State of U.P v. Counsel for

1. Heard Sri Anil Kumar Srivastava, learned senior counsel assisted by Sri Ram Bahadur, learned counsel for the appellant, Sri D.P.S. Chauhan, learned counsel for the informant, Sri G.N. Kannaujiya, learned AGA for the State and perused the record in Criminal Appeal No. 3720 of 2014. 1(a). Heard Sri Manu Khare, learned counsel for the appellant, Sri D.P.S. Chauhan, learned counsel for the informant, Sri G.N. Kannaujiya, learned AGA for the State and perused the record in Criminal Appeal No. 4105 of 2014.

2. The present criminal appeal has been preferred against the judgment and order dated 03.09.2014 passed by Addl. Sessions Judge Court No. 24, Kanpur Nagar, in Sessions Trial No. 555/2007 (State vs Alankesh Tripathi and another) whereby convicting and sentencing to the appellant, Dharmendra Singh Sengar, for life 2 CRLA No. 3720 of 2014 imprisonment with the fine of Rs. 25,000/-under section 302 I.P.C., and also convicting and sentencing the appellant, Dharmendra Singh Sengar, for period of 7 years of R.I. with fine of Rs. 5,000/, under section 201 I.P.C., both the sentences of the appellant shall run consecutively.

3. The prosecution case is that Umesh Kumar Diwedi, son of Shiv Kapil Diwedi, filed a missing report at Police Station- Panki, District- Kanpur Nagar on 18.10.2006 stating that his son, Shivanshu Diwedi, studies in Maharana Pratap Education Centre, Indrapuri, in class 12th. As usual on 14.10.2006, Saturday, at about 06:40 a.m., he left for the aforesaid Centre, but when he did not returned in the night. His search was made at the places of relatives and friends but his whereabouts could not be known. Because of the closure of the college on 15th, being Sunday, his friends and teachers also could not be contacted and hence the missing report of the son of the informant was made on 18.10.2006.

4. On the basis of the aforesaid missing report G.D. entry no. 50 was recorded at 18:25 hours on 24.10.2006 the case was converted under section 364-A I.P.C., and in G.D. No. 46 at 23:40 hours on 25.10.2006, the case was further converted under section 302/201 IPC.

5. Charge-sheet was submitted after due investigation by the investigating officer implicating the appellant under sections 364-A, 302, 201 and 120-B. The trial court framed charges against the appellant under sections 364-A, 302-B and 201 IPC. The appellant denied the charges and sought trial.

6. To prove the prosecution case P.W.-1, Umesh Kumar Diwedi(informant); P.W.-2, Arvind Kumar Shukla; P.W.-3, Munish Gupta; P.W.-4, Dr. Jaswant Ratnakar; P.W.-5, Sanjeev Katiyar; P.W.-6, Kundan Lal Nigam; P.W.-7, Brajendra Kumar Gupta; P.W.- 8, Praveen Kumar; P.W.-9, Sub-inspector, Mukesh Verma and P.W.-10, Pradeep Yadav.

7. The defence produced D.W.-1, Jagdamba Prasad Tripathi and D.W.-2, Jang Bahadur Singh, as defence witnesses.

8. The statements of the appellants were recorded under sections 313 Cr.P.C., wherein they denied the allegations made against them and claimed false implication.

9. P.W.-1 stated before the court that his son, Shivanshu Diwedi, was aged about 17 years. As usual he went to his college at 06:40 hours by boarding an auto. He did not returned after going to his school on 14.10.2006. When after search his whereabouts could not be known, he gave a missing report at police station, Panki, on 18.10.2006.

10. P.W.-2, stated before the court that he has a shop of tea, cold drink and P.C.O., near Gurudev Pallace. Maharana Pratap Education Centre is situated close to his shop and the son of P.W.-1 used to come to tempo stand near his shop for going to his 3 CRLA No. 3720 of 2014 school. He used to wait near his shop for other students to come and, thereafter, he used to go to his school on their bikes or bicycles or on foot from his shop. He used to consume tea or cold drink after stopping at his shop. He came to know of his name because once his money fell short and he asked his name and name of his school. On

14.10.2006 at about quarter past 07:00 a.m., Shivanshu, was sitting on the bench on his shop alongwith his school bag. He asked him to provide tea since he was getting late for school and had not taken tea at his home in the morning. While he was sitting in his shop a boy called him by name and the boy present in court, Alankesh, was the aforesaid boy. Thereafter, Shivanshu left with Alankesh for his school.

11. In cross-examination, P.W.-2, stated that earlier his father used to sit in the shop and for last 5 years he opens the shop at about 07:00 a.m. to 07:30 a.m., daily closes the same at 10:00 to 10:30 p.m. There are other shops situated over his shop on the upper floor. He stated that his shop was not registered with labour department. He stated the colour of the dress of the school of Shivanshu. In further cross-examination, he stated that on the fateful day Shivanshu was wearing a white pant, white shirt and shoes. He does not remembers the colour of his bag. He had taken his bag along. After leaving his bag, the boy with whom Shivanshu went was seen by him for the first time. He does not knows whether the boy, who called Shivanshu, gave him threat or brought him to his shop from his house. He denied that he informed investigating officer that Shivanshu requested him to provide tea since he has not taken tea from his house. He also did not informed the investigating officer that Shivanshu, came and after taking a gold flake cigarette as usual he started smoking. He never informed the investigating officer that Shivanshu used to take cigarette and smoke daily at his shop. He admitted that investigating officer inquired about his name and also about Shivanshu. He admitted that the investigating officer has shown him a small colored photograph of Shivanshu which is not before him in the court. He does not knows whether the investigating officer had made inquiry from any other person. Shivanshu had gone with a boy who was wearing white pant, blue shirt and white shoes. Shivanshu, had gone with him on foot. He came to know that Shivanshu is missing from newspaper after third or fourth day of the incident. He knows the father of the Shivanshu. He saw him when he was sticking posters about his missing son. He denied that on the last day, Shivanshu, has consumed tea at his shop. The boy who accompanied Shivanshu was wearing the school dress and Shivanshu informed him that he is student of his school. He denied that Shivanshu used to consume liquor, cigarette and was in wrong company.

12. P.W.-3, stated that he is student of B. Com-II year. On 14.10.2006, he was student of B.Com-I year. He knew, Shivanshu, since he was in class-12th. P.W.-3 was also in class 12th at that time in the same school. He used to visit Blessings Health Club where, Shivanshu, also used to come. He had a mobile phone which is in the name of his elder brother. At about 04:30 p.m., a boy named, Rahul, called him and asked him to give mobile phone number of Shivanshu since he is not coming to school for many 4 CRLA No. 3720 of 2014 days, but he did not gave him number, but he again called him on phone and then he informed him phone number of Shivanshu, but by mistake in place of 9838, he informed his number as 9839. Again in the night at about 08:30 p.m., the same boy made a call first on his landline phone and then on his mobile phone informing his name as Akshay. He again informed that his name, Akshay, and then he asked him whether he is Akshay or Rahul, he informed that Shivanshu is not taking phone and his mother is in hospital and if Shivanshu is there, kindly let him talk. Thereafter, he gave his phone to someone who said "hello" in the ruffian style. When he said Shivanshu, the ruffian stating that Shivanshu is with him and demanded phone number of Shivanshu. P.W.-3 informed him his number as per his memory. After two minutes the same person called back and stated that this number is wrong and asked him to inform his family members that they should arrange Rs. 15,00,000/-. In case he does not informs his family members he shall also be kidnapped and threatened that he will call after 3 days. Thereafter, he informed the father of Shivanshu and at 09:30 p.m., he came alongwith others. He gave his mobile phone to father of Shivanshu. After one or two days police came and made inquiry from him.

13. In cross-examination, P.W.-3 stated that he never studied in Maharana Pratap Education Centre, he has only seen it. He studied in another school in 2004 and Shivanshu was also admitted in the same school in class-10th. He met Shivanshu after one year of leaving the school. Shivanshu and P.W.-3 studied in Kanpur Education Centre which was a coaching centre. The aforesaid school used to function from 07: a.m. to 11-12:00 p.m. He alongwith Shivanshu used to visit Blessings Health Centre and they used to meet 2-4 days in a week. He met him for the last time in 2006, in the aforesaid health centre, but he does not remembers the date. Phone in the name of his brother was taken by the police. He was taken to the police station where the father of Shivanshu was also there. He had informed the investigating officer that father of Shivanshu come to his house one day ago. He has also informed the investigating officer that call had come on his phone at 04:30 p.m., and again in the night threatening him but if he did not mentioned the same in his statement, he cannot tell. He can tell direction of gate of Panki police station where he was taken. After Shivanshu got missing his father called him. By that time call of Rahul or Akshay had not come to him. He denied that he did not informed the father of Shivanshu about the demand of ransom amount on phone. He has informed the investigating officer that same boy called him and, thereafter, some ruffian also called him, but if he did not mentioned these facts in his statements, he cannot tell the reasons. He stated that he had taken membership of Blessings Health Centre and paid fees of Rs. 150. Whether Shivanshu had taken membership of the aforesaid centre or not, he does not knows. He denied that he is giving false statements before the court.

14. P.W.-4, The Autopsy Doctor, proved that the dead body which was given to him for post mortem was of Hindu male aged about 35 years. The deceased was of normal height and rigor mortis had passed from the upper and lower party of body. Post 5 CRLA No. 3720 of 2014 mortem stanning was also absent from the body. Skin and muscle were torn at different places. Maggots were in the body. Mouth and eyes were open. In the ante mortem injuries, one crush injury was found on the head of dimension 14 c.m. x 7 c.m., and another crush injury on the side of the head was found with underlying bone fracture. Brain was liquefied, lungs were liquefied, stomach was missing alongwith many other organs. The dead body was in very bad condition. He stated that he has mentioned the age of dead body of deceased as 35 years and it could be 17 also. He cannot say whether the deceased was strangulated to death or burnt to death because of the worst condition of the deceased body since there were no fracture on the hands and legs. The death could not have been caused by falling from train. He stated that the dead body was about 5 feet 6 inches in length.

15. In cross-examination the doctor stated that the dead body could be aged about 50 years also.

16. P.W.-5, investigating officer of this case, stated that he had interrogated appellant, Alankesh, and he accepted his guilt before him. The appellant, Alankesh, took him to his house and provided the books and copies of the deceased from his house. He also signed the recovery memo in the presence of witnesses. Thereafter, he alongwith S.H.O., Panki, Pradeep Yadav, went to the place pointed out by Alankesh and he got the remains of burnt clothes of Shivanshu, one pair of shoes, one beer bottle which were sealed and memo was prepared in the presence of the witnesses. He denied that the recovery memos were prepared in the police station during his cross-examination.

17. In cross-examination he stated that he does not remembers who were the other police personnels posted in Police Station- Panki, on 25.10.2006. He did not recorded any entry in G.D. regarding his movement. The appellant, Alankesh, was arrested on his confession when he had taken him to his house, his father, mother and sister were present in the house. He did not asked them to become witness because S.O. did not directed him to make them witness of the recovery of copy and books of the deceased. He proved the recovery memo before the court. He did not met the person who informed about the demand of ransom nor he talked about the mobile number where from the demand of ransom was made. He never went to the place where the deceased was kept after abduction.

18. P.W.-6, P.W.-7, P.W.-8 and P.W.-9 are formal witnesses and their testimonies do not requires to elaborate discussions.

19. First Investigating Officer,P.W.-10, testified before the court that the missing report dated 18.10.2006 was received by him while he was posted at police station, Panki, as S.H.O. He has stated that information was received that Shivanshu was kidnapped on the mobile phone of his friend, Munish Gupta, by an unknown accused and ransom of Rs. 15,00,000/- was demanded for freeing, Shivanshu. On the basis of aforesaid information, the case was converted under section 364-A IPC. He took the 6 CRLA No. 3720 of 2014 investigation on 24.10.2006. He recorded the statements of P.W.-1, informant and P.W.-3, Munish Gupta, who informed that call was made on his mobile phone on

17.10.2006 at about 04:30 p.m., and phone number of father of Shivanshu, was demanded. He informed the mobile number of father of Shivanshu. Again call was made at 08:30 p.m., and the caller informed him name as Akshay. Thereafter, P.W.-2, Arvind Shukla, was contacted at his shop and his statement was recorded. He identified the photo of Shivanshu. Search of appellant, Alankesh, was made. After getting information of the whereabouts of appellant, Alankesh, he was arrested. He admitted before him that he was friend of Shivanshu, both used to sit together. One girl, Deepika Tiwari, used to study in their class who had friendship with , Kamrendra Tripathi, of class-12-B. In the absence of Kamrendra Tripathi, appellant, Alankesh, was getting closer to aforesaid Deepak Tiwari, and Shivanshu made his complaint to Kamrendra. Thereafter, Alankesh, was beated by Kamrendra Tripathi, in the presence of the students of the school. He stated before the P.W.-10 that he committed the murder of Shivanshu with the help of appellant, Dharmendra. He took P.W.-10, to the place where he had strangulated Shivanshu to death and after pouring kerosene oil, burnt his dead body. He got the goods of Shivanshu recovered. He further stated that Dharmendra took the ration card of his sister, Mohini Tiwari, which was of Jung Bahadur. After changing the name over the ration card, he got the sim card issue and from the aforesaid sim card call was made to Munish Gupta on 17.10.2006. He took P.W.-10 to the place from where Shivanshu was abducted. Thereafter, Alankesh, took P.W.-10 to his house and got the i-card, copies and books of Shivanshu recovered from his house. The recovery memo was prepared where on the signature of P.W.-10 and Sanjeev Katiyar, and appellant, Alankesh, were taken. Site plan of recovery was also made. Thereafter, the place where from the remains of the clothes of deceased and empty bottle of beer was recovered, was shown by Alankesh to P.W.-10 and he made memo of recovery and also entry in this case. Thereafter, Alankesh, informed that he has kept the shoes and school bag of the deceased hidden in the bushes and it was got recovered on his point out. A bag having copies, books and geometry box of the deceased were recovered. His white P.T. shoes were also recovered on the pointing out of the Alankesh and recovery memo was prepared.

20. P.W.-10 further stated that the mobile number. 9936858024 was obtained on the basis of fabricated documents and ransom amount of Rs. 15,00,000/- was demanded from the aforesaid number. The aforesaid sim card was taken out by the appellant, Dharmendra @ Deepu, and was inserted in his mobile number 9935723510. I.M.I. No. of mobile set of Dharmendra was also recovered. Thereafter, the statements of the witnesses were recorded including the witnesses of the inquest report. The ration card which was manipulated for the purpose of getting the sim card by Alankesh was also recovered from the pointed out of appellant from his house. Jung Bahadur was the name of the father of the appellant, Dharmendra @ Deepu, and his ration card was misused for getting the sim card issued. 7 CRLA No. 3720 of 2014

21. After hearing the rival submissions, this Court finds that a written report dated

18.10.2006 was given to Police Station Panki, District Kanpur Nagar by Umesh Kumar Dwivedi stating therein that his son, namely, Shivanshu Dwivedi was a student of Class-12th, studying in Maharana Pratap Education Centre, Indrapuri. As usual, on

14.10.2006 (Saturday) he went to the school in the morning at about 06:40 a.m. he did not return home in the evening, whereupon a search was made with relatives and other acquainted persons but of no avail. Sunday being holiday, no information from his friends or teachers could be obtained. Thus, it was requested that the police may assist him looking into disappearance of Shivanshu Dwivedi. The description and of Shivanshu Dwivedi was that he was a 17 years of age, more than 5 feet tall, fair in colour, thin built, wearing white shirt, white pant, black socks and white shoes. He carried a black school bag and had also the school identity card. This report was numbered as "क-18". Umesh Kumar Dwivedi (first informant and P.W.-1) stated that at about 09:00 p.m. on 18.10.2006 one Munish Gupta (friend of Shivnashu) called him to inform that he had received a call demanding a ransom of Rs. 15 lakh for release of Shivanshu, his son. The said message was communicated to the first informant. P.W.- 1 has further stated that on publication of news of kidnapping of Shivanshu, some of his classmates came to console his family. They informed that one Karmendra Tripathi and Deepika were also studying with them. Karmendra had amorous feelings for Deepika. Alankesh Tripati(appellant) also liked Deepika. This fact was informed by Shivnashu to Karmendra, upon which Karmendra Tripathi and his friends assaulted Alankesh. Thus. altercation led to rustication of Karmendra Tripathi from the school. Later on, Alankesh Tripathi came to know that it was Shivanshu Dwivedi who had informed Karmendra of the above fact. On account of such conduct of Shivanshu, Alankesh Tripathi had threatened him of dire consequences. This fact was informed to the police. On 24.10.2006 implication under section 364-A IPC was added in this case by police. P.W.-10, S.I. Pradeep Yadav (Investigating Officer), has stated that during the course of investigation, the photograph of Shivanshu was shown to shops keeping on way to school, whereupon one, Arvind Shukla, recognized the photograph and said that this in photograph of Shivanshu. Arvind Shukla was examined as P.W.-2. Arvind Shukla has stated that his shop is situated near Maharana Pratap Education Centre and Shivanshu used to come to his shop. On one occasion, due to paucity of money, he had disclosed his name. On 14.10.2006 Shivanshu asked for a cup of tea and at the same time, he was called by another student. The boy who had called Shivanshu, appears to be Alankesh standing in the court. The said identification was objected by the defense. The boy who had called Shivanshu was standing at a distance of about 10-15 meters from him. S.I. Pradeep Yadav, has stated that efforts were made to find Alankesh and consequently they met his sister Poonam who was asked to ensure that Alankesh comes to the police station. During investigation, informer informed on 25.10.2006 that Alankesh Tripathi is present near Ruchi Guest House, Barra Bypass Crossing. Upon such information, the SOG team reached the said place and arrested Alankesh Tripathi. On the contrary, P.W.-5 S.I. Sanjiv Katiyar, Incharge SOG team, 8 CRLA No. 3720 of 2014 has stated that Alankesh was called from his house and thereafter when Alankesh came to the police station, he was arrested. P.W.-10 has further stated that Alankesh has in his statement, under Section 161 Cr.P.C., admittedly reiterated the episode with regard to Karmendra and Deepika and, thereafter, having killed Shivanshu with the help of co-accused, Dharmendra, and further that he held the legs of Shivanshu and Dharmendra strangulated him. He further stated that he can get the notebooks of Shivanshu recovered from his house, whereafter he allegedly took them to his house where the notebooks, school I.D. and a ration card were recovered. He further stated that he can show the place where the incident took place and thereafter took P.W.-10 to a place near a railway track where he pointed out that Dharmendra had strangulated Shivanshu hence who was lying down intoxicated and he has held his feet whereafter they burnt the dead body with petrol. From the said place, burnt clothes, empty bottle of bear were recovered. Upon such statement, steps were taken to find Dharmendra Singh Sengar alias Teepu (appellant). Upon information from informer, Dharmendra (appellant) was arrested from Moti Tiraha. P.W.-10, has further stated that Dharmendra (appellant) in his statement under Section 161 Cr.P.C. has admitted that Alankesh had informed of being humiliated on account of Shivanshu's act and that he could get the shoes, school bag of Shivanshu recovered. Thereafter, co-accused, Dharmendra, took them near a railway track where one raxine bag, geometry box, shoes etc., of deceased were recovered. It has also been alleged that after investigation the police relied on recovery of an unidentified body from the place of occurrence. The said dead body was recovered by a lineman. The post-mortem of the said body was conducted by P.W.-4, namely, Dr. Jaswant Ratnakar. The post-mortem report dated 22.10.2006 has been exhibited as क-2 and panchayatnama dated 21.10.2006 as " क-27".

22. We further find that in panchayatnama dated 21.10.2006 and in the post-mortem report the age of the deceased has been mentioned as 35 years. The injuries on the body of deceased have been mentioned as (i) crush injury on head 14x7 cm (ii) crush injury on head, left skull bone fractured. Reason of death are the anti mortem injuries. P.W.-4 has stated that the age of the dead body could also be 70 years or even 16 years. He has further stated that the injuries could have been suffered on account of falling from the train. He could not conclusively state that the cause of death of Shivanshu was by strangulation and thereafter the dead body was burnt. In fact, the dead body had decayed. P.W.-9, Sub-Inspector- Mukesh Verma ,stated that he was witness of panchayatnama conducted on 21.10.2006 and the information was given to him by a railway gangman. He has stated that the cause of death as mentioned by him was on account of injuries caused due to falling from the train. From the place of incident, no other incriminating material was recovered. No burnt residue was recovered. No mention of the dead body being burnt was also made. In case the dead body had been burnt, the reference would have been made in panchayatnama. No goods were recovered in and around the dead body nor any ash was recovered from the said place. 9 CRLA No. 3720 of 2014

23. The appellants in his statement under Section 313 Cr.P.C. has clearly denied the allegations made against him. Name of the appellant finds mention in the statement of co-appellant, Alankesh, recorded under Section 161 Cr.P.C., wherein he stated that he along with co-appellant, Dharmendra, were instrumental in the killing of deceased, Shivanshu. Alankesh held the feet of Shivanshu and Dharmendra, strangulated him. Further, the alleged recoveries said to have been made on the pointing out of the appellant are not reliable. The recoveries from house of appellant, Alankesh, were made in the presence of his family members but none of them were made witness in the recovery memo. Only police personnels are the witnesses of recovery from house of appellant, Alankesh. The prosecution has tried to somehow connect the dead body of an unknown person, aged about 35 years, found on 21.10.2006 near railway track as that of Shivanshu. The postmortem report, panchayatnama, testimony of P.W.-4 and P.W.- 9 do not corroborate the circumstantial evidence placed by the prosecution. That the chain of events as stated by prosecution is incomplete. No explanation of various gaps in the version have been explained. Further, the admission of guilt of the appellant in statement under Section 161 is inadmissible in evidence and the prosecution has failed to prove beyond reasonable doubt appellant's involvement in the said crime. There is no allegation by the prosecution that the injuries were caused on the head of the deceased. On the contrary, P.W.- 4 as well as post-mortem report clearly state that two crush injuries on the head were found. P. W.- 4 has stated that such injuries can be caused by falling from the train, on the head. Further, P.W.-9, S.I. Mukesh Verma, has clearly stated that nothing was found in the vicinity of the body. Even ash was not recovered from the said place. The Investigating Officer has also stated that during investigation the statement of P. W.-4, Dr. Jaswant Ratnakar, was not recorded on account of oversight or inadvertence P.W.- 4, Dr. Jaswant Ratnakar, in his testimony has clearly stated that the cause of death was on account of shock and haemorrhage caused on account of anti mortem injuries. P.W.-9, S.I. Mukesh Verma, did not found any incriminating thing in and around the dead body, then the alleged recovery said to have been made on the pointing out of the appellant, becomes extremely doubtful. While passing the order of conviction, the learned court below has convicted the appellant under Section 302 and 201 IPC and acquitted him under section 364-A IPC. In view of the determinative evidence available on record, the prosecution miserably failed to prove beyond doubt that the appellant was involved in any manner in the death of the deceased, Shivanshu Dwivedi.

24. Before the trial court no call details of conversation between any of the appellants and P.W-3 from the mobile of appellant, Dharmendra, on the fixed land line number and mobile number of P.W.-3 was proved before the court.

25. No witness of motive of affair of Kamrendra with his class mate, Deepika and liking of Alankesh (appellant) of Deppika too was proved. This was alleged to be the motive of the crime, wherein it was alleged that deceased, Shivanshu, informed Kamrendra that Alankesh also likes Deepika. When Alankesh came to know about the 10 CRLA No. 3720 of 2014 role of Shivanshu of speaking to Kamrendra about his liking of Deepika, Alankesh killed Shivanshu in revenge. Further no evidence of rustication of Kamrendra from school was proved because of the aforesaid incident, as alleged. Therefore, a vital link of evidence regarding motive of crime is missing in this case of circumstantial evidence. Hence, we conclude that prosecution has failed to be its case beyond reasonable doubt.

26. The appellants are exonerated of all charges. The judgment and order of trial court is set aside. Their bail bonds and sureties are discharged.The appellants are on bail. They need not surrender, if not wanted in any other case.

27. Office is directed to return the trial court record and notify this judgment to the trial court too.

28. Both the criminal appeals are allowed. October 29, 2025 Abhishek (Ram Manohar Narayan Mishra,J.) (Siddharth,J.) ABHISHEK YADAV ABHISHEK YADAV High Court of Judicature at Allahabad High Court of Judicature at Allahabad

1. Heard Sri Anil Kumar Srivastava, learned senior counsel assisted by Sri Ram Bahadur, learned counsel for the appellant, Sri D.P.S. Chauhan, learned counsel for the informant, Sri G.N. Kannaujiya, learned AGA for the State and perused the record in Criminal Appeal No. 3720 of 2014. 1(a). Heard Sri Manu Khare, learned counsel for the appellant, Sri D.P.S. Chauhan, learned counsel for the informant, Sri G.N. Kannaujiya, learned AGA for the State and perused the record in Criminal Appeal No. 4105 of 2014.

2. The present criminal appeal has been preferred against the judgment and order dated 03.09.2014 passed by Addl. Sessions Judge Court No. 24, Kanpur Nagar, in Sessions Trial No. 555/2007 (State vs Alankesh Tripathi and another) whereby convicting and sentencing to the appellant, Dharmendra Singh Sengar, for life 2 CRLA No. 3720 of 2014 imprisonment with the fine of Rs. 25,000/-under section 302 I.P.C., and also convicting and sentencing the appellant, Dharmendra Singh Sengar, for period of 7 years of R.I. with fine of Rs. 5,000/, under section 201 I.P.C., both the sentences of the appellant shall run consecutively.

3. The prosecution case is that Umesh Kumar Diwedi, son of Shiv Kapil Diwedi, filed a missing report at Police Station- Panki, District- Kanpur Nagar on 18.10.2006 stating that his son, Shivanshu Diwedi, studies in Maharana Pratap Education Centre, Indrapuri, in class 12th. As usual on 14.10.2006, Saturday, at about 06:40 a.m., he left for the aforesaid Centre, but when he did not returned in the night. His search was made at the places of relatives and friends but his whereabouts could not be known. Because of the closure of the college on 15th, being Sunday, his friends and teachers also could not be contacted and hence the missing report of the son of the informant was made on 18.10.2006.

4. On the basis of the aforesaid missing report G.D. entry no. 50 was recorded at 18:25 hours on 24.10.2006 the case was converted under section 364-A I.P.C., and in G.D. No. 46 at 23:40 hours on 25.10.2006, the case was further converted under section 302/201 IPC.

5. Charge-sheet was submitted after due investigation by the investigating officer implicating the appellant under sections 364-A, 302, 201 and 120-B. The trial court framed charges against the appellant under sections 364-A, 302-B and 201 IPC. The appellant denied the charges and sought trial.

6. To prove the prosecution case P.W.-1, Umesh Kumar Diwedi(informant); P.W.-2, Arvind Kumar Shukla; P.W.-3, Munish Gupta; P.W.-4, Dr. Jaswant Ratnakar; P.W.-5, Sanjeev Katiyar; P.W.-6, Kundan Lal Nigam; P.W.-7, Brajendra Kumar Gupta; P.W.- 8, Praveen Kumar; P.W.-9, Sub-inspector, Mukesh Verma and P.W.-10, Pradeep Yadav.

7. The defence produced D.W.-1, Jagdamba Prasad Tripathi and D.W.-2, Jang Bahadur Singh, as defence witnesses.

8. The statements of the appellants were recorded under sections 313 Cr.P.C., wherein they denied the allegations made against them and claimed false implication.

9. P.W.-1 stated before the court that his son, Shivanshu Diwedi, was aged about 17 years. As usual he went to his college at 06:40 hours by boarding an auto. He did not returned after going to his school on 14.10.2006. When after search his whereabouts could not be known, he gave a missing report at police station, Panki, on 18.10.2006.

10. P.W.-2, stated before the court that he has a shop of tea, cold drink and P.C.O., near Gurudev Pallace. Maharana Pratap Education Centre is situated close to his shop and the son of P.W.-1 used to come to tempo stand near his shop for going to his 3 CRLA No. 3720 of 2014 school. He used to wait near his shop for other students to come and, thereafter, he used to go to his school on their bikes or bicycles or on foot from his shop. He used to consume tea or cold drink after stopping at his shop. He came to know of his name because once his money fell short and he asked his name and name of his school. On

14.10.2006 at about quarter past 07:00 a.m., Shivanshu, was sitting on the bench on his shop alongwith his school bag. He asked him to provide tea since he was getting late for school and had not taken tea at his home in the morning. While he was sitting in his shop a boy called him by name and the boy present in court, Alankesh, was the aforesaid boy. Thereafter, Shivanshu left with Alankesh for his school.

11. In cross-examination, P.W.-2, stated that earlier his father used to sit in the shop and for last 5 years he opens the shop at about 07:00 a.m. to 07:30 a.m., daily closes the same at 10:00 to 10:30 p.m. There are other shops situated over his shop on the upper floor. He stated that his shop was not registered with labour department. He stated the colour of the dress of the school of Shivanshu. In further cross-examination, he stated that on the fateful day Shivanshu was wearing a white pant, white shirt and shoes. He does not remembers the colour of his bag. He had taken his bag along. After leaving his bag, the boy with whom Shivanshu went was seen by him for the first time. He does not knows whether the boy, who called Shivanshu, gave him threat or brought him to his shop from his house. He denied that he informed investigating officer that Shivanshu requested him to provide tea since he has not taken tea from his house. He also did not informed the investigating officer that Shivanshu, came and after taking a gold flake cigarette as usual he started smoking. He never informed the investigating officer that Shivanshu used to take cigarette and smoke daily at his shop. He admitted that investigating officer inquired about his name and also about Shivanshu. He admitted that the investigating officer has shown him a small colored photograph of Shivanshu which is not before him in the court. He does not knows whether the investigating officer had made inquiry from any other person. Shivanshu had gone with a boy who was wearing white pant, blue shirt and white shoes. Shivanshu, had gone with him on foot. He came to know that Shivanshu is missing from newspaper after third or fourth day of the incident. He knows the father of the Shivanshu. He saw him when he was sticking posters about his missing son. He denied that on the last day, Shivanshu, has consumed tea at his shop. The boy who accompanied Shivanshu was wearing the school dress and Shivanshu informed him that he is student of his school. He denied that Shivanshu used to consume liquor, cigarette and was in wrong company.

12. P.W.-3, stated that he is student of B. Com-II year. On 14.10.2006, he was student of B.Com-I year. He knew, Shivanshu, since he was in class-12th. P.W.-3 was also in class 12th at that time in the same school. He used to visit Blessings Health Club where, Shivanshu, also used to come. He had a mobile phone which is in the name of his elder brother. At about 04:30 p.m., a boy named, Rahul, called him and asked him to give mobile phone number of Shivanshu since he is not coming to school for many 4 CRLA No. 3720 of 2014 days, but he did not gave him number, but he again called him on phone and then he informed him phone number of Shivanshu, but by mistake in place of 9838, he informed his number as 9839. Again in the night at about 08:30 p.m., the same boy made a call first on his landline phone and then on his mobile phone informing his name as Akshay. He again informed that his name, Akshay, and then he asked him whether he is Akshay or Rahul, he informed that Shivanshu is not taking phone and his mother is in hospital and if Shivanshu is there, kindly let him talk. Thereafter, he gave his phone to someone who said "hello" in the ruffian style. When he said Shivanshu, the ruffian stating that Shivanshu is with him and demanded phone number of Shivanshu. P.W.-3 informed him his number as per his memory. After two minutes the same person called back and stated that this number is wrong and asked him to inform his family members that they should arrange Rs. 15,00,000/-. In case he does not informs his family members he shall also be kidnapped and threatened that he will call after 3 days. Thereafter, he informed the father of Shivanshu and at 09:30 p.m., he came alongwith others. He gave his mobile phone to father of Shivanshu. After one or two days police came and made inquiry from him.

13. In cross-examination, P.W.-3 stated that he never studied in Maharana Pratap Education Centre, he has only seen it. He studied in another school in 2004 and Shivanshu was also admitted in the same school in class-10th. He met Shivanshu after one year of leaving the school. Shivanshu and P.W.-3 studied in Kanpur Education Centre which was a coaching centre. The aforesaid school used to function from 07: a.m. to 11-12:00 p.m. He alongwith Shivanshu used to visit Blessings Health Centre and they used to meet 2-4 days in a week. He met him for the last time in 2006, in the aforesaid health centre, but he does not remembers the date. Phone in the name of his brother was taken by the police. He was taken to the police station where the father of Shivanshu was also there. He had informed the investigating officer that father of Shivanshu come to his house one day ago. He has also informed the investigating officer that call had come on his phone at 04:30 p.m., and again in the night threatening him but if he did not mentioned the same in his statement, he cannot tell. He can tell direction of gate of Panki police station where he was taken. After Shivanshu got missing his father called him. By that time call of Rahul or Akshay had not come to him. He denied that he did not informed the father of Shivanshu about the demand of ransom amount on phone. He has informed the investigating officer that same boy called him and, thereafter, some ruffian also called him, but if he did not mentioned these facts in his statements, he cannot tell the reasons. He stated that he had taken membership of Blessings Health Centre and paid fees of Rs. 150. Whether Shivanshu had taken membership of the aforesaid centre or not, he does not knows. He denied that he is giving false statements before the court.

14. P.W.-4, The Autopsy Doctor, proved that the dead body which was given to him for post mortem was of Hindu male aged about 35 years. The deceased was of normal height and rigor mortis had passed from the upper and lower party of body. Post 5 CRLA No. 3720 of 2014 mortem stanning was also absent from the body. Skin and muscle were torn at different places. Maggots were in the body. Mouth and eyes were open. In the ante mortem injuries, one crush injury was found on the head of dimension 14 c.m. x 7 c.m., and another crush injury on the side of the head was found with underlying bone fracture. Brain was liquefied, lungs were liquefied, stomach was missing alongwith many other organs. The dead body was in very bad condition. He stated that he has mentioned the age of dead body of deceased as 35 years and it could be 17 also. He cannot say whether the deceased was strangulated to death or burnt to death because of the worst condition of the deceased body since there were no fracture on the hands and legs. The death could not have been caused by falling from train. He stated that the dead body was about 5 feet 6 inches in length.

15. In cross-examination the doctor stated that the dead body could be aged about 50 years also.

16. P.W.-5, investigating officer of this case, stated that he had interrogated appellant, Alankesh, and he accepted his guilt before him. The appellant, Alankesh, took him to his house and provided the books and copies of the deceased from his house. He also signed the recovery memo in the presence of witnesses. Thereafter, he alongwith S.H.O., Panki, Pradeep Yadav, went to the place pointed out by Alankesh and he got the remains of burnt clothes of Shivanshu, one pair of shoes, one beer bottle which were sealed and memo was prepared in the presence of the witnesses. He denied that the recovery memos were prepared in the police station during his cross-examination.

17. In cross-examination he stated that he does not remembers who were the other police personnels posted in Police Station- Panki, on 25.10.2006. He did not recorded any entry in G.D. regarding his movement. The appellant, Alankesh, was arrested on his confession when he had taken him to his house, his father, mother and sister were present in the house. He did not asked them to become witness because S.O. did not directed him to make them witness of the recovery of copy and books of the deceased. He proved the recovery memo before the court. He did not met the person who informed about the demand of ransom nor he talked about the mobile number where from the demand of ransom was made. He never went to the place where the deceased was kept after abduction.

18. P.W.-6, P.W.-7, P.W.-8 and P.W.-9 are formal witnesses and their testimonies do not requires to elaborate discussions.

19. First Investigating Officer,P.W.-10, testified before the court that the missing report dated 18.10.2006 was received by him while he was posted at police station, Panki, as S.H.O. He has stated that information was received that Shivanshu was kidnapped on the mobile phone of his friend, Munish Gupta, by an unknown accused and ransom of Rs. 15,00,000/- was demanded for freeing, Shivanshu. On the basis of aforesaid information, the case was converted under section 364-A IPC. He took the 6 CRLA No. 3720 of 2014 investigation on 24.10.2006. He recorded the statements of P.W.-1, informant and P.W.-3, Munish Gupta, who informed that call was made on his mobile phone on

17.10.2006 at about 04:30 p.m., and phone number of father of Shivanshu, was demanded. He informed the mobile number of father of Shivanshu. Again call was made at 08:30 p.m., and the caller informed him name as Akshay. Thereafter, P.W.-2, Arvind Shukla, was contacted at his shop and his statement was recorded. He identified the photo of Shivanshu. Search of appellant, Alankesh, was made. After getting information of the whereabouts of appellant, Alankesh, he was arrested. He admitted before him that he was friend of Shivanshu, both used to sit together. One girl, Deepika Tiwari, used to study in their class who had friendship with , Kamrendra Tripathi, of class-12-B. In the absence of Kamrendra Tripathi, appellant, Alankesh, was getting closer to aforesaid Deepak Tiwari, and Shivanshu made his complaint to Kamrendra. Thereafter, Alankesh, was beated by Kamrendra Tripathi, in the presence of the students of the school. He stated before the P.W.-10 that he committed the murder of Shivanshu with the help of appellant, Dharmendra. He took P.W.-10, to the place where he had strangulated Shivanshu to death and after pouring kerosene oil, burnt his dead body. He got the goods of Shivanshu recovered. He further stated that Dharmendra took the ration card of his sister, Mohini Tiwari, which was of Jung Bahadur. After changing the name over the ration card, he got the sim card issue and from the aforesaid sim card call was made to Munish Gupta on 17.10.2006. He took P.W.-10 to the place from where Shivanshu was abducted. Thereafter, Alankesh, took P.W.-10 to his house and got the i-card, copies and books of Shivanshu recovered from his house. The recovery memo was prepared where on the signature of P.W.-10 and Sanjeev Katiyar, and appellant, Alankesh, were taken. Site plan of recovery was also made. Thereafter, the place where from the remains of the clothes of deceased and empty bottle of beer was recovered, was shown by Alankesh to P.W.-10 and he made memo of recovery and also entry in this case. Thereafter, Alankesh, informed that he has kept the shoes and school bag of the deceased hidden in the bushes and it was got recovered on his point out. A bag having copies, books and geometry box of the deceased were recovered. His white P.T. shoes were also recovered on the pointing out of the Alankesh and recovery memo was prepared.

20. P.W.-10 further stated that the mobile number. 9936858024 was obtained on the basis of fabricated documents and ransom amount of Rs. 15,00,000/- was demanded from the aforesaid number. The aforesaid sim card was taken out by the appellant, Dharmendra @ Deepu, and was inserted in his mobile number 9935723510. I.M.I. No. of mobile set of Dharmendra was also recovered. Thereafter, the statements of the witnesses were recorded including the witnesses of the inquest report. The ration card which was manipulated for the purpose of getting the sim card by Alankesh was also recovered from the pointed out of appellant from his house. Jung Bahadur was the name of the father of the appellant, Dharmendra @ Deepu, and his ration card was misused for getting the sim card issued. 7 CRLA No. 3720 of 2014

21. After hearing the rival submissions, this Court finds that a written report dated

18.10.2006 was given to Police Station Panki, District Kanpur Nagar by Umesh Kumar Dwivedi stating therein that his son, namely, Shivanshu Dwivedi was a student of Class-12th, studying in Maharana Pratap Education Centre, Indrapuri. As usual, on

14.10.2006 (Saturday) he went to the school in the morning at about 06:40 a.m. he did not return home in the evening, whereupon a search was made with relatives and other acquainted persons but of no avail. Sunday being holiday, no information from his friends or teachers could be obtained. Thus, it was requested that the police may assist him looking into disappearance of Shivanshu Dwivedi. The description and of Shivanshu Dwivedi was that he was a 17 years of age, more than 5 feet tall, fair in colour, thin built, wearing white shirt, white pant, black socks and white shoes. He carried a black school bag and had also the school identity card. This report was numbered as "क-18". Umesh Kumar Dwivedi (first informant and P.W.-1) stated that at about 09:00 p.m. on 18.10.2006 one Munish Gupta (friend of Shivnashu) called him to inform that he had received a call demanding a ransom of Rs. 15 lakh for release of Shivanshu, his son. The said message was communicated to the first informant. P.W.- 1 has further stated that on publication of news of kidnapping of Shivanshu, some of his classmates came to console his family. They informed that one Karmendra Tripathi and Deepika were also studying with them. Karmendra had amorous feelings for Deepika. Alankesh Tripati(appellant) also liked Deepika. This fact was informed by Shivnashu to Karmendra, upon which Karmendra Tripathi and his friends assaulted Alankesh. Thus. altercation led to rustication of Karmendra Tripathi from the school. Later on, Alankesh Tripathi came to know that it was Shivanshu Dwivedi who had informed Karmendra of the above fact. On account of such conduct of Shivanshu, Alankesh Tripathi had threatened him of dire consequences. This fact was informed to the police. On 24.10.2006 implication under section 364-A IPC was added in this case by police. P.W.-10, S.I. Pradeep Yadav (Investigating Officer), has stated that during the course of investigation, the photograph of Shivanshu was shown to shops keeping on way to school, whereupon one, Arvind Shukla, recognized the photograph and said that this in photograph of Shivanshu. Arvind Shukla was examined as P.W.-2. Arvind Shukla has stated that his shop is situated near Maharana Pratap Education Centre and Shivanshu used to come to his shop. On one occasion, due to paucity of money, he had disclosed his name. On 14.10.2006 Shivanshu asked for a cup of tea and at the same time, he was called by another student. The boy who had called Shivanshu, appears to be Alankesh standing in the court. The said identification was objected by the defense. The boy who had called Shivanshu was standing at a distance of about 10-15 meters from him. S.I. Pradeep Yadav, has stated that efforts were made to find Alankesh and consequently they met his sister Poonam who was asked to ensure that Alankesh comes to the police station. During investigation, informer informed on 25.10.2006 that Alankesh Tripathi is present near Ruchi Guest House, Barra Bypass Crossing. Upon such information, the SOG team reached the said place and arrested Alankesh Tripathi. On the contrary, P.W.-5 S.I. Sanjiv Katiyar, Incharge SOG team, 8 CRLA No. 3720 of 2014 has stated that Alankesh was called from his house and thereafter when Alankesh came to the police station, he was arrested. P.W.-10 has further stated that Alankesh has in his statement, under Section 161 Cr.P.C., admittedly reiterated the episode with regard to Karmendra and Deepika and, thereafter, having killed Shivanshu with the help of co-accused, Dharmendra, and further that he held the legs of Shivanshu and Dharmendra strangulated him. He further stated that he can get the notebooks of Shivanshu recovered from his house, whereafter he allegedly took them to his house where the notebooks, school I.D. and a ration card were recovered. He further stated that he can show the place where the incident took place and thereafter took P.W.-10 to a place near a railway track where he pointed out that Dharmendra had strangulated Shivanshu hence who was lying down intoxicated and he has held his feet whereafter they burnt the dead body with petrol. From the said place, burnt clothes, empty bottle of bear were recovered. Upon such statement, steps were taken to find Dharmendra Singh Sengar alias Teepu (appellant). Upon information from informer, Dharmendra (appellant) was arrested from Moti Tiraha. P.W.-10, has further stated that Dharmendra (appellant) in his statement under Section 161 Cr.P.C. has admitted that Alankesh had informed of being humiliated on account of Shivanshu's act and that he could get the shoes, school bag of Shivanshu recovered. Thereafter, co-accused, Dharmendra, took them near a railway track where one raxine bag, geometry box, shoes etc., of deceased were recovered. It has also been alleged that after investigation the police relied on recovery of an unidentified body from the place of occurrence. The said dead body was recovered by a lineman. The post-mortem of the said body was conducted by P.W.-4, namely, Dr. Jaswant Ratnakar. The post-mortem report dated 22.10.2006 has been exhibited as क-2 and panchayatnama dated 21.10.2006 as " क-27".

22. We further find that in panchayatnama dated 21.10.2006 and in the post-mortem report the age of the deceased has been mentioned as 35 years. The injuries on the body of deceased have been mentioned as (i) crush injury on head 14x7 cm (ii) crush injury on head, left skull bone fractured. Reason of death are the anti mortem injuries. P.W.-4 has stated that the age of the dead body could also be 70 years or even 16 years. He has further stated that the injuries could have been suffered on account of falling from the train. He could not conclusively state that the cause of death of Shivanshu was by strangulation and thereafter the dead body was burnt. In fact, the dead body had decayed. P.W.-9, Sub-Inspector- Mukesh Verma ,stated that he was witness of panchayatnama conducted on 21.10.2006 and the information was given to him by a railway gangman. He has stated that the cause of death as mentioned by him was on account of injuries caused due to falling from the train. From the place of incident, no other incriminating material was recovered. No burnt residue was recovered. No mention of the dead body being burnt was also made. In case the dead body had been burnt, the reference would have been made in panchayatnama. No goods were recovered in and around the dead body nor any ash was recovered from the said place. 9 CRLA No. 3720 of 2014

23. The appellants in his statement under Section 313 Cr.P.C. has clearly denied the allegations made against him. Name of the appellant finds mention in the statement of co-appellant, Alankesh, recorded under Section 161 Cr.P.C., wherein he stated that he along with co-appellant, Dharmendra, were instrumental in the killing of deceased, Shivanshu. Alankesh held the feet of Shivanshu and Dharmendra, strangulated him. Further, the alleged recoveries said to have been made on the pointing out of the appellant are not reliable. The recoveries from house of appellant, Alankesh, were made in the presence of his family members but none of them were made witness in the recovery memo. Only police personnels are the witnesses of recovery from house of appellant, Alankesh. The prosecution has tried to somehow connect the dead body of an unknown person, aged about 35 years, found on 21.10.2006 near railway track as that of Shivanshu. The postmortem report, panchayatnama, testimony of P.W.-4 and P.W.- 9 do not corroborate the circumstantial evidence placed by the prosecution. That the chain of events as stated by prosecution is incomplete. No explanation of various gaps in the version have been explained. Further, the admission of guilt of the appellant in statement under Section 161 is inadmissible in evidence and the prosecution has failed to prove beyond reasonable doubt appellant's involvement in the said crime. There is no allegation by the prosecution that the injuries were caused on the head of the deceased. On the contrary, P.W.- 4 as well as post-mortem report clearly state that two crush injuries on the head were found. P. W.- 4 has stated that such injuries can be caused by falling from the train, on the head. Further, P.W.-9, S.I. Mukesh Verma, has clearly stated that nothing was found in the vicinity of the body. Even ash was not recovered from the said place. The Investigating Officer has also stated that during investigation the statement of P. W.-4, Dr. Jaswant Ratnakar, was not recorded on account of oversight or inadvertence P.W.- 4, Dr. Jaswant Ratnakar, in his testimony has clearly stated that the cause of death was on account of shock and haemorrhage caused on account of anti mortem injuries. P.W.-9, S.I. Mukesh Verma, did not found any incriminating thing in and around the dead body, then the alleged recovery said to have been made on the pointing out of the appellant, becomes extremely doubtful. While passing the order of conviction, the learned court below has convicted the appellant under Section 302 and 201 IPC and acquitted him under section 364-A IPC. In view of the determinative evidence available on record, the prosecution miserably failed to prove beyond doubt that the appellant was involved in any manner in the death of the deceased, Shivanshu Dwivedi.

24. Before the trial court no call details of conversation between any of the appellants and P.W-3 from the mobile of appellant, Dharmendra, on the fixed land line number and mobile number of P.W.-3 was proved before the court.

25. No witness of motive of affair of Kamrendra with his class mate, Deepika and liking of Alankesh (appellant) of Deppika too was proved. This was alleged to be the motive of the crime, wherein it was alleged that deceased, Shivanshu, informed Kamrendra that Alankesh also likes Deepika. When Alankesh came to know about the 10 CRLA No. 3720 of 2014 role of Shivanshu of speaking to Kamrendra about his liking of Deepika, Alankesh killed Shivanshu in revenge. Further no evidence of rustication of Kamrendra from school was proved because of the aforesaid incident, as alleged. Therefore, a vital link of evidence regarding motive of crime is missing in this case of circumstantial evidence. Hence, we conclude that prosecution has failed to be its case beyond reasonable doubt.

26. The appellants are exonerated of all charges. The judgment and order of trial court is set aside. Their bail bonds and sureties are discharged.The appellants are on bail. They need not surrender, if not wanted in any other case.

27. Office is directed to return the trial court record and notify this judgment to the trial court too.

28. Both the criminal appeals are allowed. October 29, 2025 Abhishek (Ram Manohar Narayan Mishra,J.) (Siddharth,J.) ABHISHEK YADAV ABHISHEK YADAV High Court of Judicature at Allahabad High Court of Judicature at Allahabad