Allahabad High Court
Ram Shanker Gupta @ Sushil Srivastava @ ... vs State Of U.P. on 22 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 128
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on : 14.11.2019 Delivered on : 22.01.2020
CRIMINAL APPEAL No. 2090 of 2006
Ram Shankar Gupta @ Sushil Srivastava @ Shabbir -------Appellant
Vs
State of Uttar Pradesh -------Respondent
_______________________________________________________
For Appellant : Sri Arun Kumar Shukla, Advocate
For Respondent/State : Sri Amit Sinha, AGA _______________________________________________________
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J.
1. This criminal appeal has been preferred against the judgment dated 14.3.2006 and order dated 18.3.2006 passed by learned Additional Sessions Judge, Kanpur Nagar in Session Trial No. 1892 of 1996 (State vs. Ram Shankar Gupta) under Sections 302, 364 201, 397, 411 and 506 of IPC, P.S. Nazeerabad, District Kanpuar Nagar, whereby accused-appellant Ram Shankar Gupta @ Sushil Srivastava @ Shabbir has been convicted under Sections 302, 364, 201, 397, 411 and 506 of IPC, P.S. Nazeerabad, District Kanpur Nagar and sentenced as under:
Under Section 302 IPC Life imprisonment along with fine of Rs. 10,000, in default thereof six months additional imprisonment.
Under Section 201 IPC Five years rigorous imprisonment along with fine of Rs. 3000, in default thereof two months additional imprisonment.
Under Section 364 IPC Ten years rigorous imprisonment along with fine of Rs. 5000, in default thereof three months additional imprisonment.
Under Section 397 IPC Seven years rigorous imprisonment along with fine of Rs. 5000, in default thereof three months additional imprisonment.
Under Section 506 IPC One year rigorous imprisonment along with fine of Rs. 2000. In default of payment of fine two months additional imprisonment.
All the sentences were directed to run concurrently.
2. According to prosecution version, complainant (PW-2) Rajani Verma was having some dispute with her husband and thus, she along with her 18 years old son Rahul (deceased) was residing separately. Accused-appellant Ram Shankar Gupta was working as tutor of her son and he used to visit her house for tuition. On 07.09.1996, after tuition, deceased Rahul has gone to drop accused-appellant by his Scooter No. UP 78 M 9640, but after that he did not return back. Complainant made search for her son, but in vain.
On 08.09.1996, complainant informed police and on the basis of her application, a missing report was lodged,vide General Diary entry Exhibit Ka-19 at P.S. Nazeerabad, Kanpuar Nagar.
As her son Rahul could not be traced, on 14.9.1996 complainant Rajani Verma submitted a written complaint Ex. Ka-1 to DIG Kanpur Nagar, inter alia, alleging that in the year 1993, her mentor Virendra Kumar was murdered and she has lodged a FIR regarding his murder. Murder of Virendra Kumar was committed in conspiracy of her brother-in-law S.K. Singh and one Gappu Bhadauriya, Guddu, Pooja and other persons were also involved in that case. She has alleged that her husband was exerting pressure on her to sell her house, but she has refused to do so. Her husband and brother-in-law have threatened for kidnapping and murder of her son. She has expressed suspicion that her son might have been kidnapped by her husband M.K. Singh and brother-in-law S.K. Singh. On the basis of written tahrir Ex. Ka-1, case was registered on 24.9.1996 at 10:50 AM, under section 364A, 506 of IPC against S.K. Singh vide FIR Ex. Ka-10.
3. Meanwhile, on 10.9.1996, dead body of an unknown person was recovered near river bridge within the jurisdiction of P.S. Bidhun. P.W.6 S.I. Bahaar Singh of police station Bidhun conducted inquest proceedings, but the dead body could not be identified. After inquest proceedings, dead body was sent for postmortem, which was conducted by PW-5 Dr. K.K. Srivastava. On the basis of postmortem report, a case was registered under Sections 302, 201 of IPC against unknown persons, vide Crime 234 of 1996 at P.S. Bidhun and investigation of that case was taken up by PW-6 S.I. Bahaar Singh. For identification of dead body, photograph of dead body of deceased was published.
4. Investigation of Crime No. 221 of 1996 was taken up by S.S.I. Harvansh Singh. It is further case of prosecution that on 13.9.1996, PW-2 Rajani Verma has received a registered letter, sent by one Shabbir, wherein the sender has stated that her son Rahul was in his custody and he demanded ransom of Rs. 2,50,000 for his release. On 24.9.1996, PW-2 Rajani Verma received a telephonic call wherein the caller, telling his name as Shabbir, stated that her son Rahul as well as alleged Sunil Kumar Srivastava were in his custody and he demanded ransom of Rs. 2,50,000 for release of her son. On the basis of voice of the caller, PW-2 Rajani Verma came to know that it was Sushil Srivastava (tutor of her son), who is making telephonic call to her. When he has made next telephonic call, PW-2 Rajani Verma has informed him that she has arranged Rs. 1,50,000 and thereafter the caller has asked to deliver the said amount in a red bag lying on a bicycle in front of Somedutta Plaza. PW-2 has informed the police and police prepared some packets by putting Rs. 500 currency note on each side of packets and at the instance of police, PW-2 Rajani Verma went at the alleged spot and put the said packets in bag lying on the bicycle. After sometime, accused-appellant Ram Shankar Gupta @ Sushil Srivastava @ Shabbir was caught by the police, when he was trying to take away the alleged bag, in which packets were put by PW-2 Rajani Verma. Complainant/ PW-2 Rajani Verma also reached there and identified accused-appellant as he was Ram Shankar Gupta @ Sushil Srivastava @ Shabbir, the tutor of her son. Accused-appellant has confessed and disclosed that he has murdered Rahul and his dead body was thrown in area of police station Bidhun. At the instance of accused-appellant, Scooter of deceased Rahul as well as the cable wire, which was used in strangulating the deceased, were recovered from the house of accused-appellant.
5. On 29.9.1996 PW-2 Rajani Verma went at police station Bidhun and she has identified the photograph and clothes of dead body as of her son Rahul. As PW-6 S.I. Bahaar Singh came to know that regarding disappearance of deceased a case was already lying registered at police station Nazirabad vide Crime No. 321 of 1996, under Section 364 IPC and thus, all the concerned documents of above stated crime no. 234 of 1996 were sent to the Investigating Officer of Crime No. 221 of 1996.
6. After completion of investigation, accused-appellant was charge-sheeted for the offence under Sections 364A, 506, 302, 201, 394 and 411 of IPC.
7. Learned trial court framed charge against accused-appellant under Sections 364, 506, 302, 201, 394 and 411 of IPC.
8. In order to bring home the guilt of accused-appellant, prosecution has examined nine witnesses. After prosecution evidence, accused was examined under Section 313 of Cr.P.C., wherein, he stated that he has been falsely implicated on account of dispute regarding premium of LIC policy with PW-2 Rajani Verma. In defence, he has examined one T.N. Shukla as DW-1.
9. After hearing and analyzing the evidence on record, learned trial Court convicted accused-appellant Ram Shankar Gupta under Sections 302, 201, 364, 397, 506 and 411 of IPC and sentenced, as stated in paragraph no.1 of this judgment.
10. Being aggrieved by the impugned judgment, accused-appellant has preferred the present appeal.
11. Heard Sri Arun Kumar Shukla, learned Amicus Curiae and Sri Amit Sinha, learned A.G.A. for the State.
12. Learned Amicus Curiae for the appellant submits:
(i) that the accused-appellant was not named in FIR, rather FIR was lodged against husband of complainant and in FIR complainant has not made any such version that accused-appellant was tutor of her son and that her son has gone to drop the accused-appellant, which makes involvement of accused-appellant doubtful.
(ii) that identity of dead body is not established. Postmortem on the dead body was conducted as unknown person and PW-5 Dr. K.K. Srivastava, who conducted postmortem, has stated that age of deceased was about 35 years whereas deceased Rahul was just aged about 18 years. Thus, this possibility cannot be ruled out that the alleged dead body was not of Rahul.
(iii) that chain of circumstances is not complete and the circumstances alleged by the prosecution do not establish the involvement of accused-appellant in the alleged incident.
(iv) that recovery of scooter and cable wire is thoroughly doubtful. No independent witness has been examined in support of alleged recovery. The said scooter was never produced before the Court. It was submitted that recovery of alleged scooter cannot be believed.
(v) that as per complainant/PW-2 Rajani Verma, she was receiving telephonic calls for ransom, but no charge under Section 364A IPC was framed.
(vi) that from the statements of DW-1 T.N. Shukla, it is clear that handwriting of alleged letter Ex. Ka-2 is not of accused-appellant, which further creates doubt in prosecution story regarding demand of ransom by accused-appellant.
13. Per contra, it has been submitted by learned State counsel that conviction of appellant is based on evidence. There is evidence that accused-appellant was working as tutor of deceased and on 7.9.1996, after tuition, deceased has gone with accused-appellant by his scooter to drop him, but since then, he never returned. It is established that on 10.9.1996, dead body recovered in an area of police station Bidhun was that of deceased Rahul. Deceased has been identified by her mother on the basis of his clothes and photographs. Merely because the Autopsy Surgeon has stated that age of deceased person might have been around 35 years, it can not be concluded that dead body was not of deceased, because when postmortem was conducted, dead body was in fully decomposed condition. In view of such condition of dead body, Autopsy Surgeon can not opine correct age of such deceased. Therefore, identity of dead body of deceased can not be doubted on the ground that the concerned doctor has stated his age 35 years. Besides the evidence of last seen, recovery of scooter of deceased has also been effected at the instance of accused-appellant from his home, which further establishes involvement of accused-appellant in kidnapping and murder of deceased. One clinching evidence against the appellant is that after ransom demands, when complainant has put the alleged amount, as directed by kidnapper, accused-appellant has tried to take away that bag and he was apprehended at the spot. Learned State counsel submitted that there is strong circumstantial evidence against the appellant. The chain of circumstances is complete, which clearly points out the involvement of appellant in the incident.
14. We have considered rival submissions and perused record.
15. In evidence PW-1 Basudeo Singh has stated that he is an astrologer by profession. Complainant Rajani Verma was known to her and she was residing with her son at Ashok Nagar. He has also performed ''Hawan' at the house of complainant and sometimes deceased Rahul also used to visit his home. PW-1 has stated that accused-appellant Sushil Srivastava (@ Ram Shankar Gupta @ Shabbir) was also known to him, as about one month prior, he has visited him for astrology advice and he has also asked accused-appellant for some books. On 7.9.1996, Rajani Verma, has come at his house, in night, to inquire about accused-appellant and she told that accused-appellant has taken away Rahul Singh with him, but Rahul did not return back.
16. PW-2 Rajani Verma has stated that accused-appellant was taking tuition of her son Rahul. On 7.9.1996, accused-appellant came at 11:00 AM for tuition and at around 1:00 PM Rahul has gone to drop him by his scooter, but after that Rahul did not return back. She made search for him but in vain. On 8.9.1996 she lodged a missing report. After incident, accused did not visit her home. On 12.9.1996, she has filed complaint Ex. Ka-1 to D.I.G. and on that basis, case was registered. On 13.9.1996 she received a registered letter sent by one Shabbir, wherein demand of Rs. 2,50,000/- ransom was made for release of Rahul and she was also asked to contact on telephone numbers mentioned in the said letter. She has informed the police about this development. On 24.9.1996, she received a phone call and the caller, stating his name Shabbir, told that Rahul as well as Sushil Srivastava (@ Ram Shankar Gupta @ Shabbir) were in his custody and he again demanded Rs. 2,50,000/- for release of Rahul. Hearing the voice on telephone, PW-2 Rajani Verma was convinced that the person, making telephonic call, is accused-appellant Sushil Sirvastava (@ Ram Shankar Gupta @ Shabbir). Again a telephonic call was received regarding ransom and when PW-2 Rajani Verma told that she has arranged Rs. 1,50,000/-, she was told that a letter is lying in her gallery. PW-2 Rajani Verma, found that letter, which was containing a piece of 10 rupee note and one driving license. She told all these things to the police and thereafter, police have prepared some packets after putting Rs. 500/- currency notes on each side of bundles. On the same day, PW-2 Rajani Verma, has again received a telephonic call and she was asked to put the said amount on a bicycle parked opposite Somdutta Plaza near tamarind tree and after that her son would be released. As per instructions of police, PW-2 Rajani Verma took the said packets and put the same in bag lying on bicycle at the alleged spot and came from there. After some time, police have apprehended accused-appellant along with that bicycle, when he was trying to run away by taking the said bag from bicycle. PW-2 Rajani Verma also reached there and has identified accused-appellant Sushil Srivastava @ Ram Shankar Gupta @ Shabbir stating that he used to take tuition of her son and he used to threat her on phone. Recovery memo of said bundles and bicycle was prepared. During interrogation, accused has disclosed that he has murdered Rahul on 10.9.1996 and dead body was thrown in the area of police station Bidhun. Accused also pointed out the place where dead body of deceased was thrown. PW-2 has identified clothes as of her son Rahul. After that accused-appellant has also disclosed that he has murdered Rahul by strangulating with cable wire and that said cable wire as well as scooter of deceased are lying at his home. Thereafter at the instance of accused-appellant scooter of deceased and alleged cable wire were recovered from his house and recovery memo was prepared.
17. PW-3 Karamveer Singh Rathor has stated that on 28.9.1996, police told him as well as one Jitendra Sharma about kidnapping of deceased Rahul and demand of ransom. He has also joined the police party and he along with a constable in civil dress have reached near a bicycle lying near Somdutta Plaza. After that Rajani Verma came there and put the bundles of currency notes in the bag lying on bicycle. Accused Sushil Srivastava (@ Ram Shankar Gupta @ Shabbir) came there and after seeing in and around bicycle, he started taking away that bicycle. When confronted by police, he started running. Police as well as PW-3 have apprehended that person and he has disclosed his name as Ram Shankar Gupta @ Sushil Srivastava @ Shabbir. Accused has admitted that he has kidnapped Rahul and has sent letters and made telephonic calls to Rajani Verma. Police have prepared recovery memo of bicycle, bag, packets of currency note and identity card. Accused was taken to police station and there he confessed that he has murdered Rahul on the night of 7.9.1996 near river bridge in the area of police station Bidhun and that on 10.9.1996, dead body of deceased Rahul was recovered by Bidhun police. After that, accused-appellant has also got recovered scooter of deceased as well as one cable wire, by which he has strangulated the deceased. In this regard, recovery memo Ex. Ka-5 was prepared.
18. PW-4 S.I. Ram Sewak has recorded FIR and GD Entry. He has also stated that this case was investigated by S.S.I Harvansh Singh, who has since expired. PW-4 has proved recovery memos Ex. Ka.5, Ex. Ka-6 and Ex. Ka-7 by way of secondary evidence.
19. PW-5 Dr. K.K. Srivastava has conducted postmortem on the dead body of deceased vide Ex. Ka-7 and following injuries were found on the person of deceased:
Ligature mark 34 x 2 cm around the neck, 5 cm below the right ear, 4 cm below chin, 4 cm below left ear. On dissection subcutaneous tissues under the crest white glistening present. present. A piece of cloth 34 x 2 cm present tied around the neck.
Cause of death of deceased was asphyxia due to strangulation.
20. PW-6 S.I. Bahar Singh has stated that on 10.9.1996, while he was posted at police station Bidhun, he has received an information that dead body of one unknown person is lying near river bridge and in that connection he has sent S.I. Murari Lal Rawat for inquest proceedings and he (PW-6) has also reached at the spot. After inquest, dead body was sent for postmortem. On the basis of postmortem report of deceased, a case was registered on 17.9.1996 under Sections 302/201 of IPC against unknown persons vide Crime No. 234 of 1996. During investigation, PW-6 SI Bahar Singh made effort for identification of deceased and photo of dead body was sent for publication. On 29.9.1996 SSI Harvansh Singh along with some public persons including Jitendra Sharma, Rajani Verma and accused Ram Shankar Gupta have come at police station Bidhun. They were told about recovery of dead body. After seeing clothes of deceased, the same were identified by PW-2 Rajani Verma as of her son Rahul. PW-6 also came to know that regarding deceased Rahul, case was already registered at police station Nazeerabad.
21. PW-7 S.I. S.P. Verma has proved memo Ex. Ka-19 and has also participated in the alleged raiding party, who have nabbed the accused-appellant.
22. PW-8 Vishram Singh Katheriya, the then In-charge of police station Nazeerabad, has conducted further investigation and charge-sheeted the accused-appellant.
23. PW-9 Radhey Lal has informed police after seeing the dead body near Pando river bridge.
24. In defence evidence, DW-1 T.N. Shukla has stated that he was working as hand writing expert. Specimen of writing of accused were taken and the same were compared with hand writing marked as D1 and D2, but both did not match. He has proved his hand writing report as Ex. Kha-1/1.
25. In this case, there is no eye-witness account of alleged incident of murder of deceased. Prosecution case is based on circumstantial evidence. It is well settled that though conviction can be based on circumstantial evidence alone, but for that, prosecution must establish chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with their innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, accused and none else have committed the offence.
In landmark judgment of Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, Court held as under:-
"152. 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 Sahebaro Bobade V State of Maharashtra 1973 CriLJ1783 where the following observations were made:
Certainly, it is 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 accuses, 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 innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".
In Joseph vs. State of Kerala, [(2000) 5 SCC 197], court has explained under what circumstances conviction can be based purely on circumstantial evidence. It observed:-
16. "it is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavor in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused."
Similar view has been expressed in Padala Veera Reddy v. State of Andhra Pradesh, (AIR 1990 SC 79). In C. Chenga Reddy and others v. State of Andhra Pradesh, AIR 1996 SC 3390, Court has held:-
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
(Emphasis Added) In State of U.P. vs. Ashok Kumar Srivastava, [(1992) 2 SCC 86], it was pointed out that great care must be taken in evaluating circumstantial evidence and if evidence relied on is reasonably capable of two inferences, the one in favour of accused must be accepted. It was also pointed out that circumstances relied upon must be found to have been fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt.
In State of Himachal Pradesh Vs. Raj Kumar, reported in (2018) 2 SCC 69, Court was considering a case based on circumstantial evidence and taking note of the well settled legal position, in Paragraph 9 and 10, the court held:-
"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:-
"12. ...........The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679.
In Vijay Shankar Vs. State of Haryana, reported in (2015) 12 SCC 644, although the case was based on last seen theory, the Court discussed the principles in respect of evidentiary value and held in Paragraph 8 as under:-
"8. There is no eye-witness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116. The same view was reiterated in Bablu vs. State of Rajasthan, (2007) 2 SCC (Cri). 590."
In Varkey Joseph Vs. State of Kerala, reported in AIR 1993 SC 1892, Court held that suspicion cannot take place of proof. In Paragraph 12 of the judgment, Court concluded as under:-
"12. Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its Patna High Court CR. APP (DB) No.202 of 1996 dt.13-03-2018 16/ 25 case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under S. 302, IPC"
In Raja @ Rajinder Vs. State of Haryana, reported in (2015) 11 SCC 43, Court noted down the circumstance with which the court should be satisfied in a case based on circumstantial evidence alone and held as under:-
"10. As the factual matrix would show, the case of the prosecution entirely hinges on circumstantial evidence. When a case rests on circumstantial evidence, the Court has to be satisfied that:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should 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 the conclusion that within all human probability the crime was committed by the accused and none else; and;
(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 and such evidence should not only be Patna High Court CR. APP (DB) No.202 of 1996 dt.13-03-2018 17/ 25 consistent with the guilt of the accused but should be inconsistent with his innocence."
In Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259, it has been laid down that:-
"4. ..... the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."
From the aforesaid authorities, it is clear that in a case based on circumstantial evidence, Court is required to evaluate circumstantial evidence to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. The principle that emerges from the above discussed decisions is that conviction can be based solely on circumstantial evidence, but for that the prosecution must establish the chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with their innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, the accused and none else have committed the offence.
26. Reverting to facts of present case, the first circumstance proved against the accused-appellant is that he used to take tuition of deceased at the complainant's home and that on 7.9.1996, he has reached at the house of complainant Rajani Verma at 11:00 AM and after tuition, at about 1:00 PM, deceased has taken him on his Scooter No. UP 78 M 9640 to drop him, but after that deceased Rahul did not return back and he was never seen alive thereafter. In this regard, PW-2 Rajani Verma has made clear and cogent statement that deceased has taken accused-appellant on his scooter to drop him, but thereafter he did not return back. It is correct that in the first information report, PW-2 Rajni Verma, has not mentioned about the fact that accused appellant was working as tutor of her son and that on 7.9.1996 he has gone to drop him by his scooter, but considering the entire facts, it appears that as she was having some matrimonial dispute, therefore, she has expressed her suspicion on her estranged husband and brother-in-law. In view of the entire facts, merely because PW-2 Rajni Verma has not stated this fact in FIR, it would not affect her version that accused was working as tutor of her son and on 7.9.1996 her son Rahul has gone to drop him but after that he did not return back. One important fact to be noticed is that initially missing report was lodged by complainant Rajani Verma on 8.9.1996, which was recorded in the general diary as Ex. Ka-19 and in that report itself, she has clearly mentioned that accused Sushil Srivastava (@Ram Shankar Gupta @ Shabbir) used to come at her home to take tuition of her son Rahul and that on 7.9.1996 her son has gone to drop accused by his Scooter No. UP 78 M 9640, but after that he did not return. Thus, it is apparent that in her earliest version, PW-2 has disclosed this fact in the very first information given to police, therefore, the fact, that she did not mention this fact in the FIR which was lodged on 14.9.1996, would not make any difference. Entire facts and evidence clearly indicate that at that time PW-2 Rajni Verma has not suspected involvement of accused-appellant and thus, she did not mention this fact in FIR. In view of all these facts and circumstances, the argument that in FIR, complainant has not mentioned that accused-appellant was working as tutor of her son and her son has gone to drop the accused on scooter or that complainant has named her husband in FIR, would not affect prosecution case adversely. Considering all facts and evidence and particularly the missing report Ex. Ka-1, filed on 08.9.1996 by PW-2 / complainant, contention of learned counsel for the appellant has no substance. It stand established that on 07.09.1996, the deceased has gone to drop accused-appellant on scooter No. UP 78 M 9640, but he never returned back and after that he was not seen alive.
27. So far as identity of dead body, recovered by police of police station Bidhun, is concerned, it may be seen from statement of PW-2 Rajani Verma that her version is that on 29.9.1996, accused-appellant was apprehended by the police when he was trying to take away the bicycle, on which she has put the alleged amount of Rs. 1,50,000 as per instructions of the accused. After his arrest, accused-appellant has disclosed that he has committed murder of Rahul on 10.9.1996 and his dead body was thrown in the area of police station Bidhun and accused-appellant has pointed out the place where he has thrown the dead body. PW 2 Rajni Verma has identified the clothes of deceased. This fact has also been corroborated by PW-6 Bahar Singh, who has stated that on 29.9.1996 SSI Harvansh Singh along with other officials as well as Rajani Verma and accused Ram Shankar Gupta have come at police station Bidhun and PW-2 Rajani Verma was shown clothes of deceased, which were lying in Malkhana in sealed condition and that she has identified the same as of her son Rahul. No doubt, as per Autopsy Surgeon PW-5 Dr. K.K. Srivastava, the body of deceased was in decomposed condition, but in attending facts and circumstances of case, the identity of dead body of the basis of clothes of deceased appears to be reliable. It is correct that in postmortem report, PW-5 Dr. K.K. Srivastava has stated age of deceased as 35 years, but PW-5 Dr. K.K. Sirvastava has clarified in his statement that the estimation of age in case of decomposed body is done on the basis of guess and it may be vary to five years of either side. In this connection, it may be observed that, in such a case, the error in estimation of age is quite natural and probable. In fact, in case of decomposed body, the exact age of deceased cannot be determined by Autopsy Surgeon unless some specific and advanced test is conducted. Here, we may observe that in such case, where dead body is received in decomposed condition and a person is claiming that dead body is of her child, the investigating agency must have got conducted DNA test for determination of identity of dead body, however, we can not ignore the fact that alleged incident took place in 1996 and at that time, facility of DNA test was not so easily available. Be that, as it may, the version of PW 2 Rajni Verma regarding identification finds support from the fact that after his arrest, accused appellant has disclosed that he has thrown the dead body of deceased in area of police station Bidhun and he has pointed out that place and dead body of deceased was already recovered by police of police station Bidhun on 10.9.1996 from that place. Here it would be pertinent to mention that there is nothing to show that PW-2 Rajani Verma was aware about the recovery of said dead body by that time and after that she has gone to police station Bidhun for identification of photograph and clothes of deceased and identified clothes of dead body as of her son Rahul. On all these aspects, evidence is clear and cogent. In view of these specific facts and circumstances, the contention raised by the learned counsel for the appellant in this regard has no force.
28. It was next argued by learned counsel for the appellant that recovery of alleged scooter and cable wire at the instance of accused-appellant is thoroughly doubtful and that no independent witness of alleged recovery was examined and further the said scooter was never produced before the trial court. In this connection, it may be seen that PW-2 Rajani Verma has made clear and cogent statement that after arrest of accused-appellant, he has disclosed that he has committed the murder of Rahul by strangulating with a cable wire and that the said cable wire and scooter of deceased are lying at his house. Thereafter accused-appellant has led police, complainant/(PW-2) Rajani Verma as well as others to his house and got recovered scooter of deceased as well as the alleged cable wire used in strangulation of deceased. These articles were taken into police possession, vide recovery memo Ex. Ka-5. This version of PW-2 Rajani Verma has been corrobrated by PW-3 Karamvir Singh Rathor as well as by PW-7 S.I. S.P. Verma. PW-3 Karamvir Singh Rathor appears to be a thoroughly independent witness and there is nothing to indicate that he was an interested witness. All these witnesses of recovery have been subjected to cross-examination, but no such fact could emerge in their cross-examination, so as to doubt the recovery of alleged scooter and cable wire. The contention that no independent witness has been examined in support of alleged recovery, is without any substance. Merely because the scooter was not produced before the trial Court, it cannot be concluded that recovery of scooter is doubtful, particularly when the evidence of PW-2 Rajani Verma, PW-3 Karamveer Singh Rathor and S.I. S.P. Verma is found reliable and credible. No doubt, the said scooter must have been produced before the trial court as a piece of evidence but if the statement of witness of recovery is found credible and reliable, mere non production of scooter in Court would not affect the same. Here it may be reiterated that in missing report Ex. Ka-19 dated 8.9.1996, PW-2 Rajani Verma has stated that her son Rahul has gone on scooter U.P. 78 M 9640 to drop his tutor accused-appellant but after that he has gone missing. Thus, it is established that deceased has left his home on said scooter. Here it may be noticed that in missing report Ex. Ka.19 PW-2 Rajani Verma has not expressed any suspicion on accused-appellant Sushil Sirvastava (@Ram Shankar Gupta @ Shabbir) and, thus, she cannot be attributed any motive to state this fact falsely that her son has gone on scooter to drop his tutor accused-appellant Sushil Srivastava (@Ram Shankar Gupta @ Shabbir). In view of these facts and evidence, we do not find any force in the contention of learned counsel for the appellant.
29. It was also pointed out by the learned counsel that as per version of complainant/ PW-2 Rajani Verma, she was continuously receiving telephonic calls and letters for demand of ransom, but the trial court has not framed any charge under Section 364-A. This contention hardly affects factual aspect of case. No doubt, there were allegations that accused-appellant has demanded ransom of Rs 2,50,000/ from complainant Rajni Verma and in fact some packets, having a few currency notes, were delivered by Rajni Verma after consultation with police, but non-framing of charge under 364-A IPC would not affect reliability of prosecution witnesses. It is merely a procedural irregularity on part of Court, but it has nothing to do with credibility of witnesses. This contention does not affect prosecution case that accused-appellant has demanded ransom for release of deceased, but no charge was framed under Section 364 A IPC. Thus, prosecution version can not be doubted on this ground.
Merely because charge under Section 364-A IPC has not been framed by the Court, it does not mean that it would affect the prosecution version regarding kidnapping and murder of deceased. Accused-appellant cannot take advantage of such procedural lapse, if any. Charges are framed by trial Court on the basis of material on record and if learned trial Court instead of framing charge under Section 364-A, framed charge under Section 364 IPC simpliciter, it does not mean that it would affect factual aspect of case regarding kidnapping of deceased. Thus, contention of learned counsel has no substance at all.
30. It was also pointed out by learned counsel for accused-appellant that PW-2 Rajani Verma was an accused in a case under Immoral Trafficking Act. It was submitted that though she did not admit this fact in her cross-examination, but it stands established that she was accused in that case. In this regard, it may be stated that even if she was an accused in such a case, it would hardly not affect her testimony. In this case, her 18 years old only son was kidnapped and murdered and there is nothing to indicate that why she would depose falsely against the accused-appellant. In fact she has not named the accused-appellant in FIR and even no suspicion was raised regarding him in the FIR. Had PW-2 Rajni Verma any motive to falsely implicate accused-appellant, she could have named him in the FIR itself. In fact, it was after receipt of telephonic calls that she suspected that accused-appellant was making call for ransom.
31. One of the important circumstances against accused-appellant is that he has made telephonic calls to deceased demanding ransom of Rs. 2,50,000 and also sent letters to her by stating his name as Shabbir. Besides this, another co-related circumstance is that when PW-2 Rajani Verma has told that she has arranged amount of Rs. 1,50,000, accused-appellant has asked her to put the said amount in a bag on a bicycle, which was lying near Somdutt Plaza and when she put the amount in the bag on bicycle after that accused-appellant has tried to take away that bicycle and he was apprehended by the police at that spot itself. This is one of the most clinching circumstance against the accused-appellant. In this regard, statement of PW-2 Rajani Verma is quite clear and cogent and it has been further corroborated by PW-3 Karamvir Singh and PW-7 S.P. Verma. PW-3 Karamvir Singh Rathor is thoroughly independent witness and he has supported the entire aspect pertaining to apprehension of accused-appellant, while he was trying to take away the alleged bicycle, on which PW-2 Rajani Verma has put alleged packets of currency notes. PW-3 Karamvir Singh Rathor has been subjected to cross-examination, but no such fact could emerge in his cross-examination so as to affect his credibility. Similarly, PW-7 S.P. Verma has also consistently deposed in this regard. No doubt, PW-7 is a police official, but it cannot be a ground to doubt his testimony. It is not the case of accused-appellant that this witness has any enmity with him or that in any way he was connected with complainant of the case. In fact, there are no reasons at all that PW-7 S.P. Verma and PW-3 Karamveer Singh Rathor would depose falsely against accused-appellant regarding entire scenario of apprehension of accused-appellant and alleged recovery.
32. Similarly, another circumstance is that accused has led the above stated witnesses to the spot, where he has thrown the dead body of the deceased. Though, dead body of deceased was already recovered from that place by police of police station Bidhun but discovery of this fact has taken place first time. Further, as per PW-3 and PW-7, accused-appellant has disclosed that he has committed the murder of deceased by pressing his neck with a cable wire and after that said cable wire as well as scooter of deceased were recovered at his instance from his home. Regarding these recoveries, evidence of PW-7 S.P. Verma has been amply corroborated by PW-3 Karamvir Singh. No major infirmity or contradiction could be pointed out regarding recovery aspect. It is correct that when accused-appellant has made any such disclosure, his statement must have been recorded by the Investigating Officer and so much part of his statement, which is related to recovery aspect, must have been proved, but in instant case no disclosure statement has been recorded or proved, however, all the contents of disclosure of accused, have been mentioned in recovery memo Ex. Ka-5, that on the basis of disclosure of accused-appellant, the recovery of cable wire and scooter was made and thus, it cannot be said that recovery of alleged cable wire and scooter of deceased has not been established beyond doubt. It goes without saying that PW-2 Rajani Verma has mentioned about the fact that deceased has gone to drop the accused-appellant on scooter U.P. 78 M 9640, which was recorded by police vide G.D. Entry Ex. Ka.19. Evidence of PW-3 Karamvir Singh and PW-7 S.P. Verma regarding recovery of scooter of deceased and cable wire from house of accused-appellant is clear and cogent and no major infirmity could be pointed. As stated earlier, they are independent witnesses and have no grudge against the appellant. Considering the evidence of these witnesses, recovery of scooter of deceased and that of cable wire has been established. Recovery of alleged scooter of deceased and cable wire used in commission of murder, further supports the prosecution case.
33. It is also in evidence of PW-2 Rajani Verma that on 28.9.1996 when accused-appellant has told her on phone that a letter containing a piece of Rs. 10 currency note and one driving liscence is lying in her gallery and she has found the piece of Rs. 10 currency note and driving lisence of deceased in the said letter, whereas another piece of some Rs. 10 currency note was found in the bag lying on the alleged bicycle on which PW-2 Rajani Verma has put the packets of alleged amount of Rs. 1,50,000. This circumstance further establishes that it was the accused-appellant Ram Shankar Gupta @ Sushil Srivastava @ Shabbir, who was making telephonic calls and was also sending letters to her demanding ransom of Rs. 2,50,000 for release of her son.
34. After considering entire evidence on record, it is apparent that prosecution has been able to prove that accused-appellant Ram Shankar Gupta @ Sushil Srivastava @ Shabbir was working as tutor of deceased Rahul, son of PW-2 Rajani Verma, and that on 7.9.1996 after taking tuition of deceased at his home, at around 1:00 PM deceased Rahul Singh has gone to drop accused-appellant on his scooter U.P. 78 M 9640 and after that deceased never returned back. At that time deceased was wearing pant, T-shirt of gray colour and white sport shoes. This circumstance is fully established by statement of PW-2 Rajani Verma coupled with missing report Ex. Ka.19 and other attending facts and circumstances of case. It is further established that on 13.9.1996 PW-2 Rajani Verma has received a letter Ex. Ka.3 wherein the sender of letter mentioning his name as Shabbir, has demanded ransom of Rs. 2,50,000 for release of her son and in the same sequence on 24.09.1996, PW-2 has received telephonic calls, wherein demand of Rs. 2,50,000 was made by alleged Shabbir for release of her son and that after hearing the voice on phone, PW-2 Rajani Verma has identified voice of telephonic caller as of accused-appellant Ram Shankar Gupta @ Sushil Srivastava @ Shabbir. Again PW-2 has received a telephonic call in the morning on 27.9.1996 wherein she was asked to see the letter lying in her gallery and in that letter PW-2 has found that there was a piece of Rs. 10 currency note and driving liscence of deceased. On 28.9.1996 accused-appellant has made a telephonic call at 10:50 AM and at 5:35 PM and 3rd call was made at 6:30 PM, wherein she was asked to put the alleged amount of Rs. 1,50,000/- in a red bag lying on bicycle, which is parked opposite to Somdutt Plaza and it was containing part of Rs. 10 currency note. Evidence on record further establishes that PW-2 Rajani Verma in consultation with police has put the alleged packets, prepared by police by putting Rs. 500 currency each side, in the bag on bicycle at the alleged spot and thereafter at 8:05 PM accused-appellant was apprehended by police when he was trying to take away that bicycle along with the said red bag and in this regard recovery memo has been proved as Ex. ka. 4. It also stand established that accused-appellant has disclosed that he has committed murder of deceased Rahul by strangulating him with a cable wire and thrown his dead body in area of police station Bidhun. After that alleged cable wire and scooter of deceased were also recovered at the instance of accused-appellant Ram Shankar Gupta @ Sushil Srivastava @ Shabbir from his home vide recovery memo Ex. Ka.5.
35. Contradictions and inconsistencies cited by learned counsel for the accused appellant, have failed to erode the substance and credibility of witnesses. It is well settled that minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. (See Rammi @ Rameshwar Vs. State of M.P., (1999) 8 SCC 649; Leela Ram (dead) through Duli Chand Vs. State of Haryana and Another, (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 1919; Sampath Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124; Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 636 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr., (2013) 12 SCC 796).
36. In the instant case, considering the entire evidence on record, it is quite apparent that prosecution has established the above stated incriminating circumstances beyond doubt. Here, it would be relevant to mention that once it is established that deceased was last seen in the company of appellant, onus shifts to accused-appellant to disclose as to how and when deceased parted his company. We may add here that deceased has gone missing on 07.09.1996 when he has gone to drop accused-appellant on the scooter and as per Autopsy Surgeon PW-5 Dr. K.K. Srivastava, who conducted postmortem of deceased on 11.9.1996, death of deceased might have taken place three to four days prior. Thus there is no much time gap between ''last seen' evidence and death of deceased. The involvement of accused-appellant is further established by circumstance that he has made telephonic calls and send letters to PW-2 Rajani Verma for demand of ransom of Rs. 2,50,000 for release of her son and arrest of accused-appellant when he was trying to run away with the bag in which alleged ransom amount was kept. Involvement of accused appellant is further fortified by the recovery of scooter of deceased as well as cable wire used in commission of murder of deceased.
37. Taking cumulative effect of all the circumstances established by prosecution, it is apparent that chain of circumstances is complete and the only conclusion which emerge from these circumstances is that, it was accused-appellant Ram Shankar Gupta @ Sushil Srivastava @ Shabbir and none else, who kidnapped the deceased, committed his murder and concealed his dead body by throwing in area of police station Bidhun.
38. However, since there is no evidence that the scooter of deceased was robbed by accused-appellant, the conviction of accused-appellant under Section 397 of IPC does not appear to be in accordance with law. Merely, because scooter of deceased has been recovered from the possession of accused-appellant, it does not mean that it was robbed by the accused-appellant from the deceased, unless there is some evidence to satisfy the ingredients of robbery.
39. So far as conviction of accused-appellant Ram Shankar Gupta @ Sushil Srivastava @ Shabbir under Section 302, 364, 201, 506 of IPC is concerned, the same is based on evidence. Sentence awarded by the trial Court is also proper and commensurate to the gravity of offence. Accordingly, the conviction and sentence of accused-appellant Ram Shankar Gupta @ Sushil Srivastava @ Shabbir under Sections 302, 364, 201, 506 IPC is affirmed, however, conviction and sentence under Section 397 of IPC is set aside. Accused-appellant is stated to be in Jail. He shall serve out remaining sentence.
40. We appreciate the assistance rendered by Sri Arun Kumar Shukla, learned Amicus Curiae for the appellant. He shall get Rs. 7,000/- from State Government as his remuneration.
41. The Appeal is partly allowed in above terms.
Date: 22.01.2020
A. Tripathi
(Raj Beer Singh, J) (Pritinker Diwaker, J)