Uttarakhand High Court
Lalit Kumar vs State Of Uttarakhand on 30 June, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
RESERVED JUDGMENT
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No14 of 2011
Lalit Kumar ....... Appellant
Versus
State of Uttarakhand .....Respondent
with
Criminal Appeal No.22 of 2011
Amit @ Kala @ Ramdhan ....... Appellant
Versus
State of Uttarakhand .....Respondent
with
Criminal Appeal No21 of 2011
Amit @ Kala @ Ramdhan ....... Appellant
Versus
State of Uttarakhand .....Respondent
Mr. Sandeep Kothari, Advocate for the appellant.
Mr. D.K. Sharma, Senior Addl. Advocate General assisted by Mr. N.S. Kanyal,
Advocate for the State.
Reserved on:28.06.2017
Delivered on:30.06.2017
Coram : - Hon'ble Rajiv Sharma , J.
Hon'ble Sharad Kumar Sharma, J.
Per : Hon'ble Rajiv Sharma , J.
Since the common questions of law and facts are involved in the above numbered appeals, hence these are being taken together and are adjudicated by this common judgment. In order to maintain clarity, the facts of CRLA No.14 of 2011 are taken into consideration.
22. These criminal appeals are instituted against the judgment and order dated 13.01.2011 passed by learned Additional Sessions Judge, Roorkee in Sessions Trial No.53 of 2009, whereby the accused/appellants (Lalit Kumar & Amit @ Kala @ Ramdhan, were charged with and tried for the offences punishable under Sections 302, 364 and 201 of IPC. They were convicted under Sections 302/34, 364 & 201 of IPC. The trial court has sentenced the accused/appellants to undergo rigorous imprisonment for life with fine of Rs.5000/- each under Section 302/34 of IPC and in case of default of payment of fine, to undergo simple imprisonment for a further period of six months, they were sentenced to undergo 10 years rigorous imprisonment with fine of Rs.5,000/- each under Section 364 IPC and in case of default of payment of fine, to undergo simple imprisonment for a further period of six month and also to undergo seven years rigorous imprisonment with a fine of Rs.5,000/- under Section 201 IPC and in case of default of payment of fine, to undergo imprisonment for a further period of six months. Accused/appellant Amit @ Kala @ Ramdhan was also convicted in Sessions Trial No.54 of 2009 under Section 25 of the Arms Act. The trial court has sentenced him to undergo three years rigorous imprisonment with a fine of Rs.1,000/- under Section 25 of the Arms Act and in default of payment of fine, to undergo imprisonment for a further period of two months with the stipulation that all the sentences shall run concurrently.
3. The case of the prosecution, in a nutshell, is that deceased-Vikas @ Vikki was summoned by accused-Lalit Kumar on telephone. Telephone was attended by PW-1 3 Kaushalya Devi. She was asked to send Vikas Kumar with Rs.25,000/- in order to purchase tractor. Deceased-Vikas went towards Roorkee. He was last seen by his uncle Virendra Kumar at Nanauta. However, Vikas did not come back to his house. Search was made but deceased was not traced. Thereafter, a missing report was also filed in police station Jhabreda. The dead body was recovered at the border of District Saharanpur. The dead body of Vikas @ Vikki was identified by Subhash Kumar, Isampal and Virendra Kumar.
4. The body was sent for conducting the post mortem examination. Investigation was completed and the Challan was put up after completing all the codal formalities.
5. The Prosecution, in order to prove its case examined as many as fourteen witnesses.
6. Thereafter, the statements of the accused/ appellants were recorded under Section 313 Cr.P.C. They have denied the case of the prosecution and claimed to be tried. Accused/appellants were convicted and sentenced as noted hereinabove. Hence, the present criminal appeals.
7. Learned Advocate appearing for the accused/ appellants, has vehemently argued that the prosecution has failed to prove its case against the accused/appellants.
8. Learned Senior Addl. Advocate General appearing for the State, has supported the impugned judgment dated 13.01.2011.
49. We have heard learned counsel for the parties and gone through the judgment and record carefully.
10. PW-1-Kaushalya Devi is the mother of the deceased-Vikas. According to her, she had received a telephone call on 16.10.2008 at 08.00 a.m. from accused- Lalit Kumar. Lalit Kumar told her that Vikas should be sent with Rs.25,000/- in order to settle the tractor deal. Vikas took Rs.25,000/- from her and went on motorcycle towards Roorkee. He did not come back to his house till 17.10.2008. She received a phone call from Vikas on the mobile of her neighbour Sanju. Vikas told her that he will come in the evening. Thereafter, at about 05.00 p.m. a telephone call was received again on Sanju's mobile. She was told that Vikas was with him and he left him at Nanauta and would reach shortly. They waited for him till 08.30 p.m. but he did not come back. Thereafter, in the morning at about 10.00 a.m., again a telephone call was received on the Sanju's mobile from Lalit Kumar. She enquired whereabouts of her son Vikas @ Vikki. He again told her that he had left him at night. They tried to search for Vikas by making calls on his mobile but there was no response. On 26.10.2008, a missing report was lodged. Her relative Virendra and Anuj @ Tanuj had last seen her son on 17.10.2008 with accused-Lalit Kumar at Nanauta. She further deposed that her son Vikas @ Vikki was killed by accused Lalit Kumar and his companions.
11. PW-2- Smt. Sangita is the wife of the deceased/Vikas. She has corroborated the statement of PW-1-Kaushalya Devi. In her cross examination, she has categorically deposed that there was no dispute between 5 Lalit Kumar and her husband (Vikas). Lalit Kumar was with them when search was made to trace Vikas.
12. PW-3-Yaspal Singh has deposed that on 16.10.2008 at about 08.00 a.m. a phone call was received by PW-1 (mother of the deceased) from Lalit Kumar. Accused-Lalit Kumar asked his mother to send Vikas along with Rs.25,000/- to Roorkee. In his presence, the deceased-Vikas went to Roorkee on the motor-cycle, which was given to his sister in dowry. Vikas did not come back.
13. PW-4 Subhash has deposed that Lalit Kumar telephoned Vikas and asked him to bring a sum of Rs.25,000/-. The telephone was received by his mother. Deceased left his house after taking Rs.25,000/-. He was told by family members of the deceased that location of last call of his mobile was found near Jehra Tower under the Nanauta area. The dead body was recovered on 18.10.2008.
14. PW-6 Anuj @ Tanuj has deposed that on 17.10.2008 at about 07.00 p.m., Vikas @ Vikki and accused Lalit Kumar came on motorcycle. They stopped for some time and went away. In his cross examination, he deposed that they stayed with him for 10 minutes. He did not know the registration number of motorcycle on which they came. Lalit Kumar and Vikas @ Vikki came to his shop and his father was also present.
15. PW-7 Surendra Pal Singh has deposed that he was posted at police station Jhabreda. He received a secret information that accused was present near wine shop at Devband wrapped in bed-sheet. They tried to associate 6 independent witnesses but no independent witnesses were available. Accused disclosed his name as Amit @ Kala. 12 bore pistol and one empty cartridge was recovered from his possession. He could not produce its license. These were taken into possession. Accused-Lalit Kumar was also arrested and on his disclosure statement, motorcycle was also recovered.
16. PW-8 Dr. Rajesh Singh, had conducted the post mortem on the dead body of the deceased-Vikas @ Vikki, opined that deceased died due to shock and excessive loss of blood. He died due to fire arm injuries. The death occurred 36 hours before the post mortem examination.
17. PW-9 Vikram Singh has deposed that on 18.10.2008 at about 09.15, a dead body was recovered from the field of Haripal. According to him, deceased was wearing only vest not shirt.
18. PW-10 is the formal witness.
19. PW-11 Head Constable Sanjeev Kumar is the witness of the recovery of dead body. He took photographs of the dead body and sample of blood stained soil.
20. PW-12 Dheeraj Pal Singh is the Incharge, Police Chauki, Mulheda Police Station, District Meerut. He has deposed that on 18.10.2008, Haripal informed that a dead body was lying in his field.
21. PW-13 V.K. Sharma is the Station House Officer, P.S. Jhabreda, District Haridwar, who was Investigating 7 Officer in the matter. According to him, Smt. Koshalya Devi- PW-1 lodged a missing report on 26.10.2008. The investigation was handed over to Sub Inspector Surendra Pal Singh. The dead body was recovered and identified by family members of the deceased. He took investigation on 04.11.2009. He further deposed that Lalit Kumar made extra judicial confession that he killed the deceased with the help of his brother-in-law - Amit @ Kala. A sum of Rs.25,000/- was taken by them. The amount was shared. The case property was deposited in the police station including 12 bore country made pistol and one empty cartridge. He also recorded the statement of witnesses.
22. The case of the prosecution in precisely is that deceased left his house on 16.10.2008. The missing report was filed on 26.10.2008. In the missing report on 26.10.2008, there is no averment that deceased was last seen by Virendra Kumar at Nanauta (Roorkee) in the company of the accused. The first information report was registered on 01.11.2008. It is mentioned by PW-4 Subhash in the first information report that deceased was last seen in the company of Lalit Kumar at Nanauta by Virendra Kumar. However, surprisingly, prosecution had not examined Virendra Kumar as witness. PW-6 Anuj @ Tanuj deposed that accused and deceased came to his shop and his father was also present. He did not know what was the registration number of the motor cycle on which deceased and Lalit Kumar came. PW-1 Koshalya Devi has also stated in her statement that Virendra Kumar and her son told her that they had seen deceased with accused Lalit Kumar on 17.10.2008 at Nanauta (Roorkee). Thus, Virendra Kumar 8 was the material witness. There is no explanation why he was not examined.
23. The motive attributed for the murder was that deceased went along with Rs.25,000/- and motorcycle. PW- 13 V.K. Sharma, Investigating Officer, in his statement stated that accused Lalit Kumar has made extra judicial confession that he and his brother-in-law Amit killed Vikas@ Vikki and shared booty. He also recovered the motorcycle. The extra judicial confession made by the accused before the police was not admissible under Section 25 of the Evidence Act. The case of the prosecution is that PW-1 Koshalya Devi also received the telephone calls on her neighbour's mobile namely Sanju. Sanju has not been examined as witness. Police has recovered country made pistol from Amit @ Kala but the same was not sent for FSL examination. It was necessary for the prosecution to send the firearm for FSL examination to see whether the same was used in the commission of crime or not. More particularly, when the deceased received fire arms injuries. Moreover, police has not associated any independent witness at the time of recovery of country made pistol. The case of the prosecution is entirely based on circumstantial evidence and the prosecution has failed to complete the entire chain. All the circumstances must exclusively indicate towards the guilt of the accused. The case of the prosecution is also based on "last seen theory". However, according to FIR dated 01.11.2008 and statement of PW-1 Koshalya Devi, the deceased was last seen in the company of Lalit Kumar by Virendra Kumar but Virendra Kumar has not been examined. The case of the prosecution is also that motive was to grab Rs.25,000/- and motorcycle of the 9 deceased. It has come in the statement of PW-2 Smt. Sangita that the relations between accused and deceased were cordial. Moreover, they were business partner.
24. Their Lordships of the Hon'ble Supreme Court in AIR 2006 SC 1800, in the case of "Commissioner of Police, Delhi vs. Narender Singh", have explained the difference between Sections 25 and 26 of the Evidence Act, 1872. Their Lordships have held that Section 26 raises a bar as regard admissibility of such confession, if made by an accused in the custody of a Police Officer, although such a confession might have been made before a person who is not a Police Officer. Their Lordships have held as under: -
"30. Section 26 also speaks about confession by an accused while in custody of the police. Sections 25 and 26 of the Evidence Act although seek to achieve the same purpose but they operate in somewhat two different fields. Section 25 raises an embargo as regards proof of confession before a police officer. The same need not be in police custody; whereas Section 26 raises a bar as regards admissibility of such confession, if made by an accused in the custody of a police officer although such a confession might have been made before a person who is not a police officer.
31. The policy underlying Sections 25 and 26 is to make it a substantive rule of law that confessions whenever and wherever made to the police, or while in the custody of the police to any person whomsoever unless made in the immediate presence of a Magistrate, shall be presumed to have been obtained under the circumstances mentioned in Section 24 and, therefore, 10 inadmissible, except so far as is provided by Section 27 of the Act."
25. Their Lordships of the Hon'ble Supreme Court in 1984 (4) S.C.C. 116 in the case of Sharad Birdichand Sarda Vs. State of Maharashtra have laid down the following conditions, the prosecution must satisfy in a case based on circumstantial evidence.
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra19 where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the 11 innocence of the accused and must show that in all human probability the act must have been done by the accused."
26. Their Lordships of the Hon'ble Supreme Court in (2014) 4 SCC 715, in the case of Kanhaiya Lal Vs. State of Rajasthan have held that circumstance of last seen together does not by itself necessarily lead to inference that it was accused who committed crime. There must be something more establishing connection between accused and crime. that if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. He must furnish an explanation which appears to the court to be probable and satisfactory. Their Lordships have held as under:-
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."
27. Their Lordships of the Hon'ble Supreme Court in (2015) 4 SCC 393, in the case of Ashok Vs. State of Maharashtra have held that last seen together itself is not conclusive proof but along with other circumstances surrounding the incident, like relations between accused and deceased, enmity between them, previous history of hostility, recovery of weapon from accused, etc. non- explanation of death of deceased, etc. may lead to 12 presumption of guild of accused. Their Lordships have held as under:-
"8. The "last seen together" theory has been elucidated by this Court in Trimukh Maroti Kirkan v. State of Maharashtra2, in the following words: (SCC p. 694, para 22) "22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Thus, the doctrine of last seen together shifts the burden of proof onto the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him.**"
9. In Ram Gulam Chaudhary v. State of Bihar3, the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor was his body found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy.
10. In Nika Ram v. State of H.P.4, it was observed that the fact that the accused alone was with his wife in the house when she was murdered with a "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt.
1311. The latest judgment on the point is Kanhaiya Lal v. State of Rajasthan5. In this case this Court has held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing the connectivity between the accused and the crime. Mere non-explanation on the part of the accused by itself cannot lead to the proof of guilt against the accused.
12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-
explanation of death of the deceased, may lead to a presumption of guilt.
20. From the above discussion, we conclude that the prosecution has not brought any clinching evidence in support of the last seen together theory so as to shift the burden of proof on the appellant-accused. In light of this, the prosecution has evidently failed to prove the guilt of the appellant-accused beyond doubt. Therefore, the appeal is allowed and the judgment and order1 passed by the High Court as also by the trial court are set aside. The appellant is directed to be released forthwith if not required in connection with any other case.
1428. Their Lordships of the Hon'ble Supreme Court in (2016) 1 SCC 550, in the case of Nizam and another Vs. State of Rajasthan have explained the principle of last seen theory. Their Lordships have held as under:-
"14. The courts below convicted the appellants on the evidence of PWs 1 and 2 that the deceased was last seen alive with the appellants on 23-1-2001.
Undoubtedly, the "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this Court that it is not prudent to base the conviction solely on "last seen theory".
"Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen."
29. In 2010 CRI. L. J. 3018, in the case of "Samir Bhowmik vs. State of Tripura", the Division Bench of Gauhati High Court has held that when the accused made extra-judicial confession stating that he attempted to rape deceased and he killer her by strangulation while in police custody, it was hit by Sections 25 and 26 and could not be used against him. The Division Bench has held as under: -
"61. With regard to the extra-judicial confession, alleged to have been made by the accused person, it is found from the evidence on record, that immediately after recovery of the dead body in the carton aforesaid the accused appellant was taken into custody by the police and the appellant made extra-judicial confession 15 stating that he attempted to rape the deceased and as she raised alarm, he killed her by strangulation. From the evidence on record, it further appears that the said extra-judicial confession was made by the accused in the presence and custody of police. Section 25 of the Evidence Act provides that any confession made to police officer cannot be proved against a person accused of any offence. Again Section 26 of the Evidence Act provides that no confession made by any person, while in custody of police, shall be proved as against such person. The legislature was of the view that any kind of confession made by an accused, while he is under the custody of police, cannot be used as evidence against him at the time of trial of the offence charged with. Admittedly, in the present case, the said confession was made by the accused, when He was under the custody of police. In view of the above bar in the statute, the extra-judicial confession alleged to have been made by the accused appellant, being hit by Sections 25 and 26 of the Evidence Act cannot be used against him. Therefore, the learned Judge committed error of law by accepting the said extra- judicial confession."
30. Consequently, in view of the above discussion made hereinabove, the prosecution has failed to prove its case beyond reasonable doubt.
31. Accordingly, the appeals are allowed. Judgment of conviction and sentence dated 13.01.2011 rendered by learned Additional Sessions Judge, Roorkee, District Haridwar in S.T. No.53 of 2009 and S.T. No.54 of 2009 is set aside. Accused are acquitted of the charges framed against them by giving them benefit of doubt.
16Accused/appellants are already on bail. They need not to surrender. Their bail bonds and sureties are discharged.
32. Let the copy of this judgment be placed in connected appeal.
33. Let a copy of this judgment along with lower court record be transmitted to the court below for compliance of the judgment forthwith.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
JKJ 30.06.2017