# Vikas Sharma @ Moni & Anr v. State of U.P. & Ors

- **Citation:** (2016) 1 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-01-22
- **Case number:** Capital Case No. 962 of 2007
- **Bench:** Bala Krishna Narayana, Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikas-sharma-moni-anr-v-state-of-u-p-ors-43401
- **Pages:** 26

## Headnote

Govt. Advocate, D R Chaudhary, I.K.
Chaturvedi, M S Yadav, Rajul Bhargava
Criminal Capital Appeal-conviction of
death sentence u/s 302, 34 IPC-with fine
of Rs. 20,000 on each appellant-life
imprisonment with fine of Rs. 10000 on
each
under
section
364
and
201prosecution
comprehensively
and
reliably
established
the
chain
of
circumstances-with help of oral as well
as documentary evidences-presence of
appellant and intention of committing
crime
the
gruesome
manner-try
to
destroy evidence established-conviction
of Trail Court affirmed-considering age
of accused-and no previous criminal
record-not likely to be danger to societyoffence
not
premeditated-being
circumstances
evidence-except
death
sentence all other sentences given by
Trail Court need no interference-Appeal
partly allowed.
Held: Para-15
On 30.11.2003 the fingerprint expert Dr.
Rajendra Singh collected finger prints from
the
dressing
table,
wooden,
almirah,
stainless steel kettle, T.V. Stand, the mirror
of dressing table and washbasin of room no.
209 in presence of the witnesses and the I.O.
who prepared its memo (Ex. Ka. 18). The site
plan of the hotel room and bathroom
attached to it was also prepared by the I.O.
which is Ex. Ka. 32 on the record.
Case Law discussed:
(1983) 1 SCC 143; 2013 (14) SCC 434; (2014)
6 SCC 716; (2012) 6 SCC 174; 1955 AIR 801;
AIR 1994 SC 1733; 2002 (I) UPCr R 384; AIR
2002 (SC) 2920; (1983) SCC 143; (2005) 11
SCC 600; (1983) 1 SCC 143; 2005 SCC (Cri)
1938; (1980) 2 SCC 684; (2014) 4 SCC 375.

## Text

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164
 INDIAN LAW REPORTS ALLAHABAD SERIES
4.

The
special
appeal
is,
accordingly, disposed of. There shall be
no order as to costs.
-------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.01.2016
BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Capital Case No. 962 of 2007
Connected with
Capital Case No. 903 of 2007
Vikas Sharma @ Moni & Anr. ...Appellants
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Ashok Kumar Rai, Apul Misra, P.N. Misra,
P.S. Pundir, R.K. Rai, Ravindra Nath Rai,
V.P. Srivastava
Counsel for the Respondents:
Govt. Advocate, D R Chaudhary, I.K.
Chaturvedi, M S Yadav, Rajul Bhargava
Criminal Capital Appeal-conviction of
death sentence u/s 302, 34 IPC-with fine
of Rs. 20,000 on each appellant-life
imprisonment with fine of Rs. 10000 on
each
under
section
364
and
201prosecution
comprehensively
and
reliably
established
the
chain
of
circumstances-with help of oral as well
as documentary evidences-presence of
appellant and intention of committing
crime
the
gruesome
manner-try
to
destroy evidence established-conviction
of Trail Court affirmed-considering age
of accused-and no previous criminal
record-not likely to be danger to societyoffence
not
premeditated-being
circumstances
evidence-except
death
sentence all other sentences given by
Trail Court need no interference-Appeal
partly allowed.
Held: Para-15
On 30.11.2003 the fingerprint expert Dr.
Rajendra Singh collected finger prints from
the
dressing
table,
wooden,
almirah,
stainless steel kettle, T.V. Stand, the mirror
of dressing table and washbasin of room no.
209 in presence of the witnesses and the I.O.
who prepared its memo (Ex. Ka. 18). The site
plan of the hotel room and bathroom
attached to it was also prepared by the I.O.
which is Ex. Ka. 32 on the record.
Case Law discussed:
(1983) 1 SCC 143; 2013 (14) SCC 434; (2014)
6 SCC 716; (2012) 6 SCC 174; 1955 AIR 801;
AIR 1994 SC 1733; 2002 (I) UPCr R 384; AIR
2002 (SC) 2920; (1983) SCC 143; (2005) 11
SCC 600; (1983) 1 SCC 143; 2005 SCC (Cri)
1938; (1980) 2 SCC 684; (2014) 4 SCC 375.
(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)
1. Both these criminal appeals, arising
out of the same judgment and order dated
1.2.2007 passed by Additional Sessions Judge
(F.T.C. Ist), Muzaffar Nagar in S.T. No. 184
of 2004 (State of U.P. Versus Rajesh Saini
and others), were connected vide order dated
13.2.2007 of this Court and are hereby
decided by this common judgment.
2. The facts in brief, if the case of
the prosecution were true, reveal the
tragic case of one young boy Abhishek
alias Lovey, who was kidnapped for
ransom and was chopped off into two
parts by the accused appellants, one of
whom (appellant - Vikas Sharma) the boy
used to call 'uncle'. After his murder the
accused appellants buried both those parts
separately into the sugarcane fields.
3.
The brief facts of the case as
unfolded during trial are that on the fateful
day i.e. 27.11.2003 the father of the deceased
boy - informant Pradeep Kumar Garg, who is
a practicing advocate in Tehsil Court,
Jansath, district Muzaffar Nagar, had gone to
1 All. Vikas Sharma @ Moni & Anr. Vs. State of U.P.
165
tehsil Jansath for his work leaving his wife,
daughter and son, deceased Abhishek, at his
home. At about 3.30 P.M. his wife rang him
up and informed that just after he had left,
accused Vikas Sharma, (who was a friend of
Pradeep Kumar's younger brother Manoj
Garg and was working as a typist of Tehsil
Court Jansath), had come to their house and
had taken away Abhishek with him but
Abhishek had neither reached his school nor
had yet returned. Hearing this, the informant
at once rushed to the place where typist
Vikas Sharma (A-1) used to sit at the tehsil
court campus, to inquire from him about the
whereabouts of his son but Vikas Sharma
was not found on his seat. The informant
then rushed to his home and asked about
Abhishek from his wife and daughter, both
of whom, while weeping informed that
Abhishek had not yet returned. The
informant alongwith his wife started to
search his son. During search his brother-inlaw (Behnoi) Rakesh Agrawal informed that
he had seen Abhishek and accused/appellant
Vikas Sharma going towards Prakash
Chowk at about 10.00 A.M. The informant
and his wife searched their son at Prakash
Chowk but his whereabouts remained
untraced. Searching their son when they
reached at Mahaveer Chowk, Pramod
Sharma, Advocate and Anuj Kumar (PW-3)
met them who informed them to have seen
Abhishek
in
the
company
of
accused/appellants Vikash Sharma, Rajesh
Saini, Aashu and Arvind, standing in front of
Swagat Hotel at about 10.30 A.M. The
informant and his wife searched their son in
Swagat Hotel and some other hotels also but
in vain. When the whereabouts of Abhishek
remained untraced till the morning of
28.11.2003 i.e. the next day of Abhishek's
disappearance, the informant lodged a
written report at P.S. Nai Mandi, Muzaffar
Nagar on 28.11.2003 at 9.15 a.m. narrating
all the aforesaid facts and expressing therein
his apprehension about abduction of his son
for ransom by all the accused/appellants. In
the F.I.R. itself he also mentioned the names
of villages of appellants Rajesh and Aashu as
Kasba Jansath and village Aadampur, P.S.
Khatauli,
district
Muzaffar
Nagar,
respectively.
4. On the basis of the aforesaid
written report (Ext. Ka. 1), a criminal case
was registered at Crime No. 541 of 2003
at P.S. Nai Mandi, District Muzaffar
Nagar under Section 364 I.P.C. against all
the appellants. Check F.I.R. (Ext. Ka. 4)
was prepared and the investigation got
started. The I.O. obtained a photograph of
deceased Abhishek from the informant
(Material Ext. 1) and searched for all the
accused persons named in the F.I.R. but
none of them was found at his residence.
The I.O. then recorded the statements of
witnesses Pramod Sharma and Rakesh
Agrawal who had lastly seen the deceased
Abhishek in the company of accused
persons. The I.O. reached Swagat Hotel
with the photograph of Abhishek and
enquired from the hotel employees, who
informed the I.O. to have seen Abhishek
on 27.11.2003 when he was going
towards room no. 209 of hotel. The I.O.
checked the hotel register and found that
room no. 209 was booked in the name of
some Rohit Gupta, resident of 208/7,
Lohia Nagar, Ghaziabad at a rent of Rs.
400/- per day, having its check-in time at
10.15 a.m. on 26.11.2003 and check out
time at 3.00 P.M. on 27.11.2003. The
hotel register was taken into custody and
its recovery memo (Ex. Ka. 21) was
prepared. However, on verification, the
name and address of occupant of room no.
209 i.e. Rohit Gupta was found to be fake
and false. The verification report of
identity of Rohit Gupta is available as Ex.
Ka. 38 on the record.
166
 INDIAN LAW REPORTS ALLAHABAD SERIES
5. On 28.11.2003, the I.O. once
again visited Kasba Jansath in search of
appellants but with no result. Ultimately,
on the information of a "Mukhbir", the
appellants Rajesh, Aashu and Vikas were
arrested by the I.O. from the bus stand of
Kasba
Jansath
in
the
morning
of
29.11.2003,. At the time of their arrest,
the informant Pradeep Garg - the father of
deceased
alongwith
several
other
residents of Jansath Kasba also reached
there. On enquiry, the aforesaid appellants
confessed their guilt in presence of
informant and the public gathered at the
spot. They informed the I.O. that on
27.11.2003 they had kidnapped Abhishek
and had taken him to room no. 209 of
Swagat Hotel, giving him allurement of
showing
some
pornographic
movie.
Appellant Arvind Saini was also with
them. On reaching the hotel room they
bolted the room from inside. They had an
intention to take at least Rs. 10 lacs from
Abhishek's father as ransom. When
Abhishek tried to run outside the room
apprehending something fishy, all of them
overpowered him. They caught hold of
him and made assault on his neck by a
scissor. As a result of injury, Abhishek
became unconscious. Then they dragged
him inside the bathroom attached to the
hotel room. Inside the bathroom, they tied
his hands and legs with a rope and then
they chopped off his body into two parts.
Thereafter, they kept both the parts in two
separate polythene bags and packed the
polythene
bags
into
two
suitcases.
Accused Rajesh Saini had already booked
a taxi from 'Shikhar Car Service' which
was an Amabassador Car No. UGA 8551
with its driver Saleem. They kept those
suitcases into its dicky and the taxi drove
towards
village
Khatauli
with
the
appellants Rajesh and Arvind. At Khatauli
they threw the mobile phone of deceased
Abhishek into Ganga canal after breaking
it. Arvind Saini alighted from the taxi at
the gate of Railway Crossing, Khatauli
and
proceeded
towards
his
village
Adampur. Rajesh Saini took both the
suitcase to his shop "Sunny Cloth House"
situated at Kasba Jansath. Co-accused
Vikash Sharma and Aashu Gupta had
already reached at that shop. Rajesh
Saini's real brother accused Raj Kumar
and cousin brother accused Kailash were
also present there. All of them emptied
the suitcases inside the shop. They kept
both the polythene bags containing two
parts of dead body alongwith other
incriminating articles in two separate
plastic sacks. At about 8.00 P.M. Rajesh
brought a tractor. Those sacks were taken
to the jungle by that tractor and were
buried down under the sugarcane fields of
Vishnu Sahai and Dinesh Kamboj.
6. On the aforesaid confessions of the
appellants Rajesh, Aashu Gupta and Vikas
Sharma, the police took them to the cane
fields of Vishu Sahai, where at about 10.30
A.M. accused Rajesh Saini dug out the
loose soil from a place and took out a
plastic sack having a zipped bag inside it.
When the zip of the bag was opened, the
upper part of Abhishek's body was found
inside it which was identified by informant
Pradeep Garg as that of his son Abhishek.
One pair of shoes, jeans with belt, one shirt
with one front button missing, one sandow
baniyan, all blood stained, one pair of
scissors, 3 blades of wood cutter ('aari')
alongwith one blood stained "Aari" one pair
of new plastic gloves and one pair of used
plastic gloves, one used piece of soap and a
plastic rope were also recovered from the
bag (material ex. 2 to 21 on the record).
After that the accused Vikas Sharma, Aashu
Gupta and Rajesh Saini pointed out towards
the field of Dinesh Kamboj situated at the
1 All. Vikas Sharma @ Moni & Anr. Vs. State of U.P.
167
other side of 'Mend' stating that the other
part of body was buried in that field. The
police took accused Aashu Gupta and Vikas
Sharma to the field of Dinesh Kamboj
where both of them after removing the loose
soil from a place took out a while polythene
bag. Inside that bag the lower part of
Abhishek's body was found tied with a
nylon rope, which was also identified by the
father as that of his son.
7. On recovery of both the parts of
dead body of Abhishek, sections 302 and
201 of I.P.C. were added in this case. The
recovery memo Ex. Ka. 2 and Ka. 3 were
prepared on which the signatures of all
the three accused appellants, at whose
instance the recovery was made and the
signatures of witnesses were obtained.
The inquest proceedings were conducted
and the body was sent for post-mortem
examination.
8. The post-mortem examination of
the dead body was conducted on
29.11.2003 at 7.30 P.M. by two doctors.
9. Post-mortem report (Ex. Ka. 6)
reveals that on external examination of
the dead body the doctor found that it was
a well built body kept in two halves in
two separate transparent white plastic.
10. The horrifying description of
ante-mortem injuries, according to the
post-mortem report is as follows :-
I. Incised wound 13 X 2.5 cm.
trachea deep on right side of neck 6 cms.
connected from thyroid cartilage in front
of neck and to the right side of neck from
middle of chin in front 5 cms. below from
right ear where trachea is present. All soft
tissues muscles, trachea oesophagus and
right carotid artery are cutted through and
through. Clotted blood is present in all
injury.
II. Incised wound 38 x 22 cms. X
through and through on mid of abdomen 2
cms. above from unblinking 10 cms.
below from zyphord angle. All soft tissue,
muscle, abdomen and scera are cutted
through and through, Lumber vertical also
cut through and through clotted blood is
present in all injury.
The external examination report is as
under : -
Well built body. Body is received in
two separate sealed clothes and in two
halves. On opening seals body found in
two halves. On opening sealed clothes
both halves are found in two separate
transparent white plastic two pieces.
Upper half
Eye close. Tongue protruded out
slightly and clinches in between both jaws
teeths. a frothy blood is coming out from
nostrils. A fiber rope is tied around neck
and left wrist. A red thread is tied on
around right wrist.
Lower Half
A rope of same caliber ( Rassi joot ki )
is tied on both upper part of thigh and both
ankle both knee were bending with the help
of rope. Internal viscera are visible on both
halves. Rigor mortise is absent on all over
body. Dried blood smear is present on all
over body at place and with green colour.
Visible viscera and cuted muscles are
smeared noted on with green eye colour. A
tuft of black hairs are present in both hands
finger which are sealed packet and from
scale hair are sealed in second packet.
11. The cause of death was found to
be shock and haemorrhage as a result of
antemortem injuries.
168
 INDIAN LAW REPORTS ALLAHABAD SERIES
12. It is nghoteworthy that the
doctor while conducting post mortem,
also found black human hairs entangled
inside both the clenched fists of deceased
Abhishek. The doctor opened the fists and
kept those hairs in a sealed envelop for
sending it for forensic examination. The
hair samples of appellants Rajesh, Vikas,
Aashu and Arvind were also taken for
comparison with those hairs and sent to
FSL, Agra in separate envelops. Some
hairs, found inside room no. 209 of hotel
during search, were also sent for chemical
examination. The report of FSL, Agra is
Ex. 65 on the record. According to which
blood stains were found on the hairs
found from the closed fists of deceased.
However, no definite opinion could be
given about the similarity of those hairs
found inside the fists of deceased with
those of appellants. All those samples of
hairs kept in separate envelops were
produced in the Court during trial and
were marked as material exhibits 28 to 31.
13. At the instance of appellants
Rajesh, Aashu and Vikas the suitcases
were recovered from the godown situated
at the basement of "Sunny Cloth House".
Both the suitcases were produced in court
and were marked as material Exs. 32 and
33. The recovery memo of suitcases
having
signature
of
appellants
and
witnesses is Ex. Ka. 9 on the record.
14. From the almirah kept in room
no. 209 of the hotel, the I.O. recovered a
button with black thread in its holes,
having resemblance with the remaining
buttons of the shirt of the deceased which
he was wearing at the time of his death
and which was recovered with his dead
body with one front button missing. One
blood stained hanky was also found in the
hotel room. From the bathroom attached
to room no. 209, one blood stained blade
of 'aari' was recovered which had been
kept hidden behind the cistern of its
commode. The pieces of blood stained
tiles and blood stained wooden door were
also taken into possession by the I.O. The
recovery memo of all these articles having
signature of appellants and the witnesses
is Ex. Ka. 20 on the record.
15. On 30.11.2003 the fingerprint
expert Dr. Rajendra Singh collected finger
prints from the dressing table, wooden,
almirah, stainless steel kettle, T.V. Stand,
the mirror of dressing table and washbasin
of room no. 209 in presence of the
witnesses and the I.O. who prepared its
memo (Ex. Ka. 18). The site plan of the
hotel room and bathroom attached to it
was also prepared by the I.O. which is Ex.
Ka. 32 on the record.
16.
The remaining accused persons
Kailash, Arvind and Raj Kumar were
arrested on 2.12.2003 from Hindustan Petrol
Pump, Jansath. During search a ring made of
yellow metal having the name 'Lovey'
engraved on it, was recovered from the pant
pocket of appellant Arvind.
17. The site plan of place of arrest
was
prepared
Accused
Rajkumar
informed that the CD player he had
brought to hotel for the purpose of
showing pornographic movie to deceased,
had been concealed by him as per
instructions of accued Rajesh. At the
instance of accused Rajkumar, the I.O.
recovered one Sony CD player, material
(Ex. 80), a remote (material Ex. 82), a
converter (material Ex. 81), wire material
(Ex. 83 to 86) and recovery memo of all
these articles Ext. Ka. 112 was prepared
on which the signatures of accused Raj
Kumar and witnesses were obtained.
1 All. Vikas Sharma @ Moni & Anr. Vs. State of U.P.
169
18.

On
conclusion
of
the
investigation, the I.O. submitted chargesheet against 6 persons including the
appellants. The case being exclusively
triable by the court of Sessions, was
committed to it where charges under
sections 364, 302 read with Section 34
and 201 of I.P.C. were framed against the
appellants. Charge under Section 201 was
framed against accused Raj Kumar and
Kailash for aiding the appellants in
concealing the dead body. All the accused
persons denied the charges and claimed
their trial.
19. During trial, the prosecution, in
order to prove its case examined 13
witnesses in all. Apart from it, 68
documents (Ex. 1 to 68) and 132 articles
(material Ex. 1 to 132) were also
produced in Court by the prosecution in
support of oral testimony of the witnesses.
20. After conclusion of prosecution
evidence
the
statements
of
accused/appellants under Section 313
Cr.P.C. were recorded in which the
appellants admitted the fact that Vikas
Sharma was working as typist at Tehsil
Court Jansath where the informant
Pradeep Kumar Garg used to practice as
an advocate. They also admitted that the
samples of their hairs and finger prints
were taken before CJM but all of them
denied the remaining allegations and
counter allegations and alleged their false
implication by the police. All of them also
alleged that the police forcibly compelled
them to confess their guilt.
21. In their defence, the appellants
produced one defence witness Vinay
Kumar
as
DW-1.
As
documentary
evidence photocopy of Newspaper "Royal
Bulletin" dated 29.11.2003 and photocopy
of
newspaper
"Amra
Ujala"
dated
29.11.2003
was
produced
by
them
challenging the date and time of their
arrest and recovery at their instance as
doubtful. Apart from the above mentioned
documents photo copies of some letters of
police officers and original receipt of
registered letters sent to Human Rights
Commission were also filed by the
appellants.
22. The learned court below, after a
detailed
appreciation
of
evidence,
adduced by both sides, found the
prosecution case reliable and worthy of
credit. Accordingly it held all the
appellants guilty and convicted them
under Section 302/34, 364 and 201 of
I.P.C. The appellants were awarded death
sentence alongwith fine of Rs. 20,000/-
for their conviction under Section 302/34.
The sentence of life imprisonment and
fine of Rs. 10,000/- under Section 364
I.P.C., in default of fine two years
additional R.I. and 7 years R.I. with fine
of Rs. 10,000/- under Section 201 and in
default of fine 1 year additional R.I. was
awarded to all the appellants.
23. Being aggrieved by their
conviction and sentence the appellants are
before us, challenging the legality and
correctness of the judgment and praying
for their acquittal.
24. The points for determination in
this appeal are : -
(a)
As the instant case rests on
circumstantial evidence whether all the
circumstances have been fully proved and
established by the prosecution in such a way
so as to form a complete chain pointing
only towards the guilt of appellants and
towards no other hypothesis ?
170
 INDIAN LAW REPORTS ALLAHABAD SERIES
(b) Whether the trial court has rightly
appreciated the evidence while arriving at
the decision of conviction ?
(c) Whether the death sentence
awarded by the trial court is excessive ?
25. As point nos. a and b are inter
related, therefore, we are discussing both
these points together.
26. Before dealing with the issues
involved in aforesaid points, it is
considered expedient to have a birds eye
view of the statements of relevant
prosecution witnesses.
27. The prosecution, in order to
prove its case, has produced 13 witnesses
in all, out of which 8 witnesses are of fact
and the remaining are formal.
28. Pradeep Kumar Garg who is the
father of the deceased and the first
informant has been produced as P.W. 1,
who has supported the prosecution case by
his
oral
testimony
stating
that
on
27.11.2003 he had left for Tehsil Jansath,
as per his usual routine. At about 3.30 P.M.
his wife rang him up on his office phone
no. 234491 and informed that Vikas
Sharma had come sometime after his
leaving for his office and he had taken
away Abhishek with him, but Abhishek
had not yet returned. She also informed
that Abhishek had not even gone to his
school. When she tried to contact
Abhishek on his mobile number, she did
not get any response. Hearing this, the
informant immediately rushed to the seat
of Vikas Sharma at Tehsil Court, Jansath,
but Vikas Sharma was not found on his
seat. Then he rushed to the house of Vikas
Sharma where his mother informed that
Vikas had not come to home since
yesterday. Thereafter, the informant went
to his home situated at Jansath from where
he took his younger brother Manoj Garg
with him and returned to his home at
Muzaffar Nagar. On returning home when
he again asked from his wife and daughter
whether Abhishek had returned or not,
both of them while weeping replied in
negative. The informant and his wife
proceeded to search their son on a
motorcycle. During search his brother-inlaw Rakesh Agarwal informed him that
when he was going to his shop in the
morning he had seen Abhishek at about
10.00 A.M. going towards "Prakash
Chowk" with appellant Vikas Sharma. The
informant reached "Prakash Chowk" and
tried to search his son. From "Prakash
Chauk" he proceeded towards Mahavir
Chowk. At Mahavir Chowk Advocate
Pramod Sharma and one Anuj Kumar
informed him to have seen Abhishek
standing in front of Swagat Hotel along
with Vikas Sharma, Rajesh Saini, Arvind
and Aashu Gupta. PW-1 has stated that he
knows the appellants Rajesh Saini, Vikas
Sharma and Aashu Gupta since prior to the
occurrence. Pointing out towards the
appellants present in the court and
identifying all of them as accused persons,
PW-1 has further stated that thereafter he
went to Swagat Hotel along with his wife,
but failed to get any information about his
son. Leaving his wife at home he again
went to tehsil Jansath and on the same
night he visited the houses of appellants
Aashu Gupta, Rajesh Saini and Vikas
Sharma, but no one was found at his house.
Therefore, the informant returned to
Muzaffar Nagar. Next day i.e. on
28.11.2003 early in the morning at about
5.00 A.M. he once again reached Jansath
and visited the houses of appellants Rajesh
Saini, Vikas Sharma and Aashu Gupta
situated at Jansath but neither any of them
were found nor any information was
1 All. Vikas Sharma @ Moni & Anr. Vs. State of U.P.
171
received about informant's missing son.
The informant, under the apprehension that
his son Abhishek might have been
kidnapped for ransom by the appellants
because of his sound financial condition
and apprehending that his son's life might
be in danger, went to Police Station Nai
Mandi and lodged a written report (Ex. Ka1) at 9.15 A.M.
29.
PW-1 has further stated that he
had informed the police that at the time of
occurrence Abhishek was wearing a gold
ring having the word "Lovey" engraved on
it, Abhishek was aged about 18 years and
he was a student of Class XI. The police
had come to his house and had interrogated
his wife and daughter and had prepared the
site plan of his house. He had also given a
photograph of Abhishek to the police
(Material Ext. 1). He has further stated that
on 29.11.2003 at about 8.00-9.00 A.M. he
started from his house and when he
reached at the road proceeding towards
Kasba Jansath, he saw large number of
crowd gathered at the road. He was
informed that the police had arrested
Rajesh Saini, Vikas Sharma and Aashu
Gupta. On reaching there he saw all the
three appellants in police custody. When
the police inquired from the appellants
about the occurrence, they jointly disclosed
that they had abducted Abhishek for
ransom and had killed him inside the room
no. 209 of Swagat Hotel. They further
informed that Arvind Saini was also
involved in the murder of Abhishek. The
appellants told that they had chopped off
Abhishek into two parts and had buried
down both the parts of his body separately
into the sugarcane fields of Vishnu Sahai
and Dinesh Kamboj. While confessing
their guilt the appellants Rajesh, Aashu and
Vikas stated that they could help the police
to recover the dead body from those fields.
30.
P.W. 1 has further stated that
after such disclosure, the police took the
appellants by its jeep to the fields of
Vishnu Sahai where the appellant Rajesh
Saini dug the loose soil from a place first
from his hands and then by a spade and
took out a white plastic sack, when the
sack was opened a zipped bag was found
inside it. On opening its zip, the upper
part of the dead body of Abhishek was
found inside it wrapped in a transparent
polythene sheet. Besides it, the clothes of
deceased Abhishek including a blue jeans
a shirt having white, light brown and blue
coloured checks with one front button
missing, a belt, a vest, shoes, one saw
(aari) along with three blades having
blood stains, one pair of scissors, one pair
of new gloves and one pair of used gloves
having blood stains were also found in the
bag. On seeing his son's body he started
crying and identified his son's body.
Thereafter, appellants Vikas Sharma and
Aashu Gupta were taken to the fields of
Dinesh Kamboj where after removing the
loose soil from a place one more white
sack was taken out, inside which the
lower part of the body of Abhishek was
found wrapped in a transparent polythene
sheet having blood stains all over it. The
recovery memo of all articles and the
dead body was prepared by the I.O. and
the signatures of appellants Rajesh Saini,
Vikas Sharma and Aashu Gupta and also
his signature, were taken on recovery
memo. PW-1 has proved these recovery
memos in the Court as Ex. Ka-2 and Ex.
Ka-3.
31. This witness (PW-1) has faced
lengthy and grueling cross examination
by several learned defence counsels
appearing
for
different
accused
appellants. During cross examination he
has admitted that he had not received any
172
 INDIAN LAW REPORTS ALLAHABAD SERIES
call from the appellants demanding any
ransom. He has also admitted that the fact
that his son Abhishek was killed inside
hotel room had come to his knowledge for
the first time by the confessional
statement of appellants.
32. PW-2 Anshu Garg, mother of the
deceased Abhishek, in her statement has
stated that on 27.11.2003 at about 8.45
A.M. typist Vikas Sharma alias Moni had
come to her house and asked her to send
Abhishek with him stating that he would
come back after sometime. Her husband, as
per his usual daily routine, had gone to
Tehsil Jansath for practicing. As she was
not feeling well, she had asked Abhishek to
take leave from his school. Her daughter
Abhilasha Garg had gone to her school. At
about 9.15 A.M. she went to sleep after
taking some medicine. Thereafter she woke
up at about 2.45 P.M. and found that
Abhishek had not yet returned. She tried to
contact on Abhishek's mobile number by
the mobile phone of her landlord, but his
phone was found switched off. When her
daughter returned from school she told her
about Abhishek. She again called on his
mobile phone, but still it was found
switched off. Thereafter, PW-2 has narrated
the same facts, as stated by PW-1.
33. PW-3 is Anuj Kumar, who was
working as a Deed Writer at Tehsil
Jansath at the time of occurrence. He is
the witness who has seen the deceased
lastly in the company of appellants Vikas,
Aashu and Rajesh. He has stated that on
27.11.2003,
he
alongwith
Pramod
Sharma, Advocate, was going on a
rickshaw
when
they
saw
deceased
Abhishek alias Lovey standing with
appellants Vikas Sharma, Aashu Gupta,
Rajesh Saini and Arvind Saini in front of
Swagat Hotel. He has stated that he
knows all these accused appellants since
prior to the occurrence. PW-3 has further
stated that when they were returning from
Kutchehry at about 6.30 P.M. he met
Pramod Sharma, Advocate, near Prakash
Chowk and both of them proceeded
towards Mahavir Chowk on a rickshaw.
At Mahavir Chowk they met Pradeep
Garg, Advocate, and his wife coming
slowly on a motorcycle. Both of them
were appearing tensed and perturbed.
Both of them told that they were
searching for their missing son Abhishek
and he (P.W. 3) informed them to have
seen Abhishek in the company of
appellants. PW-3 has further stated that
on the next day i.e. 28.11.2003 at about
7.00 A.M. Pradeep Garg had come to his
house and had asked him to accompany
him to police station for lodging the
report. Reaching at Police Station Mandi,
Pradeep Garg wrote the F.I.R. in his own
handwriting and gave it to "Diwanji".
34. PW-4 Constable Clerk Jagbeer
Singh, who has prepared the check F.I.R.
(Ex. Ka-5). He has stated that at 9.15
A.M. on 28.11.2003 he was on duty when
on the basis of a written report lodged by
Pradeep Kumar Garg, Advocate, he
prepared the F.I.R.
35. PW-5 is Dr. R. Dayal, who has
conducted
the
postmortem
of
the
deceased. He has stated about the ante
mortem injuries and the articles received
with the dead body of Abhishek and also
about the hairs found his closed fists. He
has proved the post-mortem report ( Ex.
Ka. 6).
36. PW-6 Rakesh Kumar Agarwal, is
the second witness of "last seen" evidence.
He is also a witness of recovery of dead
body. He has stated that on 27.11.2003 he
1 All. Vikas Sharma @ Moni & Anr. Vs. State of U.P.
173
was going towards his shop situated at
Sanjay Marg, Patel Nagar. At about 10.00
A.M., when he reached in front of roadways,
he saw Abhishek going towards Prakash
Talkies along with Vikas Sharma. He has
further stated that at 6.00 P.M. on the same
day when he was sitting in his shop, his
brother-in-law Pradeep Garg and his wife
Ansu came to his shop on a motorcycle
searching their son Abhishek. He had
informed them that when he was going to his
shop, he had seen Abhishek at 10.00 A.M. in
the company of appellants. PW-6 has further
stated that on 29.11.2003 when they were
searching Abhishek at Tehsil Jansath and had
reached at the bus station of Tehsil, they saw
a large crowd gathered there and found that
the police had arrested Rajesh Saini, Ashu
Gupta
and
Vikas
Sharma.
He
had
accompanied the appellants and police to the
field of Vishnu Sahai and had witnessed the
recovery of two parts of body of Abhishek
from the fields of Vishnu Sahai and Dinesh
Kamboj at the pointing out of the appellants.
He has further stated that the inquest of dead
body was conducted before him. He was also
a witness of inquest. He has identified his
signatures on inquest report (Ext.Ka-7). He
has
further
stated
that
the
inquest
proceedings were started at about 1.00 P.M.
and were concluded at about 3.30 P.M.
37. PW-7 S.L. Lawaniya is the first
I.O. of this case who has stated that the
case was registered on 28.11.2003 in his
presence. He recorded the statement of
informant Pradeep Kumar Garg at the
police station and thereafter went to the
house of informant and recorded the
statements of Abhishek's mother and
sister. He prepared the site plan (Ex. Ka8) and interrogated the complainant's
landlord Sri Satya Narain Agarwal and
also some of his neighbors. Thereafter,
the investigation of this case was taken up
by
Inspector
B.P.S.
Solanki.
On
29.11.2003, he came to Muzaffar Nagar
along with Inspector Solanki and recorded
the
statements
of
witnesses.
On
29.11.2003 at about 10.00 A.M. on the
information
of
some
'Mukhbir'
the
accused Aashu Gupta, Rajesh Saini and
Vikas Sharma were arrested from the Bus
Stand of Jansath and all of them
confessed their guilt before the huge
crowd gathered at the bus station. The
relevant part of the statement of P.W. 6 (
the first I.O. ) is extracted below :
".....Lkcsjs djhc 10-00 cts fn0 29-11-2003 dks
eq[kfcj }kjk lwpuk feyh esjs lkeus feyh FkhA fd
eqyfteku vk'kq xqIrk] jkts'k lSuh fodkl 'kekZ tkulB cl
vM~Ms ij [kM+s gSA rqjUr ge yksx ogkW igWqps mijksDr rhuks
eqyfteku dks idM+ fy;k iwNrkN dks rks rhuks us
lkoZtfud :i ls HkhM+ bdV~Bk gks x;h Fkh HkhM+ ds lkeus
crk;k Fkk eqyfteku us crk;k fd fn0 27-11-2003 dks ge
rhuksa vkSj vjfoUn lSuh gR;k es 'kkfey FksA Lokxr gksVy es
gR;k dj 'ko dks nks fgLlks es dkVdj nks vyx &2
lwVdslksa es Hkjdj tulB ds taxy esa nck fn;k gSA og
txg ge py dj crk ldrs gSA bl lwpuk ij ge
mijksDr rhuks eqyfteku dks lkFk ysdj tkulB ds taxy
eas jkejkt okys jksM ij fo".kq lgk; o fnus'k dkEckst ds
[ksrksa es ys x;s] ogkW vkxs vkxs pydj vfHk;qDrksa us e`rd
vfHk"ksd dk 'ko nks fgLlkas esa /kM+ okyk fgLlk fo".kq lgk;
ds bZ[k ds [ksr ls o iSjks okyk fgLlk fnus'k dkEckst ds
[ksr ls djhc 10&30] 11-00 cts fnu cjken djk fn;s FksA
QnZ cjkenxh bUlisDVj lkgc us cukbZ FkhA tks ekSds ij
cukbZ Fkh esjs Hkh gLrk{kj djk;s FksA yk'k ds vykok yk'k ds
lkFk IykfLVd dk cSx vkfn lkeku tks cjken gqvk FkkA
mldh QnZ vyx ls cukbZ FkhA rFkk xokgku ds nLr[kr
Hkh djk;s FksA eqyfteku rhuks dks dkih nh FkhA ge iqfyl
deZpkjhx.k 3-00 cts rd ekSds ij jgsA -----------. vfHk;qDrks
dh fu'kkunsgh ij dLck tkulB ls jkts'k lSuh dh nqdku
ls lUuh DykFk gkml ls nks lwVdsl cjken djk;s FksA
ftues e`rd ds 'ko dks j[kdj ys x;s FksA lwVdslksa dh
QnZ cuk;h FkhA esjs nLr[kr djk;s FksA lhy gqbZ eksgj fd;s
FksA ftl ij QnZ esjs lkeus gS ftl ij bDt d&9 Mkyk
x;kA eqtfteksa dks QnZ dks udy nh FkhA jkr esa ge Fkkus
ubZ eaMh igWqps eqyfteksa dks Fkkuk ys vk;kA lcsjs djhc 715 cts eqyftekas dks jkts'k lSuh fodkl 'kekZ o vklq xqIrk
dks Lokxr gksVy esa ysdj vk;s mUgksus gksVy crk;k dejk
ua0209 crk;k mldh fu'kkunsgh dh ftldh QnZ cuk;h
QnZ ij esjs gLrk{kj gSA fnukad 30-11-2003 dks lcsjs ge
174
 INDIAN LAW REPORTS ALLAHABAD SERIES
Lokxr gksVy esa vk;s FksA isij ua0 10@5 ij esjs nLr[kr
gS ftlij bDt d&10 Mkyk x;kA mlds ckn gksVy es gh
VsyhQksu ls lwpuk nsdj ,Q-,l-,y- dh Vhe cqyk yh FkhA
fQj eSa okil vk x;k FkkA fQj fnukad 2-12-2003 dks eS
izHkkjh fujh{kd ds lkFk rQ~rh'k o 'kkfUr O;oLFkk esa
vyekliqj pkSjkgs ij FkkA ogkW eq[kfcj ls lwpuk feyh Fkh
fd eqyfteku vjfoUn lSuh dSyk'k o jktdqekj fgUnqLrku
isVaksy iEi ds ikl ckbZ ikl ij [kM+s gSA rks 'kke dks djhc
5-00 cts rhuksa eqyfteksa vjfoUn lSuh jktdqekj o dSyk'k
dks idM+ fy;k vfHk;qDrx.k dh tkek ryk'kh yh tkek
ryk'kh ij vjfOkUn lSuh ls lksus dh vaxwBh djhc 5 xzke
dh ftl ij yoh 1⁄4yoh1⁄2 fy[kk FkkA cjken gqbZA fxjQ~rkjh
o cjkenxh dh QnZ cukbZ FkhA esjs lkeus gSA ftl ij esjs
nLr[kr gSA eS f'kuk[r djrk gWwA ftl ij bDt d&11
Mkyk x;kA dkih eqyfteku dks nh FkhA mlh fnu vfHk;qDr
jktdqekj dks fu'kkunsgh ls jkts'k lSuh dks V;wcoSy ls 1030 cts lh-Mh- Iys;j o duoVZj cjken fd;k Fkk ftldh
QnZ bUlisDVj lkgc us cukbZ FkhA i<+dj eSus Hkh nLr[kr
fd;s Fks esjs lkeus eqyfte dks dkWih nh FkhA
38. P.W. 8 Mohd. Salim is the a taxi
driver on whose Ambassador Car No. UJA
6551, the dead body of Abhishek was carried
in two suitcases from Swagat Hotel to the
shop of appellant Rajesh Saini "Sunny Cloth
House" situated at Kasba Jansath. The
statement of P.W. 8 is reproduced as under :-
"eSa dkj Makboj gWwA esjh viuh dkj gaS tks gS
f'k[kj dkj lfoZl ls gSa blh esa pykrk gWwA 27-11-2003
dks esjh xkM+h ok;k [krkSyh gksrs gq;s tylk ds fy;s cqd
gqbZ FkhA 'kke ds 4-1@2 & 5 cts eS viuh VSDlh ;w-ts-
,- 6551 vEcsLkMj dkj ysdj Lokxr gksVy ij igWqpk
FkkA Lokxr gksVy ds ckgj gh nks cSx j[ks FksA eSus
fMXxh [kksy nh mUgksus j[k fn;kA ,d yM+dk cSx ds
ikl ckgj gh [kM+k FkkA ,d xkM+h cqd djds yk;k FkkA
mUgksus cSx esjh xkM+h dh fMXxh es j[ks FksA esjs iwNus ij
mUgksus crk;k Fkk fd ge diM+k o dqN osVjksa dk lkeku
ysdj tk jgs gSA eSa lkeku o nksuks vknfe;ksa dks ysdj
[krkSyh x;kA [krkSyh vkrs gq, lqxM Pkqaxh ds ikl :ds
FksA mUgksus ogkW FkSys fy;s FksA ,d yM+dk [krkSyh QkVd
ij mrj x;k FkkA jsyos ds QkVd ds ikl mrjk FkkA
nwljs dks ysdj eS tkulB x;k FkkA tkulB esa cktkj
esa diM+s dh nqdku ij igWqps Fks] diM+s dh nqdku ij og
vkneh mrj x;k FkkA rFkk nksuksa cSx Hkh ogha mrkj fy;s
FksA blds ckn eS xkM+h ysdj eqtQ~juxj vk x;k FkkA
jkLrs es eq>s fdlh dk uke irk ugh pyk FkkA os vkil
esa fj'rsnkj Fks eq>s vc /;ku ugh fd bues D;k fj'rsnkjh
FkhA xokg us nksuks cSx ns[kk Fkk dgk fd ;s gh os cSx gSa
tks esjh xkM+h esa Lokxr gksVy ls tkulB dks x;s FksA
oLrq izn'kZ 32 o 33 Mkys x;sA"
39. P.W. 9 Manoj Kumar is the
photographer who had taken photographs
of the dead body at the time of its
recovery from the fields of Vishnu Sahai
and Dinesh Kamboj. He has proved the
photographs and their negatives in the
court and all those have been marked as
material as Exs. 34 to 59.
40. P.W. 10 is Zaheear Shah who is
a witness of recovery of two suitcases
from the shop of appellant Rajesh Saini.
Some relevant part of his statement is
reproduced below :
....."fnukad 29-11-2003 dh ckr gS 'kke djhc
4] & 4-1@2 cts dk okdk gS eS tkulB esa vius
fj'rsnkj b'R;kd ds ;gkW tk jgk Fkk tkulB cktkj
esa feBkbZ dh nqdku ls feBkbZ [kjhnus yxk blh chp
,d iqfyl dh xkM+h vk;h mles rhu eqyfte ftuds
uke jkts'k lSuh vk'kq xqIrk o fodk'k 'kekZ tks
gkftj vnkyr iqfyl dh fgjklr esa FksA iqfyl thi
ls mrj dj jkts'k lSuh viuh diM+s dh nqdku ij
x;k vkSj nqdku ls nks cM+h vVSph ftues ,d dkQh
cM+h Fkh ,d NksVh Fkh fudkydj yk;k vkSj crk;k
fd bUgh vVSfp;ksa esa odhy lkgc ds yM+ds dh yk'k
nks VqdM+s es Hkjdj yk;s FksA 1⁄4vksCtsDVsM ckbZ fMQsUl
dkmafly1⁄2 iqfyl us ekSds ij gh fy[kr i<+r dh
FkhA esjs gLrk{kj ml ij djk;s FksA
.......QnZ bDt d&9 ns[kdj o lqudj xokg
us dgk fd ;gh og dkxt gS tks iqfyl us ekSds ij
fy[kk Fkk QnZ ij xokg us vius nLr[kr igpkusA"
41. P.W. 11 is S.I. Rajveer Singh.
He is the police official who has
conducted the inquest proceedings and
has sent the dead body for post-mortem.
He is also a witness of recovery of dead
body and recovery of tractor from the
house of appellant Rajesh Saini on which
the dead body was carried towards the
field of Vishnu Shai and Dinesh Komboj.
1 All. Vikas Sharma @ Moni & Anr. Vs. State of U.P.
175
He was posted at P.S. Jansath at the time
of occurrence and had accompanied the
police force to the place of recovery. He
has stated that as at the time of inquest,
both the fists of deceased were tightly
closed therefore he could not take out the
hairs although he had seen the hairs in the
fists of deceased.
42.
P.W. 12 is Dr. Rajendra Singh,
Scientist, Forensic Lab who has stated that on
receiving the telephonic call of Officer Incharge, P.S Mandi he reached at Swagat Hotel
on 30.11.2003 alongwith his team. Police
Inspector B.P.S. Solanki and some other
police officials, employees of hotel, accused
Vikas Sharma, Rajesh Saini and Aashu Gupta
and some people were also present at that time
at the hotel. He reached the room no. 209 of
Swagat Hotel and opened its lock. He has
further deposed that the accused Vikas
Sharma had informed that it was the same
room where they had chopped off the
deceased and kept the two parts of his body
into separate polythene covers and after that
into two suitcases. Thereafter they washed the
room. He has further stated that he inspected
the room and collected finger prints from the
almirah, dressing table, mirror, T.V. stand,
T.V. table, steel kettle and mirror of bathroom
etc.