Allahabad High Court
State Of U.P. vs Ram Shringar Pandey @ Bhaiyan on 1 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1777, 2020 (1) ALJ 774 (2020) 1 ALLCRIR 52, (2020) 1 ALLCRIR 52
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 10 Case :- U/S 378 CR.P.C. No. - 167 of 2019 Applicant :- State Of U.P. Opposite Party :- Ram Shringar Pandey @ Bhaiyan Counsel for Applicant :- Govt. Advocate Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
Per: Hon'ble Mr. Justice Mohd. Faiz Alam Khan Heard Shri Chandra Shekhar Pandey, learned AGA for the State and perused the record.
2. By means of instant application moved under Section 378(3) Cr.P.C. the State has requested to grant leave to appeal against impugned judgment and order dated 6.7.2019, passed by Additional District and Sessions Judge (FTC), Pratapgarh, in Sessions Trial No. 44/2013, 'State Versus Ram Shringar Pandey @ Bhaiyan son of Rama Shankar @ Bablu Pandey', arising out of Case Crime No. 215 of 2012, under Sections 302/34, 201/34 IPC, Police Station Fatanpur, District Pratapgarh, whereby the respondent/ accused Ram Shringar Pandey @ Bhaiyan has been acquitted from the charges under Sections 302/34, 201/34 IPC.
3. The prosecution story as emerges out of the record is that on 24.9.2012 the informant, namely, Shobhnath Srivastava son of Mahadev Srivastava, R/o Village Ramapur Kundaha, Police Station Sujanganj, District Jaunpur submitted a written application to S.H.O., Police Station Fatanpur alleging that on 16.09.2012 at about 4 P.M. accused persons Imtiyaz Ahmad @ Guddu and Ram Shringar Pandey @ Bhaiyan (respondent) came to his house and took his maternal grand-son, Suraj Kumar Srivastava with them. When his wife inquired from Suraj Kumar Srivastava as to where he was going, he replied that he would be back within 10 minutes and he accompanied the accused persons. It was further alleged in the application that since his departure with the above accused persons, Suraj Kumar Srivastava never returned back and when he went to the houses of the accused persons on 16.9.2012, he got information that they were also absconding since 16.09.2012. On 22.09.2012, he got information that near Jagnipur Nala a dead body has been found which was buried and photo of the same has been kept in Police Station Fatanpur. He went to the Police Station Fatanpur along with other villagers and identified the deceased as his maternal grand-son (Suraj Kumar Srivastava) by the photograph of the dead body and other material and thereafter they identified the dead body at the mortuary. His maternal grand-son, Suraj Kumar Srivastava has been murdered and buried by the accused persons.
4. On the basis of the aforesaid application a First Information Report was registered against the respondent Ram Shringar Pandey @ Bhaiyan and Imtiyaz Ahmad @ Guddu, under Sections 302, 201 IPC at case Crime No. 215/ 2012 and after entering the the substance of the FIR in G.D. the investigation was entrusted to Sri Sabhajit Mishra S.O. Fatanpur.
5. The postmortem on the body of the deceased, Suraj Kumar Srivastava was performed by P.W.5- Dr. Arvind Kumar Verma on 23.09.2012, who found following ante-mortem injuries on the body of the deceased.
(i) Ligature mark 31cm. x 2cm. all around the neck below, thyroid cartilage. Ecchymosis was found beneath the ligature mark.
(ii) contusion 5 cm. x 5 cm. on the left side of chest. 6 cm. below left nipple.
(iii) Contusion 9 cm. x 7 cm. on the right side of the chest. 4 cm. below the right nipple.
(iv) Contusion 15 cm. x 12 cm. on scapular region towards the left side.
(v) Contusion 12 cm. x 22 cm. on scapular region towards the back of right side.
(vi) The right ring finger was amputated and its upper and middle part was missing.
The possible time of death of the deceased was determined as 3 to 5 days before the postmortem and the death was stated to have occurred due to asphyxia due to ante-mortem strangulation.
6. The Investigating Officer after taking down the disclosure statement of the respondent recovered a Phawra, on the pointing of respondent and after completion of investigation filed charge sheet against the above mentioned accused persons Imtiyaz Ahmad @ Guddu and Ram Shringar Pandey @ Bhaiyan.
7. The case being exclusively triable by the court of sessions was committed to the sessions court and charges under Sections 302 read with 34 and 201 read with 34 IPC were framed against the respondent and another accused person. In response to the charges framed against the respondent accused- respondent pleaded not guilty and claimed trial.
The other accused person, namely, Imtiyaz Ahmad @ Guddu absconded during the course of trial and his file was separated from the file of the instant respondent and vide impugned judgment and order, the judgment was passed only with regard to the respondent Ram Shringar Pandey @ Bhaiyan (respondent).
8. The prosecution in order to bring home the charges against the respondent relied on following documentary evidence:-
(i) Application of information (Ex. Ka-1) (ii) Postmortem report (Ex. Ka-2) (iii) Chick FIR (Ex. Ka-3) (iv) G.D. FIR (Ex. Ka-4) (v) G.D. pertaining to information of dead body, (Ex. Ka-5) (vi) Site Plan (Ex. Ka-5-A) (vii) Seizure memo pertaining to recovery of spade (Favda) (Ex. Ka-6) (viii) Charge-sheet (Ex. Ka-7) (ix) Site Plan of recovery site (Ex. Ka-8) (x) Inquest report (Ex. Ka-9) (xi) Report Police Station (Ex. Ka-10) (xii) Letter to C.M.O (Ex. Ka-11) (xiii) Letter to R.I. (Ex. Ka-12) (xiv) Letter to C.M.O. (Ex. Ka-13) (xv) Police form-13 (Ex. Ka-14) (xv) Photo lash (Ex. Ka-15) (xvi) Sample of seal (Ex. Ka-16)
Apart from the above mentioned documentary evidence the prosecution also produced following witnesses in support of its case:-
(i) P.W.1- Shobhanath Srivastava (Informant)
(ii) P.W.2- Smt. Reena Srivastava, (wife of the deceased/ eye witness)
(iii) P.W.3- Smt. Sarswati (grand-mother of the deceased)
(iv) P.W.4- Shri Vinod Kumar Srivastava (brother of the deceased)
(v) P.W.5- Dr. Arvind Kumar Verma (who conducted the postmortem)
(vi) P.W.6- Constable Chhedi lal Yadv (Scribe Chick FIR and G.D.)
(vii) P.W.7- S.H.O. Sabhajit Mishra (Investigating Officer)
9. After closing of the evidence of the prosecution statement of the respondent- Ram Shringar Pandey @ Bhaiyan was recorded under Section 313 of the Cr.P.C., who declined to have committed any offence. He further stated that P.Ws.1 to 4 have given false evidence and that he has been falsely roped in by the police only on the basis of doubt. However, no evidence was produced by the respondent in his defence.
The trial court after taking into consideration the oral and documentary evidence produced by the prosecution found that the prosecution has failed to prove its case beyond reasonable doubt against the respondent and acquitted the respondent- accused of the charges framed against him. Aggrieved by the judgment and order of the trial court the instant appeal along with an application to grant leave has been preferred by the State.
10. Learned AGA while pressing the application for grant of leave to file instant appeal submits that the court below has committed material illegality in appreciating the evidence available on record. The court below has failed to take into consideration that the respondent along with other co-accused person took the deceased- Suraj Kumar Srivastava with them on 16.09.2012 at 4 P.M. from the house of the deceased. It was proved on record that the deceased as well as two accused persons were last seen together by the grand-mother of the deceased i.e. Smt. Saraswati Srivastava and when she inquired as to where he was going, the deceased, Suraj Kumar Srivastava replied that he will come back within ten minutes and he departed with the accused persons on a motorcycle.
He further submits that P.W.1-Shobhanath Srivastava on 16.09.2012 at 5 P.M. had also seen the deceased with respondent and other accused person on a motorcycle, when he was returning from the market. He further submits that P.W.4- Vinod Kumar Srivastava who is also the brother of the informant has also testified that on 16.09.2012 at about 4 P.M. respondent- Ram Shringar Pandey @ Bhaiyan and Imtiyaz Ahmad @ Guddu came to the house of Suraj Kumar Srivastava and took him with them on a motorcycle and his dead body was recovered on 22.9.2012.
Highlighting the above factual matrix, learned AGA submits that the evidence of the above mentioned eye witnesses clearly establishes the fact that the respondent and another accused person Imtiyaz Ahmad @ Guddu took the deceased Suraj Kumar Srivastava on 16.09.2012 at about 4 P.M. with them and since then the whereabouts of the deceased was not known and his dead body was recovered on 22.09.2012 near a Nala and by virtue of Section 106 of Evidence Act burden is on the accused persons to show as to what happened to the deceased and if they failed to give any reasonable explanation than they will be held liable for the offence.He further submits that a Favda (spade) whereby the body of the deceased was buried has also been recovered on the pointing out of the respondent.
He further submits that the court below has committed illegality in acquitting the respondent in terms of the theory of 'last seen together' it was for the respondent to show as to where and in what manner they departed from the deceased or what happened to the deceased after respondent and Guddu took him with them on motorcycle.
He further submits that the court below has not considered the proved circumstances available against the accused persons and disbelieved the evidence of prosecution in a cursory manner while it was proved on record that the crime has been committed only and only by the respondent and another accused person and in the facts and circumstances of the case, the State be granted leave to file instant appeal in order to challenge the order of the court below.
11. Having heard learned AGA for the State, we find that the instant case is based purely on circumstantial evidence as there is no witness or evidence who claims to have seen the commission of the offence. An FIR of the incident has been lodged by Shri Shobhanath Srivastva on 24.09.2012 at Police Station Fatanpur, with regard to the fact that the respondent- Ram Shringar Pandey @ Bhaiyan as well as Guddu @ Imtiyaz Ahmad took the deceased, Suraj Kumar Srivastava with them on 16.09.2012 at 4 P.M. and he along with other villagers identified the dead body of the deceased in the postmortem house after the same was recovered on 22.09.2012, from near Nala and was kept in mortuary on 23.09.2012.
12. Before proceeding further, it appears in the interest of justice that a survey of the testimony of the prosecution witness be made so that the evidence on record may be appreciated in a better way in the back ground of the submissions made by the learned AGA.
P.W.1- Shobhanath Srivastava, is the informant of the FIR. He in his statement has stated that on 16.09.2012 at about 3 P.M. he went to Jagnipur Market and when he was returning from there he saw a motorcycle where on Bhaiyan Pandey, his maternal grand-son, Suraj Kumar Srivastava and Guddu were sitting together. When he arrived at home, he asked his wife as to where Suraj Kumar Srivastava had gone, to which she replied that Suraj Kumar Srivastva had gone with Guddu and Ram Shringar Pandey @ Bhaiyan and will return in 10 minutes. This witness further stated that when Suraj Kumar Srivastava did not return in the night he started inquiring from the next morning and went to the houses of the accused persons and he was told by ladies of their houses that Guddu and Ram Shringar Pandey @ Bhaiyan had also not returned in the night. He presumed that these three persons together might have gone somewhere in order to earn bread for their families. One Ram Chandra of his village is doing some construction work in bombay and these three persons were employed with him in Mumbai.
He further stated that on 22.09.2012, he got information that a dead body has been found buried in the land and the same has been taken by the police of PS Fatanpur. He, on 23.9.2012 went to Fatanpur Police Station and identified the deceased by a photograph of the body as well as the clothes and other belongings of the deceased. He also identified the body of Suraj Kumar Srivastava at mortuary at District Hospital, Pratapgarh. He further stated that he has every reason to believe that his 'Nati' has been done to death by the aforesaid accused persons. Suraj Kumar Srivastava was not having any enmity with accused persons. Wife of Suraj Kumar Srivastava was not in the village at the time of the death of the deceased. When she came, she informed that the deceased was having enmity with Ram Chandra due to monetory transaction and deceased had also left employment of Ram Chandra on this basis.
P.W.2- Smt. Reena Srivastava is the wife of the deceased, Suraj Kumar Srivastava, who admitted in her statement that on 16.09.2012 when her husband was taken by the accused persons she was not present at her house and she was in Mumbai. She returned from Mumbai on 25.09.2012 and was informed by his father and mother-in-law about the incident. She further stated that on 22.09.2012 she was informed by her father-in-law about the death of the deceased and also that her father-in-law identified the body of the deceased at mortuary of Pratapgarh. She has further stated that there was some dispute over monetory transaction between her husband and Ram Chandra of her village and due to this her husband had left the employment of Ram Chandra. She further stated that Ram Chandra also intimidated her husband to join his employment or he will be done to death. The incident has been committed on the basis of enmity with Ram Chandra.
P.W.3- Smt. Sarswati has testified pertaining to the fact that on 16.09.2012 at about 4 P.M., when she was at home, deceased Suraj Kumar Srivastava was taken by Guddu and Ram Shringar Pandey @ Bhaiyan. On being asked by her, Suraj Kumar Srivastava informed that he will be back within ten minutes. She further stated that after some time her husband returned from the market and inquired as to where Suraj Kumar Srivastava had gone along with Guddu and Ram Shringar Pandey @ Bhaiyan, she informed her husband that Suraj Kumar Srivastava had gone with the accused persons and will come back within ten minutes. However, he did not return there after and the body of the deceased, Suraj Kumar Srivastava was found on 22.0-9.2012 in a buried condition. She further stated that when the accused persons were taking Suraj Kumar Srivastava with them. She did not know as to who has murdered Suraj Kumar Srivastava but he was tkaen by Guddu and Ram Shringar Pandey @ Bhaiyan.
P.W.4- Vinod Kumar Srivastava has stated in his statement that Guudu and Ram Shringar Pandey @ Bhaiyan were close friends and they visited each other houses frequently and were generally seen together. He corroborated the incident of going of Suraj Kumar Srivastava with accused persons on 16.09.2012 at 4 P.M. and claimed that he was present at the main door of the house. He also stated that on being asked by the wife of the informant as to where they were going, Suraj Kumar Srivastava replied that he will be back within ten minutes. He also stated that on 22.09.2012 they got information about a dead body found buried near Jagnipur Nala and they identified the same as of Suraj Kumar Srivastava in Pratapgarh mortuary.
P.W.5- Dr. Arvind Kumar Verma, who conducted post mortem on the body deceased,in his statement has found six injuries on the body of the deceased and all those injuries have been elaborately discussed herein before at para no. 5 of this judgment. He also stated to have found that the death of deceased has been caused due to asphyxia occurred on account of strangulation. He proved postmortem report in his hand writing and signatures.
P.W.6- Constable Chhedi Lal Yadav has stated to have prepared the chick FIR on 24.09.2012 and also to have written an entry in general diary at Rapat No. 31 time 17 hours on 24.09.2012 and has proved the chick FIR, G.D. and information of the recovery of the dead body as Ex. Ka-3, 4, and 5, respectively.
P.W.7- S.H.O. Sabhajit Mishra is the Investigating Officer in the instant matter, who has proved to have prepared the site plan and other necessary papers for the purpose of the postmortem from Ex. Ka-5A to Ka-8. He also proved to have prepared the inquest report and other necessary papers from Ex. Ka-10 to Ka-16. He further stated to have recovered Favda (spade) on the pointing out of the deceased Ram Shringar Pandey @ Bhaiyan.
13. Perusal of the judgment of the subordinate court reveals that the trial Court found that the case of the prosecution has not been proved beyond reasonable doubts on following points:-
(i) The case of prosecution is based on circumstantial evidence as no body has seen the crime being committed by the accused persons.
(ii) The FIR has been lodged after delay of 08 days i.e. on 24.09.2012 and no explanation of such delay has been given. Even no missing report pertaining to the deceased was lodged and also that no sincere efforts were made to search the deceased.
(iii) Allegation of taking deceased by accused persons has been imputed with regard to 16.09.2012 at 4 P.M. and dead body of the deceased has been found on 22.09.2012 and there is no evidence that the deceased, in between this duration, has been seen by any one in the company of the accused persons.
(iv) P.W.5- Dr. Arvind Kumar Verma, who conducted the postmortem on the body of the deceased has opined that the deceased was done to death about 03 to 05 days before the postmortem and not beyond that and according to him the death of the deceased might have occurred from 18.09.2012 to 20.09.2012, while the deceased was allegedly taken by accused persons on 16.09.2012. Therefore there is no close proximity between the point of time when deceased was last seen with respondent and time of death of the deceased.
(v) The Investigating Officer has admitted in his cross examination that the deceased was a criminal.
(vi) All proved circumstance do not form a complete chain and there is possibility that the crime might have been committed by any other person.
(vii) No motive of crime has been alleged. Per contra it is admitted to the prosecution that the accused persons and deceased were very closed friends and were usually seen together. Enmity of deceased with accused persons is neither alleged nor proved. All prosecution witnesses admitted that the accused persons and deceased frequently visited each other houses and they were childhood friends.
(viii) The recovery of spade (Favda) at the instance of accused- respondent is highly doubtful for the following reasons:-
(a) Favda was not presented before any Magistrate.
(b) No signature either of the accused or witnesses were found on the level affixed on Favda.
(c) The evidence of P.W.7- Sabhajit Mishra, Investigating Officer is not believable on the point of recovery of the Favda when he stated that this will only be known to the accused- respondent from where he has recovered Favda. He admitted in his statement that he did not have any idea as to at what distance he was standing when accused was recovering Favda. He admitted that he even can not say whether Favda was recovered from inside the water of Nala or from land .
(ix) Suspicion howsoever strong could not take place of proof.
(x) It is not proved by the prosecution that it is only and only the accused who has committed the crime.
14. The question as to how the application for grant of leave to appeal made under Section 378(3) of the Code should be decided by the High Court and what are the parameters which this Court should keep in mind remains no more 'res integra '. This Issue was examined by the Hon'ble the Apex Court in the case of Ajmer Singh v. State of Punjab, 1953 SCR 418 wherein the accused was acquitted by the trial Court but was convicted by the High Court in an appeal against acquittal filed by the State. The aggrieved accused approached Apex Court. It was contended by him that there were 'no compelling reasons' for setting aside the order of acquittal and due and proper weight had not been given by the High Court to the opinion of the trial Court as regards the credibility of witnesses seen and examined by him. It was also contended that the High Court committed an error of law and the Hon'ble Supreme Court found substance in the argument that when a strong 'prima facie' case is made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and cannot state that the law entitles him to keep his lips sealed. It was further held that in an appeal, the High Court had full power to review the evidence upon which the order of acquittal was founded ...
Upholding the contention, it has also been held in para 6 as under ;
"We think this criticism is well-founded. After an order of acquittal has been made, the presumption of innocence is further reinforced by that order, and that being so, the trial court's decision can be reversed not on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons."
In the case of Sanwat Singh and others v. State of Rajasthan, AIR 1961 SC 715 after placing the reliance on the judgment given by Privy Council in Sheo Swarup and others vs. The King Emperor AIR 1934 PC 227 (2) and many other authroities Hon'ble the Apex Court on the point in issue held as under :-
" Para 16- The foregoing discussion yields the following results :
(1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified".
Hon'ble the Apex Court in the case of Sadhu Saran Singh Vs. State of Uttar Pradesh and Others reported in 2016 CrL. J. 1908 has considered this difference and has observed as under:
"18 Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasiva V. State of Kerala 1998 SCC (Cri) 1320 has held:
"The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal."
19. This Court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative."
In State of Maharashtra vs. Sujay Mangesh Poyarekar MANU/SC/8073/2008 Hon'ble Supreme Court has held as under:-
"21. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal "shall be entertained except with the leave of the High Court". It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub-section (3) of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code.
22. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.
23. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial Court must be allowed by the appellate Court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the Court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial Court could not be said to be `perverse' and, hence, no leave should be granted.
24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate Court against an order of acquittal recorded by the trial Court. We only state that in such cases, the appellate Court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial Court should not be disturbed. Where there is application of mind by the appellate Court and reasons (may be in brief) in support of such view are recorded, the order of the Court may not be said to be illegal or objectionable. At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and reappreciation, review or reconsideration of evidence, the appellate Court must grant leave as sought and decide the appeal on merits. In the case on hand, the High Court, with respect, did neither. In the opinion of the High Court, the case did not require grant of leave. But it also failed to record reasons for refusal of such leave."
15. From the above decisions some general principles which may emerge are that the appellate court is having full power to review or re-appreciate or reconsider the evidence upon which the order/ judgment of acquittal has been based and there is no limitation, restriction in exercise of such power by the appellate court and the appellate court may reach at it is own conclusion on the same set of evidence, both on question of facts as well as on law. However, it is to be kept in mind that in case of acquittal, the presumption of innocence which was initially with the accused persons has been fortified, reaffirmed, strengthened and also the golden principle which runs through the Web of criminal jurisprudence is that if two reasonable and logical conclusions can be derived on the basis of evidence on record, the appellate court should not normally disturb the finding of the trial court. But simultaneously it is also to be kept in mind that the benefit of only a reasonable doubt can be given to accused persons in a criminal trial. The accused persons cannot claim the benefit of each and every doubt. To get the benefit of a doubt the same has to pass the test of reasonableness and a reasonable doubt is a doubt which emerges out of the evidence itself.
16. The law with regard to appreciation of circumstantial evidence has been clearly enunciated in the case of Hanumant v. State of Madhya Pradesh MANU/SC/0037/1952 wherein Hon'ble Supreme Court held as follows:
"12 ...It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the Accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the Accused and it must be such as to show that within all human probability the act must have been done by the Accused"
Hon'ble Apex Court in the case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR, 1984 SC 1622 laid down that the following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established;
"1. the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. the circumstances should be of a conclusive nature and tendency;
4. they should exclude every possible hypothesis except the one to be proved, and
5.there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
In Jaharlal Das v. State of Orissa, MANU/SC/0586/1991 : (1991) 3 SCC 27, it was held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to Rule out a reasonable likelihood of the innocence of the Accused. It is further held that in Para 8, in order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:
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 of a definite tendency unerringly pointing towards the guilt of the accused; and 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 it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
In Varkey Joseph v. State of Kerala, MANU/SC/0295/1993, it was held that 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 case beyond reasonable doubt.
Therefore, keeping in view the above settled legal position the law pertaining to cases based on circumstantial evidence can be summarized in following terms:
1. The circumstances relied upon by the prosecution which lead to an inference to the guilt of the accused must be proved beyond doubt;
2. The circumstances should unerringly point towards the guilt of the accused;
3. The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused;
4. That there should be no probability of the crime having been committed by a person other than the Accused.
It is in the light of the aforesaid law that we have to consider the evidence and the circumstances relied upon by the prosecution before the court below. In a case based on circumstantial evidence it is always better for the courts to deal with each circumstance separately and then link the circumstances which have been proved to arrive at a conclusion. Therefore it is incumbent for this Court to see whether the Court Below has committed any error in coming to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt or whether the view of the Court below is a probable view.
17. At this juncture it is also in the interest of things to have a look about the legal position pertaining to law related to ''last seen together'.
In Arjun Marik and Ors. v. State of Bihar MANU/SC/1037/1994 : 1994 Supp (2) SCC 372, Hon'ble Supreme Court reiterated that the solitary circumstance of the accused and victim being last seen will not complete the chain of circumstances for the Court to record a finding that it is consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be founded.
We may also refer to State of Goa v. Sanjay Thakran and Anr. MANU/SC/7187/2007,(2007) 3 SCC 755 wherein the Ho'nble Supreme Court held that in the absence of any other corroborative piece of evidence to complete the chain of circumstances it is not possible to fasten the guilt on the accused on the solitary circumstance of the two being seen together. Reference may also be made to Bodhraj alias Bodha and Ors. v. State of Jammu and Kashmir MANU/SC/0723/2002, wherein the Ho'nble Supreme Court held:
"The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases..."
In Jaswant Gir v. State of Punjab MANU/SC/2585/2005, Hon'ble Supreme Court held that it is not possible to convict appellant solely on basis of 'last seen' evidence in the absence of any other links in the chain of circumstantial evidence, the Court extended benefit of doubt to accused persons.
In Mohibur Rahman and Anr. v. State of Assam MANU/SC/0690/2002, Hon'ble Supreme Court held that the circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. There may however be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.
Hon'ble Supreme Court in Rishi Pal V State of Uttarakhand, MANU/SC/0081/2013 held that requirement in a case based on circumstantial evidence is that not only should all the circumstances sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged.
18. Keeping in view the aforesaid legal position with regard to the disposal of application to grant leave to file appeal against acquittal as also pertaining to the appreciation of evidence with regard to the cases based on circumstantial evidence particularly on last seen together theory, perusal of the evidence available on record would reveal that the admitted case of the prosecution is that the deceased and accused persons were very close friends. It is also admitted that there was no enmity of the deceased with respondent. No motive of the crime has been assigned to the respondent, which may persuade him to commit crime. Need not to emphasize that in a case purely based on circumstantial evidence, motive assumed significance. In the peculiar facts and circumstances of the case, keeping in view the fact that the deceased and respondent are childhood friends, the motive assumes more significance and in absence of any motive or enmity, the case of the prosecution is adversely affected.
It is also an admitted case of the prosecution that one Ram Chandra of the same village, with whom Suraj Kumar Srivastava was working in Mumbai was having enmity with the deceased on the basis of some dispute pertaining to payment of money.
There is no close proximity in the time when the deceased went with the respondent and other accused person and the probable time of his death as determined by P.W.5- Dr. Arvind Kumar Srivastava. There is either no close proximity between the place i.e. where from the deceased accompanied the respondent and other accused person and the place where his dead body has been found. In absence of any close proximity in the time and place, no conclusive inference can be drawn that the death of the deceased has been caused only and only by the respondent.
Ocular evidence produced by the prosecution, in the facts and circumstances of the case, is also not corroborated by the medical evidence as P.W.5- Dr. Arvind Kumar Verma has stated that the deceased died between 18th to 20th September, 2012. Admittedly the case of the prosecution is that the deceased accompanied the respondent in the evening of 16th September, 2012 and from 16th September, 2012 to 18th September, 2012 no body has seen the deceased with the accused person and there is ample time and opportunity for any one to commit the crime. The circumstances admitted to be proved by the prosecution are not such whereby the only hypothesis which may be drawn is that in any case the crime has been committed by the respondent as there is sufficient time from 15 to 18 September, 2012 for any other person to come into play and commit the crime. It is also relevant that the deceased was stated to be of a criminal background and keeping in view the criminal background of the deceased, the possibility of any other person committing the crime could not be ruled out.
19. We have very carefully perused the evidence of prosecution witnesses in the back ground of settled principles for appreciation of circumstantial evidence and have found that cumulative effect of the evidence given by all these factual witnesses before the trial Court would certainly not attract the satisfaction, which may be termed as proof beyond reasonable doubt. Needless to say that the instant case was purely based on circumstantial evidence as nobody had seen the respondents committing murder of deceased Suraj and it was the duty of the prosecution to prove all the circumstances from which an inference of guilt may be drawn and also it was the duty of prosecution to show and establish that the proved circumstances are of a definite tendency and they unerringly point towards the guilt of the accused persons and these circumstances, if taken cumulatively are forming a chain, so complete that there is no escape from the conclusion that in all probability the crime has been committed by the respondent only and by none else and it is also incapable of explanation of any other hypothesis then that of the guilt of the respondents.
Therefore keeping in view the aforesaid facts and circumstances, the trial court was justified in recording a finding of acquittal as the prosecution failed to prove its case beyond all reasonable doubts specifically on the touchstone of the settled principles pertaining to appreciation of evidence with regard to circumstantial evidence specially the ''last seen theory'. The circumstances attempted to be proved are not such whereby any other hypothesis is not possible as there is sufficient time from 16 to 18 for any other person(s) to come into play and commit the murder in the back ground that deceased was stated to be of criminal back ground. The judgment of the court below can not be termed either perverse or not based on evidence.
20. In view the above factual and legal position, we are of considered opinion that the prosecution has miserably failed to prove its case beyond reasonable doubt and it cannot be said that the view taken by the Trial Judge is perverse or unreasonable. Per contra the view taken by the trial Court is a possible view and the judgment is well reasoned and well discussed.
21. A criminal trial proceeds with the presumption of innocence of the accused persons and this presumption of innocence stands fortified with the acquittal of the accused persons. So, very strong and cogent reasons must exist for interfering in the judgment of acquittal. Keeping in view the aforesaid inherent weaknesses of the prosecution case, we are of the considered view that the view taken by the trial court was a probable and logical view and the judgment of the trial court cannot be said to be not based on material on record or illegal or illogical or improbable. Therefore, we are satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference in the judgment of the trial Court is called for. Hence, the prayer for grant of leave to appeal is hereby rejected and the application to grant leave to file appeal is dismissed.
22. Since application for grant of leave to appeal has been rejected, the memorandum of appeal also does not survive. Consequently, the appeal is also dismissed.
(Mohd. Faiz Alam Khan,J.) (Devendra Kumar Upadhyaya,J.) Order Date :- 1.10.2019 Muk