Allahabad High Court
Brijesh Chaudhari vs State Of U.P. on 27 May, 2022
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 06.05.2022
Delivered on 27.05.2022
Case :- CRIMINAL APPEAL No. - 2186 of 2011
Appellant :- Brijesh Chaudhari
Respondent :- State of U.P.
Counsel for Appellant :- Amit Kumar Srivastava, Brij Raj Singh, Noor Mohammad, Vinod Shanker Tripathi
Counsel for Respondent :- Govt. Advocate
with
Case :- CRIMINAL APPEAL No. - 2911 of 2011
Appellant :- Om alias Hari Om
Respondent :- State of U.P.
Counsel for Appellant :- Sunil Kumar Mishra, Noor Mohammad
Counsel for Respondent :- Govt. Advocate
Hon'ble Om Prakash-VII,J.
Hon'ble Narendra Kumar Johari,J.
(By Om Prakash-VII, J.)
1. Since these criminal appeals have been filed against the same judgment and order and have been heard together, therefore, the same are being decided by this judgment.
2. These criminal appeals have been preferred by the accused appellants against the judgment and order dated 04.04.2011 passed by the Additional District and Sessions Judge, Bijnor in Session Trial No. 174 of 2003 (State vs. Brijesh Chaudhari and others), arising out of case crime no. 186 of 2003, convicting and sentencing the appellants for the offence punishable under Sections 302/34 IPC to undergo life imprisonment and a fine of Rs. 10,000/- each, for the offence punishable under Section 201 IPC to undergo three years' rigorous imprisonment and a fine of Rs. 5,000/-each with default stipulation, for the offence punishable under Section 394 IPC to undergo seven years' rigorous imprisonment and a fine of Rs. 10000/- each with default stipulation and for the offence under Section 411 IPC to undergo one year's rigorous imprisonment. All the sentences were directed to run concurrently.
3. The facts of the case, as unfolded by the informant / applicant Dr. Jagwant Singh son of Balwant Singh, resident of Chaudhariyan Qasba, P.S. Noorpur, District Bijnor, are that his sugarcane field was situated about one kilometer away from Qasba Noorpur in the west direction. On 14.2.2003 his servant Mahesh, who had gone to collect the sugarcane, told that between the standing and the harvested sugarcane towards the side of the mend a dead body of unknown person was lying. It appears that dead body was brought there after killing at some other place.
4. On the basis of the said written report (Ext. ka-1), chik First Information Report (Ext. ka-2) was registered at Police Station concerned on 14.2.2003 at 3.55 p.m. mentioning all the details as had been described in Ext. Ka-.1. G.D. entry was also made at the same time. Investigation in the matter was taken in his hand by the Investigating Officer S.K. Singh - Station House Officer of the Police Station concerned.
5. On 17.2.2003, one Sujan Singh son of Mohan Lal, resident of Baxariya, Police Station Faridpur, District Bareilly informed Dr. Ghanshyam Singh about missing of his son on which he told about recovery of a dead body of a boy and conducting of post mortem on his dead body by him. Upon this, Sujan Singh went to Police Station Noorpur and moved application (Ext. Ka-5) for identification of the clothes etc..He also identified the clothes and shoes of his son Rajendra Pal. Thereafter, on 18.2.2003 he moved an application (Ext. ka-6) at police station Noorpur with the averments that he was resident of mohalla Baxariya, police station Faridpur, District Bareilly. His son Rajendra Pal and his neighbor Brijesh Kumar Chaudhary son of Chhote Lal Chaudhary were the students of Engineering in B.I.T. College, Bijnor, Delhi Highway, Muzaffarnagar. On 13.2.2003 his son was at home. The colleague of his son, namely, Brijesh Chaudhary came to his house and accompanied the son of applicant to the Post Office, Faridpur for opening account and thereafter son of the applicant returned back to home. After some time Brijesh Chaudhary made phone call to him and told that he was going to Bijnor College and you (son of the applicant) also reach at the Bus Stand. On this, son of the applicant, after having meal, reached at the Bus Stand. Father of the applicant i.e. Mohan Lal met the son of the applicant at the Bus Stand and after sitting him (son of the applicant) in the bus, he left for home. When in the evening he tried to contact his son on phone, wife of landlord Mukesh Gupta told that his son had not reached so far. On this, when applicant contacted on phone at the home of Brijesh, his mother told that children had reached at Bijnor. Thereafter, he started to search his son. When whereabouts of his son was not known, on 15.2.2003 father of the applicant i.e. Mohan Lal moved a missing report at police station Faridpur, District Bareilly. They were constantly inquiring about his son from Brijesh and his family members but in vain. Thereafter, on the above information of Dr. Ghyanshyam Singh, Sujan Singh alongwith his companions and also police personnel of police station Faridpur reached there. They identified the clothes, shoes, kardhani and kada of the deceased recovered from his dead body from the forest of Noorpur. Wearing those clothes son of applicant had moved ahead and was disappeared from Faridpur Bus Stand. Since son of applicant was meritorious and Brijesh Chandhary was vagabond, he had a quarrel. Brijesh had also borrowed Rs. 1000/- and had not repaid the same. Son of the applicant was also having Rs. 14,000/- for fees and other expenses and also a pair of clothes and one HMT Jayant watch with black belt. He had confidence that Brijesh, by conspiring with comrades, had murdered the son of the applicant.
6. The Investigating Officer inspected the place of occurrence, recorded the statement of the witnesses, prepared the site plan. He also prepared the inquest report. Investigating Officer also prepared other police papers, namely, photo lash, report for post mortem, challan lash. He also took sample of plain earth and bloodstained earth. He also prepared letter to R.I. and also letter to C.M.O. The dead body was kept in sealed cover and was dispatched through constables Roop Singh and Vijay Pal Singh alongwith the police papers for post mortem. Recovery memo regarding ticket, clothes, cash and watch of the deceased was also prepared. After enhancement of Section 3(2) 5 Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, investigation of the matter was taken over by the Circle Officer Praveen Ranjan on 6.3.2003.
7. Autopsy report (Ext. ka-20) was prepared after conducting the post mortem on 15.2.2003 at 3.00 p.m.
8. As per the post mortem report, the deceased was of 25 years and was average body built. On external examination, rigor mortis was present in all limbs. Face and eyes congested and no sign of decomposition.
9. On examination of the dead body of the deceased, following ante-mortem injuries were found:
"(1). Ligature mark 40 cm X 2 cm passing from oral cavity on both side of cheek near both side of angle of mandible and posterior aspect of neck. It is transversely placed, continuous on side and back of neck. On dissection - there is echymosis in subcutaneous tissue and muscles under the mark.
(2). Incised wound 6 cm x 1.5 cm x muscle deep on in front of neck at the level of ericoid cartilage. It is transverse on neck.
(3). Incised wound 5 cm x 1 cm x muscle deep on in front of neck 1.0 cm above from injury no. (2).
(4). Incised wound 5 cm x 1 cm bone deep on Lt. Wrist anterior aspect. Lt. Redial artery cut through and through.
(5). Incised would 4 cm x 1 cm x muscle deep on Lt. Wrist 1.0 cm above from Injury No. (4).
(6). Incised wound 4 cm x 1 cm x bone deep on Rt. side wrist."
10. In the opinion of the doctor, death was caused due to asphyxia as a result of ante-mortem strangulation and hemorrhage due to ante mortem injuries.
11. On 18.2.2003, police concerned reached at the room concerned in which deceased and accused appellant Brijesh Chaudhary were residing and opened the door breaking lock and recovered tickets from the pocket of shirt of appellant Brijesh Chaudhary in presence of the witnesses.
12. On 21.2.2003, on the basis of information received through informer, S.H.O. Sanjay Kumar alongwith other police personnel and Sujan Singh, the informant, raided at the house where the Brijesh Chaudhary and deceased were living on rent, and arrested the accused appellants with the alleged money and watch.
13. After completion of the investigation, charge-sheet (Ext. ka-21) against the accused appellants was filed. Concerned Magistrate took cognizance and the case being exclusively triable by Sessions Court was committed to the Court of Sessions.
14. Accused/appellants appeared and charge under Sections 302, 201, 394, 411 IPC and 3(2) 5 Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act was framed in the trial court against them. Accused have denied the charges framed against them and claimed their trial.
15. Trial proceeded and on behalf of prosecution, ten witnesses i.e. PW-1 Dr. Jagwant Singh, PW-2 Constable Roop Singh, PW-3 Sub-Inspector Ashok Kumar, PW-4 Sujan Singh (informant), PW-5 Chhatarpal Singh, PW-6 Sub-Inspector Sanjay Kumar, PW-7 Dr. Ghanshyam Singh, PW-8 Mukesh Gupta, PW-9 Harpal and PW-9 Circle Officer Praveen Ranjan, were examined.
16. After closure of prosecution evidence, statement of accused appellants under Section 313 Cr.P.C. was recorded in which they denied the allegations and stated that they have been falsely implicated in this case due to departmental rivalry, as father of the accused and also of the deceased were teacher in same School / College.
17. The defence examined Harish Chandra as DW-1.
18. In defence, as documentary evidence, pass books of State Bank of India, Bareilly and Chhetriya Gramin Bank relating to the father of accused Brijesh Chaudhary were filed.
19. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellants beyond reasonable doubt and convicted and sentenced the accused appellants, hence this appeal.
20. We have heard Shri Noor Mohammad, learned counsel for the appellants as well as Shri Raj Kamal Srivastava learned AGA appearing for the State in both appeals.
21. Castigating the impugned judgment and order, learned counsel appearing for the appellants has submitted that appellants are innocent and have not committed the present offence. Findings recorded by trial court in the impugned judgment and order are illegal and perverse. It is purely a case of circumstantial evidence. None has seen the incident. Dead body of the deceased was recovered from a sugarcane field. F.I.R. was lodged against unknown person. Post mortem on the dead body was also conducted as against unknown dead body and till then none had identified the dead body of the deceased. Prosecution has not given the details of mobile numbers said to have been used by the informant, owner of the house in question, where deceased and accused persons were residing, and also of the accused. It was also submitted that there are major contradictions in the statement of prosecution witnesses regarding timing of last seen of the deceased and accused persons together. Bus tickets said to have been recovered in the matter are also not sufficient to connect the appellants with the present matter. It is not clear from the prosecution evidence as to whether said bus tickets were actually belonging to the bus in which deceased and accused persons are said to have travelled or not. Recovery of tickets from the room of accused Brijesh Chaudhary is also not believable and same is also not supported with independent evidence. Prosecution witness Mukesh Gupta, owner of the house in question, had reached the place of recovery when recovery memo was being prepared. Other prosecution witnesses are the family members of the deceased. Recovery of knife said to have been used in commission of the crime is also not believable, as it appears improbable and unbelievable that police had opened the door of the room, wherein deceased and accused Brijesh Chaudhary were residing, after breaking the lock and thereafter accused persons would have again gathered in the said room. It was also submitted that motive suggested by the prosecution is not believable and also not sufficient to commit the present offence. Recovery of wrist watch said to have been made from the possession of the co-accused Hari Om is also not believable, as no details have been mentioned by the informant in the application moved before the Police concerned about the said watch. Referring to the application said to have been moved on behalf of the informant Sujan Singh it was further submitted that missing report said to have been lodged by Mohan Lal, father of the informant, has not been placed by the prosecution before the Court. Chain of circumstances are not so linked with each other and proved to form an irresistible conclusion against the accused appellants to commit the present offence. PW-9 Harpal is the chance witness. His presence at the Bus Stand, Bareilly is improbable and unbelievable. If deceased's grand father had seated the deceased in Bus at around 12.00 O'clock at Faridpur, how the deceased and accused would have been seen at 2.00 p.m. by the prosecution witness Harpal at Bareilly whereas distance between the two is about 25 kilometers. Statement of PW-9 Harpal under Section 161 CrPC was recorded belatedly. Referring to statement of accused appellants recorded under Section 313 CrPC it was also submitted that all incriminating facts were not put before them in the statement under Section 313 CrPC and due to this reason prejudice was caused to the accused appellants in defending their case. It was lastly submitted that impugned order suffers from infirmity and illegality warranting interference by this Court.
22. On the other hand, learned AGA appearing for the State submitted that the prosecution was able to prove its case beyond reasonable doubt. Though extra judicial confession said to have been made by the accused persons have not been proved by prosecution yet deceased and accused were seen together at Bareilly Bus Stand. Thereafter, dead body of the deceased was recovered. Statement of Mukesh Gupta, the owner of the house in question, is also clear on the point that when accused appellants reached at Bijnor, deceased was not accompanying them. Recovery of tickets from the shirt of accused appellant Brijesh Chaudhary is believable and is supported with independent evidence. Bus tickets recovered from the dead body of the deceased are in seriatim with the tickets said to have been recovered from the accused appellants. Weapon 'knife', said to have been used in commission of crime, has been recovered on pointing-out of the accused appellant Brijesh Chaudhary. FSL report also shows that human blood was found on it. Thus, it is clear that aforesaid weapon was used in commission of the present crime. Last seen theory is fully established. Motive suggested by the prosecution against the appellants is also sufficient to commit the present offence. Mere non-production of missing report said to have been lodged by the grand father of the deceased is not sufficient to disbelieve the statement of prosecution witnesses. Though post mortem on the dead body of deceased was conducted as against unknown dead body yet deceased was identified by the witnesses from clothes and other articles. Chain of circumstantial evidence are fully linked with each other to form an irresistible conclusion against the accused appellants. All the incriminating materials were put before the accused persons in their statement under Section 313 CrPC. No prejudice was caused to them. Findings recorded by the trial court in the impugned judgment and order are in accordance facts, evidence and law.
23. We have considered rival submissions made by learned counsel for parties and have gone through entire record carefully.
24. In this matter as is evident from record, PW-1 Dr. Jagwant Singh has informed the local police regarding receiving / lying of unknown dead body in his sugarcane field. Thereafter, inquest report was prepared. Post mortem was conducted against unknown dead body. Clothes and other articles found on the body of deceased were preserved by the police concerned. It is also evident from the record that missing report was lodged by the grand father of the deceased but same was not proved during trial. One application was moved by PW-4 Sujan Singh, father of the deceased, at the police station concerned for identification of the dead body of the deceased on the basis of clothes etc.. It is also clear that on the basis of identification of clothes etc., another application was moved by PW-4 Sujan Singh mentioning therein the conspiracy of the accused appellant Brijesh Chaudhary in committing the present offence. Mohan Lal, grandfather of the deceased, had left the deceased at Faridpur Bust Stand at 12.00 O'clock. PW-4 has not seen the deceased alongwith accused appellants together at any place. Details of mobile numbers said to have been used by PW-4 Sujan Singh, Mukesh Gupta (owner of the house in question) and accused persons, were not furnished during trial. As per statement of PW-9 Harpal, he alongwith one Satish had gone to Bareilly for purchasing engine parts and when he reached at Bareilly Bus Stand, saw the deceased alongwith accused appellants at 2.00 p.m.. This witness had also asked him about the purpose of their presence at that place, upon which, they had disclosed that they were going to Bijnor to attend their classes. When this witness was cross-examined, he told that these facts were not told by him to the Investigating Officer. Record also reveals that PW-8 Mukesh Gupta reached at the place of recovery of the bus tickets from the pocket of shirt of accused appellant Brijesh Chaudhary at the time of preparation of fard, meaning thereby, when police opened door of room breaking the lock, he was not present there. Thus, in this matter, there remains only statement of PW-4 Sujan Singh and PW-5 Chhatrapal Singh, who are the relatives of deceased and resident of Faridpur Qasba. Recovery of bus tickets is said to have been made from the room wherein deceased and accused appellant Brijesh Chaudhary were residing in Bijnor Town. Thus, it appears that recovery of bus tickets from the shirt of accused appellant Brijesh Chaudhary is not supported with independent evidence of that locality. It is also evident from the record that accused appellants were arrested from the said house / room on 21.2.2003 whereas recovery of tickets from the same place is of 18.2.2003. Prosecution has not proved this fact as to whether after recovery of the bus tickets from the pocket of shirt of accused appellant Brijesh Chaudhary said room was kept opened or it was closed.
25. In the above factual background, we may mention the findings of the trial court on material points recorded in the impugned judgement and order, which are as under:
(i). Prosecution was able to prove its case beyond reasonable doubt. Non-mentioning of motive at initial stage in the applications said to have been moved by the father and grand father of the deceased is not fatal to the prosecution case.
(ii). Though extra judicial confessions were made by the accused persons before the witnesses and same has not been proved before the Court yet same is not fatal to the prosecution case.
(iii). Prosecution was able to prove the recovery of 'knife' said to have been used in commission of the crime on pointing-out of accused appellant Brijesh Chaudhary.
(iv). Recovery of bus tickets from the pocket of shirt of the accused appellant Brijesh Chaudhary has also been proved by the prosecution from its evidence beyond reasonable doubt.
(v). Deceased and accused appellants were seen together at Bareilly Bus Stand by the PW-9 Harpal. This fact has been proved by the prosecution from its evidence beyond reasonable doubt.
(vi). Medical evidence fully supports the oral version. FSL report also supports the prosecution version to the extent that weapon 'knife' said to have been recovered in the matter was used in commission of crime.
(vii). Circumstantial evidence are fully established and linked with each other and are sufficient to form an irresistible conclusion against the accused appellants for committing the murder of deceased.
(viii). Recovery of currency note and wrist watch also supports the prosecution case.
(ix). Enmity on part of accused appellants for false implication is not sufficient to discard the statement of prosecution witnesses.
(x). Deceased was identified by the prosecution witnesses from the clothes and other articles recovered from his body.
(xi). Contradictions on some points of prosecution evidence are not fatal to the prosecution case to disbelieve the statement of prosecution witnesses on material points.
26. After outlining the findings recorded by the trial court in the impugned judgement and order on material points, we are proceeding to deal with the submissions advanced by the learned counsel for the parties.
27. As regards motive is concerned, it is an essential ingredient to constitute the crime. Though we are oblivious of fact that motive relegates into back ground in a case of direct ocular testimony and is not of much significance, but where motive is false and cooked up, then it assumes importance to test veracity or other wise of prosecution witnesses. Reason shown in the F.I.R. to commit present offence by accused-appellants and stated by witnesses in their statements before Court on oath may be a ground to commit present offence but at the same time it may also be a reason for false implication. In a case of circumstantial evidence, motive does assume great importance, but to say that the absence of motive would dislodge the entire prosecution story is giving this one factor an importance which is not due. Effect of motive attributed in the present matter has to be seen in the light of other evidence.
28. In this matter, as is clear from the record nothing was disclosed by the informant - PW-4 in the applications moved by him before the police concerned at initial stage regarding the motive. This fact was disclosed at later stage and only suspicion was shown against the accused appellant Brijesh Chaudhary. Since it is purely a case of circumstantial evidence, motive to commit the present offence becomes important. Trial Court has opined that since deceased was missing and later on it was known by the family of the deceased that he was murdered, certainly, they were not in a fit mental condition and due to this reason motive to commit the offence was not disclosed at an early stage and it is not fatal to the prosecution case. It is settled that in a case based on circumstantial evidence, motive assumes great significance. It is not as if motive alone becomes the crucial link in the case to be established by the prosecution and in its absence the case of prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused. [Vide : Nandu Singh vs. State of Madhya Pradesh, Criminal Appeal No. 285 of 2022 (Special Leave Petition (Cri.) No. 7998 of 2021), decided on 25.2.2022.
29. If the finding recorded by the trial court in the impugned judgment and order on this point is compared with the facts and evidence and the settled proposition of law, it is apparent that motive suggested by the prosecution is not so severe / serious which entailed the accused appellants to commit the present offence. Hence, in the opinion of the Court, the finding recorded by the trial court in the impugned judgment and order on this issue is not based on correct appreciation of facts, evidence and settled principles of law.
30. In this matter prosecution case is that on 13.2.2003 deceased left his house for Bijnor and his grand father boarded him in Bus at Faridpur Bus Station at around 12.00 O'clock. This fact has been stated by PW-4, father of the deceased. He was not present at the Bus Station of Faridpur at the time of boarding him in the bus. This fact has also not been proved before the Court with the statement of Mohan Lal, grand father of the deceased, as he died during trial. Nothing is on record adduced by the prosecution to establish the mobile numbers said to have been used by the accused Brijesh Chaudhary to call the deceased on 13.2.2003 to go to Bijnor together. It is also the prosecution case that accused appellants were seen together at around 2.00 p.m. at Bareilly Bus Stand alongwith deceased. This fact has been proved, as per prosecution, by PW-9 Harpal. PW-4 Sujan Singh has stated that when he contacted Mukesh Gupta on his mobile phone to know as to whether deceased had reached at Bijnor or not his wife replied to PW-4 in negative, however, she told that accused appellants had reached. Which numbers were used for making phone calls with each other has also not been proved by the prosecution. Certainly, this fact could be proved by the prosecution disclosing the mobile numbers of PW-4- Sujan Singh, Mukesh Gupta and his wife. PW-8 - Mukesh Gupta when examined before the Court has specifically stated that he could not recognize the co-accused Hari Om. He has also stated that he could not recognize him even during trial. Thus, tele-conversation made between PW-4 Sujan Singh, Mukesh Gupta and his wife cannot be taken to be proved only from oral evidence for the aforesaid reasons.
31. Another disturbing circumstance in the matter is that on 18.2.2003 concerned Police alongwith PW-4 Sujan Singh and some other witnesses reached at the concerned room wherein deceased and accused appellant Brijesh Chaudhary were residing and door of the said room was opened breaking the lock. Police concerned recovered bus tickets for Bareilly to Bijnor said to have been used by accused appellant Brijesh Chaudhary. If room in question was opened breaking the lock on 18.2.2003 it appears improbable and unbelievable that accused appellant Brijesh Chaudhary and co-accused would have remained present on 21.2.2003 in the same room. Prosecution has not adduced any sort of evidence to prove that after opening the room in question on 18.2.2003 it was again locked or it remained opened. If certain recovery was made on 18.2.2003 from the same room, presence of accused appellants on 21.2.2003 for collecting articles said to have been kept in the said room is not believable and arrest of accused appellants from the place shown by the prosecution on 21.2.2003 is highly doubtful.
32. Now the Court proceeds to analyze the evidence regarding bus tickets said to have been recovered from the pocket of deceased and also from the pocket of accused appellant Brijesh Chaudhary. Though serial numbers of the tickets are in seriatim yet the facts that bus tickets said to have been recovered in the matter were belonging to Bareilly to Bijnor and same were of dated 13.2.2003 are not clear. Nothing is disclosed / mentioned on the said tickets about the date of issuance. This fact could be proved by the prosecution by examining the Conductor of the Bus concerned in which deceased and appellants had travelled or from any certification issued by the Bus Depot concerned. In absence of aforesaid facts/ evidence, bus tickets said to have been recovered in the matter cannot be connected to establish that accused appellants and deceased had travelled together on 13.2.2003 from Bareilly to Bijnor in same Bus. If recovery memo of the bus tickets said to have been recovered from the pocket of deceased and recovery memo of bloodstained earth taken from the place of recovery of dead body of deceased are minutely compared with each other, it is evident that in both recovery memos PW-1 Dr. Jagwant Singh and Surendra Singh are witness but their signatures differ with each other on both documents. Flow of signature on the recovery memo of bloodstained earth and flow of signature on the recovery memo of bus tickets is not matching with each other and same are different. PW-8 Mukesh Gupta when examined before the Court has clearly admitted that when he reached at the room in question, by that time police had opened the door breaking the lock. In cross-examination he has also stated the same facts, meaning thereby recovery of bus tickets from the room in question was not made before him. Similarly, PW-1 when examined before the Court has clearly stated that nothing was recovered from the body of deceased before him. If the statement of PW-1 is taken into consideration then also recovery of bus tickets said to have been made from the pocket of deceased becomes doubtful. Thus, in this case recovery of bus tickets from the pocket of deceased and also from the pocket of accused appellant Brijesh Chaudhary is highly doubtful. Said recovery is also not supported with independent evidence at any place. Other witnesses i.e. PW-4 and PW-5 are the related witnesses of the deceased. Hence, finding recorded by the trial court in the impugned judgment and order on this issue is not in accordance with facts, evidence and law. Trial Court did not appreciate the prosecution evidence in this regard in right perspective and reached on a wrong conclusion.
33. Now we take up the submission regarding non-putting of the incriminating facts before the accused appellants in the statement recorded under Section 313 CrPC.
34. Question No. 8 put to the accused appellants in the statement recorded under Section 313 CrPC is as under:
" iz0&8 vfHk;kstu lk{; es vk;k gS fd fnukWd 18-2-03 dks oknh lqtku flag }kjk vius iq= dh yk'k dh f'kuk[r dh x;hA bl lEcU/k esa vkidks D;k dguk gS\"
35. Question No.11 is as under:
^^iz0&11 vfHk;kstu }kjk nkf[ky vfHkys[kh; lk{; rgjhj izn'kZ d&1] ,Q0vkbZ0vkj0 izn'kZ d&2] izfrfyfi th0Mh0 izn'kZ d&3] QnZ lkeku izn'kZ d&4] izkFkZuk i= izn'kZ d&5 o 6] QnZ fVfdV izn'kZ d&7] QnZ cjkenxh eky izn'kZ d&8] QnZ ysus dCts rhu fVfdV jksMost izn'kZ d&9] uD'kk utjh izn'kZ d&10] QnZ feV~Vh lknk o [kwuvkywnk izn'kZ d&11] iapk;rukek izn'kZ d&12] pkyku yk'k izn'kZ d&13] QksVks yk'k izn'kZ d&14] fjiksVZ vkj0vkbZ0] izn'kZ d&15] QnZ] fjiksVZ Fkkuk uwjiwj izn'kZ d&16] uD'kk utjh izn'kZ d&17] QnZ cjkenxh vkyk dRy [kwu vkywnk pkdw o [kwu yxh jLlh izn'kZ d&18] uD'kk utjh izn'kZ d&19] iksLVekVZe fjiksVZ izn'kZ d&20 rFkk vkjksi i= izn'kZ d&21 ds lEcU/k esa D;k dguk gS\**
36. In Nar Singh Versus State of Haryana, (2015) 1 Supreme Court Cases 496, Apex Court after setting aside judgment of Trial Court as well as High Court remitted the matter back to Trial Court for formulating correct questions and putting same before accused-appellant observing that prejudice is caused to accused-appellant on account of omission to put the question as to the opinion of the Ballistic Expert, which was relied upon by Trial Court as well as by High Court. Court also held that accused is not entitled to acquittal on the ground of non-compliance with the mandatory provisions of Section 313 Cr.P.C. Court has also discussed the ratio laid down in Paramjeet Singh alias Pamma v. State of Uttarakhand, (2010) 10 SCC 439; Basava R. Patil & Ors. v. State of Karnataka & Ors., (2000) 8 SCC 740, Avtar Singh & Ors. v. State of Punjab, (2002) 7 SCC 419; Wasim Khan v. The State of Uttar Pradesh, AIR 1956 SC 400; Bhoor Singh & Anr. v. State of Punjab, AIR 1974 SC 1256; Santosh Kumar Singh v. State through CBI, (2010) 9 SCC 747; State of Punjab v. Hari Singh & Ors. (2009) 4 SCC 200; Kuldip Singh & Ors. v. State of Delhi (2003) 12 SCC 528 and Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648 wherein it has been held that Trial Court is under a legal obligation to put incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the Court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration.
37. It has also been held that statutory provision is based on the rules of natural justice for an accused, who must be made aware of the circumstances being put against him so that he can give a proper explanation to meet that case.
38. In Santosh Kumar Singh (supra), Court has held that omission to put any material circumstance to the accused does not ipso facto vitiate trial and that the accused must show prejudice and that miscarriage of justice had been sustained by him.
39. Thus it is evident that any inadvertent omission on the part of Court to question accused on an incriminating circumstance cannot ipso facto vitiate trial unless it is shown that some material prejudice was caused to accused by the omission of Court.
40. In Nar Singh (supra), in para 20, Court has observed as follows :
"20. The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of Section 313 CrPC has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under Section 313 Cr.P.C., it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to the safeguard given to him under Section 313 Cr.P.C. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. Facts of each case have to be examined to determine whether actually any prejudice has been caused to the appellant due to omission of some incriminating circumstances being put to the accused."
41. If ratio laid down in aforesaid decisions are taken into consideration, then in the facts and circumstances of the case, the Court has to see what sort of incriminating evidence adduced by prosecution in its evidence have not been put to accused-appellants and how prejudice is caused to them. It is also to be seen whether on account of failure of putting incriminating circumstances, trial is vitiated and prejudice is caused to accused-appellants. To resolve the controversy, we have to analyze statements under section 313 Cr.P.C. recorded by Trial Court in this case, as has been reproduced here-in-above, along with incriminating evidence relied on by the Court.
42. In the present matter, Question No.8 was not correctly formulated. In fact deceased was not identified by the informant on the basis of dead body, rather he was identified after conducting the post mortem on the basis of clothes and other articles recovered from the dead body of the deceased. Question No.8 specifically disclosed that informant identified the dead body of the deceased. If the facts disclosed in Question No.8 are taken into consideration, certainly, correct facts were not mentioned in it by the Court concerned. Thus, submission raised on behalf of appellants in this regard cannot be thrown out. Further, Question No.11 was also not correctly formulated. In this question only number of exhibits has been given. What were the actual details of recovery, bus tickets and recovered articles were not put before the accused appellants. It is also evident that though incriminating facts have been taken into consideration by the Trial Court while passing the impugned order and trial court has placed reliance on the said incriminating materials / facts yet full details of the said incriminating materials/ facts were not put before the accused appellants. If the submissions raised on behalf of appellants are minutely analyzed, in the opinion of the Court, non-putting of correct questions and all the incriminating materials in detail before the accused appellants had caused prejudice to them. Hence, due to this reason trial has vitiated. The finding recorded by the trial court in the impugned judgment and order on this point regarding quilt of accused appellants needs interference. Since only on the basis of non-putting of all the incriminating materials / facts before the accused appellants under Section 313 CrPC it will not be sufficient to acquit the accused appellants, therefore, Court has taken into consideration the other facts said to have been proved by the prosecution before the Trial Court to see the legality / illegality of the findings of the trial court recorded in the impugned judgement and order.
43. As we have discussed / held here-in-above that recovery of bus tickets on 18.2.2003 from the room, where deceased and accused appellant Brijesh Chaudhary were residing, is doubtful, door of the room in question was opened after breaking the lock, nothing is on record to show that after recovery of the bus tickets room in question was closed or it was remained opened, if such is the position, presence of accused appellants on 21.2.2003 in the same room appears improbable and doubtful. If arrest of the accused appellants at the place from where they were said to have been arrested is doubtful, recovery of knife said to have been used in commission of crime also becomes doubtful.
44. Thus, the sum and substance of the scrutiny / analysis of the facts and evidence of the matter, as discussed here-in-above, is that motive was not disclosed by the prosecution from the very beginning. It was planted during investigation and is not of severe / serious nature to commit the present offence; recovery of bus tickets said to have been made from the dead body of the deceased is also doubtful and same is not supported by PW-1 Dr. Jagwant Singh; signatures made by Dr. Jagwant Singh and other witness on the recovery memo and memo preparing bloodstained and simple earth on the same date are not matching with each other; recovery of bus tickets from the room in question from the pocket of shirt of accused appellant Brijesh Chandhary is also doubtful and same is also not supported with the statement of owner, namely, Mukesh Gupta or with any independent evidence. Further, if we analyze the fact of recovery of wrist watch from the possession of the accused appellant Hari Om, it also appears doubtful, as arrest of accused appellants from the room in question on 21.2.2003 has been found false/ doubtful. Prosecution evidence itself reveals that recovered watch was easily available in the market. Thus, recovery of watch from the possession of accused appellant Hari Om is also doubtful and same is also not supported with any independent evidence. All the witnesses of recovery are of Faridpur, who are closely connected with the informant.
45. After dealing with the case, which is based on circumstantial evidence, with utmost precaution we find many loopholes in the case of prosecution. For establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts. If any link in the chain is missing, the accused is entitled to get the benefit of doubt. In the present matter chain of circumstances are not so linked with each other to form an irresistible conclusion against the accused appellants to commit the present offence. They have been falsely implicated in the present matter. The trial court has not rightly appreciated the evidence available on record and reached to a wrong conclusion holding the accused appellants to be guilty for committing the murder of the deceased Rajendra Pal.
46. Hence, taking into account the entire facts and circumstances of the case and re-appreciating the evidence available on record, we are of the view that the prosecution has not been able to establish the guilt of the accused appellants Brijesh Chaudhary and Om @ Hari Om. Hence, the Court is inclined to grant benefit of doubt to the accused appellants Brijesh Chaudhary and Om @ Hari Om, keeping in mind the rule of caution.
47. In view of the above discussions, we are of the opinion that the prosecution has failed to establish the guilt of the accused appellants under Sections 302/34, 201, 394 and 411 IPC beyond reasonable doubt and to the satisfaction of the judicial conscience of the Court. So, the impugned judgement and order of conviction and sentence dated 04.04.2011, which has been sought to be assailed, call for and deserves, interference. The criminal appeals are liable to be allowed and the same are accordingly allowed.
48. The judgement and order of conviction and sentence dated 04.04.2011 passed by the trial court is hereby set aside. The accused appellants, namely, Brijesh Chaudhary and Om @ Hari Om are found not guilty for the offence punishable under Sections 302/34, 201, 394, 411 IPC. They are acquitted of all the charges framed against them. Accused appellants are in jail. They shall be released forthwith, if not involved / wanted in some other case.
49. Let a copy of this judgement along with lower court record be sent to the Sessions Judge, Bijnor for compliance. A compliance report be also sent.
50. Copy of this order be also kept on the record of Criminal Appeal No.2911 of 2011.
51. Keeping in view provisions of Section 437-A Cr.P.C., appellants Brijesh Chaudhary and Om @ Hari Om are directed to forthwith furnish each a personal bond of the sum of Rupees Fifty Thousand and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellants on receipt of notice thereof shall appear before Hon'ble Supreme Court.
Order date : 27.05.2022 safi