Allahabad High Court
Sunder vs State Of U.P. on 3 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 203
Bench: Pritinker Diwaker, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 48
CRIMINAL APPEAL No. 4675 of 2016
Sunder ----- Appellant
Vs.
State of U.P. ----- Respondent
______________________________________________________
For Appellant : Sri Shyam Lal &
Sri Ashutosh Yadav
For Respondent/State : Sri Amit Sinha, AGA
For complainant : Sri Kamal Krishna, Sr. Adv.
assisted by Sri R.K. Srivastava
______________________________________________________
CRIMINAL APPEAL No. 4506 of 2016
Rahul ----- Appellant
Vs.
State of U.P. ----- Respondent
______________________________________________________
For Appellant : Sri Ram Babu Sharma &
Sri Ardhendu Shekhar Sharma
For Respondent/State : Sri Amit Sinha, AGA
For complainant : Sri Kamal Krishna, Sr. Adv.
assisted by Sri R.K. Srivastava
______________________________________________________
Hon'ble Pritinker Diwaker, J.
Hon'ble Dinesh Pathak, J.
Per : Pritinker Diwaker, J.
(3.1.2020)
1. Both these appeals arise out of impugned judgment and order dated 23.8.2016/26.8.2016 passed by Special Judge (EC Act)/Additional Sessions Judge, Ghaziabad in Sessions Trial No. 1366 of 2013 (State v. Rahul and another) connected with Sessions Trial No. 1367 of 2013 (State vs. Rahul) & Sessions Trial No. 1368 of 2013 (State v. Sunder), convicting both the appellants under Sections 396, 412, 420, 468 and 471 of IPC and sentencing them to undergo rigorous imprisonment for life under Section 396 with a fine of Rs.20,000 each, in default thereof, to further undergo two months' additional rigorous imprisonment; rigorous imprisonment for five years under Section 412 with a fine of Rs.5000/- each, in default thereof, to further undergo one month's additional rigorous imprisonment; rigorous imprisonment for three years under Section 420 with a fine of Rs.2000/- each, in default thereof, to further undergo one month's additional rigorous imprisonment; rigorous imprisonment for two years under Section 468 with a fine of Rs.2000/- each, in default thereof, to further undergo fifteen days' additional rigorous imprisonment; and rigorous imprisonment for one year under Section 471 of IPC. Further appellant Rahul has been convicted under Section 25/4 of the Arms Act and sentenced for one month's rigorous imprisonment and appellant Sunder has been convicted under Section 25 of the Arms Act and sentenced for three years' rigorous imprisonment with a fine of Rs.2000/-, in default thereof, to further undergo one month's additional rigorous imprisonment. Except fine, all the sentences shall run concurrently.
2. As these two appeals arise out of a common judgment and order dated 23.08.2016/26.08.2016, they are being disposed of by this common order.
3. Brief facts of the case are that in the night intervening 21/22 December 2011, a dacoity was committed in the house of Jaikaran and Smt. Mam Chandi and some unknown persons, after committing the murder of these two persons, looted certain ornaments and cash amount of Rs.60,000/-. The accused persons, who committed the offence, had also taken the vehicle of deceased Jaikaran and while doing so, they were seen by Dharmpal (PW-2) and Balraj (PW-4). However, upon being asked, accused Rahul, who was sitting on the driver seat, informed them that they are taking the juvenile accused Sonu to the Doctor. On the next morning, i.e. 22.12.2011, when milk-man Desi @ Desiram (PW-6) entered the house of deceased Jaikaran, he found both the dead bodies. He immediately informed the said fact to Dharampal (PW-2), who was the neighbor of Jaikaran and a telephonic information was also sent to Naresh Kumar (PW-1) son of the two deceased, who was residing at Greater Noida. Immediately after coming to know the incident, Naresh Kumar (PW-1) rushed to his village and after seeing the dead bodies and coming to know the entire incident, he lodged the written report Ex.Ka.1 on 22.12.2011 at 6:40 a.m. Based on this written report, FIR Ex.Ka.4 was registered under Sections 394, 302 of IPC against accused Rahul, Sonu (juvenile accused) and others.
4. Inquest on two dead bodies were conducted vide Ex.Ka.11 and Ex.Ka.12 on 22.12.2011 and bodies were sent for postmortem which was conducted on the same day by Dr. V.V. Dhaka (PW-3) vide Ex.Ka.2 and Ex.Ka.3.
5. As per Autopsy Surgeon, following injuries were noticed on the body of deceased Mam Chandi:
"(i) contusion abrasion 10 cm x 2 cm just on the (Rt) side neck on below lateral part of neck 8 cm below (Rt) ear.
(ii) contusion 2 cm x 1 ½ cm just on the lateral part of (Lt) side neck 2 cm below (Lt) ear.
(iii) contusion swelling 6 cm x 3 cm just on the (Rt) part head 4 cm above the (Rt) ear. Trachea congested, hard bone fractured."
The cause of death of the deceased was asphyxia as a result of antemortem throttling.
6. As per Autopsy Surgeon, following injuries were noticed on the body of deceased Jaikaran:
"(i) contusion 5 cm x 3 cm just on the below lateral part of (Rt) side neck 8 cm below (Rt) ear.
(ii) contusion abrasion 2 cm x 1 ½ cm just on the (Lt) lateral part of neck 5 cm below the (Lt) ear.
(iii) abrasion 3 cm x ½ cm just on the (Lt) lateral part of forehead 2 cm above the (Lt) eyebrow.
(iv) abrasion 1 cm x 1 cm just on the root of the nose.".
The cause of death of the deceased was asphyxia as a result of antemortem throttling.
7. From accused Rahul, one Wagon-R car allegedly belonging to deceased Jaikaran, knife and Rs.5000/- were seized whereas from accused Sunder, a country-made pistol, two live cartridges and certain ornaments were seized. From juvenile accused Sonu, one 315-bore country-made pistol and some live cartridges were seized.
8. Juvenile accused Sonu has been tried separately by the Juvenile Board.
9. While framing charge, trial judge has framed charge against the accused persons under Sections 396, 412, 420, 467, 468 and 471 of IPC. Against accused Rahul, separate charge under Section 25/4 of the Arms Act was also framed and likewise against accused Sunder, charge under Section 25 of the Arms Act was framed.
10. So as to hold accused persons guilty, prosecution has examined ten witnesses. Statement of accused persons under Section 313 of Cr.P.C. were recorded, in which they pleaded their innocence and false implication.
11. By the impugned judgment, the trial Judge has convicted accused appellants and sentenced them as mentioned in paragraph no. 1 of this judgement. Hence this appeal.
12. Learned counsel for the appellants submits:
i) that there is no eye-witness account to the incident and the appellants have been convicted solely on the basis of weak circumstantial evidence.
ii) that there are material contradictions in the statement of Dharampal (PW-2) and Balraj (PW-4) from their diary statement.
iii) that if Dharampal (PW-2) and Balraj (PW-4) had seen the accused persons taking away the vehicle of the deceased, their diary statement ought to have been recorded promptly by the prosecution. However, diary statement of Dharmpal (PW-2) was recorded on 26.12.2011 and likewise diary statement of Balraj (PW-4) was recorded on 24.12.2011 and there is no explanation by the prosecution for recording the statement after inordinate delay.
iv) that these two witnesses i.e. Dharampal (PW-2) and Balraj (PW-4) had never seen the accused persons in the company of deceased and, therefore, they cannot be termed as witnesses of last seen.
v) that motive has not been proved by the prosecution.
vi) that recovery of vehicle has not been proved by the prosecution. Even the vehicle has not been seized and identified as required under the law.
vii) that trial court has erred in law in holding that Dharampal (PW-2) and Balraj (PW-4) are the witnesses of last seen.
viii) that test identification parade of weapons and vehicle has not been done by the prosecution as required under the law.
ix) that as per prosecution case, accused persons were having knife and country made pistols with them, whereas in the postmortem report, no injuries from such weapons have been found and the postmortem reports do not support the prosecution case.
x) that there is absolutely no evidence on record to show the involvement of accused persons in the commission of murder of the deceased.
xi) that even assuming that the vehicle of the deceased was found in possession of accused Rahul, at best, he would be liable to be convicted under Section 411 or 412 of IPC.
xii) that appellants are in jail since last more than 7 years.
13. On the other hand, supporting the impugned judgment, it has been argued by the State and that of complainant:
i) that impugned judgment is in accordance with law and there is no infirmity in the same.
ii) that having found in possession of the vehicle of the deceased, presumption goes against the appellants and it is they, who have to explain as to how they came in possession of the vehicle Wagon-R.
iii) that in a case of dacoity with murder, normally eye-witnesses are not found and on the basis of cumulative effect of the evidence, court has to reach to the conclusion as to whether the offence has been committed or not.
iv) that once the ornaments of the deceased have been found in possession of accused-Sunder, his conviction is in accordance with law and there is no infirmity in the same.
14. We have heard counsel for the parties and perused the record.
15. Naresh Kumar (PW-1) is the informant and is also a son of two deceased Jaikaran and Smt. Mam Chandi. He has stated that his parents were residing in the village and there accused Rahul was working as a driver. At times, the other accused persons including the juvenile accused Sonu also used to live with Rahul. He has further stated that on 16.12.2011, accused Rahul and Sonu had committed theft in the house of his father and upon coming to know the same, his father had gone to the village of accused Rahul, a Panchayat meeting was called where accused Rahul was scolded and then accused Rahul extended threats to his father. He further states that just prior to the incident at about 10.00 p.m. on 21.12.2011, he was informed by his mother that accused Rahul had enquired about his presence (this witness) in the house. He further states that after coming to know the incident, he rushed to his village and then the report was lodged. In cross-examination, he admits that no report was lodged about the previous incident and that the previous incident of theft was not disclosed to the police.
16. Dharampal (PW-2) has stated that on 21.12.2011, in the late night, when he was returning from his field after irrigating the land, he saw accused appellant Rahul driving the vehicle of deceased Jaikaran wherein the other accused Sonu, Sunder and Amit were sitting inside the vehicle. He states that when he inquired from accused Rahul, he informed him that he is going to the residence of the doctor. On the next day, he came to know that Jaikaran and Mam Chandi had been killed. He admits that his diary statement was recorded after about one week of the incident and it is incorrect to say that he was returning from the house of Satyaveer after seeing his buffalo. He has reiterated that he was returning from the field after making necessary arrangement for irrigating the land. He further states that deceased Jaikaran was his cousin in relation. He states that in the torch light, he saw the accused persons sitting inside the vehicle. He further states that it was his guess that accused persons might have killed the deceased and he came to know about the incident early in the morning when he was informed about the same by the milkman. He further states that at about 1.00-1.30 in the night, police reached to the place of occurrence and information was given to police by the villagers and the distance between the village and the police station is about two and a half - three kilometers. He further states that before lodging the report, police had already come to the place of occurrence. He has reiterated that he had never informed the police that he was returning from the house of Satyaveer after seeing his buffalo and he had just informed the police that he was returning from his agricultural field. He further states that he, Balraj (PW-4) and Desi @ Desiram (PW-6) had gone together in the house of deceased and before that nobody had entered the said house.
17. Balraj (PW-4) is another important witness of the prosecution. He states that on the date of incident, he and Dharampal (PW-2) were returning from the agricultural field and they had also gone to the house of Satyaveer, on the way, they saw accused Rahul driving the vehicle of the deceased and in the vehicle, other accused persons were also sitting, when inquired, Rahul informed them that accused Sonu was not well and they were taking him to the doctor. He states that in the night, they slept in the house of Dharmpal and on the next morning, when milk-man Desi @ Desiram (PW-6) informed him about the death of the two deceased, he and Dharampal had also seen the dead bodies of the deceased. He further states that he had not informed the police that while coming from the field, he and Dharampal had also gone to the house of Satyaveer.
18. Dr. V.V. Dhaka (PW-3) conducted the postmortem on the body of two deceased.
19. Surendra Kumar (PW-5) has proved the chik FIR.
20. Desi @ Desiram (PW-6) is a milk-man, who first attended the house of the deceased in the early morning of 22.12.2011 and found two dead bodies inside the house.
21. Suresh Chandra Kanaujiya (PW-7) is Investigating Officer who did the investigation in relation to the Arms Act.
22. Ifteqar Ahmad Qureshi (PW-8), S.I. is a witness of recovery of Wagon-R car. He states that while along with other police officers he was going to the village of accused Rahul to arrest him, police parties received secret information that the accused Rahul and juvenile accused Sonu have changed the number plate of Wagon-R car and that they are going to sell the same. On the way, Wagon-R car was apprehended and accused Rahul and juvenile accused Sonu were found inside the car, and they were arrested. From accused Rahul, one country-made pistol, two cartridges and Rs.5000/- were also seized and likewise from juvenile accused Sonu one knife and Rs.5000/- were seized. He states that before the police party, both the accused persons had confessed about the commission of the offence. He further states that from accused Sunder, from an open space, recovery of a country-made pistol and two live cartridges was made.
23. Amit Chauhan (PW-9) is the Investigating Officer, has admitted the fact that Naresh Kumar (PW-1) had never informed about the previous incident of theft dated 16.12.2011 and likewise he had also not informed him that on 21.12.2011 at about 10.00 p.m., he had any conversation with deceased Smt. Mam Chandi. Virendra Kumar Sharma (PW-10) is the Investigating Officer of the case under Section 25 of the Arms Act.
24. Neha Agrawal (CW-1) and Daya Chandra (CW-2) have been examined in respect of the age of accused Sunder as accused Sunder had claimed juvenility but his claim was turned down.
25. Close scrutiny of the evidence, makes it clear that the prosecution case is mainly based on the evidence of Dharampal (PW-2) and Balraj (PW-4) who had allegedly seen the accused persons taking away the Wagon-R car of deceased Jaikaran. The other piece of evidence against the accused persons is the recovery of Wagon-R car from the custody of accused Rahul. Yet, another piece of evidence against the appellants is the recovery of certain ornaments.
26. So far as the evidence of seeing the accused persons near the vicinity is concerned, Dharampal (PW-2) and Balraj (PW-4) have stated that while they were returning from their agricultural field, they saw accused Rahul driving the car of the deceased whereas other accused persons were allegedly found sitting in the said vehicle. Even in relation to this evidence, there is contradiction in the statement of PW-2 and PW-4. At some places, they state that after attending their agricultural field for irrigating the land, they had gone to the house of Satyaveer to see his buffalo, whereas at some places, they state that they had not gone to the house of Satyaveer. Most importantly, in 161 Cr.P.C. statement, PW-2 and PW-4 have nowhere stated that they saw other accused persons also sitting in the car. However, in the court, they stated that all the accused persons were sitting in the car. There is absolutely no evidence to suggest that accused appellants were last seen in the company of the deceased.
In the case of Raj Kumar @ Raju vs. State (NCT of Delhi),1 the Apex Court held as under:
"11. The learned counsel for the appellant would contend that the aforesaid circumstances do not conclusively point to the involvement of the appellant-accused in the crime. The chain leading to the sole conclusion that it is the accused persons and nobody else who had committed the crime is not established by the three circumstances set forth above, even if all of such circumstances are assumed to be proved against the accused. Reliance has also been placed on the decision of this Court in Sanwat Khan and Anr. vs. State of Rajasthan, AIR 1956 SC 54, wherein this Court had taken the view that recovery of ornaments of the deceased from the accused or production of the same by the accused in the course of investigation, howsoever suspicious, cannot be conclusive of the question of the accused having committed the offence. As per Illustration (a) to Section 114 of the Evidence Act, 1872 though recovery of the ornaments can lead to presumption that the accused had committed robbery or received stolen property, unless there are circumstances to show that the theft/robbery and the murder took place in the same transaction, the accused would not be liable for the offence under Section 302 IPC.
12. The facts in Sanwant Khan bear a striking resemblance to the facts that confront us in the present appeal. If the evidence of PW 12 is to be discarded on the ground that such evidence is vague (there is no mention of the date on which PW 12 had seen the accused person in the neighbourhood and also as the said testimony runs counter to the prosecution case about arrest of the accused on 16-9-1991) the last seen theory built up on the evidence of PW 5 and PW 7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected that PW 5 and PW 7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e. 12-09-1991 and that they were going away to some other place. Even if the evidence of PW 12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of PW 5 and PW 7 disclose that the accused persons were seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused.
13. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e. in the course of the same transaction. No such evidence is forthcoming.
14. In view of what has been found above, we do not see as to how the charge against the accused/appellant under Section 302 IPC can be held to be proved. The learned trial court as well as the High Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, it has to be held that the conviction of the appellant-accused under Section 392 IPC is well founded. Consequently, we hold that the prosecution has failed to bring home the charge under Section 302 IPC against the accused and he is acquitted of the said offence. The conviction under Section 392 IPC is upheld. As the appellant-accused, who is presently in custody, had already served the sentence awarded to him under Section 392 IPC, we direct that he be set at liberty forthwith."
27. In the present case also, if the above principles are applied, what emerges is that Dharampal (PW-2) and Balraj (PW-4) have stated that they saw the accused persons in the car of the deceased. Merely on the basis of seeing the accused persons in the car by PW-2 and PW-4 would not be sufficient for this court to uphold the conviction of the appellants.
28. It is the settled proposition of law that in criminal trial, suspicion howsoever grave, cannot substitute proof. Recently in Devi Lal vs. State of Rajasthan2, the Apex Court, while dealing with a case, observed as under:
"On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof."
29. Even Naresh Kumar (PW-1) while deposing in the court has improved his statement. Either in the FIR or in his 161 Cr.P.C. statement, he has nowhere stated that on 16.12.2011 accused Rahul committed theft in his house and that deceased Jaikaran had gone to the village of accused Rahul to make enquiry about the alleged theft and there accused Rahul was scolded by the villagers. While improving in the court, he has narrated all the above facts and has stated that in relation to the theft dated 16.12.2011, deceased Jaikaran had gone to the house of accused Rahul and there he was scolded by the villagers. Statement to this effect also creates a doubt to the authenticity of the statement of Naresh Kumar (PW-1). Further in the court, PW-1 has stated that on the previous night when he was talking to his mother, she informed him that accused Rahul was inquiring about his presence in the house. However, no such statement has been made by this witness before the police while lodging the written report or at the time of his diary statement.
30. So far as the seizure of car allegedly belonging to the deceased is concerned, here also a doubtful story has been given by the prosecution. According to prosecution, while they were going to arrest accused Rahul, they received a secret information that Rahul is trying to sell the vehicle in question; they apprehended accused Rahul and got him along with the vehicle. Even the identification of the vehicle has not been done by the prosecution, as required under the law and the seizure of the vehicle cannot be called a seizure on the basis of memorandum statement of accused Rahul. Even assuming that the seized vehicle in question was of the deceased, merely based on that, it cannot be said that the appellants are involved in commission of murder of the two deceased.
31. There is absolutely no evidence on record to show in any manner that it is the appellants, who committed the murder of the two deceased. Prosecution though has seized country-made pistols and a knife from accused Rahul, Sonu and Sunder but use of these weapons have not been proved by the prosecution in commission of the offence. As per postmortem reports of the deceased, injuries found on the body of two deceased appear to have been caused by some hard and blunt objects and not by the country-made pistols or the knife. Even the recovery of weapons, have not been proved by the prosecution as required under the law, as except police witness, no independent person has been examined by the prosecution. There is further discrepancy in the statement of Dharampal (PW-2) and Balraj (PW-4), where they have stated that Desi @ Desiram (PW-6) though had informed PW-2 about the murder of the deceased but on the same side, they state that PW-2, PW-4 and PW-6 had gone together to the house of the deceased and found the dead bodies.
32. So far as motive part is concerned, according to prosecution, as accused Rahul was scolded by the villagers and Jaikaran in connection of theft incident dated 16.12.2011, that is why he committed the offence but evidence in this respect is also not conclusive and appears to be weak in nature. Yet another important aspect of the case which goes against the prosecution is that seized ornaments were never put to identification parade. The alleged ornaments have been identified by Naresh Kumar (PW-1) before the Investigating Officer and not in the test identification parade. Even the prosecution has failed to prove, in accordance with law, that the car allegedly found in possession of Rahul, was the car of the deceased. It is the settled proposition of law that in a case of circumstantial evidence, the prosecution is required to prove all the circumstances.
In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra3, the Supreme Court, while dealing with circumstantial evidence, observed as under:
"11. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343], which is one of the earliest decisions on the subject, this court observed as under:
"10. ...... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the 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. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
12. In Padala Veera Reddy v. State of AP [(1989) Supp (2) SCC 706], this court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:
"(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."
13. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are:
(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."
Recently, in Devi Lal vs. State of Rajasthan4 the Supreme Court, while dealing with circumstantial evidence, observed as under:
14. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116. The relevant excerpts from para 153 of the decision is assuredly apposite:
153. 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 Sahabrao Bobade & Anr. Vs. State of Maharashtra [(1973) 2 SCC 793 where the observations were made:
"Certainly, it is a 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 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."
15. It has further been considered by this Court in Sujit Biswas Vs. State of Assam 2013(12) SCC 406 and Raja alias Rajinder Vs. State of Haryana 2015(11) SCC 43. It has been propounded that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused."
33. Considering the above facts and circumstances of the case, we are of the view that the appellants are entitled to get the benefit of doubt.
In Kali Ram vs. State of Himachal Pradesh5, the Supreme Court, while dealing with the issue relating to withholding or affording benefit of doubt, observed as under:
"26. It needs all the same to be re-emphasised that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real. As observed on page 3 of the book entitled "The Accused" by J.A. Coutts 1966 Edition, "When once it is realised, however, that the public interest is limited to the conviction, not of the guilty, but of those proved guilty, so that the function of the prosecutor is limited to securing the conviction only of those who can legitimately be proved guilty, the clash of interest is seen to operate only within a very narrow limit, namely, where the evidence is such that the guilt of the accused should be established. In the case of an accused who is innocent, or whose guilt cannot be proved, the public interest and the interest of the accused alike require an acquittal.
27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether. It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on page 157 of "The Proof of Guilt" by Glanville Williams, Second Edition:
"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."
The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahabrao Bobade & Anr. (AIR 1973 SC 2622) as is clear from the following observations :
"Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations".
34. So far as conviction of accused appellant Rahul under Section 25/4 and accused appellant Sunder under Section 25 of the Arms Act is concerned, as no independent prosecution witness has supported the prosecution case, recovery of weapons becomes doubtful and, therefore, it is difficult to uphold the conviction of both the appellants under the provisions of the Arms Act.
35. Taking cumulative effect of the evidence, we are of the view that trial court was not justified in convicting the appellants. Accordingly, we set aside the orders of trial court convicting the appellants.
36. Resultantly, both the appeals are allowed. Appellants are reported to be in jail since last more than seven years. They be set free forthwith, if not required in any other case.
37. Let a copy of this judgment be sent to the concerned trial Court forthwith for compliance.
Order Date :- 03.01.2020
RK/C.Mani
(Dinesh Pathak, J.) (Pritinker Diwaker, J.)