, on the basis of the articles recovered from the car itself, were identified. After establishing the identity of the deceased, the investigating officer prepared the inquest report and started the investigation.

6. During the course of investigation, the investigating officer recorded the statements of different witnesses. From the very initial stages, accused No.1 appears to have been the prime suspect. It was for this reason that Pandu, PW8 had informed the investigating officer that he was not permitted to enter the bungalow and the accused had insisted that he remain at the front gate and he was then sent to buy sweets, which he gave to Accused No.5 on his return. When the bungalow of the deceased was examined, at number of places, blood marks were found sprinkled on the wall and the floor had become sticky as it had been washed with phenyl and acid. Since accused No.1 failed to explain all these suspicious circumstances, he was arrested and it is the case of the prosecution that he finally confessed to the offence on 19th March, 2003, upon interrogation conducted in the presence of two mediators. He also admitted that the offence was committed with the assistance of Accused Nos.2 to 4 and Accused No.5. The cell phone and the knife which were used in the commission of the crime were thrown by the accused in the dustbin near the church at Mettuguda. In furtherance to the confessional statement of the accused and at his instance, the cell phone, a portion of the gold ornaments, cash and knife were recovered. On the basis of the information supplied by accused No.1, accused No.5 was also arrested and gold ornaments were seized from her. At the instance of Accused No.2, one country made revolver and one 7.62 M rib and OFV 9208 live cartridge, which were hidden near the railway track, were recovered and seized along with the portion of the gold ornaments recovered from him. The detailed confessional statement and seizure reports were prepared in the presence of witnesses. Finger prints of accused Nos.1 to 5 were collected and sent for comparison with that of chance prints obtained from the house of Baldevraj Seth. Upon recognition, forensic science experts, headed by Dr. Rajagopal Reddy, Professor of Forensic Medicine, Gandhi Medical College, Hyderabad visited the spot and held autopsy. The incriminating articles and other collected materials were also sent for DNA Analysis to the laboratory. The investigating officer recorded the statement of a number of witnesses, obtained the report from the laboratory and finally filed the charge-sheet before the court of competent jurisdiction. All the accused were committed to the Court of Sessions, which charged the accused as follows:-

e) A5 (Smt. Anju Choubey) is sentenced to suffer R.I. for 3 years each for the offence U/s 201 and 411 IPC respectively. The period of detention already undergone by A5 shall be given set off against the sentence imposed as per Sec. 428 Cr.PC. Both the sentences shall run concurrently.”

8. Being aggrieved from the judgment of the trial court, all the accused preferred an appeal before the High Court. The High Court, vide its judgment dated 28th March, 2007, acquitted the Accused Nos 3 and 4, namely, Monu Singh and Maheshwar Upadhyay, of all offences with which they were charged. However, it affirmed the conviction of accused No.1, Chandra Bhushan Upadhyay, accused No.2, Munna Kumar Upadhyay and accused No.5, Anju Choubey.

9. While dealing with the order of sentence, the High Court partially accepted the plea of accused No. 1 and commuted the death sentence awarded to him by the trial court, to life imprisonment. Accused No. 5 had only been convicted for the offence under Sections 201 and 411 IPC and she has not preferred any appeal before this Court. The State has also not preferred any appeal before this Court against the acquittal of accused Nos. 3 and 4. Accused No. 1, Chandra Bhushan Upadhyay, had filed an appeal challenging the judgment of the High Court, but the same was dismissed at the SLP stage itself, as being withdrawn, vide order of this Court dated 6th August, 2007. Thus, in the present appeal, we are only concerned with the contentions raised on behalf of accused No. 2. The learned counsel appearing for the said appellant has contended :

17. Besides all this is the statement of PW-12, the sole surviving member of Seth family, which has fully corroborated the statement of all these witnesses, as well as that of neighbour PW3. She was travelling from Delhi to Secunderabad by train. A number of times, she claims to have called up the numbers of her father and other family members, but none responded. Upon this, she had rang up PW-3 to find out what had happened. It was only on her arrival at Secunderabad that she came to know about the unfortunate event where her entire family had been murdered by the accused. Accused had disappeared from the premises in question. Prior thereto, he had even told the neighbour, who made enquiry in furtherance to the phone calls by PW-12, that Baldevraj Seth and the family had gone out in the car on the evening of 17th March, 2003, but had never returned back. There is no occasion for so many witnesses to depose falsely implicating the accused in the commission of crime. The statement of these witnesses seen in conjunction with the circumstance that the accused had given different and conflicting versions to different persons (servants and neighbours) at different times, either for not permitting their entry into the house, or claiming that the family had gone out on 17th March, 2003, fully support the case of the prosecution.

20. The prosecution had also examined the ballistics expert as PW-37. He expressed his opinion that item No. 2 was a live cartridge and he opined that it was a country made pistol with 7.62 MM calibre and that the cartridges recovered had been fired from the recovered pistol. The cartridges were recovered from the bungalow while the pistol and live cartridge was recovered in furtherance to the confessional statements made by accused Nos.2 and 3.

43. Thus, all the above circumstances have to be examined in light of the above principles. We have discussed in some detail the evidence led by the prosecution and the above cases would squarely apply to the present case.

50. In view of the above principles, it was expected of the accused to render proper explanation for his injuries and his conduct. However, he opted to deny the same and in fact even gave false replies to the questions posed to him.

53. For the above reasons, we see no infirmity in the judgments under appeal. There is no merit in the submissions raised on behalf of the accused. Resultantly, the appeal is dismissed.

[Swatanter Kumar] New Delhi;

May 8, 2012