Allahabad High Court
Dinesh @ Shiv Narain Lodh vs State on 9 April, 2019
Bench: Sudhir Agarwal, Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 29.11.2018 Delivered on 09.04.2019 Court No. - 34 Case :- JAIL APPEAL No. - 2749 of 2008 Appellant :- Dinesh @ Shiv Narain Lodh Respondent :- State Counsel for Appellant :- From Jail,Seema Pandey(A.C.),Sushil Kumar Dwivedi Counsel for Respondent :- A.G.A. Hon'ble Sudhir Agarwal,J.
Hon'ble Ram Krishna Gautam,J.
(Delivered by Hon'ble Ram Krishna Gautam,J.)
1. This appeal under Section 374(2) of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") has been presented by convict appellant Dinesh @ Shiv Narain Lodh through Senior Superintendent, Central Jail, Naini, Allahabad under Section 383 of Cr.P.C. against judgment and order of conviction and sentence dated 06.02.2008 passed by Sri Mahesh Chandra Sharma, Additional Sessions Judge/Special Judge, Scheduled Caste and Tribe (Prevention of Atrocities) Act, Fatehpur passed in Special Sessions Trial No.44 of 2004 (State of Uttar Pradesh Vs. Dinesh @ Shiv Narain Lodh) arising out of Case Crime No.80/04 under Section 302/201 of Indian Penal Code, 1860 (hereinafter termed as "IPC") read with Section 3(2)(v) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 (hereinafter termed as "S.C./S.T. Act") Police Station Kalyanpur, District Fatehpur, whereby appellant Dinesh @ Shiv Narain Lodh has been convicted and sentenced with life imprisonment and fine of Rs.2,000/- and in default two years' additional imprisonment for an offence punishable under Section 302 of IPC; three years' rigorous imprisonment with fine of Rs.1,000/- and in default six months' additional imprisonment under Section 201 of IPC; and life imprisonment with a fine of Rs.2,000/- for offence punishable under Section 3(2)(v) of S.C./S.T. Act and in default two years' additional imprisonment with a direction for concurrent running of sentences.
2. Heard Ms. Seema Pandey, learned Amicus Curiae, for the appellant, Sri Ratan Singh, learned A.G.A. for State of U.P. and perused the record.
3. In brief, record of Trial Court reveals that First Information Report (hereinafter termed as "FIR") Exhibit Ka-1 under the scribe of Indra Pal son of late Pathwari, resident of Village Pilkhini, Police Station Kalyanpur, District Fatehpur with signature of informant Ram Nath son of late Pathwari resident of Village Pilkhini, as above, dated 28.8.2004 was submitted at Police Station Kalyanpur of District Fatehpur on 28.8.2004 at 16:00 hours against Pyare Lal, Jai Ram, Pathwari with this contention that informant's elder son Arun Kumar @ Badkau, aged about 18 years had gone for being at ease in the morning of 28.8.2004 but did not turn up till 11 A.M. Women of home searched him and they gave information to informant at Malawan that Badkau had not turned up to home. Informant alongwith his family members searched him when Raj Kumar Nai and his son Ramu apprised at about 2 P.M. that in the morning at 7 a.m. they have seen Arun going towards Paritala Haar near Minor Irrigation Canal for being at ease. Dinesh Kumar, brother-in-law of Ram Kumar Lodhi residing at same village, was following him. Upon this information, informant alongwith his family members went towards Paritala in search of his son Arun Kumar and found dead body of him lying near Minor Canal under "Gaandar Grass" (Weed). His throat was cut. Informant was having no enmity of any of his village-men except Pyare Lal, Jairam and Pathwari, resident of same village, with whom some cases were pending and it was suspected that those persons under assistance of Dinesh Kumar may get Arun murdered, because six months back, Pathwari had outraged informant's daughter Sangeeta, aged about 11 years, but he kept silent because of family prestige. Dead body was lying on spot and this report for taking legal recourse.
4. Case Crime No.80 of 2004 under Section 302/201 IPC was got registered at Police Station Kalyanpur. Police machinery was put under motion, inquest proceeding followed by autopsy examination was got conducted. Investigation resulted submission of charge sheet (Exhibit Ka-7) against Dinesh @ Shiv Narain Lodh for offence punishable under Section 302, 201 IPC read with 3(2)(5) of S.C./S.T. Act. Magistrate took cognizance for it on 25.9.2004. As case was exclusively triable by Court of Sessions/Special Judge hence vide order dated 21.10.2004 of Chief Judicial Magistrate, Fatehpur file was committed to Special Court of Additional Sessions Court/Special Judge (Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.
5. After hearing Public Prosecutor and learned counsel for defence, Trial Court framed charge against Dinesh as follows :
^^1- ;g fd fnukad 28-08-04 dks lqcg 7-00 cts ls nksigj ds e/; ?kVuk LFky ihjrkyk ls FkksM+k vkxs ekbZuj ij ds fdukjs ogn xzke fiyf[kuh vUrxZr Fkkuk dY;k.kiqj ftyk Qrsgiqj esa vkius oknh jkeukFk ds iq= v:.k dh /kkjnkj gfFk;kj ls ekjdj lk'k; e`R;q dkfjr dhA bl izdkj vkius /kkjk 302 Hkk-na-la- ds vUrxZr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA 2- ;g fd fnukad le; o ?kVuk LFky mijksDr ij vkius oknh mijksDr ds yM+ds v:.k dh gR;k djus ds mijkUr mldh yk'k dks xkM+j dh >kfM+;ksa esa lk{; nqikus gsrq Mky fn;kA bl izdkj vkius Hkk-n-la- dh /kkjk 201 ds vUrxZr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA 3- ;g fd fnukad le; o ?kVukLFky mijksDr ij vki oknh mijksDr ds yM+ds v:.k dks vuqlwfpr tkfr ^^jSnkl** dk tkurs gq;s mldh gR;kdj nhA bl izdkj vkius /kkjk 3 ¼2½ ¼5½ vuq- tutkfr ¼vR;kpkj fuokj.k½ vf/kfu;e ds vUrxZr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA** "That on 28.8.2004 in between 7 a.m. to mid day at a place of Paritala, a bit away to Canal Minor near it within Village Pilkhini with an area of Police Station Kalyanpur, District Fatehpur you committed murder of informant Ram Nath son of Arun by intentional assault by sharp edged weapon whereby committed offence under Section 302 IPC within cognizance of above Court.
2. That on above date, time and place you after committing murder of informant's son Arun did hide dead body within bush with a view to eloth the evidence of above offence thereby committed offence under Section 201 of IPC within cognizance of above Court.
3. That on above date, time and place, you being known that Arun was member of Scheduled Tribe i.e. Raidas did murder thereby committed offence punishmeble under Section 3(2)(5) of SC/ST Act within cognizance of above Court.
(English Translation by Court itself)
6. Charges were read over and explained to accused Dinesh, who pleaded not guilty and claimed for trial.
7. Prosecution examined PW-1 informant Ram Nath, PW-2 Indra Pal, PW-3 Ram Swaroop, PW-4 Banshi Lal, PW-5 Bhola, PW-6 Dr. P.M.Siddiqui, Medical Officer, PW-7 Vinod Kumar, Circle Officer/Investigating Officer, PW-8 Constable 528 Lalta Prasad.
8. With a view to have explanation of accused over incriminating evidence led by prosecution, accused was examined under Section 313 of Cr.P.C.. He admitted to be of caste 'Lodh' and informant as well as his son Arun (deceased) to be of Scheduled Caste community. He denied alleged occurrence of murder of Arun. He showed his ignorance about registration of Exhibit Ka-1 at above police station. Exhibit Ka-15 was also said to be not under his knowledge. Investigation including preparation of Exhibit Ka-9, Exhibit Ka-4, Exhibit Ka-3 was said to be incorrect. Inquest proceeding and inquest report Exhibit Ka-2, Police papers Exhibit Ka-10, Exhibit Ka-11, Exhibit Ka-12 and Exhibit Ka-13 were said to be not under his knowledge. Autopsy examination report Exhibit Ka-6 and conduct of autopsy examination by Dr. P.M.Siddiqui over the dead person of deceased Arun on 29.8.2004 and preparation of Exhibit Ka-6 under the hand writing and signature of Dr. P.M.Siddiqui was not disputed. Investigation regarding preparation of site map upon pointing of informant Ram Nath and the same being Exhibit Ka-8 under hand writing and signature of Investigating Officer V.K.Singh was said to be not under the knowledge of this accused. Rest of investigation by Investigating Officer and submission of charge sheet Exhibit Ka-7 and testimony regarding it was said to be incorrect. It was said "मै अपनी बहन को रक्षाबंधन के त्यौहार पर बुलाने गया था वही से पुलिस पकड़कर ले गई दो दिन ठाणे में राखी थी दो दिन ठाणे में रखने के बाद झूठी गिरफ्तारी बनाकर जेल भेज दिया।"
"I was at the residence of my sister for bringing her at the eve of festival Rakshabandhan from where Police apprehended and kept under custody for two days. Thereafter implicated falsely in this case and sent to jail." (English Translation by Court itself)
9. In defence, no oral evidence was given by accused.
10. Learned Trial Court heard argument of learned Public Prosecutor as well as learned counsel for defence and passed impugned judgment of conviction and sentenced therein, written as above.
11. Learned Amicus Curiae argued that Trial Court failed to appreciate facts and law placed before it. There was no evidence on record except suspicion and suspicion, how so strong, may never take place of proof but this was not appreciated by Trial Court. The informant was not eye witness account. Other witnesses of fact were not worth believable. PW 2 and 3 were also chance witnesses. Convict appellant was not resident of above village. He has admitted his presence on above date, time and place regarding festival of Rakshabandhan for which he was there at the residence of his brother- in-law for bringing his sister to his home and he was falsely implicated. He was with no motive nor there was any reason for this occurrence. No direct ocular testimony was there and even circumstantial evidence were not complete for proving charge beyond doubt. He was innocent with no criminal antecedent but Trial Court failed to appreciate all those facts. Quantum of punishment was also not considered. This was a punishment in excessive, without applying judicial mind.
12. Learned AGA controverted the argument of learned counsel and argued that it was an instant report by informant with a suspicion against three persons with whom there was dispute. When two witnesses of fact, who had lastly seen deceased going towards Minor Canal being chased by appellant apprised about the fact then in pursuance of above information, informant alongwith his family members rushed at the place of occurrence where dead body was lying with a throat cut then this case was got investigated under above direction and these facts have been fully proved by prosecution.
13. PW-1 informant Ram Nath in his testimony has categorically said in examination-in-chief that this witness is fully acquainted with Dinesh, present in the docket of Court. Because of his relationship with Ram Kumar resident of same village. On 28.8.2004 informant's son Arun was murdered. He was of 18 years on above date. He had gone from his home in the morning at 7 a.m. for being at ease and did not turn up till 11 a.m. Ladies of home searched for him. This witness was present at Malwan Bazar where information was sent about non return of Arun. This witness came at his village and searched for his son when Raj Kumar Nai and his son Ramu met at 2 p.m. near Paritala and apprised that Arun was going to field for being at ease at about 7 a.m. and Dinesh, armed with axe, was going towards field behind Arun. Upon this information, this informant went towards Minor near Paritala and found dead body of his son having throat cut hidden under weed. Report was got instantly lodged at Police Station by submission of written report scribed by his brother and signed by those witnesses. This report was Exhibit Ka-1 on record. There was no enmity with other except Jai Ram, Pyare Lal and Pathwari with whom there was some litigation and Pathwari has outraged his daughter at once upon a time but owing to family prestige, he kept mum hence this was suspected to be the offence committed by those three persons.
14. Meaning thereby this witness was not witness of going of his son Arun towards field in the morning at 7 a.m. or chasing by Dinesh or non return of Arun till 11 a.m. Rather he was the witness present at Malwan Bazar where he got this information of non return of his son Arun and he searched for Arun when two persons of his village informed about 'last seen' of Arun while going to Paritala near Minor Canal for being at ease in the morning at 7 a.m. Then this witness went on above spot and found dead body of his son having throat cut. Meaning thereby this witness is formal witness of registration of case crime number, Exhibit Ka-1, coupled with recovery of dead body of his son having throat cut.
15. This death owing to throat cut has been substantiated and corroborated by testimony of PW-6 Dr. P.M.Siddiqui that while being posted as Medical Officer at District Hospital Fatehpur on 29.8.2004, this Medical Officer was deputed at postmortem duty and at about 3 p.m., he conducted autopsy examination of dead body of Arun @ Badkau son of Ram Nath, resident of Pilkhini, Police Station Kalyanpur, District Fatehpur, brought under intact sealed position by Constable 149 Ram Shanker Yadav, H.C. 1213 Ram Khilawan of Police Station Kalyanpur. Under external examination, age was of 18 years with average body built. Eyes and mouth were closed. Rigor Mortis was passed from upper limbs but present in lower limbs. There were following ante-mortem injuries :
(i) Incised wound in the area of 6 cm. X 2 cm. X bone deep over the left side of scalp, 5 cm. Above left ear.
(ii) Incised wound of 5 cm. X 2 cm. X cavity deep 12 cm from tragus of right ear. having fracture of bone beneath it and oozing of brain matrix.
(iii) Incised wound over the front of neck of 5 cm. away from trachea, of 8 cm x 3 cm. X bone deep having cut of trachea and esophagus.
(iv) Incised wound over trachea of 3 cm. X 2 cm. X bone deep.
(v) Incised wound on the back of neck size 4 cm. X 2 cm. X muscle deep, 7 cms. away from right ear.
16. On internal examination, brain membrane beneath injury no.2 was cut. Brain was bloody, small intestine was empty, large intestine was filled with faecal matter and gases. Gall bladder was semi filled, teeth were 15/15. Clothes and belongings found over the person of deceased were taken and kept under seal, delivered to above Police Constables. Cause of death was owing to above antemortem injuries and coma. It was of one and a half day duration.
17. Autopsy examination report was got prepared under the hand writing and signature of this witness at the time of examination which was on record, proved and exhibited as Exhibit Ka-6. Death was of in between 7 a.m. to few time of 28.8.2004 by sharped edged weapon like axe. There may be possibility of 8 hours either side in the duration of time of death.
18. No cross examination regarding autopsy examination and death owing to above antemortem injuries was made by learned counsel for defence. This testimony was fully intact and was in corroboration with inquest proceeding proved by PW-7 Investigating Officer Vinod Kumar. Hence this was neither death owing to accident or owing to natural cause rather it was culpable homicide and injuries found on the person and nature of same coupled with site and size were of this conclusive proof that it was a murder punishable under Section 302 IPC.
19. PW-2 Indra Pal is real brother of informant. He has said on oath that deceased Arun Kumar was his nephew and FIR Exhibit Ka-1 was got dictated by Ram Nath and scribed by this witness. The same is on record as Exhibit Ka-1 and this was submitted at Police Station. Inquest proceeding was conducted in front of this witness. He had put his signature over Exhibit Ka-2 inquest report. Meaning thereby, he is neither witness of going of his nephew at 7 a.m. on 28.8.2004 for being at ease towards field nor following by accused armed with axe. Meaning thereby, he is neither ocular testimony nor any supporting evidence regarding this murder by accused Dinesh @ Shiv Narain Lodh. He is the formal witness of proof of Exhibit Ka-1 FIR and Exhibit Ka-2 inquest proceeding report.
20. PW-3 Ram Swaroop is said to have seen deceased while he had gone to field for being at ease. He is not resident of above village of informant rather he is brother-in-law of informant and, per chance, he was at above village of informant one day before. He alongwith Ram Raj and Phool Chandra had been at the village of informant and stayed at the home of informant in that night. They went towards Canal Minor for defecation but Arun had previously gone there and while this witness alongwith two others were on return to home of informant, Dinesh having worn T-shirt and Pant met to them. They had conversation thereafter. They came to home and went their home. Subsequently, they came to know about missing and murder of Arun. He returned back to the home of informant where Circle Officer inquired from him. From his examination-in-chief it is not apparent that he saw deceased as 'last seen' under the company of accused Dinesh. He is witness of this fact only that he alongwith two other had gone for defecation near Canal Minor and while coming back, they met with Dinesh. They had some conversation as usual. They came back to the home of informant and after taking breakfast, they went for their home. Subsequently they have information of murder of Arun and returned to informant's home where Circle Officer inquired him. He is a chance witness with no material evidence. In his cross examination he has categorically said :
"मुल्ज़िम किस गांव का निवासी है मैं नहीं जानता। दिनेश कितने भाई बहन है नहीं मालूम । मै जब वादी के घर गया था उसी दिन मुल्ज़िम अरुण को बुलाने घर पर आया था तभी मैंने जाना था कि यह दिनेश है उसके पहले मैं मुल्ज़िम को बिल्कुल नहीं जानता था । दरोगा जी ने मुझसे दिनेश की जानकारी के बाबत नहीं पूछा था लिहाज़ा उनसे नहीं बताया था।"
"I am not aware that accused is resident of which village. Accused Dinesh is with how many brothers and sisters. For the first time when accused has come for calling Arun I came to know that he was Dinesh. Prior to it I was least aware of accused Dinesh. Daroga Ji did not asked about this awareness about Dinesh that is why nor narrated to him."
(English Translation by Court)
21. Meaning thereby, this witness being a chance witness was least aware of accused Dinesh and he had seen him for the first time on the day of occurrence when, as per him, he came to call Arun with him whereas no such case of prosecution is there that Arun went with Dinesh upon his calling on above date. Testimony of this witness is of no material substance regarding fact in issue or relevant fact.
22. PW-4 Bansi Lal is a witness of recovery of alleged axe upon pointing of convict appellant Dinesh @ Shiv Narain Lodh. He, in his testimony on oath in examination in chief has said that one year four months back from the date of evidence, Police team of Police Station Kalyanpur had come alongwith Dinesh by jeep at the door of Ram Kumar at Village Pilkhini and Dinesh entered inside house of Ram Kumar and brought an axe kept under straw and apprised that he had committed murder of Arun Kumar by this axe. This axe was having straw and blood stained over it. It was wrapped under a cloth and sealed on spot by Sub Inspector of Police. Specimen seal was got prepared. Bablu was present on spot. Many other persons of village were present there. Recovery memo was prepared by Darogaji. It was read over by witness and after reading it, he had put signature over it. Recovery memo, filed with record, is under signature of this witness, which has been proved and exhibited as Exhibit Ka-3. This recovery and preparation of recovery memo was of about 2.30 p.m. The sealed bundle produced in the Court, was got opened from which blood stained axe was taken out. This was with specification as written in memo having wooden base and it was the same axe which was recovered upon pointing of Dinesh from the home of his brother in law Ram Kumar. This axe has been proved and exhibited as material Exhibit-1. In cross examination, he has reiterated his previous statement but was not aware as to whether there was signature of accused over this recovery memo or not. Informant Ram Nath is his real brother. Scribe of report Indra Pal is also his real brother. Bablu son of Deena Nath is his real relative. Deceased Arun Kumar was his nephew. On the date of occurrence he was not at above village. He is not aware about the fact that who gave information to his brother informant though he accompanied his brother Ram Nath at Police Station and this report was got scribed and filed. He was present at the time of arrest of accused and this accused Dinesh was arrested from his house. It was not a festival of Rakshabandhan. The day accused was arrested, axe was recovered.
"जिस दिन मुल्ज़िम गिरफ्तार किया गया मै मौजूद था । यह बात सही है कि मुल्ज़िम दिनेश को उसके घर से गिरफ्तार किया गया था । गिरफ्तार जब किया गया था उस दिन रक्षाबंधन का त्यौहार नहीं था । गिरफ्तारी के समय गांव के बहुत से लोग थे । जिस दिन मुल्ज़िम पकड़ा गया उसी दिन कुल्हाड़ी बरामद हो गई थी ।"
The day accused was apprehended I was present. It is true that accused Dinesh was arrested from his home. It was not the day of Rakshabandhan. Many persons of village was present at the time of arrest. The day accused was arrested, axe was recovered." (English Translation by Court itself)
23. Meaning thereby, this was not a recovery on pointing of accused, when he was brought by Police team at village rather this axe Exhibit -1 was recovered on the day when accused was arrested and at the time of arrest, he had taken out this material Exhibit-1. Sealed bundle of axe as well as recovery memo of same was not got signed by accused himself. He is not aware of village of which accused Dinesh was resident of. A suggestive question was given to this witness that no recovery of axe was made on pointing out of accused. This has been replied in negative. but the blood stained axe could neither be sent nor got proved in Serological test that blood stain, found over it, was of human blood.
24. This witness is a formal witness of recovery memo Exhibit Ka-3 and material Exhibit -1. He is neither last seen evidence nor ocular testimony of alleged offence of murder. He is relative witness, real brother of informant and uncle of deceased.
25. PW-5 is Bhola. He is a witness of this fact that clothes worn by accused were having stains of blood and that is why it was taken in custody by Investigating Officer under his presence from accused Dinesh who was kept under lock up of police station. These clothes were a Pant/Jeans of gray colour and a T-shirt of Katthai (brown) colour having monogram of "Woodland" over it. These clothes were wrapped and sealed in a cloth. Specimen seal was got prepared. Recovery memo of the same was prepared on spot. It was read over and got signed by this witness as well as Buddhi Lal. The same is paper no.10A/1 on record, which was under his signature, proved and exhibited as Exhibit-Ka 5. Sealed bundles produced in Court was got opened from which these two clothes were taken out. They were appearing to be with blood stained. These were proved and exhibited as material Exhibit 2 and 3.
26. In cross examination, he has categorically said that accused Dinesh is resident of Village Sakarpur, P.S. Thariway, which is at a distance of about 30 kms. from his Village Kalyanpur. He was not present at the time of arrest of accused rather he came on the third day of arrest at police station. Ramesh, Bisen, Ram Pal and many others about 25 persons other than six witnesses and Buddhi Lal were at police station and before all those persons, this taking of clothes were made by Investigating Officer. But signature of Dinesh was not got over above recovery memo. No Serological report establishing above stains over cloth of accused to be of human blood was obtained or proved by prosecution. This witness is a formal witness of Exhibit Ka-5 and material exhibit 2 and 3.
27. PW-7 is Investigating Officer Vinod Kumar, Deputy Superintendent of Police, who has said that while being posted as Circle Officer Bindki, Fatehpur on 01.9.2004, he was deputed investigation of Case Crime No.80 of 2004 under Section 302, 201 IPC read with Section 3(2)(v) of S.C./S.T. Act. Prior to this entrustment of investigation, this case was being investigated by Vinay Kumar Singh, Station Officer, Kalyanpur and this witness perused diary written by erstwhile Investigating Officer. Then after he got re-examination of informant Ram Nath, witnesses Ramu and Ram Kumar. Autopsy examination report as well as inquest report of deceased Arun Kumar was written in case diary. Witnesses of inquest proceedings Vinay Kumar Singh and Constable Ram Shankar Yadav were examined. Indra Pal, Ram Shanker, Keshav Lal, Laxmi Kant and Raja Ram, witnesses of inquest were examined. Witnesses of recovery memo of weapon of offence Bablu and Banshi Lal were examined. Witnesses of recovery memo Bhola, Buddhi Lal, Village Pradhan Brij Kishor and other witnesses Kallu, ram Raj, Ram Swaroop, Phool Chandra were examined. Then after charge sheet no.8/04 against Dinesh @ Shiv Narain Lodh was got prepared under his dictation by his Munshi, under his signature on 09.9.2004, which is on record, formally proved and exhibited as Exhibit Ka-7.
28. In cross-examination, he refused to have a visit or inspection of spot over which this offence of murder was committed or place from where this accused Dinesh was got arrested or place from where this weapon of offence was got recovered. Erstwhile Investigating Officer has not prepared spot map of the place from where accused was arrested or from where weapon of offence axe was recovered. This Investigating Officer has not recovered weapon of offence, hence he did not get site map prepared. The alleged clothes and axe were not seen by this witness. The suspected accused Pathwari, Jairam and Pyare Lal were with no substantial accusation against them because none of witness said against them hence no action against them was taken.
29. It is true that this witness has not inspected or investigated the documents relating to litigation in between informant and suspected accused. PW-1 was examined on 1.9.2004 at his residence but he has not disclosed name of Ram Swaroop, or Ram Raj. But in subsequent statement, this was developed. The alleged recovered weapon of offence was kept at police station but nowhere this was written in case diary or in oral testimony of this witness that these recovered articles were ever sent for Syrological test in Forensic Science Laboratory for establishing the fact that alleged blood stains were of human blood.
30. PW-8 is constable 528 Lalta Prasad, a Pairokar of Police Station Kalyanpur. He is a secondary evidence for proving testimony of erstwhile Investigating Officer Vinay Kumar Singh because he was fully acquainted with hand writing and signature of Vinay Kumar Singh and site map Paper No.5-Ka dated 28.8.2004 is with hand writing and signature of above Vinay Kumar Singh. This has been exhibited as Exhibit Ka-8. Recovery memo of taking of blood stained soil as well as plain soil related with case crime no.80/04 of P.S. Kalyanpur is under signature of Vinay Kumar Singh. The same has been proved and exhibited as Exhibit Ka-9. Police Form no.13 dated 28.8.2004 is also under his hand writing and signature, proved and exhibited as Exhibit Ka-10. Police Form No.379 has been formally proved and exhibited as Exhibit Ka-11. Letter to R.I. Exhibit Ka-12, Exhibit Ka-13 is under his hand writing. He is also acquainted with hand writing and signature of Constable Narendra Bahadur, who has entered this case crime number of which Chik FIR Exhibit Ka-14 and disclosure in General Diary entry of Police Station Kalyanpur at report No.25 at 16:00 hours on 28.8.2004 is under hand writing and signature of Constable Moharrir Narendra Bahadur. The same is carbon copy formally proved and exhibited as Exhibit Ka-15. In cross examination he has specifically answered that he is not under personal knowledge of occurrence.
31. Both the witnesses Investigating Officer Vinay Kumar Singh and Constable Moharrir Narendra Bahadur are alive. Narendra Bahadur Singh is in service and Vinay Kumar Singh is a pensioner. All those writings made by those witnesses were not in presence of this witness. Exhibit Ka-9 is under hand writing of Ram Shankar Shukla but the same is not under his signature. Meaning thereby, this secondary witness has formally proved documents which were under hand wringing and signature of erstwhile Investigating Officer Vinay Kumar Singh and Constable Moharrir Narandra Bahadur but he was not aware of the fact under his personal knowledge but prosecution did not care to prove or examine those two alive and available witnesses, who may be cross examined for getting trustworthiness of the facts. These are evidence on record.
32. In a case, which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link of chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all the circumstances must be consistent with the guilt of accused.
33. In Hanumant Vs. 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)
34. In Hukam Singh vs. 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 the guilt of any other person.
35. In Sharad Birdhichand Sarda vs. 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 the 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)
36. In Ashok Kumar Chatterjee vs. 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)
37. In C. Chenga Reddy and Others vs. 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)
38. In Bodh Raj @ Bodha and Ors. vs. 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)
39. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Anr. vs. Registrar General High Court of Karnataka and Anr., 2007(4) SCC 713 and Tomaso Bruno vs. State of U.P., 2015(7) SCC 178.
40. The principal fact are factum probandum may be proved in directly by means of certain inferences drawn from factum probandum i.e. the evidenciary fact. To put it differently circumstantial evidence is not direct to the point in issue, but consist of evidence of various other facts, which are so closely associated that facts in issue, that taken together, they form a chain of circumstances, from which existence of principal fact can be legally inferred or presumed. There is no doubt that conviction can be based on sole ground of circumstantial evidence but conditions precedent before conviction could be based on circumstantial evidence must be fully established. They are:
(i) The circumstances from which conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should, and not may be established.
(ii) the facts so established should be consistent only with hypothesis of the guilt of accused. That is to say they should not be exclusively on any other hypothesis except that the accused is guilty.
(iii) The circumstances should be of conclusive nature and tendency.
(iv) They should exclude every possible hypothesis except the one to be proved, and
(v) there must be a chain of evidence so complete as to not 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 accused.
41. In the present case, none is eye witness account. PW-1 was at Malawan Bazar and he came on spot after having information of missing of his son. He was apprised by two persons of Village, though both of them have not been examined, that they have seen deceased going towards Minor Canal for defecation and present accused Dinesh was going towards Minor Canal just following the deceased and this was at about 7 a.m., though both of above persons, who apprised this, have not been examined that they were "last seen" evidences.
42. For "last seen" theory, it comes into play where time gap between the point of time when the accused and deceased were seen last alive and when the 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 the accused where there is a long gap and possibility by other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were ''last seen'' together, it would be hazardous to come to a conclusion of a guilt in these cases.
43. In the present case, neither deceased and accused Dinesh were seen together nor there was examination of those two persons who have seen them going towards minor canal for defecation. The only witness was a chance witness i.e. P.W.3, who was not said to be witness in Exhibit Ka-1 but developed subsequently, is the witness of going Dinesh only. Because deceased Arun Kumar had previously gone for defecation and this witness along with others had also gone towards canal for defecation, they met with Dinesh, they had talked with him and they came back. Meaning thereby, deceased was not in company of Dinesh at that time and this time gap is from 7 a.m. to time of recovery of dead body in afternoon and all those witnesses had gone towards Minor Canal for open door defecation, which is very usual in village conditions having no closed door defecation facilities. Moreso, above witness was chance witness and was not aware of accused Dinesh prior to date of occurrence hence his testimony was a chance testimony not much worth reliable.
44. This trial was based neither on ''ocular testimony'' nor on ''last seen'' of circumstantial evidence. The alleged blood stained clothes and weapon of offence could not be got examined under Serological test by Forensic Science Laboratory for establishing the blood to be of human blood nor site map of same was got prepared nor Investigating Officer Vinay Kumar Singh, who was alive, got examined for proving those facts, which were under his investigation. Hence, extra judicial confession followed by recovery of weapon of offence, Material Exhibit 1 is also with full of suspicion because PW-4 Bansi Lal has said that recovery was instant at the time of arrest of accused from house of his brother in law Ram Kumar whereas prosecution case is that accused was taken from Police Station by Police team and he was brought at spot from where above recovery was made upon his pointing out. But this version has been proved otherwise by witness of recovery memo.
45. Hence, under all above facts and circumstances prosecution utterly failed to prove charge beyond doubt. Trial Court failed to appreciate the facts and evidence placed on record thereby judgment of conviction and sentence made therein was not substantiated by evidence brought on record.
46. One thing is also to be written that Apex Court in State of Madhya Pradesh Vs. Chunnilal alias Chunni Singh 2009 AIR SCW 5335 has propounded that under Section 9 of S.C./S.T. Act, and under Rule 7 framed thereunder, investigation of offence punishable under above Act is to be made by Police Officer not below the rank of Deputy Superintendent of Police, hence, if investigation was made by Sub-Inspector and charge sheet was filed by Circle Officer, proceeding was vitiated and there can be no trial for S.C./S.T. Act.
47. In the present case, Investigating Officer, Deputy Superintendent of Police, PW 7 was not careful to have visit place of occurrence and place of alleged recovery or to get alleged weapon of offence as well as cloths worn by accused having blood stained over it get Serologically examined by Forensic Science Laboratory for establishing the fact that alleged blood stain were of human blood or to investigate about time, place and date of arrest of accused or his extra judicial confession or disclosure of fact of hiding of weapon of offence followed by recovery of weapon of offence. All these investigation was said to be made by Sub-Inspector, Investigating Officer of Police Station Kalyanpur Vinay Kumar Singh and he too was not examined during trial. His testimony was secondarily proved by prosecution. This appears to be slur against State in such a heinous offence of murder of a person of Scheduled Caste Community for which above special Act was legislated by Parliament. State is expected to look into the matter and take appropriate steps.
48. In the result, this appeal succeeds and is allowed. The impugned judgment and order dated 06.02.2008 passed in Special Sessions Trial No.44 of 2005 (State of U.P. Vs. Dinesh @ Shiv Narain Lodh) arising out of Case Crime No.80/04 under Section 302/201 of Indian Penal Code, 1860 read with Section 3(2)(v) of S.C./S.T. Act, Police Station Kalyanpur, District Fatehpur, whereby appellant Dinesh alias Shiv Narain Lodh was convicted for the offence under Section 302/201 IPC and also 3(2)(v) S.C./S.T. Act is hereby set aside. Accused-appellant is acquitted from the charges levelled against him under Sections 302/201 IPC and 3(2)(v) S.C./S.T. Act.
49. Accused is in jail. If he is not required in any other matter or in some other case, he be released forthwith.
50. Keeping in view provisions of Section 437-A Cr.P.C., appellant is directed to forthwith furnish a personal bond of the sum of Rupees Fifty thousand and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, alongwith an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.
51. Copy of this order alongwith lower Court record be sent to Court concerned forthwith for compliance. Compliance report be also sent to this Court.
52. A copy of this order be also sent to accused-appellant through concerned Superintendent of Jail for his intimation.
53. Ms. Seema Pandey, learned Amicus Curiae has assisted the Court very diligently. We provide that she 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 to Ms. Seema Pandey, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date :- 9.4.2019 KA