Allahabad High Court
Mukesh vs State Of U.P. on 20 February, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 1
Case :- JAIL APPEAL No. - 320 of 2018
Appellant :- Mukesh
Respondent :- State Of U.P.
Counsel for Appellant :- From Jail, ,Rajesh Kumar Singh (A.C.)
Counsel for Respondent :- A.G.A.
Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)
1. Heard Sri Rajesh Kumar Singh, Amicus Curiae for the State and Sri Pawan Kumar Shukla, learned A.G.A. appearing for the State and perused the record.
2. This jail appeal has been preferred against the judgment and order dated 9.11.2016 passed by the Additional District and Session Judge, Court No.13, Ghaziabad in S.T. No. 656 of 2014 (State vs. Mukesh) whereby the accused-appellant has been convicted under section 302 IPC and has been awarded punishment for life imprisonment, fine of Rs.5000/- and in default of payment of fine, two months additional simple imprisonment; under section 201 IPC three years rigorous imprisonment, fine of Rs.1000/- and in default of payment of fine, one month additional imprisonment and both the the sentences are directed to run concurrently.
3. In brief, the facts of the prosecution as narrated in the FIR are that Mukesh son of Ram Prasad (accused) gave a written report at the police station Loni, District Ghaziabad stating therein that his brother Sunil (deceased) son of Ram Prasad Pandit resident of Krishna Vihar Kuti Bhopura was living on rent and was working in Shahadra Factory which was involved in manufacturing of brass grinder. He had some dispute of money with his brother-in-law Pankaj son of Sarjoo Pandit resident of Babu Rampur, P.S. Belhar, District Banka, (Bihar) and in view of that he had given a threat to kill about two months back. On 23.12.2013, his brother had gone by his cycle to his factory at about 9.00 a.m. from his house but did not return and he kept making search for him whole night. Today, he received information that dead body of his brother was lying in the jungle behind April Park who had been murdered by Pankaj by sharp edged weapon and with a view to concealing the dead body had thrown it at the aforesaid place in a pit.
4. A written report with the abovementioned contents (Exhibit Ka-14) being given at the said police station, case crime no. 2994 of 2013 was registered under section 302 and 201 IPC against Pankaj by Constable Jai Prakash (PW2) and prepared chik FIR which is Exhibit Ka-2 and made entry of this case in G.D. on 24.12.2013 at report no. 46, time 14.45 hours which is Exhibit Ka-3.
5. The investigation was entrusted to S.I. Raj Pal Singh Tomar (PW-3) on the same day who after having received the copy of the chik FIR and other relevant documents, before proceeding to go ahead with the proceedings of Panchayatnama, recorded statement of informant Mukesh son of Ram Prasad at the place of occurrence. Along with PW3, a constable had also accompanied him who was handed over the Panchayatnama of the deceased, Exhibit Ka-4 and other relevant documents i.e. photo-nash, chitthi CMO sample seal. Form-13 is Exhibit Ka-5, photo-nash is Exhibit Ka-6, chitthi CMO is Exhibit Ka-7 and sample seal is Exhibit Ka-8. On the same day, he also made inspection of the place of incident and collected blood stained soil, ordinary soil from the palce of incident in two containers and prepared its memorandum which is Exhibit Ka-9. On the same day he made inspection of the place of incident at the instance of informant Mukesh and prepared site plan which is Exhibit Ka-10. On 24.12.2013 he also recorded statement of witness Nindu son of Bohra, Arvind son of Dhanpal and thereafter further investigation was done by S.S.I Sri Ved Prakash. On 28.12.2013, he (PW3) accompanied S.S.I. Ved Prakash, S.I. Balram Singh Yadav, Constable Nauneet Kumar and departed from the police station vide report no. 29, time 1300 hours taking along accused Mukesh for recovery of the weapon which was used in commission of this offence and reached the April Park Talab (Pond), from there accused gave out one axe at about 13.30 hours which was having blood stains and the same was sealed on the spot and its sample seal was prepared, its memorandum was prepared by S.S.I. Ved Prakash and the same also bears his(PW3's) signature. The said weapon is marked as material Exhibit Ka-11. On the same day i.e. on 12.09.2013 (appears to be wrongly mentioned) at the instance of accused Mukesh and in the presence of all the police party as well as accused, Mukesh got recovered one blood stained jeans pant at about 14.45 hours from upper shelve (Tand) of his house, recovery memo of which was prepared, which is signed by him and is Exhibit Ka-12.
6. In cross-examination, this witness has stated that the incident had happened on 23.12.2013, regarding which Mukesh had come to give information to the Police station and at his instance, FIR was registered due to S.S.I. Ved Prakash being out of station, investigation was handed over to him and he had investigated only for one day in this case i.e. 24.12.2013. He does not recollect as to against whom the informant has lodged the FIR. The same was registered as case crime no. 2949 of 2013 under sections 302 and 201 IPC as per version of the informant. He was present at the police station when informant had come to lodge the FIR. It is right to say that first of all he had proceeded for the place of incident and reached there at about 2.55 p.m. along with two constables and the informant. The informant had stayed at the police station for hardly ten minutes but he does not recollect that he was alone. On the place of incident, he filled up Panchayatnama of the deceased on 24.12.2013 at the same place where the dead body was lying in front of five persons namely Mukesh, Babu Ram, Kishor, Yaseen and one name he does not remember. He had also taken blood stained soil and ordinary soil from the place of incident and prepared its memorandum. He had found blood stains at the place of incident and at the time of preparing memorandum for the same, he had obtained signature of Yaseen and Adesh Tyagi and thereafter he had despatched the dead body for postmortem. He had also despatched the blood stained soil and ordinary soil to the Forensic Science Lab for being examined. He has stated it to be wrong that the FIR in this case was registered at his instance. He had prepared site plan. He had not recorded statement of any witness except that of the informant. He could not tell as to how many injuries were on the body of the deceased because he was not present at the time of postmortem and he also cannot tell whether the clothes of the deceased were sent to Forensic Science Lab for being examined or not. He does not have weapon, by which offence was committed, before him in court today but denied that no such weapon was recovered and that he had shown the said false recovery only to save Smt. Ranju Devi and Pankaj. He does not recollect as to how many papers were signed by him but had denied that he had not conducted investigation of this case and recorded the same in C.D. and that entire proceedings were completed by him sitting at the police station itself and it was also wrong to say that FIR was registered by him after completion of Panchayatnama and to save Ranju Devi and Pankaj and has falsely implicated the accused Mukesh.
7. S.S.I. Ved Prakash (PW5) has stated in examination in chief that on 24.12.2013 he was posted as S.S.I, Loni, but on the said date he had gone out of station when the present case was registered but the investigation was assigned to him. He resumed the investigation on 26.12.2013. Parcha no. 1 was prepared by S.I. Raj Pal Singh Tomer in his absence, after having perused the same, the wife of the deceased Ranjoo Devi had come to the police station to give information and then her statement was recorded by him in which she stated that her 'Dewar' (informant) of this case Mukesh had committed murder of her husband Sunil, thereafter, the accused Mukesh was arrested on 28.12.2013 and was interrogated, entry of which is made in G.D. No.28 time 12.45 hours. He confessed to have committed the offence and at his instance small axe was recovered, recovery memo of which is Exhibit Ka-11. At his pointing out, a blood stained jeans pant of the deceased was also recovered from his room, memo of which is Exhibit Ka-12. On 3.1.2014 he copied Panchayatnama and postportem report and on 6.1.2014 he recorded staements of witnesses of Panchayatnama namely Ram Kishor, Babu Lal, Raj Kumar, Yaseen, S.I. Ram Pal Singh Tomar and also constable Brahmpal and Ram Kumar who had assisted in conducting the postmortem and on he same day statement of Head Moharrir Jai Prakash Bhaskar was also recorded and charge-sheet Exhibit Ka-13 was filed by him. The blood stained soil, ordinary soil, axe and also container in which these soils were kept are material Exhibit 1 to 3 and the cloth in which the axe was sealed is material Exhibit 4. The container of ordinary soil and blood stained soil are material Exhibits 5 and 6 respectively. Belongings of the deceased are marked as material Exhibits 7 to 14 and bundle in which they were sealed is material Exhibit 15.
8. S.S.I. Ved Prakash (PW5) has stated in cross-examination that he has full knowledge of the present case. On 23.12.2013 in the night, this occurrence had happened. The case was registered at P.S. Loni in his absence. The informant of this case is Mukesh who is the present accused. At that time SHO of said police station was Gorakh Nath Yadav. On the date when he started investigation of this case, wife of the deceased namely Ranju Devi met him at the police station and gave information about this incident on 26.12.2013. He had visited the place of incident on 28.12.2013 but he does not recollect whether he had made any entry in the G.D. in that regard nor does he recollect by which vehicle he had visited the place of incident. He was accompanied by S.I. Rampal Singh Tomar (PW3) and S.I. Brahma Singh and constable Navneet Kumar. The place of incident was about 6 kms. away from the police station. In reaching there, it took 10 minutes time and on the place of incident at the instance of the accused, axe which has been used in commission of this offence, was got recovered from under water. He did not take finger print of accused Mukesh although blood stain was visible on the said axe and it also had wet mud upon it but there was no public witness at the time of its recovery.
9. The said weapon was sent to FSL, Agra for examination along with the blood stained soil and ordinary soil and also clothing (jeans pant) of the deceased. The said axe was sealed and its sample seal was prepared. At the police station, Ranju Devi (PW4) had stated that this occurrence was given effect to by the accused Mukesh and its reason was also told to be that in her illness, Mukesh had spent about Rs.20,000/- and since thereafter he was having evil eye upon her and was again and again asking for that money to be returned. One day her husband had thrown him out of his house. This witness also stated that Pankaj had also stated to have taken Rs.20,000/- from accused Mukesh which Mukesh was demanding it back and when the same was not returned, this false FIR was lodged by accused Mukesh against Pankaj. This witness has further stated that Ranju Devi also made a reference of one plot but he does not exactly recollect about the same as to what was stated. He has also stated that he had recorded about nine witnesses in this case under section 161 Cr.P.C within a day. He does not know as to how many injuries were on the person of the deceased because he had not filled up the Panchayatnama. He had come to know on 26.12.2013 itself that the incident was committed by Mukesh who was arrested by him on 28.12.2013 from Tila More at about 12.10 hours but he does not recollect as to when he was present before the Court. At the time of his arrest S.I. Rampal Singh Tomar and S.I. Balram Singh were also present along with Constable Navneet Kumar but there was no public witness available. His arrest was made on busy road but none become ready to be a witness. He was not present at the mortuary when the post-mortem of the deceased was conducted. Mukesh was not available on search and it took time to arrest him. From the complainant, Mukesh has been made an accused by him in this case on the basis of the statement of Ranju Devi on 26.12.2013 and because of wrong mentioning the name of Pankaj, he was arrested. He has denied that he had not investigated the case fairly and at the instance of Ranju Devi and Pankaj, the accused has been falsely implicated. He has further stated that he had not made site plan of the place from where axe was recovered although the said axe is present before him in Court and he has denied that the same has been planted upon the accused.
10. In order to prove its case, the prosecution has examined Dr. Ramesh Chand Gupta as PW1 who had conducted the post-mortem of the deceased, Constable Jai Prakash as PW2 who had registered the FIR and prepared the chik and G.D. of this case, S.I. Rajpal Singh Tomar as PW3 who had partly conducted the investigation of this case at the initial stage, Ranju Devi as PW4 who is wife of the deceased, S.S.I. Ved Prakash as PW5 who has conducted the remaining investigation of this Case and has proved the charge-sheet and other relevant documents of the prosecution. Vikas Kumar son of Haripal has been examined as PW6 who is scribe of the written report.
11. Charges under sections 302 and 201 IPC were framed on 7.7.2014 against the accused-appellant to which he pleaded not guilty and claimed to be tried.
12. Thereafter, the prosecution evidence was closed and statement of the accused was recorded under section 313 Cr.P.C. in which he has stated to have been falsely implicated in the present case; the evidence which has been produced from the side of the prosecution is stated to be false; he has denied any kind of recovery of weapon of commission of offence or any other incriminating article to have been made at his pointing out and has further stated that his Babhi Ranju Devi had illicit relationship with his cousin brother Pankaj, who was not allowed to visit his home by the deceased and that resulted in enmity between them and Pankaj had also issued threat to kill him. His Bhabi has got him arrested and did not allow the police to act upon the written report lodged by him. The police has planted false story. He has also given written paper which should be taken to be his statement in this case.
13. In defence, the accused-appellant has examined Pradeep Pandit son of Ram Prasad Pandit resident of Bhimari, Post Bara P.S. Belhar, District Banka Vihar presently residing at near Gol Kunwa, Jhandapur Karka Mardal, P.S. Sahibabad, District Ghaziabad and it has been stated by him in examination in chief that his brother deceased Sunil and his wife were living in rented accommodation in Krishna Vihar Kuti Bhopura at Ghaziabad and in the adjoining room, informant Mukesh was also living on rent. He does work of cementing and in that connection he often used to go to the house of his brother Sunil (deceased) where he often met Ranju Devi with Pankaj. His brother Sunit had told him that Ranju Devi and Pankaj had illicit relations because of which there used to be quarrel between them. He had counselled Sunnil and Pankaj Both many time but to no avail. His other brother Mukesh (accused) and he himself (DW1) had counselled Pankaj that he should not go to the house of Sunil and thereafter he became annoyed and had issued threat to Sunil that if he came between him and Ranju Devi, he would be done to death and his brother who lived in adjoining room would be implicated. Thereafter, his brother Mukesh had told him on 23.12.2013 that Sunil had not returned from the factory regarding which he had told Mukesh to lodge a report, pursuant to which on 24.12.2013 he lodged report against Pankaj in respect of murder of Sunil and subsequently he came to know that police had arrested Pankaj in this case.
14. In cross examination, this witness has stated that he does not live permanently at his brother's place and had reached there on 24.12.2013 but Panchayatnama was not filled up in front of him. Sunil has three children. About illicit relation between Pankaj and Ranju Devi, Mukesh had told him and has denied that he was making such statement to defend the accused.
15. After consideration of the entire evidence and having heard both the sides, the trial court has convicted the accused under the aforementioned sections and awarded punishment as mentioned above. We have to re-appreciate the evidence which has come on record and form opinion as to whether the appreciation made by the trial court is in accordance with law and evidence on record or does it require any interference.
16. Learned Amicus Curiae who argued on behalf of the appellant, has stated that curious feature of this case is that the informant himself has been made an accused in this case by the prosecution side, who is lying in jail since 28.12.2013. It has been argued by learned Amicus Curiae that there is no evidence against the accused on record and the sole ground on the basis of which he has been held guilty is that recovery of one blood stained axe was made at the pointing out of the accused appellant from open place coupled with a confessional statement which is absolutely false. He had not made any such statement nor any such recovery was ever made. The same has been planted upon him. There is no motive proved that the accused had committed this offence and the Investigating Officer in collusion with the wife of the deceased and Pankaj with whom she had illicit relation, has got him implicated in this case. Therefore, appeal should be allowed and the accused should be set at liberty.
17. On the other hand learned A.G.A. has vehemently argued that there is no infirmity in the impugned judgment. All the evidence which has been collected by the Investigating Officer is clearly pointing out towards guilt of the accused as it being case of circumstantial evidence, the links to form a complete chain of facts have been proved from which there is only one conclusion which can be drawn, is that it was only the accused who could have killed the deceased. Therefore, the appeal deserves to be dismissed.
18. It would be appropriate to evaluate the evidence which was gathered by the prosecution side in this case.
19. PW4 Ranju Devi who is wife of deceased Sunil has stated on oath in examination in chief that her husband Sunil was living in Krishna Vihar Kuti Bhopura under the jurisdiction of Police Station Sahibabad on rent and she had one son and two daughters out of the wedlock and at the time of the incident her husband was working in the Shardara Factory where he used to go from house at about 9.00 a.m. by his cycle and would return in the evening at about 6.00 p.m. On 23.12.2013 after having completed his duty he returned home at about 6.00 p.m. the accused who is present in court is her Devar. On the said date i.e. 23.12.2013 at 6.15 p.m. her husband was taken away by the accused on some pretext in front of her and thereafter her husband did not return in the said night. She tried to contact him on mobile phone but even mobile was switched off. Next day on 24.12.2013, the dead body of her husband was found in jungle of April Park in the jungle of village Amrola, information regarding which was received by her from police. Prior to this incident, her husband Sunil had purchased a plot in Tronica City and therefore, she has full belief that in order to grab that plot, her husband has been killed by the accused after taking him away in the evening on 23.12.2013 and in order to save himself, he got a false report lodged against Pankaj showing therein his animosity with him. Further, she has stated that 4-5 days after the incident, the accused Mukesh was arrested for murder of her husband and at his pointing out one jeans pant having blood staines was recovered from shelves (Tand) of his room in her presence which was sealed by police and memo of which was prepared by the police, upon it, her thumb impression was taken which is Exhibit Ka-12. She has further stated that her husband was assaulted by axe on his head by the accused-appellant and she had brought photograph also which was taken after the death of her husband. Police had recorded her statement in this case.
20. In cross examination, this witness has stated that she has known under husband Sunil since her marriage. Her Sasural is in village Belhar under the jurisdiction of district Banka in Bihar. Her husband was working as Grinder of brass. At the time of occurrence, they were living in Krishna Vihar Kuti Bhopura and the said factory was situated at a distance of three kilometres from her house. On the date of occurrence, her husband had gone on duty from home by the cycle and apart from him in the said house, there were also living her three children. No person by name of Pankaj was living with them. Pankaj is her cousin brother who was living in Bhopura at the time of incident at a distance of about two kilometres from her house. She was living at the above place with her husband even before coming of Pankaj to Bhopura because he had come there after about 2-3 years and was staying there on rent. Although Pankaj used to visit her house often because of being the cousin brother who is aged about 40 years and her husband was about 30 years old. Her husband had four brothers and at the time of incident in the adjoining house Mukesh used to live. The occurrence has taken place three years ago and on the said day her husband had left home saying that he would return after finishing his duty but did not return. There was no money outstanding of her husband towards Pankaj nor had they any kind of dispute with each other regarding money. She knows Mukesh (accused) for the last six months. She had not lodged FIR with regard to her husband having gone missing. Initially report of this occurrence was lodged by the accused naming therein Pankaj. She does not know as to what were relations between accused Mukesh and deceased Sunil. Mukesh has mentioned in the report the reason for the murder to be that there was money transaction between her husband and Pankaj and some money was due upon Pankaj. The police had handed over the dead body of her husband. She also does not know whether Pankaj, Sunil and Mukesh had any inter se animosity. She had identified the body of her husband by clothes which he was wearing as his face was not identifiable. She does not recollect as to when her statement was recorded by the police which was given by her at the police station and also signatures were made by her on it. She has stated it to be wrong that in order to defend Pankaj, she was giving false statement before the court today. She has also denied that Pankaj had taken Rs.20,000/- from her husband Sunil prior to the incident and when same were demanded back Pankaj had given life threat to Sunil. She has also stated it to be wrong that there was illicit relationship between her and Pankaj and that because of illicit relation, the deceased used to oppose entry of Pankaj in his house and due to this Pankaj had committed murder of Sunil. She has also stated that when her husband had gone to his work place he was wearing black pant, black shirt and pink sweater and blue muffler and has denied that the accused has been falsely implicated by in the present case.
21. From the statement of this witness mentioned above, it is apparent that it is self contradictory in the sense that in the examination in chief, she has stated that on 23.12.2013 i.e. on the date of incident, her husband had returned home from factory at about 6.00 p.m. and thereafter the accused had taken him away on some pretext at about 6.15 p.m. and thereafter her husband did not return and was found dead the next day in jungle regarding which information was received by her from the police while in cross examination she has stated that on the date of incident when her husband had gone to attend duty saying that he would return but did not return.
22. This witness has also stated that one plot was purchased by her husband which appears to be the reason for the accused to murder him because the accused wanted to grab that property but no documentary evidence has been provided in support of the purchase of any such plot, moreover, we are of the view that even if her husband was done to death, his property would devolve upon either his wife or children, who would be his legal heirs and in no way the property would devolve upon his brother (accused) in this case. Therefore, the said conjecture which has been entertained by this witness appears to be unfounded and this makes her testimony to be not credit-worthy.
23. PW1 Dr. Ramesh Chandra Gupta has stated in examination in chief that on 25.12.2013 at about 2.30 p.m. he had conducted the post-mortem of Sunil deceased son of Ram Prasad Pandit aged about 30 years who was brought by Constable Ram Kumar Yadav and Constable Brahmpal in sealed condition and had identified it and found following ante-mortem injuries on his person:-
i) Incised wound 5cm x 1cm on right posterior part of head, brain coming out.
ii) Incised wound 2cm x 1cm on right posterior part of head.
iii)Incised wound 3cm x 1cm just back of right ear, brain coming out.
iv) Incised wound 10cm x 5cm on left side of head upto posterior part of head, brain coming out.
v) Incised wound 2cm x 1cm on left posterior part of head.
24. He has mentioned the cause of death to be shock and hemorrhage as a result of ante-mortem injuries and has proved the postmortem report in his handwriting, which is Exhibit Ka-1 and has further stated that the deceased could have died on 23.12.2013 by the injuries caused by sharp edged weapon such as axe.
25. In cross-examination, this witness has stated that the deceased might have died about one and half days prior to conducting of the post-mortem. The injuries that he had received on head were not possible to be caused by falling down as the same were caused by sharp edged weapon and has denied to have given false statement in this regard.
26. Sri Vikas Kumar son of Sri Har Pal has been examined as PW6 who has stated in examination in chief that on 24.12.2013 he was returning from duty and stopped near Pavi Pushta Chawki to take water and after drinking the same, he saw that a passer-by came and asked him to write his report if he knew how to write. He stated that he would write if the same is dictated to him. There-after that person given him paper, on which whatever was dictated by him, was written by him and was read out to him and thereafter he put his name and address thereon as scribe of it. He has identified that paper to be Exhibit Ka-14 which is written report of this case.
27. In cross-examination this witness has stated that he is a DTC Conductor who does not have fixed duty schedule. Written report in this case was written by him and on that date his duty had started at 5.00 a.m. and was over at 2.00 p. In the afternoon he had written the said report at about 3.30 p.m. His duty begins and ends at Sukhdev Vihar. He is still a DTC Conductor. He further stated that he does not know Pankaj and the deceased. From the above statement, it is absolutely clear that this witness is scribe of the written report of this case i.e. Exhibit Ka-14 which has been proved by him and in cross-examination nothing could be asked which would make his statement to be unbelievable.
28. This case appears to be a case of circumstantial evidence in which there is no eye witness who has seen the deceased being assaulted by any weapon. According to FIR, the accused had mentioned that his brother Sunil (deceased) had some dispute of money with Pankaj (brother-in-law) prior to the occurrence and in that regard Pankaj had given life threat to the deceased about two months prior to the occurrence. Therefore, it was plea of the accused-informant that it was Pankaj who might have killed his brother on 23.12.2013 when he had been returning home from duty and then he received information with regard to the dead body of his brother being found in jungle in April Park. Subsequently on the basis of information provided by PW4 Ranju Devi wife of the deceased to the Investigating Officer S.S.I. Ved Prakash, PW5 on 26.12.2013 that her husband had been killed by his brother Mukesh, pursuant to which Mukesh was arrested and he is stated to have made confessional statement before the police on 28.12.2013 and he has further stated that he could provide the axe by which he had murdered his brother and thereafter police had recovered the said axe from the pond which is open place and thereafter it is also the prosecution case that at his pointing out jeans pant of the deceased was recovered from the upper shelve (Tand) in his house, on the fard which PW4 has been made a witness. Therefore, the accused is found to be guilty of having murdered the deceased and to have thrown his body in the jungle so as to remove the evidence of murder.
29. From the side of the prosecution, Forensic Science Report was also presented with respect to the axe and clothes of the deceased which had blood stains on them and it was found that they were having human blood. The said report is paper no. 8-ka which is admissible in evidence under section 293 of the Cr.P.C. The blood stained soil and ordinary soil were also sent to F.S.L. Agra and blood was found on the said soil which is paper no. 20-ka and is admissible under the same section mentioned above.
30. We have considered the entire facts and the evidence on record and found that certain aspect need to be looked into with closure scrutiny. It does not stand to reason as to why PW4 who is wife of the deceased did not lodge any report on her own in respect of her husband having gone missing when he did not return in the night of 23.12.2013 from duty and instead of that the brother of the deceased had to lodge a report in respect of the deceased having been murdered. No explanation of this fact has come on record.
31. We have already noticed above that the sole testimony in this witness appears to be that of PW4 who in examination in chief has stated to have seen the deceased being taken away by the accused on some pretext in the evening at around 6.15 p.m. when he had returned from his duty and further on the next day in the morning, she received information about the dead body being received of her husband. While in the cross examination she has admitted that her husband did not return home in the evening when he had proceeded on duty in the morning on 23.12.2013. Therefore, there is contradiction in her statement in respect of very material fact. It is true that as per post-mortem report the deceased is found to have received five incised wounds which have been proved by PW1 and he was brutally murdered with the aid of an axe, but the said axe is stated to have been recovered from the open place which is accessible to all. The said recovery is alleged to have been made in pursuance of confessional statement of the accused which is admissible under section 27 of the Evidence Act. The other recovery which is shown at the pointing out of the accused is of jeans pant of the deceased from upper shelve (Tand) of his room which we find to be doubtful because a person after having murdered the deceased would keep his belongings such as blood stained jeans pant in side the house where he resides sounds to be a very unnatural act. The natural act of an accused would be in such situation to throw away any article which would link him to the commission of offence. We fail to understand why the accused would take the police to the room where the said jeans pant was allegedly concealed by him. The motive which is imputed by PW4 to the accused to have committed this offence because accused wanted to grab the property which had lately been purchased by the deceased even that motive does not stand to reason because any property which the deceased would have purchased, would certainly to go to his legal heirs and not to his brother, hence we do not find any substance in the line of argument made from the side of the prosecution that the accused could have any motive to murder the deceased. Moreover, we have also mentioned above that no property document which was purchased by the deceased have been provided from the side of the prosecution.
32. As against this, from the side of the accused-appellant, defence has been taken that the PW4 had illicit relation with Pankaj against whom he had lodged FIR because the deceased used to oppose the entry of Pankaj into his house hence Pankaj harboured enmity towards deceased and in pursuance of that he might have killed the deceased. Although it is found that if that were the position, the accused while lodging FIR should have mentioned that fact in the written report. Instead of that, he has mentioned that Pankaj had some money dispute with the deceased which led to the killing of the deceased by Pankaj, although that has been investigated by the police and it has undoubtedly dismissed that plea and instead of it the police has taken the version of PW4 to be correct who was wife of the deceased.
33. Without entering into the said aspect of the case as to whether Pankaj had committed murder of the deceased or the accused, we simply have to see whether the prosecution has been able to prove beyond reasonable doubt on record that it was accused who was actually the persons who had murdered the deceased. We are of the opinion that all the links in the form of evidence of fact which have been brought on record from the side of the prosecution do not constitute a complete chain of events which would lead us to believe that it was the accused-appellant only who could have killed the deceased. The trial court appears to have misinterpreted the evidence on record and view taken by the trial court is not found to be sustainable view, therefore, the appeal deserves to be allowed as we do not find that the prosecution has been able to prove the charge against the accused under section 302 and 201 IPC beyond reasonable doubt.
34. In view of the above, the impugned judgment and order of the trial court dated 9.11.2016 is set aside. The appeal stands allowed and the appellant shall be released in this case forthwith if not detained in any other case.
35. It is further directed that the accused-appellant shall furnish bail bond with surety to the satisfaction of the court concerned in terms of the provision of section 437-A Cr.P.C.
36. Sri Rajesh Kumar Singh, Amicus Curiae shall be paid Rs.5,000/- for assisting the court ably in deciding this appeal.
37. Let a copy of this judgment with lower court record be transmitted to the trial court for immediate compliance.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Order Date :- 20.2.2019
AU