Allahabad High Court
Ram Gopal vs State Of U.P. on 10 January, 2020
Bench: Sunita Agarwal, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 41 Case :- CRIMINAL APPEAL No. - 1914 of 1997 Appellant :- Ram Gopal Respondent :- State of U.P. Counsel for Appellant :- R.B. Sahai, Ajay Vikram Yadav, Raghuraj Kishore,Raja Singh Counsel for Respondent :- AGA Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Pradeep Kumar Srivastava,J.
(Delivered by Hon'ble Pradeep Kumar Srivastava, J.)
1. Heard Sri Ajay Vikram Yadav, learned counsel for the appellant, Sri L.D. Rajbhar (AGA) and Sri Prem Shanker Mishra (AGA) for the State and perused the record.
2. This criminal appeal has been preferred against the judgment and order dated 15.09.1997 of Vth Additional Sessions Judge, Fatehpur, in ST No. 493 of 1993, arising out of Case Crime No. 181 of 1993, under Sections 302, 380, 411 IPC, Police Station Lalauli, District Fatehpur, whereby the accused-appellant Ram Gopal has been convicted and sentenced for the offence under Section 302 IPC for life imprisonment, for the offence under Section 380 IPC for six months rigorous imprisonment and for the offence under Section 411 IPC for three months rigorous imprisonment. The co-accused persons Rakesh Yadav and Jagjeet have, however been acquitted from the aforesaid charges.
3. Brief facts of this case is that the informant Om Prakash on 06.08.1993 at about 4:00 PM lodged a first information report by means of a written report in the Police Station Lalauli for the offence under Section 302 IPC against unknown persons. Accordingly, on 5/6.08.1993 at any time in the night his father Ram Vishal aged about 55 years was sleeping on the pumping set in village Benu for the purpose of security. The informant had gone outside the village in some relation. In the night, certain unknown persons cut the throat of his father and committed his murder. When he came back from the relation and saw the dead body of his father, he got the written report inscribed by Sushil Kumar, resident of Sahbajpur, Police Station Bindki and lodged the first information report. On the basis of first information report, the police started investigation, prepared the inquest report, got the postmortem of the dead body conducted. Statements of the witnesses were recorded. On 06.08.1993, one blood stained towel of the deceased, a piece of blood stained bed sheet, one rope which was 22 feet long and one pliers was taken into possession by the Investigating Officer and the rope and plier was handed over in the custody of the informant. The Investigating Officer on 09.08.1993 recorded the statement of Balgovind and Kishanpal who stated that they saw in the torch light accused persons Ramgopal Yadav, Jagjeet and Rakesh assaulting the deceased by axes and sickle in the tube well room and thereafter, they went back from there. They saw accused Ramgopal taking tube well band on his shoulder. The IO took into possession the torch from witness Bal Govind and again delivered back to him. On the basis of the statement of the witnesses, on 17.8.1993, accused Ram Gopal Yadav was arrested and he gave confessional statement that with co-accused Rakesh and Jagjeet, on the time, place and date of incident, committed murder of Ramvishal. On his instance, the sickle used as weapon in the murder and a pair of pumping set band was recovered before the witnesses from the sugarcane field of Medh Singh. The sickle was blood stained and one balist and six angul long (about 12 inches), fixed in a 7 inches wooden butt and the band of pumping set was 57 feet long and on the one end thereof, an iron bolt was fixed. On 22.08.1993, the informant came and disclosed to the police that the rope which was given in his custody on 06.08.1993 belonged to accused Ram Gopal Yadav and therefore, the same was also taken into possession. The Investigating Officer prepared the site map from where the weapon used in the commission of the offence and the tube well band was recovered. He also prepared the site map where the offence was committed. The blood stained earth and plain earth were taken from the place of occurrence. The blood stained earth, piece of bed sheet, towel, sickle, underwear of the deceased were sent for chemical examination to the Forensic Science Laboratory. On the basis of statement of the witnesses, recovery of incriminatory articles on the instance of accused Ram Gopal and finding sufficient evidence against the accused persons, charge sheet was submitted by the police against them for the offence under section 302/380/411 read with section 34, IPC.
4. Charges were framed against all the accused persons, including the convicted appellant, for the offence under Sections 302/34 and 380 IPC and against convicted appellant alone for the offence under Section 411 IPC. The accused persons denied the charges and claimed trial.
5. The prosecution examined as many as seven witnesses. PW-1 Om Prakash is informant of the case, PW-2 Bal Govind and PW-3 Krishna Pal are eye witnesses and PW-4 is Hari Om is witness of motive for the commission of the offence. PW-5 is Dr. R.K. Mishra, who conducted postmortem of the dead body. PW-6 is SI Ram Pyare Mishra, Head Moharrir who has written the chik FIR. and PW-7 is SI J.P. Yadav, who is Investigating Officer of the case. The witnesses have proved the written report Ext. Ka-1, recovery memo of weapon (sickle) used for murder, recovery memo of tube well band Ext. Ka-2, memo of blood stained clothes Ext. Ka-3, recovery memo of rope Ext. Ka-4, delivery memo of the same Ext. Ka-5, delivery memo of torch Ext. Ka-6, post-mortem report Ext. Ka-7, chik FIR Ext. Ka-8, GD report dated 06.08.1993 Ext. Ka-9, inquest report Ext. Ka-10, photo dead body Ext Ka-11, form 13 Ext. Ka-12, letter to CMO Ext. Ka-13, letter to RI Ext. Ka-14, sample seal Ext. Ka-15, recovery memo of blood stained and plain earth Ext. Ka-16, site map Ext. Ka-6/1, site map recovery of weapon of crime Ext. Ka-6/3, GD report No. 30 of 17.08.1993 Ext. Ka-19, charge sheet Ext. Ka-20 and forensic science laboratory report Ext. Ka-21.
6. The statement of the accused persons was recorded under Section 313 Cr.P.C. who have stated that they were falsely implicated in the present case and the witnesses are giving false statement on account of enmity. They, however, did not give any evidence in defence.
7. After hearing the prosecution and defence, and perusing the evidence available on record, the learned trial court passed the impugned judgment convicting and sentencing the accused-appellant. The learned trial court, however, acquitted the accused persons Rakesh and Jagjeet from the aforesaid charges. Feeling aggrieved by the same, the present criminal appeal has been filed by the convicted-appellant.
8. The accused-appellant Ram Gopal has challenged the impugned judgment of conviction and sentence on the ground that the same is against the weight of evidence on record. No offence is made out against the appellant. The sentence awarded is too severe, therefore, the impugned judgment is liable to be set aside and the appellant is entitled for acquittal.
9. The submission of the learned counsel to the appellant is that the prosecution case was based on direct evidence of PW-2 and PW-3 who were examined as eye-witnesses of the incident, but they turned hostile and did not support prosecution version. Even then placing reliance on their testimony, the learned trial court converted the prosecution case into that of case based on circumstantial evidence and relying on single circumstance of accused coming out from the room of deceased in which the deceased was found dead, the learned trial court convicted and sentenced the accused-appellant. The motive for the offence is missing and there is no corroboration by any other evidence nor the alleged circumstantial evidence was so positive and exclusive on the basis of which a conclusive finding of guilt was possible. The learned counsel has referred to the judgment in Pohalya v State of Maharashtra, AIR 1979 SC 1949 and has submitted that the chain of circumstances was not complete to lead to the hypothesis of guilt. The learned counsel has also pointed out the discrepancy in the evidence and lapse in investigation On the other hand, the learned AGA has submitted that the circumstance which has been relied upon by the learned trial court amounts to the evidence of last seen seen and the discrepancies are of minor nature having no bearing on the prosecution case. He has further submitted that material witnesses have been examined in support of prosecution case and it is not necessary to examine all witnesses as, what is important is to examine witnesses who render support and not those who are reluctant to give evidence. The learned AGA has referred to the judgment in Criminal Appeal No. 1482 of 2013, Yogesh Singh v Mahabeer Singh decided by the Supreme Court by judgment dated 20.10.2016 to support his contention.
10. We went through the evidence on record and perused the impugned judgment. It has to be examined what was the prosecution version, what evidence it proposed to adduce to bring home the charges against the accused, what was the evidence adduced against the convicted appellant and whether the same was sufficient to hold the accused-appellant guilty beyond shadow of any doubt. Now, before proceeding further, it appears necessary to look at the evidence adduced by the prosecution.
11. PW-1 Om Prakash (informant) has stated that the deceased Ram Vishal was his father who was aged about 55 years at the time of occurrence. He had gone to his sister's home situated in Police Station Mau, where he was informed by the villagers that his father had been killed in the night whereupon he came back to his village. His father was sleeping in the night of 5/6.08.1993 on the pumping set. In the night, some unknown persons caused injuries, cut away his neck from body and killed him. He got the written report inscribed by one Sushil Kumar and signed it after hearing the same. Proving the written report as Ext. Ka-1, he has stated that the pumping set band was also stolen. Ram Gopal was arrested from near Benu who confessed and said that he could get the stolen articles and sickle (weapon of crime) recovered. Thereafter, accused Ram Gopal with him and police reached to the sugarcane field and got the sickle and band set recovered which he had concealed below the grass. The pumping set band was about 57 to 58 feet long. The witness proved the recovered sickle and pumping set band as Material Ext.-1 and Material Ext.-2. He also stated that the said articles were recovered in the afternoon and the recovery memo Ext. Ka-2 was prepared which was read over and he and other witnesses signed over it. He also stated that the Investigating Officer took in possession the blood stained towel and piece of bed sheet Material Exts. 4 and 5 and prepared the recovery memo Ext. Ka-3. He has also stated that a 22 feet long rope was also recovered, the recovery memo of which was prepared by IO on which he put his signature which is Ext. Ka-4 and the same was given to him. He has further stated that the IO recorded his statement firstly in the police station and when sickle was recovered, his statement was again taken by him. The dead body was sealed by police and was sent for postmortem.
12. Explaining the motive, PW-1 stated that before the commission of offence, on 04.08.1993, a quarrel took place between his father and accused persons Ram Gopal, Jagjeet and Rakesh as they were getting his field grazed by their animals and when his father prevented them, they threatened him with dire consequences. At the time of quarrel, Hari Om was present there. He has stated that for this reason, the accused persons killed his father. The accused persons belonged to village Ganeshpur and their field is close to his field. All these three accused persons were friends and he knew them very well.
13. PW-2 Bal Govind (eye witness) has stated that he knew Ram Vishal of his village and accused persons Ram Gopal, Rakesh and Jagjeet of neighboring village Ganeshpur. Accused persons were closely associated with each other, though not relatives. Two and half years before, he and Kishan Pal were sleeping on their tube well and at 1 AM in the mid night, they heard some sound and slow voice from the western side where the tube well of Ram Vishal was situated. They reached to the tube well where they saw in the light of torch that accused Ram Gopal was carrying the tube well band on his shoulder with a sickle in his hand and was going out from the room of Ram Vishal. The witness has stated that he did not see the accused persons Ram Gopal, Rakesh and Jagjeet causing death of Ram Vishal. He saw that besides Ram Gopal, two more persons were fleeing in a fast speed but he could not recognize them. The witness was declared hostile by prosecution. When he was cross-examined by prosecution, he denied his statement given to IO under Section 161 Cr.P.C. and stated that he had only stated that he saw Ram Gopal taking band and sickle and he also saw the dead body of Ram Vishal. He has stated that he lit the torch towards the tube well of Ram Vishal, the door of the tube well was open and two persons were coming out. Immediately, thereafter, they entered into the room. On the next day, he said about it to Om Prakash.
14. PW-3 Krishna Pal (eye witness) also stated that he did not see the accused persons causing death of the deceased. The incident took place in the mid night at about 01:30 AM and he and his grand father Bal Govind were sleeping on tube well. Hearing some sound, he and his grand father went to the tube well of Ram Vishal and saw Ram Gopal coming out, carrying tube well band and sickle. When they went inside, they found that and Ram Vishal was lying dead and his head was separated from the body from neck. This witness has been declared hostile and on being cross-examined, he has denied his statement given to IO under Section 161, Cr.P.C.
15. PW-4 Hari Om is the witness of motive and has stated that at about 12:00 to 12:30 PM, a day before the incident, when his animals were grazing near the tube well of Ram Vishal, accused Ram Gopal came with his animal and got the animals entered into the field of Ram Vishal, on which he objected, whereupon both started quarreling. Ram Gopal went away threatening Ram Vishal. On the next day Ram Vishal was killed.
16. PW-5 Dr. R.K. Mishra conducted the postmortem of the dead body of Ram Vishal on 07.08.1993 at about 3:00 PM. He has proved the post-mortem report as Ext. Ka-7 and has stated that following injuries were found on the body of the deceased :-
(1) Incised wound 15 cm x 12 cm above the left side of neck extending from front to back and towards upper side. Bones and muscles were cut across the neck and the neck was separated from the body. The third and fours vertivo were cut. The edges of the wound was clean cut and at some places, the cut was zig-zag.
(2) Incised wound 15 cm x 12 cm from right to left. Margin clean cut at some places on the neck which is completely cut from the trunk. The direction is from anterior and posterior and slightly upward at the level of 03-04 when head is set to trunk it completely fit intact.
(3) Incised wound 5 cm x 2 cm, margin clean cut behind left ear, 7 cm behind the mastoid process.
(4) Incised wound, margin clean cut 4 cm x 1 cm, scalp deep. Hair walls were cut.
(5) Incised wound 3 cm x 1 cm, muscle deep and on the middle line of chest from the side of neck 6 cm below.
(6) Incised wound 8 cm x 2 cm x muscle deep behind chest and below the right scapula.
(7) Incised wound 2 cm x 1 cm above the right shoulder. The margins were clean cut.
(8) Incised wound 1 cm x 1/3 cm, behind the chest, 22 cm left from the left scapula.
(9) Incised wound 1 cm x 1/2 cm, behind the chest in the left side.
(10) Incised wound 2 cm x 1/2 cm on the left side of abdomen, 12 cm below from the left nipple.
17. The eyes and mouth of the deceased were closed. He was aged about 55 years. The inner skin of both thighs were defused. The head was separated from the body. The doctor has stated that the injuries were sufficient to cause death, particularly, injuries no. 1 and 2.
18. PW-6 is S.I. Ram Pyare, who has proved the chik F.I.R. Ext. Ka-8, GD report Ext. Ka-9.
19. PW-7 SI J.P. Yadav, IO, has stated that prior to him SI Ram Jagat Singh was investigating into the offence which was registered on 06.08.1993. He conducted and prepared the inquest report and other papers like photo dead body, challan dead body, letter to CMO, letter to RI and sample seal. The dead body was sent for postmortem. SI Ram Jagat was posted with him. As secondary witness he proved Ext. Ka-10 to Ext. Ka-15. The witness has also proved the recovery memos of blood stained and plain earth Ext. Ka-16, blood stained clothes of deceased Ext. Ka-3, site map Ext. Ka-17. The witness has stated that on 09.08.1993, he took over investigation and on the same day, he recorded the statement of Bal Govind, Krishna Pal and Vijay Bahadur Verma. On 17.08.1993, he and SI Ram Jagat and other police persons arrested accused Ram Gopal at 1:10 PM. On examination, he confessed that on 5/6.08.1993 in the mid night, with co-accused Rakesh and Jagjeet committed murder of Ram Vishal and after committing murder, he took away the tube well band. He also stated that he could get the tube well band and sickle recovered and on his instance, from the sugarcane filed, the tube well band and sickle were recovered. On 18.08.1993, the co-accused persons Rakesh and Jagjeet surrendered before the court and their statement was recorded in the District Jail. Other witnesses of recovery were also examined and thereafter charge sheet was submitted to the court. He has also stated that he sent the recovered blood stained and plain earth, piece of bed sheet and sickle for forensic examination.
20. It is clear from the reading of the statement of PW-1 Omprakash (informant) that he lodged FIR only. He is not eyewitness and he was not present in the village on the fateful day. PW-2 Balgovind and PW-3 Krishnapal are two witnesses of fact who have been examined by prosecution as eyewitnesses who saw the accused committing the offence. It is clear from their statement that none has stated that they saw the accused killing the deceased. They have rather stated that they did not see the accused committing murder. It is why they have been declared hostile. In Charan Singh v. State of U.P. AIR 1967 SC 520, Deepak Chandrakant Patil v. State of Maharashtra, 2006(3) Supreme 162 (SC) and B.A. Umesh Vs. State of Karnataka (2011) 3 SCC 85, it has been held that conviction can be sustained even if direct witnesses have turned hostile and circumstantial evidence is conclusive in nature. But in such cases, the Court must guard itself against the danger of allowing conjecture or suspicion to take the place of legal proof. Be it the case, the above discussion shows that in this instant case, the prosecution case based on direct evidence definitely failed. Therefore, it needs to be deeply scrutinized on what circumstantial evidence the learned trial court convicted the accused-appellant.
21. At this stage, it will be appropriate to refer to the law on circumstantial evidence based on certain judgments of the Supreme Court. In State of Rajasthan Vs. Kheraj Ram, (2003) 8 SCC 224, Vilas Pandurang Patil Vs. State of Maharashtra, (2004) 6 SCC 158, Arun Bhanudas Pawar Vs. State of Maharashtra, 2008 (61) ACC 32 (SC) Vithal Eknath Adlinge Vs. State of Maharashtra, AIR 2009 SC 2067 and Vijay Kumar Vs. State of Rajasthan, (2014) 3 SCC 412, the Supreme Court has laid down that circumstantial evidence, in order to be relied on, must satisfy the following tests :
1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused.
3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from conclusion that within all human probability the crime was committed by the accused and none else.
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence- in other words, the circumstances should exclude every possible hypothesis except the one to be proved.
22. In Bhimsingh Vs. State of Uttarakhand, (2015) 4 SCC 281, it was laid down that when the conviction is to be based on circumstantial evidence solely, then there should not be any snap in the chain of circumstances. If there is a snap in the chain, the accused in entitled to benefit of doubt. If some of the circumstances in the chain can be explained by any other reasonable hypothesis, then also the accused is entitled to the benefit of doubt. But in assessing the evidence, imaginary possibilities have no place. The court considers ordinary human probabilities.
23. From the perusal of the impugned judgment, it appears that the learned trial court has mainly taken into consideration the circumstance that the two witnesses saw the accused-appellant coming out from the tube well room with sickle and tube well band at the relevant time in which the deceased was found killed. The other circumstance which has been relied upon is the recovery of sickle and tube well band on the instance of accused-appellant. The third circumstance is the quarrel which took place between the deceased and accused a day before which according to the prosecution became the motive for the offence. The fourth circumstance is that blood stains were found on sickle and was chemically examined in FSL. Now the question is that all these circumstances taken together form a complete chain to lead to a conclusive finding of guilt. It is pertinent to mention that it is also required to be looked into whether the witnesses who have been examined by prosecution to prove these circumstances are natural and trustworthy and could be relied upon and whether they have been able to prove the said circumstances. At the same time, it is also required to assess the probability in view of the lapse and flaws in the prosecution version and evidence.
24. PW-2 Balgovind and PW-3 Krishnpal have stated during trial that they were sleeping in their tube well situating about 50 steps away from the tube well of deceased where the dead body was found. It is noteworthy that the distance of the two tube well has been shown in the site map prepared by the IO Ext. Ka-17 to be 92 steps. The difference between the distance is almost double and it can be said that this has been deliberately decreased to make their testimony natural. This appears to be unusual that slow voice and sound could be heard from a distance of 92 steps in the midnight when the people are in deep sleep. The witnesses have nowhere stated that the sound was a loud cry or shriek to cause alarm to the witnesses. The two witnesses have stated that they did not see the accused killing the deceased. They saw the accused coming out from the tube well of deceased with the tube well band on his shoulder and a sickle in his hand. Here, we find a material discrepancy in the deposition of both, as PW-3 has stated that he saw only accused-appellant coming out and going from there, whereas, PW-2 has stated that with him two unknown persons also came out and went away. He has also stated that he had heard slow voice of deceased when he came out from his tube well. No such statement has been given by PW-3. PW-2 has further stated that on next day morning, he told Omprakash about it. From the reading of the statement of PW-1 Omprakash, it appears that he has nowhere stated that PW-2 told him anything about the incident. PW-1 has stated that these two witnesses live just 5-6 houses away from his house. He has stated that on that day they neither met him nor said anything about the incident. They met him on the next day in the morning on 7.8.1993 at 6 AM. But PW-1 has nowhere stated that these two witnesses told him anything about the incident. It is an important fact and it shows two things, either PW-1 is not speaking truth or, if he is stating correctly, the conduct of PW-2 and PW-3 is very unnatural creating doubt whether both saw the accused coming out from the tube well of deceased. PW-2 has stated that on the next day also he did not say anything about the incident to the Investigating Officer. He has also stated that he did not say those facts to informant Omprakash what he has stated on oath in his statement. He has stated that on the next day he informed about the incident to informant. Nothing as such has been stated by PW-1 in his examination. PW-3 Krishanpal has also not stated that he told to the informant about the incident. He has stated that he told about it to IO on the next day morning. Notably, PW-7 IO has stated that he took statement of PW-2 and PW-3 on 9.8.1993. What they have stated to IO, shall be seen later on. But what is important to be mentioned is that these two witnesses have been declared hostile. They have been cross-examined by prosecution and they have denied their statements given to the IO under section 161 of the Criminal Procedure Code. They have expressly said that they did not give such statement as recorded by the IO.
25. At this stage, it will be appropriate to go through the statements given by these two witnesses to IO. Both appears to have given similar statements to the IO. They have stated that on 5.8.1993, in the night at about 1.30 AM, both were sleeping on their tube well. They got awakened because of loud shout and shriek of Ramvishal. Both went lighting their torch to his tube well and saw that inside the tube well room, accused Ramgopal with a sickle in his hand and accused Jagjeet and Rakesh with axes in their hand, were assaulting Ramvishal by sickle and axes. Both caused alarm by shouting, but, because of distance from village, none came there. All the three went away. Accused Ramgopal was carrying tube well band on his shoulder. Both the witnesses went inside the room and found Ramvishal dead and his head was cut and lying on cot separated from body and the body was lying on the earth. Both got disturbed and came back to their home. Omprakash, the son of deceased was also not available and on the next day in the night, they told him about the incident.
26. It appears that this statement of witnesses was recorded on 9.8.1993. On the basis of the statement of these two witnesses, the name of accused persons came in light and on 17.8.1993, accused Ramgopal was arrested and thereafter accused Jagjeet and Rakesh surrendered before court. The reading of the statements of these witnesses shows that the prosecution case was based on direct evidence. It also goes to show that both these witnesses turned hostile and denied their statements so given to the IO. Therefore, the important question is that when eyewitnesses did not support the prosecution case, whether on the basis of their statement is was open to the prosecution to convert the whole prosecution version into that of case based on circumstantial evidence and whether the circumstances proved are of such conclusive nature that it would lead to only one hypothesis of guilt of the accused-appellant. In Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396, it has been laid down that the statement recorded before the Police under Section 161 Cr.PC is ordinarily not admissible in evidence in view of Section 162(1) CrPC, but as mentioned in the proviso to Section 162(1), CrPC, it can be used to contradict the testimony. A witness in cross examination confronted with his/her statement to the police who denied that statement. The view is propounded by the court that in such circumstances the statement of the witness to the police can be taken into consideration in view of the proviso to Section 162(1) of the CrPC. In this case PW-2 and PW-3 have been read over the statement, they had given to the IO to which they denied. It means that the prosecution placed reliance on what they stated under section 161 of the Code, and as such the statement can be used against the prosecution to test the credibility of prosecution version and witnesses.
27. The FIR has been lodged after a lapse of about 15 hours from the alleged time of incident. It is pertinent to mention that the FIR was lodged on 6.8.1993 at 4 PM, whereas, as per FIR, the incident took place in the midnight of 5/6. 8. 1993. The explanation for the delay in lodging the FIR has been explained by stating that the informant had gone to some relative and after receiving the information of the incident, he came back and after seeing the dead body, he lodged FIR. He has not specified when he came back from his relatives. He has however stated that he got the FIR inscribed by Sushil on 6.8.1993 at 6 PM and reached the police station at 8 PM and after lodging report, he came back. Thus, there is difference of 4 hours regarding lodging of FIR as FIR shows that it was lodged at 4 PM. In view of the positive statement of PW-1, it is clear that the time of lodging FIR is also after 4 hours from what has been shown in chick FIR and as such, in our considered view, the same is ante-timed and the same makes the FIR a suspicious document and it will certainly go against prosecution. It is also notable that none has been named in the FIR and it has been lodged against unknown person. It further goes to show that by the time the FIR was lodged, the informant had no knowledge who committed the offence and why? The name of accused persons came in light on the basis of statement of Kishanpal and Balgovind.
28. It looks strange that even though the Police Station is situated only at the distance of 11 km, the police got no information about the incident even though it has been claimed that two eye-witnesses saw the incident in the midnight. In the morning, naturally many more persons must have known that the deceased has been found dead in the tube well. Even village Choukidar did not inform about the incident. This leads to the possibility that nobody could know about the incident unless in the morning someone reached and saw the dead body. Not stating anything about the incident by PW-2 and PW-3 to anyone including police and informant also supports this possibility. In such cases, it is very important to learn who informed the informant and who saw the dead body and when, as both the eyewitnesses kept silent and did not disclose anything prior to lodging of FIR. They kept silent even after the lodging of FIR for a long time and they disclosed the name of accused-appellant and others only when their statement was recorded by IO on 9.8.1993 after 3 days from the date of incident. It is interesting to see what happened in these three days.
29. It is important to note that PW-3 has stated that his father Mahadeo was convicted for attempt to murder of the deceased prior to this incident and the police took him to police station for interrogation in this case also. This fact has been also stated by PW-1 Omprakash, the informant and son of deceased. After this, the statement of the two witnesses PW-2 Balgovind (brother of Mahadeo) and PW-3 Krishnapal (son of Mahadeo) was recorded on 9.8.1993 and then for the first time the name of accused-appellant came in light. Till then these two witnesses kept silent and said nothing about the incident to anyone, not to the informant, even though they live only 5-6 houses away from the house of informant. Why not this should be seen as a measure on the part of these two witnesses to save Mahadeo from being implicated in the case.
30. Another important question is about motive. Since no eyewitness has supported the prosecution version based on direct evidence, therefore, existence of motive and sufficiency of motive is a relevant fact to be proved by prosecution. No motive was alleged in FIR and the same was lodged against unknown person. It has come subsequently in the statement of PW-1 Omprakash (informant) that a quarrel took place between accused persons and deceased a day before the incident as the accused persons were grazing their animals in the field of deceased. He has stated that the accused threatened to kill the deceased. His cross-examination shows that no such incident took place before him as he himself has stated that he did not mention this fact in his written report as he had no knowledge of such quarrel. To prove this quarrel, PW-4 Hariom has been examined who has stated that in his presence, the quarrel took place between accused Ramgopal and deceased and the accused threatened the deceased. PW-4 Hariom is again son of Mahadeo and brother of PW-3 Krishnapal and it goes to show that all the three independent witnesses belong to the family of a person who was convicted for attempt to murder of the deceased and all of them have been examined by IO after Mahadeo was taken for interrogation by police. As such, we find the credibility of this witness to be highly suspicious.
31. The next question is with regards to motive for the offence. In Badam Singh v. State of Madhya Pradesh; AIR 2004 SC 26, it has been remarked by the Court that, even though existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect, the existence or absence of motive acquires some significance regarding the probability of the prosecution case. In any case, we find with reference to judgments in Sheo Shankar Singh v State of Jharkhand; 2011(74) ACC 159 (SC), Ravinder Kumar v State of Punjab; 2001 (2) JIC (SC), State of H.P. v Jeet Singh; (1999) 4 SCC 370; Pannayar v State of Tamil Nadu by Inspector of Police; AIR 2010 SC 85 that the legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of the Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye-witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, goes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. 32. It is pertinent to mention that there may be cases based on circumstantial evidence where absence of motive may become insignificant to establish guilt. In G. Prashwanath v State of Karnataka; AIR 2010 SC 2914, Jagdish v State of M.P.; 2009 (67) ACC 295 (SC) and Ujjagar Singh v State of Punjab; AIR 2008 SC (Supp) 190, it has been observed by the Supreme Court that it is true that in a case of circumstantial evidence motive does have extreme significance but to say that in the absence of motive, the conviction based on circumstantial evidence cannot, in principle, be made is not correct. Motive provides foundational material. But absence of motive is not of much consequence when chain of proved circumstances is complete to exclusively lead to the hypothesis of guilt.
33. In the criminal trials based on circumstantial evidence only, the Supreme Court has ruled in Nagaraj v State, (2015) 4 SCC 739 , Wakkar v State of UP, 2011 (2) ALJ 452 (SC) and Babu v State of Kerala, (2010) 9 SCC 189 that prosecution should prove motive of the accused if its case is based on circumstantial evidence. Again, in Sanjeev Vs. State of Haryana, (2015) 4 SCC 387, it was laid down by the court that it is settled principle of law that to establish an offence (murder) by an accused, motive is not required to be proved. Motive is something which prompts a man to form an intention. The intention can be formed even at the place of incident at the time of commission of crime. It is only either intention or knowledge on the part of the accused which is required to be seen in respect of the offence of culpable homicide. In order to read either intention or knowledge, the courts have to examine the circumstances, as there cannot be any direct evidence as to the state of mind of the accused.
34. Regarding absence, existence and proof of motive, there is no formula and it depends a lot upon the facts and circumstances of each case. But, it has been always a guiding principle that motive generally lacks its importance in case of direct evidence where ocular testimony is trustworthy and reliable. In cases based on circumstantial evidence, motive plays an important role as it provides additional link to the chain of circumstances. Even absence of any motive or insufficiency of motive may not be relevant where proved circumstances are of such nature that it conclusively determines the guilt of accused. Therefore, motive has to be attached greater importance in cases based on circumstantial evidence, particularly when the circumstances proved are fluctuating in nature and the link sought to be established is not trustworthy or convincing. It is all about to what extent the evidence is able to create confidence in the mind of the court regarding correctness of the prosecution version.
35. In the light of above, we have to see whether the motive alleged has been proved and acceptable and it creates confidence in the facts and circumstances of the case for placing reliance. It needs to be mentioned that the deceased has been killed by cutting his neck separate from the body and several injuries were caused on his body. It appears strange that on a quarrel on such trifling issue of grazing field, the crime will be committed in such a brutal way. It was not such kind of dispute and even the informant had no knowledge of such quarrel and it is why it was not mentioned in FIR nor the accused was named. Even stealing a tube well band may not be a good motive for the commission of the offence. It is pertinent to mention that where prosecution version is supported by direct evidence, absence or insufficiency of motive may not be relevant. But where the eye-witnesses have turned hostile, it is important to see whether the motive alleged is of such kind and magnitude which would give rise to such brutal murder. We are of the view that the alleged motive is not adequate and sufficient to create confidence in the prosecution version.
36. Timing of death is also doubtful in this case in view of statement of the doctor and postmortem report. In the postmortem report it has been mentioned that postmortem was conducted on 7.8.1993 at 3 PM and the duration of death has been mentioned to be 1-1/2 days. Meaning thereby that as per postmortem report death must have been caused around 3 AM in the early morning. The doctor has however stated that the injuries were possibly caused on 5/6. 08.1993 in the mid night at 01:30 AM. He has also stated that these injuries were possibly caused by sickle and axe. During cross-examination, he has further clarified that in causing death, two kinds of sharp weapon must have been used. The difference in the timing of death might be of 6 hours in both side. He has further stated that the death must have been caused after the deceased had eased out as his stomach, lever and both intestine have been found empty. It goes to show that it is possible that the deceased might have died in the morning of 6.8.1993 around 7 AM or in the night of 5.8.1993 around 9 PM. The fact that death occurred after the deceased had eased out also creates doubt with regard to time of death.
37. Moreover, the doctor has stated that the death must have been caused by two weapons and clean cut found on the fatal injuries on vital part and neck shows use of heavy sharp weapon. This also shows that the fatal injuries were not possible by use of a sickle nor it was possible by a single accused. The prosecution version based on direct evidence disclosed use of axes and sickle by three accused persons, but the same has not been proved by eyewitnesses.
38. So far as discovery of sickle and tube well band is concerned, the discovery has been made allegedly on the instance of the accused-appellant on 17.8.1993 when he was allegedly arrested by police. The discovery was made before three public witnesses namely, Govardhan, Nanhku Verma and Omprakash (informant). Only Omprakash has been examined by prosecution out of the three public witnesses. So far has the recovered tube well band is concerned, there is no mention in FIR that any tube well band was stolen away by unknown person. Secondly, PW-1 has not identified the tube well band to be his own which was stolen during his examination before court. Other two public witnesses have not been examined. In absence of positive evidence to show that it was the same tube well band which was stolen, the discovery thereof is insignificant.
39. The recovered sickle has been alleged to be weapon of crime and blood stains have been found thereon. PW-2 and PW-3 who have been said to have seen the accused-appellant carrying when he was coming out from the tube well, have not been asked to identify the sickle or at least to state that the sickle was identical to what they saw in the fateful night in the hand of the accused-appellant. Medical evidence shows that the fatal injuries in view of clean cut of neck being separated from body must have been caused by heavy sharp weapon. The sickle was sent for chemical examination and the FSL report shows that it was not possible to ascertain that there was human blood on it. As such, on the basis of evidence, the recovered sickle can hardly be connected with the offence and the recovery thereof looses its significance.
40. There is yet another reason which makes the whole discovery tainted and suspicious. Accused has stated in his statement under section 313 of the CrPC that the police took him in the police station from his house 8 days before, kept him there, gave third degree treatment and charge-sheeted showing false recovery of incriminatory articles. The police case is that the accused was arrested on 17.8.1993. From the side of defence, a specific suggestion has been given to the IO during cross-examination that the accused was arrested on 9.8.1993 and was detained in the police station till 17.8.1993, tortured him, demanded illegal gratification, and on refusal illegal and false recovery of sickle and tube well band was planted and he was charge-sheeted. The IO has denied this suggestion. On this point, the evidence of informant Omprakash is noteworthy and he has stated on oath that the police came and got the accused Ramgopal arrested on 9.8.1993. it is pertinent to mention that on that very date the statement of PW-2 and PW-3 was recorded by IO for the first time and on the same day accused was taken to police station. The statement of PW-1 supports that the accused was detained by police on 9.8.1993 and therefore, the remaining defence version gets strength and it creates enough doubt in respect of the discovery theory alleged by prosecution.
41. The learned trial court has omitted to pay attention to the fact that the prosecution case was based on direct evidence of eyewitnesses and if they turned hostile, the prosecution cannot switch over to entirely a different case based on circumstantial evidence. In Ram Narain Popli vs. CBI, (2003) 3 SCC 641 and Vallabhaneni Venkateshwara Rao vs. State of A.P., 2009 (4) Supreme 363, it has been laid down that if different stories are projected by prosecution, it is unsafe to convict the accused as introduction of or addition of a new story by prosecution adversely affects and destroys the prosecution case by creating doubt in it and the accused becomes entitled to benefit of doubt.
42. On the basis of above discussion, we find that the learned trial court has not been able to appreciate the evidence on record in the legal perspective and has committed serious error, perversity and illegality in holding the accused-appellant guilty. There was material contradiction and discrepancies in the statements of both the eye-witnesses. All the three witnesses PW-2 Balgovind, PW-3 Krishnapal and Hariom belonged to same family and Mahadeo, the father of two witnesses was not only convicted for attempt to murder of deceased, he was the first suspect for the offence and was put to interrogation by the police. He was set free and only after that all these three witnesses became witness and disclosed the name of accused-appellant. This can also be seen as an effort to save Mahadeo and falsely implicate the accused-appellant. But the two witnesses who were examined as eye-witnesses of the crime, turned hostile and did not support the prosecution case based on direct evidence. Only that portion of their statement that they saw the accused-appellant coming out from the tube well in which the deceased was found dead, could not become a conclusive evidence to establish guilt. It is not an evidence of the circumstance of last seen as the deceased and accused-appellant were not seen alive together. There is no last seen evidence and only presence there may give rise to suspicion and suspicion is not proof of guilt, particularly when the evidence of PW-2 and PW-3 does not inspire confidence for the reasons discussed above. The motive for the offence is inadequate and not convincing at all. There is not only delay in lodging FIR but also on evidence, the same appears to be ante-timed. The medical evidence also creates doubt with regards to time of death and that further casts doubt on the testimony and presence of the two eye-witnesses at the scene of occurrence. The learned trial court appears to have ignored the lapse in evidence and has adopted a very casual approach while considering the evidence on record and balancing the probabilities. The circumstances considered to give finding of guilt were not established by cogent and convincing evidence. What to say of missing chain, there was no chain and all the circumstances proposed to be relied upon was completely scattered incapable of leading to the only hypothesis of guilt. Therefore, we find that the impugned judgment is not sustainable under law and is liable to be set aside.
43. Accordingly, the appeal is allowed and the judgment and order dated 15.09.1997 of Vth Additional Sessions Judge, Fatehpur, in ST No. 493 of 1993, arising out of Case Crime No. 181 of 1993, Police Station Lalauli, District Fatehpur, convicting and sentencing the accused-appellant Ram Gopal under Sections 302, 380, 411 IPC is set aside and the accused-appellant is acquitted from the said charge.
44. The accused-appellant Ram Gopal is in jail. He shall be released from jail forthwith.
45. The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary compliance.
order Date :- 10.01.2020
sailesh
(Justice Pradeep Kumar Srivastava) (Justice Sunita Agarwal)