Allahabad High Court
Rahul vs State on 11 December, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 21.11.2019 Delivered on 11.12.2019 Jail Appeal No. 7887 of 2010 Rahul Appellant Vs State of U.P. Respondent For Appellant : Sri Indra Pal Singh Tomar For Respondent : Sri Ankit Prakash, A.G.A. Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J.
1. This appeal has been preferred against impugned judgment and order dated 12.10.2010 passed by learned Additional Sessions Judge, Court No. 6, Bulandshahr, in Sessions Trial No. 365 of 2009 (State Vs. Rahul), under Section 364, 377/511, 302, 201 of IPC, Police Station Khurja Nagar, District Bulandshahr, whereby accused appellant Rahul has been convicted under Section 364, 302 and 201 of IPC and sentenced to imprisonment for life along with fine of Rs. 10,000/- under Section 302 of IPC; ten years rigorous imprisonment along with fine of Rs. 5,000/- under Section 364 of IPC and five years rigorous imprisonment along with fine of Rs. 2000/ under Section 201 of IPC. In default of payment of fine, he has to undergo additional rigorous imprisonment of six months, three months and one month respectively. All the sentences were directed to run concurrently. However, accused appellant was acquitted of charge of Section 377/511 of IPC.
2. Case of prosecution is that complainant/PW-1 Prem Pal Singh was maintaining some buffalo and accused appellant Rahul often used to visit there for collecting cow dung and thus, he was known and familiar to complainant and his family members. It is alleged that on 22.01.2009 at 03:30 pm, while complainant's son Pradeep Kumar (deceased), aged eight years, along with his sister PW-2 Kumari Lalitesh, was playing outside his house, accused-appellant Rahul came there and took Pradeep with him on pretext that he would give him some 'cheej' (delicious food item). When Pradeep did not return for sufficient long time, PW-2 Lalitesh told this fact to her father that Pradeep was taken away by accused-appellant. Complainant and his family members made search for Pradeep but in vain. At around 05:41 pm, a telephonic call was received on mobile number 9927227845 and hearing the voice of the caller, daughter of complainant told that it was Rahul. When complainant tried to make conversation with him, phone call was cut off. PW-1 Prem Pal called back on the same number and he was told from other side that it was a number of PCO and that the earlier call on mobile number 9927227845 was made by a boy, who was having a child with him. PW-1 Prem Pal along with one Chhatrapal and Pushpendra went at that PCO and description of deceased was told to the PCO operator, but he could not give any satisfactory reply.
3. PW-1 Prem Pal Singh reported the matter to police by submitting written tehrir Ex. Ka-1 and on that basis, this case was registered on 23.01.2009 at 16:20 hours vide FIR Ex. Ka-2.
4. Investigation was taken by PW-8 Harendra Singh. He recorded statements of witnesses and prepared site plan of spot. During course of the investigation, on 24.01.2009, while making search for deceased child and accused Rahul, he along with other police officials reached at Bus Stand Khurja. There, witness Rajendra Singh (PW-3) and one Pushpendra pointed out a boy stating that he is accused Rahul. Police apprehended him at around 05:00 AM and on interrogation, he told his name Rahul. Accused appellant-Rahul disclosed that he has brought deceased Pradeep from his house and later he made a call from PCO and after that he took him to 'kabristan' (burial ground) and tried to commit bad act (sexual assault) upon him, but as he was crying, he committed his murder by strangulating him. He further disclosed that his dead body is lying in an old burial in graveyard. Accused appellant Rahul was taken at that place and there he pointed out alleged old burial in graveyard and after removing some grass and soil from there, he got recovered dead body of Pradeep. Witness Rajendra and Pushpendra identified the dead body as of deceased Pradeep. Recovery memo Ex. Ka-6 was prepared.
5. Inquest proceedings were conducted by S.I. Kamlesh Kumar Shukla in supervision of PW-8 S.I. Harendra Singh. Dead body of deceased was sealed and sent for post-mortem.
6. Post-mortem on the dead body of the deceased was conducted by PW-5 Dr. Narendra Dutt, vide postmortem report Ex. Ka-4 and as per post-mortem report, deceased Pradeep has sustained following ante-mortem injuries:
(i) Multiple abrasions present both sides of neck mainly on the left side of neck. On exploratum ecchymosis present underneath, cornu of hyoid bone found fractured.
(ii) Multiple contusion present on left side of chest and both sides of abdomen.
The cause of death of deceased was stated due to asphyxia as a result of strangulation. Autopsy surgeon stated that death of deceased is possible on 22.01.2009 after 03:30 pm.
7. After completion of the investigation, accused-appellant was charge-sheeted for the offence under Sections 364, 302, 207, 377/511 of IPC.
8. Learned trial Court framed charge under Sections 364, 377/511, 302 and 201 of IPC against accused appellant Rahul. He pleaded not guilty and claimed trial.
9. In order to substantiate its case, prosecution has examined six witnesses. Accused was examined under Section 313 Cr.P.C. wherein he has denied the prosecution version and stated that he often used to visit house of Prem Pal Singh for collecting cow dung and some hot talking has taken place with Prem Pal Singh and due to that reason he has been falsely implicated.
10. After hearing and analysing evidence on record, accused appellant was convicted under Section 364, 302 and 201 of IPC by trial court vide impugned judgment and order dated 12.10.2010 and sentenced as stated in para no. 1 of this judgement.
11. Being aggrieved by the impugned judgment and order, accused-appellant has preferred present Jail Appeal.
12. Heard Sri Indra Pal Singh Tomar, learned counsel for appellant, Sri Sri Ankit Prakash, learned A.G.A. for the State and perused the record.
13. Learned counsel for the appellant submits:-
(i) that FIR is ante timed. The details of crime were not mentioned in the inquest report and post mortem report. The copy of FIR was sent to CJM on 27.01.2009. It was argued that these facts indicate that FIR is ante timed.
(iii) that PW-1 Prem Pal Singh, PW-2 Kumari Lalitesh and PW-3 Rajendra are interested witnesses and their testimony can not be relied upon in absence of any corroboration from independent witness.
(iv) that alleged recovery of dead body at the instance of accused appellant is thoroughly doubtful. There is no independent witness of alleged recovery. Statement of recovery witness PW-3 Rajendra was recorded after 15 days of incident.
(v) that oral testimony is not consistent with medical evidence. As per postmortem report, deceased has suffered multiple abrasions, but the same have not been explained.
(vi) that as per prosecution version, there is no eye witness of alleged incident and the prosecution case is based on circumstantial evidence, but the chain of circumstances is not complete and even motive has also not been proved.
14. Per-contra, it has been submitted by learned State counsel that there is evidence of ''last seen'' against accused appellant and one more clinching circumstance against him is that the dead body of deceased has been recovered at his instance. After kidnapping of deceased, PW-6 Dheeraj has also seen him at around 04:00 pm while he (accused appellant) was taking away deceased Pradeep. This version has been further corroborated by PW-7 Raju, as from his PCO accused-appellant has made a telephonic call from mobile number 9259394126 and, at that time, accused was having deceased with him. It was submitted that chain of circumstances is complete and when these circumstances are taken together, the only conclusion is that the accused appellant has kidnapped deceased with intention to molest him and committed his murder by strangulating him. It was argued that conviction of appellant is based on evidence and there is no illegality or any other error in the same.
15. A perusal of evidence shows that PW-1 Prem Pal Singh has stated that accused-appellant Rahul was known to him as he used to visit his house for collecting cow dung. On the day of incident, at around 03:30 pm, when his only son Pradeep was playing outside his home, accused appellant came there and took Pradeep with him and while taking away his son, he was seen by his daughter (PW 2) Kumari Lalitesh, aged 11 years. When Pradeep did not return back, they made search for him. At around 05:45 pm, a telephonic call was received, which was attended by his daughter Mamta and she told that the call has been made by Rahul. When PW-1 Prem Pal Singh tried to talk with Rahul on phone, the call was cut off. PW-1 Prempal called back on the same number and came to know that the said call was made from Dhakar PCO and the PCO operator has told that a boy has come there along with a child and he has made the said call. PW-1 along with Pushpendra and Chhatrapal reached at that PCO and he was told by PCO operator that a boy along with a child has come there and after purchasing 'kurkure' he went away with that child. Next day, one Jitendra has also told PW-1 Prempal that he has also seen accused appellant while he was taking away his son Rahul with him. PW-1 Prempal further stated that on next day, he came to know that dead body of his son Pradeep has been recovered in a graveyard and when he reached there, he saw that accused-appellant was bringing out the dead body of the deceased by removing soil from that spot.
16. PW-2 Kumari Lalitesh, is a child witness, aged 12 years, and after recording its satisfaction that the witness is competent to give rational answers, trial court has examined this witness on oath. PW-2 Kumari Lalitesh, stated that accused appellant Rahul often used to visit her house for collecting cow dung. Deceased Pradeep was her only brother. On the day of incident, at about 3:00-3:30 pm when she and her brother were playing outside their home, accused appellant came there and took her brother Rahul with him on the pretext that he would give him some food item and later on, her brother never returned and he was murdered.
17. PW 3 Rajendra Singh stated that deceased Pradeep, aged 7 years, was his nephew. After receiving information that Pradeep has gone missing, on next day he came at Khurja and he accompanied police party for making search of Pradeep. One Rajkumar and Pushpendra were also with them. As they all reached at bus stand, Rahul met there and he has pointed out Rahul to police and after that Rahul was apprehended. Rahul has disclosed that he has committed the murder of deceased in 'kabristan' (graveyard) and has buried the deceased there. PW-3 Rajendra Singh, further stated that Rahul was taken to graveyard and there he has pointed out that place and took out dead body of deceased. PW-3 Rajenra Singh has also signed recovery memo.
18. PW-4 Constable Santosh Kumar has recorded FIR and GD entry. PW-5 Dr. Narendra Dutt has conducted post-mortem on dead body of deceased.
19. PW-6 Dheeraj has stated that accused appellant was known to him, as earlier accused used to work in a hotel near his shop. On the day of incident, in evening at about 04:00 pm, he has seen the accused-appellant Rahul while he was taking Pradeep away.
20. PW-7 Raju stated that he is running a private PCO cum grocery shop. On the day of incident, at about 5:30 pm accused-appellant Rahul along with a child, aged 7-8 years, came there and made a telephonic call from his mobile number 9259394126. After that Rahul has purchased some 'kurkure' for child and went away. PW-7 Raju further stated that he has received a call from the mobile number on which earlier Rahul has made a call, and after sometime father of deceased has come there along with photo of deceased and after seeing photo, PW-7 Raju has told them that this photograph is of the same child, who was taken away by the accused-appellant.
21. PW-8 Harendra Singh has conducted investigation and has proved the arrest of accused-appellant as well as the recovery of dead body of deceased at the instance of accused-appellant Rahul.
22. In this case, there is no eye witness of incident of murder of deceased. Case of prosecution is based on circumstantial evidence. It is well settled that though conviction can be based on circumstantial evidence alone but for that prosecution must establish chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with his innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, accused and none else have committed the offence. In landmark judgment of Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, Court held as under:-
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this court in Shivaji Sahebaro Bobade V State of Maharashtra 1973 CriLJ1783 where the following observations were made: Certainly, it is primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accuses, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".
In Joseph vs. State of Kerala, [(2000) 5 SCC 197], court has explained under what circumstances conviction can be based purely on circumstantial evidence. It observed:-
"it is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavor in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused."
In C. Chenga Reddy and others v. State of Andhra Pradesh, AIR 1996 SC 3390, Court has held:-
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
In State of U.P. vs. Ashok Kumar Srivastava, [(1992) 2 SCC 86], it was pointed out that great care must be taken in evaluating circumstantial evidence and if evidence relied on is reasonably capable of two inferences, the one in favour of accused must be accepted. It was also pointed out that circumstances relied upon must be found to have been fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt. In State of Himachal Pradesh Vs. Raj Kumar, reported in (2018) 2 SCC 69, Court was considering a case based on circumstantial evidence and taking note of the well settled legal position, in Paragraph 9 and 10, the court held:-
"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:-
"...........The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679.
In Vijay Shankar Vs. State of Haryana, reported in (2015) 12 SCC 644, the case was based on last seen theory, the Court discussed the principles in respect of evidentiary value and held in Paragraph 8 as under:-
"8. There is no eye-witness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116. The same view was reiterated in Bablu vs. State of Rajasthan, (2007) 2 SCC (Cri). 590."
In Varkey Joseph Vs. State of Kerala, reported in AIR 1993 SC 1892, Court held that suspicion cannot take place of proof. In Paragraph 12 of the judgment, Court concluded as under:-
"12. Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its Patna High Court CR. APP (DB) No.202 of 1996 dt.13-03-2018 16/ 25 case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under S. 302, IPC"
In Raja @ Rajinder Vs. State of Haryana, reported in (2015) 11 SCC 43, Court noted down the circumstance with which the court should be satisfied in a case based on circumstantial evidence alone. The relevant observations are as under:-
"10. As the factual matrix would show, the case of the prosecution entirely hinges on circumstantial evidence. When a case rests on circumstantial evidence, the Court has to be satisfied that:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;
(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."
In Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259, it has been laid down that:-
''the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."
From the aforesaid authorities, it is clear that in a case based on circumstantial evidence, Court is required to evaluate circumstantial evidence to see that the chain of events have been established clearly. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be. There must be a chain of evidence so far complete as not to leave any reasonable ground for 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. Where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. If the circumstances proved are consistent with the innocence of the accused, then the accused is entitled to the benefit of doubt. Although there should be no missing links in the case, yet it is not essential that every one of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences or presumptions, the Court must have regard to the common course of natural events, and to human conduct and their relations to the facts of the particular case.
Having noticed the relevant principles governing a case based on circumstantial evidence, when we revert to the facts of present case, it may be seen that first circumstance against the accused-appellant is that on 22.01.2009 at 03:30 pm when deceased Pradeep was playing outside his home, he was taken away by accused-appellant Rahul and after that deceased Pradeep never returned alive at his home. There is evidence of PW 1 Prem Pal Singh and PW-2 Kumari Lalitesh that accused appellant was known to them as he used to collect cow dung from their house. In fact, this aspect has not been disputed by the accused-appellant, as in his statement recorded under Section 313 Cr.P.C., he has stated that he used to collect cow dung from house of complainant PW-1 Prem Pal Singh. PW-2 Kumari Lalitesh has categorically stated that on the day of incident, at around 03:30 pm when she and her brother Pradeep were playing outside their home, accused appellant has come there and taken away Rahul on pretext that he would provide some ''cheej' (food item) to him and after that Rahul did not return back. Though PW-2 Kumari Lalitesh, is aged just 12 years, but the trial court recorded its satisfaction that she was competent enough to depose and her statement has been recorded on oath. She has been subjected to cross-examination but absolutely no such fact could emerge, which may be affect credibility of this witness. It was pointed out that in her statement under section 161 CrPC, she has stated that accused Rahul has come at her home, whereas in her statement in court, she stated that accused Rahul has taken deceased from lane (gali) outside her home, however in specific facts of case, it hardly can be termed as material improvement. Such minor variations are bound to crept in statement of any truthful witness. The alleged improvement does not affect core of her testimony. Presence of PW-2 Kumari Lalitesh at the spot, from where deceased child was taken away by the accused, is quite natural as incident took place just outside her house and it is her consistent version that at that time she was also playing there. Further, version of PW-2 Kumari Lalitesh also finds support from evidence of PW-6 Dheeraj and PW-7 Raju. As stated earlier, PW-6 Dheeraj has deposed that accused was known to him as earlier he was working at a hotel near his shop and that on day of incident at around 04:00 pm, when he was sitting at his shop near bus stand, he saw that deceased Pradeep was going away with accused-appellant Rahul by holding his finger. Similarly, version of PW-7 Raju is that on the same day at 05:30 pm accused-appellant has came at his shop with a child, aged 7-8 years, and purchased 'kurkure' for that child and he has made a telephonic call from his mobile number 9259394126. PW-7 Raju further deposed that he has received a call from the number, on which call was made by Rahul, and after that father of deceased child has come there and identified photograph of child. Both PW-6 Dheeraj and PW-7 Raju have been subjected to cross-examination but they remained firm during their evidence. PW-7 Raju has identified accused-appellant in court by stating that he is the same person, who has come at his shop with deceased child. PW-6 Dheeraj and PW-7 Raju are thoroughly independent witness and they are not connected in any way with complainant of the case and there are absolutely no reasons to disbelieve their versions.
So far as this argument that PW-1 Prem Pal Singh and PW-2 Kumari Lalitesh are interested witness, is concerned, it it is well settled that a natural witness may not be labelled as interested witness. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition can not be discarded merely on the ground of being closely related to the victim. Generally close relations of the victim are unlikely to falsely implicate anyone. Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spear the real culprit and falsely implicate an innocent person is alleged and proved. A witness is interested only if he derives benefit from the result of the case or as hostility to the accused. In case of State of Punjab Vs Hardam Singh, 2005, S.C.C. (Cr.) 834, it has been held by the Hon'ble Apex Court that ordinarily the near relations of the deceased would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather the witness would always try to secure conviction of real culprit. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364 1954 SCR 145, is one of the earliest cases on the point. In that case, it was held:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC 2274 (1977) 4 SCC 452, the Apex Court held:
"It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
In fact the issue of related and interested witness has been examined by the Apex court in number of cases. It is pretty well-settled that a close relative, who is a very natural witness in the circumstances of a case, can not be regarded as an 'interested witness'. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straightway unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. A survey of the judicial pronouncements of the Hon'ble Apex Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).
In the instant case, PW-1 Prem Pal Singh is father of deceased child and PW 2 Kumari Lalitesh is sister of deceased, but as the deceased child was taken away from outside their home, PW-2 Kumari Lalitesh and PW 1 Prem Pal Singh are natural witness of kidnapping of deceased. PW-2 Kumari Lalitesh has categorically stated that at the time of incident, deceased was playing with her outside the house and he was taken away by accused-appellant on pretext that he would provide him some food item. Similarly, PW-3 Rajender Singh, who is uncle of deceased, has deposed that accused was apprehended in his presence and thereafter dead body of deceased was recovered at his instance from 'kabristan'. There is absolutely nothing that these witnesses have any enmity or grudge against accused-appellant. In view of specific facts and circumstances of case, these witnesses cannot be termed as interested witnesses and thus, their testimony cannot be doubted on the ground that they are related to the deceased.
Regarding evidence of PW-1 Prem Pal Singh, it was pointed out by learned counsel for accused-appellant that in his cross-examination, he has stated that on the day of incident accused-Rahul met him at about 07.00 pm, but despite that he has not mentioned this fact in the FIR. In this regard, PW 1 Prem Pal Singh has clarified in his cross-examination that, at that time, he has no suspicion on accused-appellant and thus, he did not mention this fact in FIR. After examining statement of PW-1 Prempal Singh in its entirety, he appears to be a truthful witness and he has candidly accepted that fact in his cross-examination. Mere alleged inconsistency would not be sufficient to doubt his testimony. It would be pertinent to mention here that a suggestion was made to PW-1 Prem Pal Singh that deceased was murdered by one Sanjai of Aligarh and Guddu of Khurja but as accused-applicant was having a dispute over weight of cow dung with PW 1 Prem Pal Singh and thus he falsely implicated accused appellant in this case. The suggestion itself appears to be outrageous, as it can not be imagined that a father would spare actual assailants of his only son and would falsely implicate accused-appellant over small issue of weight of cow dung allegedly sold to accused-appellant. Here it would be pertinent to mention that there is absolutely nothing to indicate any such issue over cow dung. In fact there are no substantial reasons to doubt evidence of PW-1 Prem Pal Singh and PW-2 Kumari Lalitesh. These witnesses would be last persons to depose falsely against an innocent person sparing the actual assailant of deceased.
As stated earlier, there is cogent evidence of PW-1 Prem Pal Singh and PW-2 Kumari Lalitesh that accused appellant was known to them as he used to collect cow dung from their house and this fact has not been disputed by the accused-appellant as he himself admitted in his statement under Section 313 Cr.P.C., that he used to collect cow dung from house of complainant PW-1 Prem Pal Singh. On the point that deceased was taken away from outside his house by the accused-appellant, statement of PW-2 Kumari Lalitesh is quite cogent and categorical that accused-appellant has come there and he has taken away Rahul on pretext that he would provide some food item to him and after that Rahul did not return back. The version of PW-2 Kumari Lalitesh also finds support from evidence of PW-6 Dheeraj and PW-7 Raju. As stated earlier, PW-6 Dheeraj has deposed that accused was known to him as earlier he was working at a hotel near his shop and that on day of incident at around 04:00 pm, when he was sitting at his shop near bus stand, he saw that deceased Pradeep was going away with accused-appellant Rahul by holding his finger. Similarly, version of PW-7 Raju is that on the same day at 05:30 pm accused-appellant has came there with a child aged 7-8 years and purchased 'kurkure' for that child and made a telephonic call from his mobile number 9259394126. PW-7 Raju further deposed that he has received a call from the number, on which call made by Rahul, and after that father of deceased child has come there and he has identified photograph of child. Both PW-6 Dheeraj and PW-7 Raju have been subjected to cross-examination but they remained firm. PW-6 Dheeraj and PW-7 Raju are thoroughly independent witnesses and they are not connected in any way with complainant of the case and there are absolutely no reasons to disbelieve their version.
On the basis of evidence of PW-2 Kumari Lalitesh, PW-6 Dheeraj and PW-7 Raju, coupled with other circumstances on record, it stands established that on 22.01.2009 at 03:30 pm deceased Pradeep was taken away by accused-appellant Rahul, when he was playing outside his home and after that Rahul never returned alive at his home. It stands fully established that deceased was last seen alive in company of accused appellant.
23. One of the important circumstance, against appellant is that he was apprehended by police on 24.01.2009 at around 05:00 am and he has disclosed that he has brought Pradeep from his house and after that he has also made a call from Dhakar PCO and thereafter, he took Rahul to graveyard and there he tried to molest him, but as accused appellant was crying, he committed his murder by pressing his neck. On that information, accused appellant was taken away to graveyard and he has pointed out that place and took out dead body of deceased after removing some soil and grass from that place. In this regard, statement of PW-8 S.I. Harendra Singh is quite clear and cogent. Testimony of PW-8 can not be doubted on the ground that he is a police official. Though PW 8 SI Harendra Singh is a police official but there is absolutely nothing on record to suggest that PW-8 has any enmity with accused or that he was having any connection with complainant of the case. Further, he has been subjected to cross-examination, but no such fact could emerge so as to create any doubt about alleged recovery of dead body of deceased at the pointing out accused appellant Rahul. It is not in dispute that recovered dead body was of complainant's son Pradeep. Version of PW-8 SI Harendra Singh, regarding arrest of accused and recovery of dead body of deceased at his instance, has been corroborated by PW-3 Rajendra Singh. As stated earlier, PW-3 Rajnedra Singh has deposed that, on that day, he was with police party, which was making search of deceased, and that he has pointed out Rahul at bus stand Khurja. PW-3 Rajendra Singh has further deposed that on the basis of information given by accused-appellant, accused-appellant was taken to graveyard and there he has pointed out the place, where he has buried dead body of deceased Pradeep after committing his murder by way of strangulation and that accused appellant has took out dead body from there.
The testimony of PW-3 Rajendra Singh was mainly assailed on the ground that his statement under section 161 Cr.P.C. was recorded after 15 days of incident. In this connection, it may be seen that he has been shown a witness on recovery memo Ex. Ka-6. Once police have shown him as a witness on recovery memo, it was duty of investigating officer to record his statement promptly. The investigating officer (PW 8 SI Harendra Singh) has not been questioned on this aspect. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal v. State of Maharashtra (1992) 3 SCC 106; Mohd. Khalid v. State of W.B. (2002) 7 SCC 334; Prithvi (Minor) v. Mam Raj (2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1].
The recovery memo bears his signature and it also bears signature of accused-appellant Rahul. PW-3 Rajendra Singh has also been subjected to cross-examination but he remained firm and nothing adverse could emerge, which may affect credibility of this witness. One important fact is that on aspect of arrest of accused-appellant and recovery of dead body of deceased on pointing out of accused-appellant, the testimony of PW-3 Rajendra Singh has been amply corroborated by PW-8 SI Harendra Singh. In view of all these facts, testimony of PW-3 Rajendra Singh can not be doubted only on ground of delay in recording his statement. Hence, statement of PW-3 Rajendra Singh regarding arrest of accused-appellant and recovery of dead body of deceased is consistent and cogent.
Considering the entire evidence, particularly that of PW-3 Rajendra Singh and PW-8 Harendra Singh, it stands established that after arrest of accused-appellant, on basis of his disclosure that he has committed murder of deceased in burial ground, the dead body of the deceased was recovered at the instance of accused-appellant from there.
24. It was argued that FIR is ante timed. The details of crime were not mentioned in inquest report and post mortem report and that copy of FIR was sent to CJM on 27.01.2009. In this connection, perusal of record shows that all necessary details of case like crime number and sections have been mentioned in inquest report exhibit ka-7. It is also mentioned in this report that besides other documents, copy of FIR was being sent to autopsy surgeon. So far as post-mortem report is concerned, there is no such mandatory requirement of law that crime number and other details have to be mentioned in post-mortem report. As far as this point is concerned that there is delay in sending FIR to concerned Magistrate, it may be stated that PW-4 Constable Santosh Kumar, who recorded FIR, has clearly stated that complainant Prem Pal Singh has presented tahrir at 04.20 PM and he has immediately registered the case. He further stated that he has handed over copy of FIR to Munshi (clerk) and he can not say when Munshi has submitted same before Circle Officer. Obviously, copy of FIR has to be routed through Circle Officer for sending the same to Magistrate. Considering all relevant facts, particularly the statement PW-4 Constable Santosh Kumar, who recorded FIR, it cannot be held that FIR is ante time. In view of attending facts and circumstances coupled with evidence of PW-4 Constable Santosh Kumar, mere delay in sending copy of FIR to Magistrate, would not give rise to conclusion that FIR is ante-time.
25. So far as this argument is concerned that oral testimony is not consistent with medical evidence, it was pointed out that deceased has suffered multiple abrasions, but the same have not been explained. In this connection, it may be observed that in this case there is no eye witness of incident of murder of deceased. In fact, as per disclosure of accused-appellant, he has tried to sexually assault the deceased and when deceased cried, he strangulated him to death. As per post-mortem report exhibit ka-4, the cause of death of deceased is asphyxia as a result of strangulation. Thus, prosecution version is amply supported by medical evidence. In specific facts and circumstances of case, prosecution was not required to explain as to how deceased has sustained multiple abrasions for the simple reason that there is no eye witness of incident of murder and case is based on circumstantial evidence. Even otherwise law regarding this issue is well settled that oral evidence has to get primacy as medical evidence is basically opinionative. It is only when the medical evidence especially rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a given case, the Court has to draw the adverse inference. It is well settled by a series of decisions of the Apex Court that while appreciating variance between medical evidence and ocular evidence, oral evidence of eyewitnesses has to get primacy as medical evidence is basically opinionative. But when the court finds inconsistency in the evidence given by the eyewitnesses which is totally inconsistent to that given by the medical experts, then evidence is appreciated in a different perspective by the courts. The Apex Court has consistently taken the view that except where it is totally irreconcilable with the medical evidence, oral evidence has primacy. [See Solanki Chimanbhai Ukabhai Vs. State of Gujarat, (1983) 2 SCC 174; Mani Ram Vs. State of Rajasthan, 1993 Supp (3) SCC 18; State of U.P. Vs. Krishna Gopal & Anr., State of Haryana Vs. Bhagirath, (1999) 5 SCC 96; Dhirajbhai Gorakhbhai Nayak Vs. State of Gujarat, (2003) 5 SCC 223; Thaman Kumar Vs. State of U.T. of Chandigarh, (2003) 6 SCC 380; Krishnan Vs. State, (2003) 7 SCC 56; Khambam Raja Reddy & Anr. Vs. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239; State of U.P. Vs. Dinesh, (2009) 11 SCC 566; State of U.P. Vs. Hari Chand, (2009) 13 SCC 542; Abdul Sayeed Vs. State of M.P., (2010) 10 SCC 259 and Bhajan Singh @ Harbhajan Singh & Ors. Vs. State, 2011) 7 SCC 421].
Be that as it may, in the instant case, as there is no eye witness of murder of deceased and case is based on circumstantial evidence, the non-explanation of alleged multiple abrasions on dead body of deceased is of no consequence, particularly when as per disclosure of accused-appellant, he has tried to sexually assault the deceased and when deceased cried, he strangulated him to death and that as per post-mortem report cause of death of deceased is due to asphyxia as a result of strangulation. Evidence discloses that deceased was taken away by accused appellant on 22.01.2009 at 03:30 pm and as per statement of autopsy surgeon PW-5 Dr. Narendra Dutt, death of deceased is possible after 03:30 pm on 22.01.2009. As there is no eye witness of incident order, it was for the accused-appellant to explain how deceased has suffered death. As per disclosure of accused-appellant, he stated that he has committed murder of deceased by pressing his neck and as per post-mortem report, the cause of death of deceased has also been shown asphyxia due to strangulation. Thus, on material aspects there is no inconsistency between oral and medical evidence. Merely because deceased has also sustained multiple abrasions, it cannot be considered such a factor so as to affect the prosecution case. In fact, it must have been only in the knowledge of accused-appellant that how deceased has sustained multiple abrasions, but at any rate, it cannot be said that oral evidence is totally irreconcilable with medical evidence. Thus, contention of learned counsel has no substance.
26. So far as question of motive is concerned, it is well-settled that if positive evidence is clear and cogent, the question of motive is not important. However, this is relevant to lend assurance the other evidence. Motive is not a sine qua non for the commission of a crime. Moreover, failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. Learned counsel for the appellant has cited case of Mahamadkhan Nathekhan Vs. State of Gujarat, 2014 (10) Scale 480 wherein inter alia it has been held by the Apex Court that when prosecution case rests purely on circumstantial evidence, motive plays an important part against accused. However, in this regard, it may be observed that in the facts of that case, neither motive was proved nor it was proved that death of deceased was homicidal. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. Reference may be made to the case law pronounced in case of State of U.P. V Nawab Singh, 2005 SCC (Criminal) 33. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime. In Shivji Genu Mohite V. State of Maharashtra, AIR 1973 SC 55, the Hon'ble Supreme Court has held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. In the instant case, It was alleged that deceased child was kidnapped by accused-appellant with intention to subject him to sexual assault, however, that part could not be proved and trial court has acquitted accused-appellant of charge under Section 377/511 of IPC. Though as per PW-8 SI Harendra Singh, accused has disclosed that when he tried to make sexual advance at deceased, he was crying and due to that reason he strangulated him to death, however, this statement of accused cannot be used against him and thus, it could not be proved that deceased was subjected to any sexual assault or that accused-appellant has tried to make sexual assault upon him. However, as stated above, proof of motive is not a sine-qua-non for sustaining conviction of an accused. Though in a case based on circumstantial evidence, proof of motive is considered a significant factor but in the instant case, in specific attending facts and circumstances, prosecution case is not affected due to non proof of motive. As discussed earlier, this case is based on circumstantial evidence and there is no eye witness of alleged incident of murder. Thus, it is nearly impossible for prosecution to prove that the accused appellant has tried to sexual assault the deceased. Considering all aspects of the case, prosecution case is not affected on that ground.
27. We may add here that the benefit of doubt cannot be extended by resorting to surmises, conjectures or fanciful considerations, as has been held by the Apex Court in the case of State of Punjab Vs. Jagir Singh, (1974) 3 SCC 277:. It was observed by the Hon'ble Apex Court that a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex-facie trustworthy, on grounds which are fanciful or in the nature of conjectures.
28. Considering entire evidence and all attending facts and circumstances of case, it is established that on 22.01.2009 at 03:30 pm deceased child Pradeep was taken away by accused appellant Rahul from outside his home and thereafter, at 04.00 pm, the child was seen in company of deceased by PW-6 Dheeraj on the same day near road ways bus stand and that deceased child was again seen with accused appellant at 05:30 pm by PW-7 Raju at his shop, from where he has purchased 'kurkure' and has also made a telephonic call. From medical evidence, it appears that deceased might have been done to death by strangulation on the evening or night of 22.01.2009 itself and thus, there is no much time gap between ''last seen' of deceased in company of accused appellant and death of deceased. Here, it would be relevant to mention that accused appellant Rahul has failed to put up any such case that deceased Pradeep has parted away his company. In fact, case of Rahul is of simple denial. When it is established that deceased child was taken away by accused appellant, the onus was on accused appellant to show that how and when deceased has left his company or that how deceased suffered death. As no such evidence is coming forth, thus, the only inference that can be drawn is that deceased was done to death by accused appellant. This inference is further established by fact that on 24.01.2009, after arrest of accused appellant from bus stand, he has led the police party to graveyard and got recovered dead body of the deceased, which was lying buried in an old burial. The knowledge of accused-appellant that dead body was lying in graveyard and recovery of the same, at his instance, further established that accused-appellant was ''particeps criminis' in crime in question.
29. Considering the entire evidence and all attending facts and circumstances of the case, it is apparent that prosecution has established each circumstance and the chain of circumstances is complete and exclude possibility of innocence of accused-appellant and that the only inference that can be drawn, is that it was the accused appellant Rahul and none else, who has kidnapped deceased Pradeep Kumar and committed his murder by strangulation and thereafter, concealed his dead body in the alleged old burial. In view of evidence available on record and above stated discussions, we reached inescapable conclusion that prosecution has been able to prove case beyond doubt and thus, trial court was fully justified in convicting the accused appellant. The sentence awarded by trial court is also proper and commensurate to the gravity of offence.
30. Accordingly, conviction and sentence of accused-appellant Rahul is affirmed. Accused appellant Rahul is stated to be in judicial custody. He shall serve out remaining sentence.
31. The appeal is dismissed.
32. Copy of this order be sent to the court concerned.
Dated: 11.12.2019
Mohit Kushwaha
(Raj Beer Singh, J) (Pritinker Diwaker, J)