Allahabad High Court
Daryao Singh vs State Of U.P. on 15 February, 2019
Bench: Sudhir Agarwal, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on : 02.01.2019 Delivered on :15.02.2019 Court No. - 34 Case :- JAIL APPEAL No. - 3965 of 2013 Appellant :- Daryao Singh Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Arvind Kumar Srivastava (A.C.),M.C. Singh Counsel for Respondent :- A.G.A. Hon'ble Sudhir Agarwal,J.
Hon'ble Rajendra Kumar-IV,J.
(Delivered by Hon'ble Rajendra Kumar-IV,J.)
1. This Jail Appeal has been filed by accused-appellant Daryao Singh through Superintendent of Jail Agra against common judgement and order dated 04.11.2006 / 7.11.2006 passed by Additional Sessions Judge, Court No. 6, Agra in Sessions trial No. 237 of 2002 (State v. Daryao Singh) under Section 302 IPC read with Section 34 IPC, Police Station, Khera Gargh, District Agra convicting accused-appellant Daryao Singh and sentencing him to undergo life imprisonment but acquitted the accused-Ramesh in Sessions Trial No. 28 of 2002 (State v. Ramesh), Police Station, Khera Gargh, District Agra.
2. Factual matrix of the case as emerging from First Information Report (hereinafter referred to as "FIR") as well as material placed on record is as follows.
3. An FIR Ex.Ka-9 dated 06.08.2001 was presented in Police Station Khera Gargh, District Agra by Informant PW-1 Teekam Singh, alleging that in the night of 05.08.2001 at about 9:00 PM, he himself and his brother Bangali was present in the house, accused-appellant Daryao Singh and one Bachhu took him from the house on the pretext that Ramesh (brother-in-law) had come with truck parked at hut of Bachchu and called upon Bangali at Madaiya. On 6.8.2001 at about 11:00 AM, he had gone to his field and seen his aunt Jaggo Devi weeping and screaming in Madaiya, he also arrived there and seen that dead body of Bangali was lying down with blood there. Bachchu his wife and Ramesh found absent therefrom. Accused-appellant Daryao was also absent from his house. It was suspected by the informant that his brother Bangali was murdered by accused Daryao, Bachchu and Ramesh. Thereafter, he went to his village and told his family members. Lekhraj and Rajendra Singh of the same village told him that at about 2:00 AM they were going towards their field, they had seen the truck of Ramesh standing there and Bachchu his wife and Daryao Singh were boarding on the truck. Informant had gone to police station for furnishing information. FIR further recites that dead body of Informant's brother Bangali was lying in the Madaiya of Bachchu.
4. On receipt of written report Ex.Ka-1, Chik Report Ex.Ka-9 was prepared by Constable Mohan Lal, who registered the case under Section 302 IPC as Case Crime No. 204 of 2001. An entry of case was made in General Diary on 6.8.2001 at 13:00 PM, a copy of which is Ex.Ka-10 on record. Immediately after registration of case, investigation was undertaken by PW-5 Sri Rama Shanker Singh, the then Station House Officer at Police Station Khera Garh, who took copies of written report and Chik FIR and proceeded to place of occurrence. He recorded statements of Informant, Constable Mohan Lal. PW-5, Investigating Officer (hereinafter referred to as "I.O."), prepared site plan Ex.Ka-7 and he prepared inquest report Ex.Ka-2, dead body was duly sealed and sent for postmortem to District Hospital Agra along with letter of request Ex.Ka-3 to Chief Medical Officer and other necessary papers relating thereto. Thereafter he took simple earth, bloodstained earth, prepared memo Ex.Ka-8 under his instructions.
5. Autopsy over the dead body of deceased Bangali was conducted by PW-6 Dr. B.K. Singhal, Medical Officer, District Hospital Agra on 07.08.2001 at about 02:00 PM. On external examination, deceased was found of average body built, aged about 27 years, rigor mortis had passed through both extremities and decomposition started pealing of skin is present. In the opinion of doctor, death had occurred about two days before at the time of autopsy and death was due to shock and hemorrhage as a result of anti-mortem injuries. He found following ante mortem injuries on his person :
1. IW 4 c.m. X 2 c.m. x bone deep on the top of ocipital area 10 c.m.x 8c.m. Swelling present.
2. LW 2 c.m. x 1 c.m. x bone deep left side of head. 8 c.m. from left ear.
3. LW 2 c.m. X 0.5 c.m. on the left side lateral to injury no. 2.
4. IW 5 c.m. X 1 c.m. right side leg 8 c.m. above right ankle joint.
5. Multiple abrasion right knee in an area of 8 c.m. X 10 c.m.
6. LW 2 c.m. X 1 c.m. on the lateral side of right thigh.
7. LW right leg 2 c.m. X 0.5 c.m. from of left leg 6 c.m. above the left ancke joint.
8. 0.5 c.m. X 2 c.m. abrasion left thigh back.
6. On internal examination, right parietal occipital temporal or frontal bones were fractured; both chambers of heart were empty; stomach contained 2 ounces semi-digested food material. In the opinion of doctor, death had occurred due to shock and hemorrhage as a result of anti mortem injuries. PW-6 prepared postmortem report Ex.Ka-1 and handed over dead body after duly sealing the same along with clothes of deceased and necessary papers to Constables who had brought the corpse.
7. After conclusion of investigation, charge-sheet Ex.Ka-12 against accused-Ramesh and Ex-Ka-13 against Bachchu and Daryao (present appellant) under Section 302 IPC were submitted in the Court of Chief Judicial Magistrate, Agra, who took cognizance of the offence. The offence being triable by Court of Sessions, case was committed to Sessions Court. The case was transferred to Additional Sessions Judge, Court No.11, Agra who framed charge against accused-appellant under Section 302 IPC on 03.06.2002 which reads as under :
^ eS eqt¶Qj gqlSu] vij l= U;k;k/kh'k vkxjk ,rn~ }kjk vki n;kZo flag ij fuEu vkjksi yxkrk gWw%& ;g fd fnukad 5-8-2001 dks 9 cts jkr xzke phr Fkkuk [ksjkx< ftyk vkxjk esa vki vius ,d vU; lkFkh cPpw dh enn ls oknh Vhde flag ds HkkbZ caxkyh dks cPpw dh e vr,o vkidks funsZ'k fn;k tkrk gS fd mDr vkjksi ds fy;s vkidk fopkj.k bl U;k;ky; }kjk fd;k tkosA "I, Muzaffar Husain, Additional Sessions Judge, Agra charge you the accused Daryao Singh, as follows:
That on 5.8.2001, at 9.00 p.m, you the accused with the help of your companion Bachhu Sathi, called the complainant Tikam Singh's brother Bangali to vill-Cheet, PS- Kheragarh, Dist: Agra; took him away to Bachcu ki Madhaiya, Vill-Cheet, PS-Kheragarh, and there sometime in the night, you and your companion Ramesh, murdered Bangali. Hence, you committed a crime which is cognizable U/s 302 read with section 34 I.P.C, and is in the cognizance of this court.
Hence you are hereby directed that you trial be heard by this court".
(English Translation by Court) Accused-appellant pleaded not guilty and claimed to be tried.
8. Sessions Trial ultimately came to be heard and decided by Additional Sessions Judge, Court No. 6, Agra.
9. In order to substantiate its case, prosecution has examined total seven witnesses out of whom, Informant PW-1 Teekam Singh, P.W. 2 Lekhran, P.W. 3 Rajendra Singh, witnesses of fact, P.W.4 Ramu, P.W. 5 Rama Shanker Singh, P.W. 6 Dr. B.K. Singhal, P.W. 7 Inspector Dileep Kumar Singh formal witnesses.
10. On closure of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded in which he has stated that he is innocent, entire prosecution case is false and he has been falsely implicated in the case. At the time of incident he was not present in the village. Accused-appellant did not adduce any documentary or oral evidence in support of his defence.
11. Trial Court after hearing counsel for parties and appreciating entire evidence on record has found the accused appellant guilty and convicted as stated above.
12. We have heard Sri Arvind Kumar Srivastava, learned Amicus Curiae appearing for appellant, Sri Syed Ali Murtaza, learned A.G.A. for State and have gone through the entire record.
13. Learned Amicus Curiae appearing for appellant has challenged conviction of accused-appellant advancing his submissions in the following manner :
(i) Incident allegedly took place in the night of 5.8.2001 but report was lodged by informant P.W.-1 (brother of deceased) at 13:00 P.M. in the next day without explaining delay in lodging the FIR.
(ii) This is a case of circumstantial evidence and there is no motive to accused to commit murder of deceased Bangali, only last seen theory is there against the accused to connect him with the present crime. There is no other evidence. P.W.-2 and P.W.-3 have turned hostile.
(iii) There is no complete chain of evidence so as to indicate that accused is the only person who has committed crime.
(iv) As per post mortem report, death of Bangali might be occurred two days prior to post mortem.
(v) There are several contradictions rendering prosecution case doubtful.
14. Per contra learned AGA opposed submissions by submitting that PW-1 to 3 are witnesses of fact, dead body of deceased Bangali was found lying in the Madaiya of Bachchu, victim was last seen alive by P.W.-1 in the company of accused but admitted the factum of hostility of P.W.-2, P.W.-3 and case being of circumstantial evidence. He further submitted that Trial Court was right in convicting the accused-appellant for commission of murder of Bangali.
15. We now proceed to consider rival submissions on merits.
16. The first question which we have to examine is the time of incident. PW-1 real brother of deceased has stated that accused Bachchu and Daryao took the victim on the pretext that he was called upon by Ramesh (brother-in-law), thereafter, dead body of Bangali was found lying with blood in the Madaiya of Bachchu at 11:00 A.M. next day. P.W.-6 Dr. B.K. Singhal conducted the autopsy and opined that death might be occurred two days prior to post mortem. Post mortem was done at 2:00 P.M. on 7.8.2001. It is well settled that there may be a difference of six hours either side in this way Bangali might be murdered at 9:00 P.M. onward at any time as stated by prosecution. Although, the death time and place had not been disputed by accused but from the evidence of P.W.-1, P.W. 5 and P.W. 6 death, time and place stand proved.
17. The crucial question for consideration, therefore is, who is perpetrator of this crime.
18. In present case, PW-1 is witness of last seen. P.W. 2 and 3 have turned hostile they did not support the prosecution case. P.W. 4 is the witness of inquest. Nobody has seen victim anywhere after last seen of victim with accused till dead body is received. No other evidence is on file except dead body found in the Madaiya of Bachchu and last seen theory. This case totally rests upon circumstantial evidence.
19. It is no doubt a case where there is no eye witness of crime. Prosecution totally rests on circumstantial evidences, which found favour with Court below and finding prosecution version proved beyond reasonable doubt, Trial Court has convicted appellant.
20. There is no eye-witness to the commission of crime. The present case is one of circumstantial evidence. Thus, there is a definite requirement of law that a heavy onus lies upon the prosecution to prove the complete chain of events and circumstances which will establish the offence and would undoubtedly only point towards the guilt of the accused. A case of circumstantial evidence is primarily dependent upon the prosecution story being established by cogent, reliable and admissible evidence. Each circumstance must be proved like any other fact which will, upon their composite reading, completely demonstrate how and by whom the offence had been committed. Hon'ble Supreme Court and this Court have clearly stated the principles and the factors that would govern judicial determination of such cases.
21. In a case, which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link in chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all circumstances must be consistent only with guilt of accused.
22. In Hanumant v. The State of Madhya Pradesh, AIR 1952 SC 343, as long back as in 1952, Hon'ble Mahajan, J. expounded various concomitant of proof of a case based purely on circumstantial evidence and said:
"... circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved...... it must be such as to show that within all human probability the act must have been done by the accused. " (emphasis added)"
23. In Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person.
24. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent :-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(emphasis added)
25. In Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR 1989 SC 1890, Court said:
"...when a case rests upon circumstantial evidence such evidence must satisfy the following tests :-
(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 consistent with the guilt of the accused but should be inconsistent with his innocence."
(emphasis added)
26. In C. Chenga Reddy and Others v. State of Andhra Pradesh, 1996(10) SCC 193, Court said:
"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)
27. In Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir, 2002(8) SCC 45 Court quoted from Sir Alfred Wills, "Wills' Circumstantial Evidence" (Chapter VI) and in para 15 of judgement said:
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;
(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." (emphasis added)
28. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Another v. Registrar General High Court of Karnataka and Another, 2007(4) SCC 713 and Tomaso Bruno v. State of U.P., 2015(7) SCC 178.
29. In present case, circumstantial evidence commences with statement of Informant that his brother Bangali was taken by accused with him on the pretext that Ramesh had come with truck and called him in the hut of Bachchu, last seen by informant in company of appellant going with victim and thereafter, on the next day, his dead body was found in the hut of Bachchu which is admittedly not belonged to accused-appellant.
30. Learned counsel for appellant contended that circumstances relating to last seen have wrongly been applied in the case in hand for the reason that deceased might have been killed by someone else and there is sufficient gap of time. There is also no evidence that no one else can approach the Madaiya. Only absence of the accused there cannot be a ground for presumption that victim was murdered by only accused.
31. We may examine as to what is the concept of last seen and in what circumstances it is a relevant crucial circumstantial evidence for proving culpability of a person of crime.
32. The circumstance of "last seen" of deceased with accused person, as a relevant circumstantial evidence, when can be taken into account, has been discussed time and again. In Bodh Raj @ Bodha and Others v. State of Jammu and Kashmir (supra) Court said that last seen theory comes into play where the time gap between the point of time when accused and deceased were seen last alive and when deceased is found dead is so small that possibility of any person other than accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that deceased was last seen with accused when there is a long gap and possibility of other persons coming in between exists.
33. Theory of "last seen" is a relevant circumstance when corroborated by other evidence to prove guilt against accused person. In State of U.P. vs. Satish, 2005(3) SCC 114, Court said :-
"The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
34. The above observation on theory of "last seen" has been followed in Tipparam Prabhakar v. The State of Andhra Pradesh, 2009(13) SCC 534; Rishi Pal v. State of Uttarakhand, 2013(12) SCC 551; Krishnan v. State of Tamil Nadu, 2014(12) SCC 279; State of Karnataka v. Chand Basha, 2016(1) SCC 501; Rambraksh v. State of Chhattisgarh, 2016(12) SCC 251; Anjan Kumar Sarma and Ors. v. State of Assam, 2017(14) SCC 359; and, Ganpat Singh v. State of Madhya Pradesh, 2017(16) SCC 353.
35. Above authorities show that term "time gap" is not to be measured in terms of length of period but it has to be seen whether in a given facts and circumstances, the time at which accused and deceased were seen alive together and till detection of death, whether there is any possibility of crime being committed by someone else or not, that is relevant.
36. In the present case, we find that except last seen theory, no other chain of circumstances is proved. Neither any body has seen deceased in the company of appellant nearby place where his dead body was found nor accused-appellant committing murder of victim. There is sufficient "time gap" between last seen alive and detection of dead body of Bangali in Madaiya of Bachchu. Therefore, possibility of crime having been committed by some one else cannot be ruled out.
37. In Jaswant Gir v. State of Punjab, 2005(12) SCC 438, Court also said that in absence of any other links in chain of circumstantial evidence, it is not possible to convict appellant solely on the basis of last seen evidence, even if, version of witnesses of fact in this regard is believed.
38. Last seen theory has been applied as one of several circumstances that deceased was seen last alive in company of appellant by informant on 5.8.2001 at about 9:00 p.m. and thereafter, his dead body was found in Madaiya of Bachchu on 6.8.2001 admittedly not belong to accused-appellant. Nobody, in village, had seen deceased anywhere. Meaning thereby, having gone with appellant till detection of his dead body, there was nothing to show what happened with deceased and who murdered him. From the detection of dead body in the Madaiya of Bachchu, it cannot be said that crime could not have been committed by somebody else.
39. It is settled that it is not prudent to base conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of prosecution in its entirety and keeping in mind circumstances that precede and follow the point of being so last seen.
40. Looking into entirety of facts and circumstances of the case, as discussed above, we are of the view that Court below was not correct in convicting appellant, broadly relying on statement of PW-1 in respect of last seen, treating it to be a conclusive proof of incident overlooking other major contradictions in the evidence and missing chain of circumstantial evidence. Trial Court has not marshaled the fact and law with care and cautious. In our considered view, appellant is entitled to benefit of doubt and it cannot be said that prosecution has been successful in proving guilt of appellant beyond reasonable doubt.
41. In the result, appeal succeeds and is hereby allowed. Impugned judgment and orders dated 4.11.2006/7.11.2006 are hereby set aside. Accused-appellant Daryao Singh is acquitted of charges levelled against him. He is in jail and shall be released forthwith, if not wanted in any other case.
42. Keeping in view provisions of Section 437-A Cr.P.C., appellant is directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.
43. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.
44. Before parting, we provide that Sri Arvind Kumar Srivastava, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.
Order Date :- 15.02.2019 Akram