K.P. Singh alias Manoj Yadav vs State of U.P.

Kashi Nath Pandey, J.—These appeals have been filed by K.P. Singh alias Manoj Yadav son of Ram Surat Yadav resident of village Tandwa, P.S. Gagha, district Gorakhpur and Moti Chand Yadav son of late Jagdev Yadav, resident of mohallah Shivapur, P.S. Pipari Renukoot, district Sonbhadra against judgment and order dated 25.3.2009, passed by Additional Sessions Judge (F.T.C.), Sonbhadra, Sri A.K. Dwivedi. By order dated 25.3.2009 Moti Yadav and K.P. Singh alias Manoj Yadav have been found guilty u/s 302, I.P.C. and sentenced to death and also imposed fine of Rs. 5,000 each, in default of payment of fine they have to undergo additional sentence of six months. They have also been convicted u/s 342, I.P.C. and sentenced to simple imprisonment for six months each. Both of them have been acquitted u/s 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. For confirmation of death sentence reference has been submitted u/s 366, Code of Criminal Procedure

According to the prosecution case as alleged by informant, Santosh Kumar, his younger cousin brother Pintoo son of Vijay Kumar aged 15 years was working as cook of K.P. Singh. It was alleged that 15-20 days ago Pintoo ran away after taking some money of K.P. Singh. On the date of occurrence Pintoo was in Renukoot colony. Moti Yadav son of Jagdev Yadav and above K.P. Singh apprehended Pintoo. He was badly beaten. In spite of request of the informant and his father he was not forgiven and both have taken Pintoo in the tin shed quarter which was under the ownership of Moti Yadav and in possession of K.P. Singh as its tenant. There Pintoo was burnt after sprinkling kerosene oil and it was locked out and both of them. Moti Yadav and K.P. Singh alias Manoj ran away. On hearing the cry the informant and his father and several other persons of adjoining locality reached there ; the lock was broken. The victim was taken to Hindalco hospital but during treatment he succumbed to death. The incident is dated 19.8.2006 at 5.30 p.m. The written report was submitted to police out post Renukoot of P.S. Pipari under Sections 342 and 302, I.P.C. and Section 3(2)(v), S.C./S.T. Act. The case was registered at Case Crime No. 650 of 2004. The investigation was handed over to Sri Umesh Pratap Singh, S.O. Pipari. After investigation charge-sheet under Sections 342 and 302, I.P.C. and Section 3(2)(v), S.C./S.T. Act was submitted by Sudhakar Yadav, C.O. Pipari. The case was committed by C.J.M., Sonbhadra to the Sessions Court for their trial. Charges were framed under Sections 342 and 302, I.P.C. and Section 3(2)(v), S.C./S.T. Act. Accused pleaded not guilty and claimed to be tried.

Written report is exhibit Ka-1 proved by P.W. 1, Santosh Kumar, exhibit Ka-16 is chik F.I.R. proved by P.W. 10 constable No. 60 ; Chunni Lal. Recovery memo of partly burnt cot at the place of occurrence is exhibit Ka-2 proved by P.W. 2, Raj Kumar ; exhibit Ka-4 is recovery memo of other household materials partly burnt at the place of occurrence which has been proved by P.W. 7, Umesh Pratap Singh ; exhibit K-10 is recovery memo of two negatives of the dead body of Pintoo. The photo was taken by Yogendra Kumar Gupta, New Gita Photo Studio which is proved by P.W. 8, Sudhakar Yadav. Exhibit Ka-3 is post-mortem report of the dead body of Pintoo which has been proved by P.W. 5, Dr. Umesh Prasad Pandey. Exhibit Ka-5 is inquest report of the dead body of Pintoo which has been proved by P.W. 7, Umesh Pratap Singh. Exhibit Ka-6 is police form-13. Exhibit Ka-7 is photo lash. Exhibit Ka-8 is specimen seal. Exhibit Ka-9 is letter to C.M.O. which has been proved by P.W. 7. Exhibits Ka-12, 13, 14, 15, 16 and 17 are photographs of the dead body of Pintoo and the place of occurrence where he was burnt proved by P.W. 9, Yogendra Kumar Gupta, P.W. 11 Prem Kumar Gupta. Exhibit Ka-17 is carbon copy of G.D. out post Renukoot, report No. 30 serial No. 371 of 2004, Sections 342 and 302 dated 19.8.2004, 22.30 and exhibit Ka-18 is carbon copy of G.D., report No. 4 dated 20.8.2004, 1.45 P.S. Pipari by which the case was registered at Case Crime No. 650 of 2004 under Sections 302 and 342, I.P.C. proved by P.W. 10. Exhibit Ka-11 is charge-sheet proved by P.W. 8. Exhibit Ka-3 is site plan of the place of occurrence proved by P.W. 7. It is to be noted that exhibit Ka-3 has also been marked on the post-mortem report proved by P.W. 5 on 18.9.2007, whereas site plan has been proved by P.W. 7 on 5.4.2008, therefore, site plan shall be read with as exhibit Ka-3a. In the same way, chick, report No. 30 out post Renukoot, report No. 4, P.S. Pipari be read as Exhibits 16A, 17A and 18A.

We have heard the learned Counsel for the Appellant and learned A.G.A. for the State. According to the Appellants the judgment and order of conviction is not in accordance with the evidence on record and against the principle of law. The trial court has not considered the material evidence available on the record. The capital sentence awarded to the Appellant is against the weight of evidence on record. The conviction is disproportionate. The order is not based on cogent findings. The trial court has sentenced the Appellant in a routine way without appreciation of evidence which itself creates doubt in the prosecution story. The impugned order is illegal and bad in law. No offence under Sections 302 and 342, I.P.C. is made out against the Appellants. There is nothing on the record to prove the Appellants as guilty for the alleged offence. The prosecution has totally failed to prove the case against the Appellants. Being it as rarest of the rare case even then awarded the capital sentence.

Learned Counsel for the State argued that the judgment and order is based on evidence on record and in accordance with the principles laid down by the Hon''ble Apex Court. Learned Court considered the criminal conduct of the accused persons towards 15 years old child which was too inhuman and heinous. Accordingly proper sentence has been passed. In the light of above argument it is expected to analyse the statement of witnesses produced by the prosecution.

The prosecution has examined the informant, Santosh Kumar as P.W. 1. His father Raj Kumar as P.W. 2. It has been stated by them that Vijay Kumar, the brother of Raj Kumar has three sons deceased Pintoo, Rajesh and Raja and one daughter Meenu. His wife is dead and he has gone some where leaving his children, therefore, all of them are living at Shiva Park, Renukoot. Pintoo was working as cook of accused Manoj Kumar alias K.P. Singh. Meenu was also working in Renukoot colony. In the morning and evening she used to come back to his elder father''s residence at Shiva Park. Both brother and sister were maintaining their brothers. It was alleged by K.P. Singh that Pintoo after taking some money went away somewhere. K.P. Singh alias Manoj was residing in tin shed rented by Moti Yadav. On 19.8.2004, the date of incident, in the evening Pintoo was apprehended by Manoj and Moti Yadav from the road of the colony and was taken to the rented shed house. Both Manoj and Moti were beating Pintoo. Hearing the cry, both witnesses reached there, requested to forgive Pintoo. Meenu also reached there. When there was no change in the attitude of Moti and Manoj, the witnesses proceeded for lodging report to police out post Renukoot. As soon as they reached near the house of Moti Yadav, there was cry to burning of a boy ; they came back to the place of occurrence and saw the accused person Moti and Manoj running away from the tin shed. The tin shed house was locked from the outside and inside the tin shed Pintoo was burning and crying that Moti has burnt him. The lock was broken by the people of locality and witnesses. The victim was taken to Renukoot Hindalco Hospital where within five to ten minutes during treatment he died. Written report of incident was submitted to police out post Renukoot which is exhibit Ka-1. It is in the hand writing and signature of P.W. 1, Santosh Kumar. At the time of the incident Pintoo was 15 years old. The inquest report of his dead body was prepared by the Sub-Inspector. P.W. 1 is also a witness to it. Some partly burnt household materials were found at the place of occurrence. Its recovery memo was prepared by C.O., the Investigating Officer, on which they have also made their signature. Their statements were recorded by C.O. regarding the incident on the same night. Meenu, daughter of Vijay, aged 16 years has also been examined as P.W. 6. She has supported the statement of his cousin brother, Santosh Kumar and elder father, Raj Kumar on point of the prosecution case. She states that she was working at Renukoot colony. She used to go there at 7 a.m. in the morning and in second shift 3 p.m. in the evening and after doing her work she used to come back at 4 or 5 p.m. in the evening. She used to work there for about 1-2 hours daily in one shift. On the date of incident she was coming back from the colony at 4.30 p.m. in the evening for her residence. She also reached to the spot and had seen the occurrence. Her brother was taken to the tin shed, house of Moti Yadav and was burnt to death by the accused Moti Yadav. Her brother was crying that Moti Yadav is litting fire to him. From the very beginning she is living with Raj Kumar. Thus, Meenu is also supporting the prosecution story corroborating the statement of P.W. 1 and P.W. 2, but in the cross-examination both P.W. 1 and P.W. 2 stated that Meenu was not present at the time of the incident whereas, in the examination-in-chief P.W. 1 has stated that after two to four minutes Meenu also reached there at the spot. Both of the witnesses were subjected to lengthy cross-examination but there is nothing in their cross-examination to suspect the prosecution case. Only on account of the suggestion of defence that there was dispute between Raj Kumar and K. Lal regarding a hut which was grabbed by Moti Yadav one year before the incident, which was accepted by the witnesses. It has also been accepted that this was a ground of enmity with Moti Yadav but there is no reason to suspect that on account of above enmity Moti Yadav was falsely implicated as K.P. Singh alias Manoj was his friend, therefore, he too was falsely implicated. It is improbable that on account of above petty cause of enmity any person can be falsely implicated in a case u/s 302, I.P.C. in which death sentence can be awarded. It is also not believable that only on this account being friend of Moti Yadav, K.P. Singh alias Manoj may be falsely implicated. There is no dispute that the deceased died on account of burn injury. There is no dispute regarding the place of occurrence. The tin shed room of Moti Yadav which was in actual possession of K.P. Singh alias Manoj as tenant. Some household materials of the tin shed were also partly burnt. Therefore, there is strong presumption against K.P. Singh alias Manoj as he has to explain that how the deceased was locked in that tin shed and how he succumbed to death on account of burning. At the time of arguments it was suggested that he might have committed suicide but there was no reason for a 15 years old child to commit suicide. There is clear cut evidence of three eye-witnesses that Pintoo was mercilessly beaten by Moti and Manoj who locked him in the tin shed. Both have beaten the victim and both have wrongfully confined him in the tin shed room locking him from the outside. It has also been stated by Meenu that her brother was burnt to death by Moti Yadav and at that time Manoj alias K.P. Singh escaped anywhere but he could not be escaped from his joint liability. It has also been stated by P.W. 1 and P.W. 2 that while the tin shed was full of smoke voice coming out from the tin shed room. Pintoo was crying stating that Moti has lit fire to his body. Moti and Manoj were seen by P.W. 1 and P.W. 2 while running away from the place of occurrence. Only hypothesis of their guilt can be concluded from above evidence. After breaking the lock by the witnesses and the people of the locality Pintoo was brought out from the room ; taken to the hospital of Hindalco but he could not be saved. There may be some minor omission and contradiction in the statement of the witnesses but theme of the prosecution case is not adversely affected. Positive role has been assigned against K.P. Singh alias Manoj regarding the incident of beating, locking and burning to death with the pre-planned intention of the accused person but P.W. 1 and P.W. 2 were not cross-examined from his side on point of fact. In cross-examination of P.W. 1 it has only been asked that Meenu was not residing at Shiva Park but she was living at Turra which is at the distance of three kilometre from his residence. Meenu was informed by them about the incident. She came from Turra. When she reached at the place of occurrence Pintoo was burnt. Even if the statement of Meenu be ignored, there is sufficient evidence of P.W. 1 and P.W. 2 against the accused K.P. Singh alias Manoj. Although P.W. 1 and P.W. 2 have not seen any accused while litting fire to the body of Pintoo, but the combined effect of their statement is sufficient to hold accused person guilty. The tin shed is the place of occurrence and the house of Moti Yadav where he lived are adjacent to each other. It is not very material that in what circumstances P.W. 1 and P.W. 2 reached to the place of occurrence. In support of the prosecution, their statements are clear and definite, corroborating the fact, only on account of suspicion of theft Pintoo was apprehended from Renukoot colony from the road, beaten by accused person, wrongfully confined in the tin shed which was locked by them, and the end in his death on account of burn injury. Some household materials of the tin shed were also partly burnt. The tin shed was in actual possession of the tenant, Manoj alias K.P. Singh. Its landlord is Moti Yadav.

Madhuri Devi wife of Rajendra Prasad has also been examined as P.W. 3. She states that Raj Kumar is the elder father of Pintoo. Rajesh and Raja are brothers of Pintoo and their sister Meenu lived with Raj Kumar. Thus, the possibility of Meenu coming to the place of occurrence witnessing the incident finds support from the statement of Madhuri Devi. It was much probable for her to come to their residence which is very near to the place of occurrence in the evening at about 5 p.m., because she left for her residence at 4.30 p.m. from the house where she was working as maid servant. The fact that she was living at Turra was rebutted by the statement of Madhuri Devi. On rest of the point of the prosecution case, she turned hostile. She has supported the fact that Pintoo died due to burnt injury in the room of K.P. Singh. The distance of her house is 20 to 22 latha from the above room of K.P. Singh. Pintoo was taken to the hospital by the people of the locality. Thus, to certain extent the prosecution case finds support from her statement.

P.W. 4 Krishna Lal has also been examined. He is the witness of the inquest report. He has also stated that Pintoo was living with Raj Kumar. K.P. Singh was tenant of Moti Yadav of a tin shed room. He has supported that Pintoo was serving to K.P. Singh alias Manoj from about 2-3 months ago. He has corroborated that Pintoo burnt in room of Manoj. The hut of Raj Kumar is at the distance of 150 feet from the hut of the witness. Thus, on some point prosecution case has been corroborated by the statement of Krishna Lal.

Dr. Umesh Prasad Pandey has been examined as P.W. 5. He conducted autopsy of dead body of Pintoo on 20.8.2004 at about 3.40 p.m. The dead body was presented to him in a sealed condition by constable Gharbharan Yadav and Homeguard, Ram Lakhan of P.S. Pipari, Sonbhadra. The deceased was 15 years old. The time of death was 20 hours ago from the time of the post mortem. Following pre-mortem injury were found. (I) Lacerated wound 3 cm. x .5 cm. x .5 cm. on the forehead .5 cm. above right eye brow. Two contuced wound have also been found. Burnt injury were found all over the body amounting to 98%.

Thus, the oral evidence of P.W. 1 and P.W. 2 and P.W. 6 have been corroborated by the medical evidence. Post-mortem report is exhibit Ka-3. Even if the presence of Meenu be doubted at the place of occurrence on the date of incident, even then, she has clearly stated that from before the date of incident, his brother Pintoo was cooking at the residence of accused, Manoj serving him by offering him food and living there with him. Manoj Yadav was a tenant there. It was heard that after taking some money of K.P. Singh alias Manoj Pintoo was absconding. Although P.W. 1 and P.W. 2 have stated that Meenu was not present at the spot at the time of incident, but from the statement of Meenu in-chief as well as in cross, there was every possibility of her presence at the time of incident at the place of occurrence witnessing the incident. It can be said that on account of crowd at the place of occurrence she might have not come into notice of P.W. 1 and P.W. 2.

Learned Counsel for the Appellant argued that there is nothing definite evidence on the point of fact that for how much time Pintoo was working as servant of K.P. Singh when he escaped away after taking some money of K.P. Singh. On point of time there is contradiction in the statement of P.W. 1, P.W. 2 and P.W. 6 but it is not very material as the theme of the prosecution case is about working of Pintoo as a servant of K.P. Singh. After taking some money of K.P. Singh he ran away somewhere. Whenever he was seen by the accused person he was apprehended, taken to the house of tin shed, where he was wrongfully confined, locked out and ultimately he was found in burnt condition by witnesses and people of locality, therefore, on point of time contradiction is immaterial. It has also been argued that there is contradiction on the point that how the witnesses reached at the place of occurrence. Their presence at the place of occurrence has also been challenged stating that P.W. 1, P.W. 2 and P.W. 6 all are working here and there. It was not probable for them to witness the occurrence, but it has been made clear by all the witnesses, that they are not permanent employee for 24 hours to anyone. They used to work for two hours in morning and two hours in evening. P.W. 2 is also not an employee of anyone. He is a trolley man and used to work in morning and evening. They reached to the spot and witnessed the occurrence. They have not seen while Pintoo was apprehended and burnt in the tin shed, where he was wrongfully confined after his beating, but it is clear that on any other source of information from children of the locality or cry of Pintoo, they reached to the spot. There is little distance between the hut of the witnesses and the place of occurrence. Therefore, it was quite probable for them to reach to the place of occurrence hearing cry of his own boy and the general cry of children of the locality about beating and burning of Pintoo. It has also been argued that some time P.W. 1 and P.W. 2 state that Meenu was present at the spot, some time they state that she was not the witness of the occurrence. Santosh Kumar states that he was not studying in the period of the occurrence but was working as mali, whereas his father states that his son was studying in High School at that time and at present time he is studying in inter but this contradiction in no way affects their statement. There was every likelihood of their presence at the spot in the evening. Although they could have not witnessed when Pintoo was apprehended and locked to the tin shed, but there is definite evidence that when Pintoo was in the tin shed of Moti and Manoj ; they requested them to forgive Pintoo, but they did not leave him, then the witness proceeded for police chauki, but in the mean time when they heard the noise about burning of Pintoo, they came back and saw Manoj and Moti running away after locking door of tin shed. It is not very material that lock was broken by the people of the locality or P.W. 1 or P.W. 2. The material thing is that the lock was broken and burning Pintoo was brought out and was taken to hospital of Hindalco. It is not very material that with the aid of police he was taken to hospital and before the F.I.R. was lodged S.O. was there at the hospital. It is natural that police might have been informed through telephone and the police might have taken the deceased to the hospital without formality of the F.I.R. but it do not affect the prosecution case. There is no material omission or contradiction in the statement of the witnesses. It has clearly been stated by P.W. 1 that he has gone to police out post Renukoot before admitting the victim in hospital. Pintoo was admitted at hospital at 6 p.m. He has also informed the police chauki, Renukoot regarding the incident, therefore, on this point there is nothing to suspect the veracity of the prosecution case. P.W. 1 has clearly stated regarding lodging of written report, exhibit Ka-1. It has also been argued that in the F.I.R. there is nothing that Pintoo was crying about his burning by Moti. It is not possible to write incident in great detail in F.I.R., only brief information is expected in F.I.R. Details are expected during investigation and full details are brought before the Court at the time of trial which is given more importance. There was no chance of false implication of Moti, only on account of grabbing of a hut one year before from the date of occurrence. It is to be noted that none are the owner but all trespasser on the railway land raising their hut. It is also unbelievable that Manoj shall be falsely implicated only on the ground of being friend of Moti.

Learned Counsel for the Appellant argued that P.W. 2 has stated that the incident was of 19th August, 2004 at about 8.30 p.m. but it is mere slip of his tongue because he has specifically stated that C.O. came to his hut at about 8.30 p.m. and recorded his statement regarding the incident. It has also been stated that he came back to his house from the hospital at 8 p.m. Learned Counsel has also argued that P.W. 2 as well as P.W. 1 have stated that they have not seen the accused while litting fire to Pintoo. When they reached on the spot none of the accused were present there. Moti was in his own house. Manoj escaped away somewhere but he has also made it clear that the house of Moti is just adjacent to the place of occurrence. They have also made it clear that accused person were last seen while they were beating Pintoo and even on the request of P.W. 1 and P.W. 2 he was not left. When on the cry of Pintoo regarding burning they came back, they saw the tin shed of Manoj was locked out which was broken by the people of the locality and Pintoo was brought out in the burning condition. They have seen both of the accused running away. Thus, the combined effect of their statements results to the hypothesis of guilt against both the accused. The chain of the circumstantial evidence of beating, wrongfully confining, crying of Pintoo, bringing him out from the tin shed after the lock was broken is strongly connected with each of the fact pointing out about the guilt of the accused person. P.W. 2 has specifically stated that Pintoo was wrongfully confined in the tin shed house before him by accused persons. It has also been argued that P.W. 2 has stated that he has not broken the lock, when he and his son reached there lock was open. Pintoo was outside in the burnt condition, he informed that he was burnt by Moti but above deviation are very slight and does not adversely affect the prosecution case. It has also been argued that P.W. 2 has stated that when both of them came back to their house after hospital, after some interval Sub-Inspector, Pipari came to his hut. Thereafter, Santosh went to the police station. After he came back from the police station he informed that F.I.R. was lodged. Therefore, it has also been argued that the F.I.R. was ante-timed but suggestion is baseless because F.I.R. was lodged at police station Pipari at 22.30/1.45 vide report No. 25 on 19/20.8.2004 on the basis of report of out post Renukoot. Considering all above things the witnesses P.W. 1, P.W. 2 and P.W. 6 appear to be trustworthy. On some point, even hostile witnesses are supporting the prosecution case. From the evidence, it is corroborated that Meenu was working in Renukoot colony which is not away from her hut. P.W. 2 has also stated that one year before the incident, his brother Birjoo, the father of Pintoo has gone away anywhere. He had four children. Pintoo is now dead, his wife was also dead ; Birjoo is his younger brother. Pintoo and Meenu were maintaining their brother by doing labour. Birjoo has also his hut besides the hut of Raj Kumar. P.W. 2 has specifically stated that Meenu was working in Renukoot colony. At the time of occurrence she was 10 to 11 years old. His brother Rajesh is 7-8 years old and the youngest brother Raja was 5-6 years old. In above condition it is most probable that Meenu was living with her brother in the hut besides his elder father. Therefore, it was most probable for her to come at the place of occurrence and witness the incident. It has also been argued by the learned Counsel for the Appellant that P.W. 2 has stated that he is a trolley man. He used to pull trolley upto 9-10 p.m. In the night he comes back to his house but it has also been stated by him that whenever he gets the work, he used to pull trolley in the day not in the night.

Sri Umesh Pratap Singh, P.W. 7 was S.O., Pipari on 20.8.2004. On the written report of Santosh Kumar, the case was lodged at the police out post Renukoot at serial No. 371/04 under Sections 342 and 302, I.P.C. On the basis of which chik No. 43 was prepared at police station Pipari at report No. 4 time 1.45 a.m. in the night of 20.8.2004. It was registered as Case Crime No. 650 of 2004 under Sections 302 and 342, I.P.C. At that time he was not present at the police station. Copy of chik and copy of written report was handed over to him by constable No. 308, Krishna Pratap Singh in the police circle for investigation. He recorded the copy of chik report, proceeded to search the complainant, but he was not found normal at that time. His statement was recorded. Place of occurrence was inspected on the identification of the complainant in presence of witnesses Rajendra Prasad son of Babunandan and Sri Nasim Khan son of Abid Khan. In presence of the witnesses photographs of the spot were taken and thereafter site plan was prepared. Partly burnt chhata, chattaee, clothes, pant-shirt, T-shirt, one kuppi and one gallon in which there was some kerosene oil were taken in police possession ; and after keeping it in a plastic bag, after preparing specimen seal, it was kept in sealed cover. Recovery memo was prepared ; signature of witnesses were obtained on it. He also made his signature. In the morning he reached to the hospital ; prepared inquest report and got the dead body photographed ; handed over the dead body in a sealed condition to constable Gharbharan and home guard Ram Lakhan with necessary papers for post-mortem. When the complainant, Santosh Kumar, became normal again his statement was recorded in detail. Then it was brought to his notice that he belongs to Scheduled Caste ; thereafter C.O. was informed and got further direction.

On 20.8.2004 at about 11.15 a.m., Moti Yadav and K.P. Singh alias Manoj were arrested from Turra chauraha. Their statements were recorded. He proved site plan exhibit Ka-3, recovery memo exhibit Ka-4, inquest report Exhibit Ka-5, police form-13 exhibit Ka-6, photo lash exhibit Ka-7, specimen seal exhibit Ka-8, letter to C.M.O. exhibit Ka-9. In cross-examination he states that Santosh Kumar did not tell him about presence of Meenu at the place of occurrence. He had also not told that Pintoo was crying that Moti Yadav after sprinkling kerosene oil lit fire to his body. The information was given to police station Pipari at about 1 a.m. in the night of 19/20 August, 2004. Then he reached to the hospital at about 2-2.30 a.m. Constables of police chauki were present there. Investigation was handed over to C.O., Pipari.

Sri Sudhakar Yadav P.W. 8 was Circle Officer, Pipari on 21.8.2004, he received the investigation of Case Crime No. 650 of 2004 u/s 302/342, I.P.C. and Section 3(2)(v), S.C./S.T. Prevention of Atrocities Act ; recorded the statement of the complainant, Santosh Kumar Pasi, and his father Raj Kumar Pasi, Rajendra Prasad Sonkar and Nasim Khan witnesses of the recovery memo. Recorded the statement of Chunni Lal who prepared chik F.I.R. and entered the case into G.D. On 24.8.2004 the statement of witnesses Krishna Lal Vind and Badal Chaudhary were recorded. On 25.8.2004 recorded inquest report in case diary as parcha No. 5. Recorded the statement of Gharbharan Yadav and home guard Ram Lakhan on 30.8.2004. Recorded the statement of Smt. Madhuri Devi, Smt. Nathpatti and Km. Meenu on 31.8.2004. Recorded the statement of witnesses Amrit Jaiswal, Santosh Kumar and Yogendra Kumar Gupta, photographer, and Prem Kumar Gupta. After investigation submitted charge-sheet against Moti Yadav and K.P. Singh alias Manoj u/s 302/342, I.P.C. and Section 3(2)(v), S.C./S.T. Act, and he has identified his signature on exhibit Ka-2, recovery memo of partly burnt cot folding. Exhibit Ka-10 is recovery memo of two negatives on which he has identified his signature. The charge-sheet is exhibit Ka-11 in his hand writing and signature.

Before beginning with the investigation he had gone through the previous papers. The investigation was initiated by S.O. Pipari, Umesh Pratap Singh. On 19.8.2004, telephonic information regarding admission of deceased Pintoo at Hindalco Hospital in burnt condition has been mentioned. It has also been mentioned that he reached to the hospital and inquired from the deceased, but it has been stated by P.W. 7 Umesh Pratap Singh that this has not been written by him. No dying declaration was received by him. Santosh has not told him that Pintoo was crying that Moti Yadav lit fire to him. Neither this was stated by Raj Kumar, P.W. 2, nor P.W. 6, Meenu, told this fact. On account of the omission on the part of the witnesses, the statement of witnesses before the Court cannot be ignored unless and until there is strong ground to disbelieve them. He states that Santosh and Raj Kumar have not stated that Meenu was present at the spot at the time of occurrence. He denies the suggestion that investigation was not impartial. He also denies the suggestion that he was under undue pressure on account of complainant being member of Scheduled Castes. Thus, from the statement of P.W. 7, Umesh Pratap Singh, and P.W. 8, Sudhakar Yadav, prosecution case find corroboration.

P.W. 9 Yogendra Kumar Gupta, is a photographer. His elder brother has a photo studio at bus stand. He is also engaged in the same studio. On the direction of S.O., Pipari on 20.8.2004 he has taken photograph of the place of occurrence. It was told that Pintoo was burnt by Moti Yadav and K.P. Singh alias Manoj. Photographs 25A/1 to 25A/4 are in the file. After seeing he states he has taken from his camera on 20.8.2004. Negatives of the photographs were taken by the constable of the police station. Photographs are exhibits Ka-12, 13, 14 and 15.

P.W. 10, C.P. No. 60, Chunni Lal, states that he was Constable Moharrir at police chauki Renukoot on 19.8.2004. At serial No. 371/2004 on written report of Santosh Kumar, he recorded the case u/s 342/302, I.P.C. entered it into General Diary. Original chik F.I.R. is No. 43/2004 which is in his hand writing and signature. It is exhibit Ka-16. It was entered into G.D. No. 30/22, 30 at police out post Renukoot. At police station Pipari Crime No. 650 of 2004 was entered. G.D. report No. 4, 1.45 dated 20.8.2004 was entered by Head Constable Ram Lakhan Yadav who was posted with him. He recognises his writing and signature. The carbon copy of G.D. is in the file which was prepared in the same process. It is in the file with signature of Head Constable, Ram Lakhan. It is exhibit Ka-18. Constable Ram Lakhan Yadav was posted as Head Constable at P.S. Pipari.

Prem Kumar, son of Ram Kumar Gupta on the direction of S.O. Pipari on 20.8.2004 taken the photograph of deceased Pintoo which was in Hindalco Hospital. Both photo and negative were handed over by him to S.O. Paper Nos. 28Ka-1 and 28Ka-2 were photographs which is in the file. Exhibit Ka-16 and Exhibit Ka-17 are marked on it. Both the negatives were handed over to the Sub-Inspector of police at the time of photography. The deceased was not on the bed of the hospital. Thus, from perusal of the above evidence, from the oral, documentary and circumstantial evidence, the only hypothesis of guilt is drawn against both of the accused Moti Yadav and K.P. Singh alias Manoj. All above evidence have been put up before the accused persons for their explanation u/s 313, Code of Criminal Procedure All have been denied by them. No alternative story has been placed by them. No reason of false prosecution could have been told by them. Nothing in defence has been brought by them except that they have been falsely implicated.

In Ruli Ram and Another Vs. State of Haryana, it has been held that if the defence version is that the accused has been falsely implicated on account of enmity then the burden lies on him to prove that he has been falsely implicated on account of enmity. The accused could not prove this fact that he has been falsely implicated on account of enmity.

In Bablu alias Mubarik Hussain v. State of Rajasthan 2007 (57) ACC 1071 : 2007 (1) ACR 338 (SC) , Hon''ble Apex Court has held that on the basis of the circumstantial evidence inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In this case Bhagat Ram Vs. State of Punjab, has been referred in which it was laid down that where the case depends upon the conclusion drawn from the circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. C. Chenga Reddy and Ors. v. State of Andhra Pradesh 1955 (Suppl) ACC 321 , has been referred in which it has been observed that 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. In Padala Veera Reddy v. State of Andhra Pradesh and Ors. (XXVII)1990 ACC 32 , it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused ;

(3) 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

(4) 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.

In State of U.P. v. Ashok Kumar Srivastava 1991 (Suppl) ACC 325 it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. Thus, where the evidence is capable of two inferences, the one in favour of the accused must be accepted. If there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted. Onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured. If the above principles laid down by the Hon''ble Apex Court is applied on the facts of the present case, it can be said that the chain of circumstantial evidence is strong and complete in itself, leading only to the hypothesis of their guilt.

In above circumstances learned Counsel for the Appellant argued that this is not one of the rarest of the rare case in which death sentence is to be awarded. This is the first offence of the accused. He is not a habitual offender. There is no evidence against accused person which is menace to the society. It has been argued that the death sentence may be modified into rigorous imprisonment for life. In support of his argument learned Counsel submitted Ram Anup Singh and Ors. v. State of Bihar 2003 (2) JIC 588 (SC) : 2003 (1) ACR 303 (SC). In above case accused persons were real brother of deceased. There were dispute regarding gift of land. Six prosecution witnesses were related to the accused. Their testimonies were reliable and trustworthy. Four persons were done to death. Versions of eye-witnesses were natural. Prosecution case finds support from medical evidence. In above circumstances the Hon''ble Supreme Court modified the death sentence awarded by the trial court and confirmed by the High Court to Appellant Lallan Singh and Babban Singh into rigorous imprisonment for life with the condition not to be released before completing actual term of 20 years including period already undergone by them.

Prakash Dhawal Khairnar (Patil) v. State of Maharashtra 2002 SCC 281, with State of Maharashtra v. Sandeep alias Babloo Prakash Khairnar (Patil) has also been submitted. In this case the accused has gunned down his own brother, brother''s family members, four in number, and his mother on account of the property dispute. Accused was working as Senior Scientific Assistant having no criminal tendency. Murder was committed on account of the fact that his brother was not partitioning the alleged joint property. It was not held to be one of the rarest of rare case and death sentence was reduced to life imprisonment with the direction that accused shall not be released from prison unless he had served at least 20 years of rigorous imprisonment. Hon''ble Court held that facts and circumstances of the case reveal that he has killed his brother, brother''s wife and children because of frustration, as his brother was not partitioning the alleged joint property. No doubt, it is heinous and brutal crime but at the same time it will be difficult to hold that it is rarest of rare cases. It is also difficult to hold that Appellant is a menace to the society and there is no reason to believe that he cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society.

In present case before the Court it was expected from the accused to forward some explanation of the incident of burning of the boy to death in their tin shed but they kept mum, did not forward any defence in support of any alternative theory. Bare suggestion cannot be said to be sufficient in his defence.

On the basis of the discussion made above, the findings of the learned lower court is based on evidence in record. The judgment is well discussed and reasoned and needs no interference except on point of death sentence, as it is not one of the rarest of the rare case, therefore, Reference No. 6 of 2009 u/s 366, Code of Criminal Procedure is rejected and the appeals are partly allowed on point of death sentence. The death sentence awarded to the Appellants are modified to life sentence. Accordingly Appellant, K.P. Singh alias Manoj Yadav and Moti Chand Yadav are sentenced to life imprisonment and imposed fine of Rs. 5,000 each. In default of payment of fine, they have to undergo additional sentence of six months. They are also sentenced to simple imprisonment of six months each u/s 342, I.P.C. Accordingly judgment and sentence passed by the learned lower court is confirmed.