Allahabad High Court
Rashid Ali vs The State Of U.P. on 16 April, 2015
Bench: Surendra Vikram Singh Rathore, Anant Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Case :- CRIMINAL APPEAL No. - 2131 of 2004 Appellant :- Rashid Ali Respondent :- The State Of U.P. Counsel for Appellant :- Sunil Kumar Singh,Parul Kant,Pradeep Kumar Singh,Rajiv Mishra,Rama Kant Jaiswal,Soniya Mishra Counsel for Respondent :- Govt. Advocate Hon'ble Surendra Vikram Singh Rathore,J.
Hon'ble Anant Kumar,J.
(Per Surendra Vikram Singh Rathore, J.)
1. Heard learned counsel for the appellants, Smt. Smiti Sahay, learned A.G.A. for the State and perused the lower court record.
2. Under challenge in this appeal is the judgment and order dated 21.8.2004 passed by the learned Additional Sessions Judge, Court No. 5, Unnao arising out of Case Crime No. 1017 of 2003, whereby appellant Rashid Ali was convicted for the offence under Sections 364, 302 and 201 I.P.C. For the offence under Section 364 I.P.C., he was sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs. 5,000/-, with default stipulation of six months rigorous imprisonment. For the offence under Section 302 I.P.C., he was sentenced with imprisonment for life and also with fine of Rs. 10,000/- with default stipulation of one year additional imprisonment. For the offence under Section 201 I.P.C., he was sentenced to undergo rigorous imprisonment for seven years and also with fine of Rs. 5,000/- with default stipulation of six months additional imprisonment.
3. It is a case of circumstantial evidence. The appellant happens to be the son in law of the complainant. The deceased was the real brother of the wife of the appellant meaning thereby he was his brother in law. The appellant also happens to be the real maternal uncle of the deceased. The marriage of the daughter of the complainant with the appellant was solemnized in the month of May 2002 and this incident has taken place on 16.5.2003.
4. The brief facts necessary for the disposal of the instant appeal may be summerized as under:-
On 17.5.2003 in the morning at about 8:30 a.m. one Rajesh Kumar Sharma gave an information at Kotwali, District Unnao that he runs a betel shop on the bypass. On 17.5.2003, he had gone to attend the call of nature at Unnao Bypass near Sulabh Shauchalaya, then he saw a dead body of a young boy aged about 10-12 years lying in the Babul bushes. His hands and neck were tied. On the basis of this information, the police registered the case and investigation proceeded. Inquest proceeding of the dead body was conducted and the dead body was sent for postmortem and the clothes of the deceased were taken into custody. On 18.5.2003, the complainant got the information through newspaper that a dead body of a young boy about 10-12 years has been found, then he also reached the police station on the same day. They were shown the photographs and the clothes of the deceased. Thereafter the dead body was identified as the dead body of the son of the complainant. This fact was entered in G.D. No. 40 on 18.5.2003 at 17:30 hours. On 20.5.2003 appellant Rashid Ali was arrested. On the basis of his confessional statement, offence under Sections 377/511 I.P.C. was added. After completing the investigation, charge sheet was filed against the appellant. The investigation revealed that the appellant used to demand money from the complainant for the purpose of purchase of "Kuthla" (a big utensil to store food grains) while he has not actually purchased the same. On 16.5.2003, the appellant again came to the house of the complainant (his father in law) and demanded money for the purchase of Kuthla once again but the complainant refused to fulfill the said demand and told the appellant that he has taken money for the said purpose several times and he has not purchased any Kuthla so either he should purchase the Kuthla immediately or he should refund the money, which has been given to him. This reply of the complainant agitated the appellant and some altercation took place between them. The appellant is alleged to have threatened the complainant with dire consequence, which may ensue to him and his son. After sometime, the appellant on some pretext took the deceased with him. He was seen in the village going towards Mallawan on a tempo. Thereafter he was again seen in the company of deceased at Mallawan in the evening of 16.5.2003 at about 5:00 p.m. In the next morning, the dead body of the deceased was found and postmortem on the body of the deceased was conducted on 17.5.2003 at 5:00 p.m. on the same day. The duration shown in the postmortem was about one day, which shows that after sometime when the appellant was seen at Mallawan, the deceased was done to death. On 17.5.2003, in the evening again the appellant came to the house of the complainant and told them that some miscreants have kidnapped his son and they are demanding Rs. 75,000/- for his release. The complainant family became perturbed and the complainant became engaged in the arrangement of the money. On 18.5.2003 in a Hindi Newspaper a news item was published regarding recovery of a dead body of a young boy in Unnao. The complainant with the other persons went to the said place where they were informed that the police has taken the dead body then they went to the police station. It transpires from the record that these persons reached at the police station on 18.5.2003 at 4:30 p.m. They identified the dead body by seeing the photographs and clothes of the deceased. The dead body was in a naked condition and only one vest was on his body. The photograph of the dead body has also been proved during trial and the news items published in "Dainik Jagran" newspaper on 18.5.2003 has also been proved. During investigation, the appellant was arrested by the police and his statement was recorded during investigation wherein he confessed his guilt on the basis of which, Sections 377 and 511 I.P.C. were also added.
5. After completing the investigation, charge sheet was filed against the appellant.
6. The defence of the appellant, as suggested to the complainant in his cross examination was of total denial. It was suggested that on 16.5.2003 and 17.5.2003, the appellant never visited the house of the complainant. In his statement, recorded under Section 313 Cr.P.C., the appellant has made a specific statement that the complainant was pressurizing for the Vida of his wife, which was being declined by the appellant, therefore, the complainant was nursing grudge against the appellant due to which he has been falsely implicated.
7. In order to prove its case, the prosecution has examined PW-1 the Complainant Nanhe Babu, PW-2 Vishun Pal Singh, this witness has seen the appellant in the company of deceased at Mallawan, when he had gone to purchase cement and Maurang. PW-3 Naseem Ahmad is also a witness to the fact that he has seen the deceased in the company of the appellant at Mallawan. They were going on Jeep towards Bangarmau. PW-4 Rajesh Kumar is a formal witness, who saw the dead body for the first time and informed the police. The evidence of this witness is not of much consequence in the instant case. PW-5 S.I. Ram Naresh, who was at that time posted as Head Moharir and has prepared chik report and G.D. of this case. PW-6 is Mohd. Sharif, who had seen the appellant going along with the deceased by tempo towards Mallawan on 16.5.2003 at 4:00 p.m. PW-7 is Dr. R.C. Dwivedi, who has conducted postmortem on the body of deceased and PW-8 Madan Mohan, the Investigating Officer of this case.
8. No evidence, whether oral or documentary, has been produced on behalf of the appellant in his support.
9. According to the postmortem report of the deceased, the following injuries were found on his body:-
(i) Contusion 4 c.m. x 2 c.m. on right wrist.
(ii) Contusion 3 c.m .x 4 c.m. on left wrist.
(iii) Contusion 3 c.m. x 2 c.m. on right side of forehead, 2 c.m. above right eyebrow.
(iv) Ligature mark 2 c.m. x 25 c.m. in front of neck transvers continuous around the neck below the thyroid cartilage bone, its grove was soft and reddish. There was abrasion and ecchymosis around the ligature mark. Sub-cutaneous tissues under the injuries were ecchymosised. Larynix , Trachea and hyde bone were also fractured.
100 ml. semi-digested food was recovered from the stomach of the deceased.
In the opinion of the doctor, cause of death was asphyxia as a result of strangulation and duration was about one day.
Since this case rests on the circumstantial evidence, therefore, before proceeding further, we would like to mention the standard of proof, which is required in such cases. Hon'ble the Apex Court in the case of S.K. Yusuf v. State of West Bengal reported in AIR 2011 SC 2283 in para 26 has held as under:
"Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. 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."
Hon'ble the Apex Court in the aforesaid case has followed its earlier pronouncements in the following cases:
"Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, Krishnan v. State represented by Inspector of Police (2008) 15 SCC 430 and Wakkar and another v. State of Uttar Pradesh (2011) 3 SCC 306." In the case of Haresh Mohandas Rajput v. State of Maharashtra 2011 (12) SCC 56, Hon'ble Apex Court following its earlier decision in the case of Krishnan v. State represented by Inspector of Police (2008) 15 SCC 430 observed that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be definite tendency unerringly pointing towards guilt of the accused;
(iii) 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
(iv) 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."
Though a conviction may be based solely on circumstantial evidence, however, the Court must bear in mind the aforesaid tests while deciding a case involving the commission of a serious offence in a gruesome manner.
Hon'ble the Apex Court in the case of Manthuri Laxmi Narsaiah Vs. State of A.P. reported in (2011) 14 SCC 117 has held in paragraph no. 6 as under:-
"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."
Likewise in the case of Mustkeem Vs. State of Rajasthan reported in (2011) 11 SCC 724 Hon'ble the Apex Court in paragraph no. 24 has held as under:-
"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p. 185)
(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established;
(ii) 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;
(iii) the circumstances should be of a 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 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."
The aforementioned judgments have been followed in a recent judgment in the case of Sangili alias Sanganathan Vs. State of Tamilnadu reported in (2014) 10 SCC 264.
Learned counsel for the appellant has also placed reliance on the pronouncement of the Division Bench of this Court in the case of Ajay Prakash Mishra & Anr. Vs. State of U.P. reported in [2012 (2) JIC 129 (All)] has held in paragraph no. 32 as under:-
"32. Before embarking upon analyzing the evidence of the prosecution and defence, we feel called to indicate ourselves to the basic principles of circumstantial evidence. The decision on the point is Satni Bai Vs. State of M.P. (2010) 2 SCC 646.
"11. It has been consistently laid down by this Court, that when a case rests only on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances (See State of U.P v Satish reported in 2005 SCC (Crl) 462).
12. In Joseph v State of Kerala a reported in 2000 SCC (Crl) 926, the Court has explained under what circumstances conviction can be based purely on circumstantial evidence. It is observed that:
"It is often said that though witnesses may lie, circumstances will not, but at the same time, it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain, unerringly pointing to the guilt of the accused."
13. This Court in Padala Veera Reddy v State of A.P 1991 SCC (Crl) 407 has observed that when a case rests on 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; 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.
14. In C. Chenga Reddy v State of A.P 1996 SCC (Crl.) 1205 this Court has held that:
"21. 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."
15. In State of U.P v Ashok Kumar Srivastava, 1992 SCC (Crl) 241, it was pointed out that:
"9.......Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted."
"9....The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of {the guilt}."
16. The principle that would emerge from these decisions is that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court."
10. In the instant case, the circumstances, which prosecution proposes to prove the guilt of the accused, are as under:-
(i) Frequent demand of money by the appellant from the complainant and on his refusal threats were extended by the appellant;
(ii) The appellant was seen in the company of the deceased in the village going towards Mallawan.
(iii) In Mallawan, he was witnessed by some persons going towards Bangarmau. Bangarmau is the place on way to Unnao and thereafter the dead body of the deceased was found in Unnao.
(iv) The appellant next day in the evening came to the complainant and gave information that his son has been taken away by some miscreants and they have demanded Rs. 75,000/- for his release while by that time the deceased had actually been murdered even his postmortem was over by that time and after giving such information he slipped away from there.
(v) The very important circumstance against the appellant is that at no point of time he could explain as to where he left the deceased when he was in his company. He could not produce any defence evidence that he had not come to the village of the complainant on 16.5.2003 and 17.5.2003. He was a very close relative of the complainant is also a very strong circumstance in the peculiar facts of this case.
(vi) The appellant could not furnish any explanation as to why he has been falsely implicated in this case by his own father in law.
11. Submission of learned counsel for the appellant was that it is unbelievable that the witnesses could have recognized the person, who was travelling in tempo or jeep. It is further submitted that conduct of the complainant himself was very unnatural as he did not enquire the appellant regarding the persons, who have kidnapped the deceased and while going to Unnao, after getting the information from a newspaper, they did not go to the house of the appellant to enquire about his presence. It is submitted that appellant remained present in his house and has never visited the house of the appellant on 16.5.2003 and 17.5.2003. It has further been submitted that the evidence of last seen by itself cannot be taken to be sufficient to convict the appellant for the offence of murder and no recovery is alleged to have been made from the complainant.
12. Further submission of learned counsel for the appellant is that in this case the evidence of last seen was not reliable. There was no motive to commit such offence.
13. Learned A.G.A. has submitted that there is evidence that the appellant was last seen along with the deceased. The appellant has absolutely failed to show any reason as to when and where he left the deceased while under law he was obliged to explain it, in view of the provisions of Section 106 of the Indian Evidence Act, 1872. He was obliged to explain as to when and where he left the deceased. But he gave a false information that the deceased has been taken away by some miscreants and they have demanded money for his release. It is further submitted that there was absolutely no occasion for the complainant to falsely implicate the appellant as by such false implication, he would ruin the life of his own daughter. It is further submitted that the appellant has utterly failed to produce any evidence in defence. He claims that he remained in his house on 16.5.2003 and 17.5.2003, but he could not produce even his parents or his wife in support of this assertion, what to say of the other persons of his own village. Therefore, all the circumstances taken together leads to the only conclusion that the appellant was the person, who has committed this offence and the trial court was right in holding the appellant in guilty and the judgment is well reasoned and needs no interference.
14. There is no dispute to the fact situation that the appellant is the son in law of the complainant. He also happens to be the real maternal uncle of the deceased. The defence of the appellant is that he was denying for Vida of his wife, therefore, the complainant has falsely implicated him. It has been so stated by the appellant in his statement under Section 313 Cr.P.C. This defence does not inspire the least confidence and it cannot be presumed that any father in law would take such a drastic steps to ruin the life of his own daughter, particularly when her marriage has taken place only one year prior to this incident that too sparing the real assailant of his own son. The appellant could not bring to the notice of the court any benefit which the complainant would have drawn by his false implication. On one side, he has lost his son and on the other side by the false implication, as claimed by the appellant, he would ruin the entire life of his own daughter. Thus in our considered opinion, the defence of false implication, as taken by the appellant, does not appeal to reason. No man of ordinary prudence can believe it. During course of argument, learned counsel for the appellant has drawn the attention of this Court towards some minor contradictions as to when the complainant met with the witnesses, with whom he met at what time he met, and the place where he met with the witness. But these contradictions in our considered view are not the least material because it is not a case where these witnesses have seen the incident of any murderous assault. The questions which were put to this witness in the cross examination were of such common nature that no person of ordinary prudence remembers these minor things as to when he met with a person, at what place he met. But the witnesses have a tendency to reply of all the questions because they think that in case they do not reply every question then their evidence shall not be relied upon by the Court. The law is settled on the point that only those contradictions are material, which goes to the root of the case. The contradictions towards which the learned counsel for the appellant has drawn our attention are not of such nature, which goes to the root of the case. Therefore, these contradictions were absolutely of no help to the appellant.
15. Hon'ble the Apex Court in the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri reported in (2012) 4 SCC 124 has held in paragrpah nos. 21 to 25 as under:-
21. In Narayan Chetanram Chaudhary & Anr. v. State of Maharashtra (2000) 8 SCC 457, this Court held that while discrepancies in the testimony of a witness which may be caused by memory lapses were acceptable, contradictions in the testimony were not. This Court observed:
"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person."
22. The difference between discrepancies and contradictions was explained by this Court in State of H.P. v. Lekhraj (2000) 1 SCC 247. Reference may also be made to the decision of this Court in State of Haryana v. Gurdial Singh (1974) 4 SCC 494 , where the prosecution witness had come out with two inconsistent versions of the occurrence. One of these versions was given in the Court while the other was contained in the statement made before the Police. This Court held that these are contradictory versions on which the conclusion of fact could not be safely based.
23. This Court in Gurdial Singh (supra) observed:
"21. The present is a case wherein the prosecution witnesses have come out with two inconsistent versions of the occurrence. One version of the occurrence is contained in the evidence of the witnesses in court, while the other version is contained in their statements made before the police...In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained."
24. Reference may also be made to the decision of this Court in Kehar Singh and Ors. v. State (Delhi Admin.) (1988) 3 SCC 609. This Court held that if the discrepancies between the first version and the evidence in Court were material, it was safer to err in acquitting than in convicting the accused.
25. In the present case the statement made by Palani (PW7) is in complete contrast with the statement made by him before the Police where the witness stated nothing about having seen the appellants standing near the deceased around the time of the incident. This omission is of very vital character. What affects the credibility of the witness is that he did not in his version to the police come out with what according him is the truth, but withheld it for a period of five years till he was examined as a prosecution witness in the Court.
Hon'ble the Apex Court in the case of Sahabuddin and Anr. Vs. State of Assam reported in MANU/SC/1097/2012 has held in paragraph no. 19 as under:-
"19. Every variation or immaterial contradiction cannot provide advantage to the accused. In the facts and circumstances of the present case, variation of 45 minutes or an hour in giving the time of incident will not be considered fatal. It is a settled principle of law that while appreciating the evidence, the Court must examine the evidence in its entirety upon reading the statement of a witness as a whole, and if the Court finds the statement to be truthful and worthy of credence, then every variation or discrepancy particularly which is immaterial and does not affect the root of the case of the prosecution case would be of no consequences. Reference in this regard can be made to State represented by Inspector of Police Vs. Saravanan and Anr. [(2008) 17 SCC 587]."
Hon'ble the Apex Court in the case of Jeewan and Ors. Vs. State of Uttarakhand reported in MANU/ SC/1127/2012 has held in paragraph no. 21 as under:-
"21. Now, let us examine the law in relation to discrepancies. Discrepancy has to be material and seriously affecting the case of the prosecution. Every minor and immaterial discrepancy would not prove fatal to the case of the prosecution. The Court has to keep in mind that evidence is recorded after years together and to expect the witnesses to give a minute to minute account of the occurrence with perfection and exactitude would not be a just and fair rule of evidence. The law in this regard is well settled. Even an omission or discrepancy in the inquest report may not be fatal to the case of the prosecution. The Court would have to examine the entire case and discuss the prosecution evidence in its entirety to examine the real impact of a material contradiction upon the case of the prosecution. Trustworthy evidence cannot be rejected on fanciful ground or treated to be in the nature of conjectures.
Hon'ble the Apex Court in the case of Pundappa Yankappa Pujari Vs. State of Karnataka reported in (2014) 12 SCC 372 has held in paragraph no. 25 as under:-
"25. It is true that there are certain discrepancies in mentioning the time of the incident. Laxmavva (PW-7) stated that the incident took place at about 11 a.m. whereas, Sangappa (PW 8) and Chandrasekhar (PW 9) stated that the incident of assault took place at 9 or 9:30 a.m. Such discrepancies cannot be a ground to disbelieve the statements of the witnesses if the difference is about one hour, as the villagers generally suggest the approximate time."
16. PW-1 in his evidence has fully supported the prosecution case. He has stated that on 16.5.2003 the appellant had come to his house and demanded money for Kuthla. When he refused to fulfill his demand and asked him to purchase Kuthla immediately or to refund the money which he has already taken for the said purpose at earlier occasions. It agitated the appellant and some altercation took place between them. He has stated that thereafter the appellant threatened him and went away. He had taken the deceased with him. PW-6 Mohd. Sharif has also witnessed the appellant at about 4:00 p.m. in a tempo going along with the deceased towards Mallawan. Since the deceased was his real brother in law and also his real Bhanja. Therefore, it was not expected from the witnesses to go to the complainant immediately and inform him as it was not an unnatural act that the deceased was going in the company of the appellant. Thereafter he was seen by PW-2 Vishun Pal and PW-3 Naseem Ahmad at Mallawan and they were going on a jeep towards Bangarmau. PW-2 has also explained the purpose with which he was present at Mallawan. He has filed the receipt of Maurang and Gitti for the purchase of which he had gone to Mallawan.
17. Thus the submission of learned counsel for the appellant that PW-2 Vishun Pal Singh was a chance witness and had no occasion to remain present at Mallawan, has no legs to stand as PW-2 Vishun Pal Singh has filed the document, which shows that he had a valid reason for his presence at Mallawan crossing. Submission of learned counsel for the appellant is that in the said receipt (Mat Ex. 6), the time of purchase has not been mentioned. But submission of learned counsel for the appellant is absolutely without substance. It is not a computer oriented receipt. It is a cash memo manually issued by the owner of the shop and the Court can take notice of the fact that time of purchase is never mentioned in such type of receipts. Thus the evidence of PW-2 Vishun Pal Singh and PW-3 Naseem Ahmad clearly established that the deceased was last seen alive in the company of appellant at Mallawan crossing and at that time, they were going towards Bangarmau. It was about 5:00 p.m. that time. Likewise PW-6 Mohd. Sharif has also corroborated this fact that he had seen the appellant in the company of the deceased going towards Mallawan on a tempo at 4:00 p.m. Thus this fact stands established by the evidence of three witnesses that the appellant took the deceased with him and from Mallawan, he was going towards Bangarmau. It is true that there are some minor contradiction in the evidence of the witnesses. But as stated earlier, these minor contradictions are absolutely of no substance. The appellant was seen at about 5:00 p.m. going towards Bangarmau, which is a small town on way to Unnao and thereafter the dead body of the deceased was recovered in the following morning. The duration of time since death as noted by the doctor in the postmortem also suggests that the deceased was murdered within a short span of time after he was seen in the company of the deceased. The appellant came back to the house of the complainant on 17.5.2003 and told them that the deceased has been taken away by some miscreants. This fact stands established by the evidence of the witnesses and also by the evidence of the complainant. The deceased was a close relative of the appellant and if the version of the appellant was true then there was no occasion for the appellant to slip away from there. He should have remained present there in the house of the complainant for their help but instead he slipped away from there which reflects his guilty mind. By the time, the appellant came to the house of the complainant even the postmortem of the deceased had been conducted. He was saying that the deceased has been taken away by miscreants. It is also extremely strange that if any such incident of taking away had taken place then the appellants must have informed the police immediately or must have made an effort to inform the complainant without delay but instead he came to his house in the evening after about 24 hours and he has absolutely failed to furnish any explanation to this circumstance. He has failed to explain as to where he remained in the night of 16.5.2003.
Hon'ble the Apex Court in the case of Ponnusamy Vs. State of Tamil Nadu reported in (2008) 5 SCC 587 has held in paragraph nos. 21 and 22 as under:-
"21. We have to consider the factual background of the present case in the light of the relationship between the parties. If his wife was found missing, ordinarily, the husband would search for her. If she has died in an unnatural situation when she was in his company, he is expected to offer an explanation therefor. Lack of such explanation on the part of the appellant itself would be a circumstantial evidence against him.
22. In Trimukh Maroti Kirkan v. State of Maharashtra (206) 10 SCC 681, it was observed:
"22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
18. In the facts of this case, it is true that the deceased was not the wife of the appellant but he was a very close relative of the appellant. So if the deceased had been taken by miscreants while he was with the appellant then immediately an F.I.R. should have been lodged by the appellant in this regard or he should have made some effort for his rescue.
19. Submission of learned counsel for the appellant is that he was not enquired about the miscreatns and this conduct of the complainant is very unnatural. But keeping in view the close relationship of the appellant with the deceased the complainant side had absolutely no occasion to suspect that such an offence can be committed by the appellant.
20. At this juncture, we would like to quote the pronouncement of Hon'ble the Apex Court in the case of State of Rajasthan Vs. Kashi Ram reported in [(2006) 12 SCC 254], Hon'ble Apex Court in paragraph-23 has held as under:--
"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. (emphasis added)"
21. Therefore, in the facts of this case it is proved to the hilt that the deceased was last seen alive in the company of the deceased. As per the prosecution story, the appellant has furnished an explanation that the deceased has been taken away by the miscreants and the said explanation was utterly false. Apart from it, during trial, he has come with a case that he has never visited the house of the complainant on 16.5.2003 and 17.5.2003 but the appellant has utterly failed to produce any evidence in his defence to prove that he was present in the house or anywhere else. Even his own parents and wife have not come forward to depose before the Court that the appellant was present in his own house in his village. Thus in view of the absence of evidence that the appellant was present at some other place, the court has to accept the evidence of the prosecution that he was present at the place where the prosecution is alleging his presence.
22. Learned counsel for the appellant has laid great stress on the point that there was absolutely no motive for the appellant to commit such an offence.
23. This Court is aware of the legal position that in cases of circumstantial evidence, motive plays a vital role but on the contrary, it does not mean that in absence of motive even if the circumstances unerringly points towards the guilt of the accused even then such evidence cannot be acted upon because there was no motive. On this point, we would like to refer the judgment of Hon'ble the Apex Court in the case of Vivek Kalra Vs. State of Rajasthan reported in (2014) 12 SCC 439, wherein Hon'ble the Apex Court in paragraph no. 6 has held as under:-
"6..........We are, however, of the opinion that where prosecution relies on circumstantial evidence only, motive is a relevant fact and can be taken into consideration under Section 8 of the Indian Evidence Act, 1872 but where the chain of other circumstances establish beyond reasonable doubt that it is the accused and accused alone who has committed the offence and this is one such case the Court cannot hold that in the absence of motive of the accused being established by the prosecution, the accused cannot be held guilty of the offence.
24. In the facts of this case as stated earlier, there was no question of any previous enmity of the complainant with the appellant. But the motive to commit offence arose in the village on 16.5.2003 when the complainant refused to pay further money for the purchase of "Kuthla" and asked the appellant to refund the money already given by him. It insulted the appellant, who was the son in law of the complainant and he has also extended threats to him and for his son. This fact stands corroborated because the appellant tried to cash the incident to extract money from the complainant. He told the complainant that miscreants have demanded Rs. 75,000/- for his release. Thus the appellant, in the facts of this case, had sufficient motive to commit this offence. What prevailed in the mind of the accused is best known to him and the prosecution can only explain the circumstances under which the offence was committed. Thus we are of the considered view that in the facts and circumstances of this case, the appellant had sufficient motive to commit this offence. Refusal to give money by the appellant made him furious.
25. Next submission of learned counsel for the appellant is that only evidence which the prosecution has produced is that of last seen and the evidence of last seen alone is not sufficient to convict the appellant. In support of his submission, he has placed reliance on the pronouncement of this Court in the case of the Kulveer & Ors. Vs. State of U.P. reported in [2014 (3) JIC 491 (All)] wherein this Court in paragraph nos. 30 and 31 has held as under:
"30. In the case of Kanhaiya Lal Vs. State of Rajasthan, (2014) 2 S.C.C. (Cri) 413, Hon'ble Apex Court has held that, The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."
31. In the case of Krishna Ghose Vs. State of West Bengal, AIR 2009 SC 2279 (SC), Hon'ble Apex Court held that, the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances."
26. We have gone through the judgment. The facts of that case were entirely different. In the facts of this case, the appellant happens to be a very close relative of the complainant. He is son in law of the complainant and also happens to be maternal uncle of the deceased. He has taken a false defence that the complainant was pressurizing him for the 'Vida' of his daughter and this request was declined by him because of which, he has been falsely implicated in this case. At the cost of repetition, no man of ordinary prudence can believe such a defence of false implication. It is unbelievable that the complainant would falsely implicate his own son in law for the murder of his own son sparing the real culprit because on one hand the appellant has lost his son and on the other hand by such false implication, he will ruin the life of his own daughter. A false defence, in such nature of cases, completes the missing link. Reference may be may to the pronouncement of Hon'ble the Apex Court in the case of Joseph s/o Koveli Poulo Vs. State of Kerala reported in (2000) 5 SCC 197, wherein Hon'ble the Apex Court in paragraph no. 14 has held as under:-
"14. ....During the time of questioning under Section 313 Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self condemned. Such incriminating links of facts could, it at all, have .been only explained by the appellant, and by nobody else they being personally and exclusively within his knowledge. Of late, Courts have, from the falsity of the defence plea and false answers given to Court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed see State of Maharashtra v. Suresh (2000) 1 SCC 471. That missing link to connect the appellant-accused, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. .............."
Similar view has been taken by Hon'ble the Apex Court in the case of Kuldeep Singh and others Vs. State of Rajasthan reported in (2000) 5 SCC 7 in paragraph no. 18, which reads as under:-
"18. In the case of Swapan Patra v. State of W.P. (1999( 9 SCC 242 it has been held that it is a well-settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. The same principle is reiterated in the case of State of Maharashtra v. Suresh (2000) 1 SCC 471. In this case it has been held that a false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. It is held that in a situation like this a false answer can also be counted as providing "a missing link" for completing the chain."
In the case of Anthony D'souza and others Vs. State of Karnataka reported in (2003) 1 SCC 259 Hon'ble Apex Court has expressed the same view.
27. Apart from it, in the case of Rohtash Kumar Vs. State of Haryana reported in (2013) 14 SCC 434, Hon'ble the Apex Court in paragraph nos. 24 and 25 has observed as under:-
24. In cases where the accused was last seen with the deceased victim (last seen-together theory) just before the incident, it becomes the duty of the accused to explain the circumstances under which the death of the victim occurred. (Vide: Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077; and Ganeshlal v. State of Maharashtra (1992) 3 SCC 106).
25. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, this Court held as under:
Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.
(See also: Prithipal Singh and Ors. v. State of Punjab and Anr. (2012) 1 SCC 10).
Thus, the doctrine of "last seen together" shifts the burden of proof on the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him.
In the instant case, the appellant has made absolutely false defence in his statement under Section 313 Cr.P.C. and he has denied all the incriminating circumstances, which have been put to him in the statement under Section 313 Cr.P.C.
In the case of Rohtash Kumar (supra) Hon'ble the Apex Court has observed in paragraph no. 22 as under:-
22. It is obligatory on the part of the accused while being examined Under Section 313 Code of Criminal Procedure, to furnish some explanation with respect to the incriminating circumstances associated with him, and the court must take note of such explanation even in a case of circumstantial evidence, to decide whether or not, the chain of circumstances is complete. [Vide: Musheer Khan @ Badshah Khan and Anr. v. State of Madhya Pradesh AIR 2010 SC 762; and Dr. Sunil Clifford Daniel (supra)].
28. In view of the discussion made above and keeping in mind the aforesaid legal position, we are of the considered view that the prosecution has been able to establish the circumstances against the appellant and all these circumstances leads to the only conclusion that the appellant is the person, who has committed this offence.
29. In view of the discussion made above, this appeal deserves to be dismissed and is hereby dismissed. The appellant is in jail. He shall serve out the sentence inflicted by the trial court.
30. Registry is directed to communicate this order to the court concerned for compliance and lower court record be sent back.
Order Date :- 16thApril, 2015 (Anant Kumar, J.) (S.V.S. Rathore, J.)
Virendra