Allahabad High Court
Ram Prakash vs State Of U.P. on 2 November, 2022
Bench: Sunita Agarwal, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 25.4.2022 Delivered on 2.11.2022 Court No. - 39 Case :- CRIMINAL APPEAL No. - 6399 of 2008 Appellant :- Ram Prakash Respondent :- State of U.P. Counsel for Appellant :- Rajesh Kumar Srivastava,Dhermendr Dhar Dubey,Israrullah,Manoj K. Mathur,Manoj Kumar Mathur,Mazhar Ullah,Nipun Singh,Radheshyam Yadav,Sanjay Kumar,Sanjay Singh Counsel for Respondent :- Govt. Advocate Connected along with (1) Case :- CRIMINAL APPEAL No. - 6545 of 2008 Appellant :- Smt. Kunta Devi Respondent :- State of U.P. Counsel for Appellant :- Sanjay Singh,Rajesh Chandra Gupta,Sanjay Kumar,Shams Uz Zaman Counsel for Respondent :- Govt. Advocate (2) Case :- JAIL APPEAL No. - 22 of 2022 Appellant :- Chhatrapal Respondent :- State of U.P. Counsel for Appellant :- From Jail,Nipun Singh Counsel for Respondent :- A.G.A. Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Justice Sunita Agarwal)
1. Heard Sri Dharmendra Dhar Dubey and Sri Radheshyam Yadav learned counsels for appellant-Ram Prakash, Sri Nipun Singh learned counsel for appellant Chhatrapal and Amicus Curiae for appellant Kunta Devi and Sri Rupak Chaubey learned A.G.A for the State-respondent.
2. These three connected appeals have been preferred against the judgment and order dated 5.9.2008 passed by the Additional Sessions Judge, Fast Track Court No. 2, Rampur in Sessions Trial No. 75 of 2005 (State vs. Smt. Kunta Devi and others) arising out of Case Crime No. 317 of 2004, under Sections 364, 302/34 and 201 IPC, Police Station Bilaspur, District Rampur, convicting three appellants herein namely Smt. Kunta Devi, Ram Prakash and Chhatrapal for the offences under Section 302 read with Section 34 IPC and sentencing for life imprisonment with fine of Rs. 10,000/- each; the default punishment is one year rigorous imprisonment. Under Section 364 IPC, two appellants namely Smt. Kunta Devi and Ram Prakash have been convicted and sentenced for ten years rigorous imprisonment and fine of Rs. 5000/- each; the default punishment is six months rigorous imprisonment. Under Section 201 IPC, appellants Kunta Devi, Ram Prakash and Chhatrapal have been convicted and sentenced for five years rigorous imprisonment with fine of Rs. 2000/- each; the default punishment is three months rigorous imprisonment. All the punishments are to run concurrently.
3. It may be noted, at the outset, that the trial had been conducted against four accused persons including three appellants herein and one Devi Das son of Baldev Prasad, had been acquitted by the trial court by giving benefit of doubt.
4. As per the prosecution case, a first information report was lodged on 14.5.2004 at about 12:15 hours by one Dharampal son of Bhupal resident of village Vakainiya Bhat, Police Station Milak, District Rampur. As per the statement in the said report, the first informant is the brother of the deceased Ratan Lal, appellant Smt. Kunta Devi is the wife of the deceased whereas appellant Ram Prakash is son-in-law of deceased Ratan Lal. Appellant Chhatrapal has been mentioned therein to be an acquaintance/friend of appellant Ram Prakash. As per the averments in the written report filed by the informant Dharampal, his deceased brother Ratan Lal was residing in the village along with his wife Kunta Devi, children and his son-in-law Ram Prakash. It was stated by the informant therein that the wife of his deceased brother namely Smt. Kunta Devi was having illicit relationship with her son-in-law appellant Ram Prakash and having got the knowledge of the said fact, his brother (deceased) remained annoyed with them. On 11.5.2004, the deceased went out of the house along with his wife and son-in-law and did not return home in the evening though his wife and son-in-law had returned back. Next day also, when the deceased did not return, they went to make searches with their relatives. During the inquiry, Nemchand son of Dori Lal and Babu Ram son of Madan Lal told the informant that they had seen Kunta Devi, deceased Ratan Lal, Chhatrapal and Ram Prakash while they were standing together near Kameree Tiraha in Bilaspur. Being suspicious, on 14.5.2004, when he along with other villagers named in the report, made inquiry from appellants Kunta Devi and Ram Prakash, they confessed that they had illicit relationship and conspired to remove the deceased from their way. On 11.5.2004, they took the deceased along with co-accused Chhatrapal and a relative Devidas to Milak and made him consume liquor, they then brought the deceased to Bilaspur via bus and in the Jungle of Pipaliya Mahto, they had killed the deceased. The confession of appellant Kunta Devi has been narrated in the written report that her son-in-law caught hold of the legs of the deceased and she and Devidas caught hold of both hands when Chhatrapal strangulated the deceased. It is then narrated in the written report that on the said confession made by Kunta Devi, both the accused persons namely Kunta Devi and Ram Prakash were taken to the Jungle where the dead body of his brother (deceased) was found by the informant. They then brought the accused persons to the police station to lodge the report of the crime. It is stated in the written report that the dead body of the brother of the informant was lying on the spot.
5. The Station House Officer, Police Station Bilaspur, District Rampur had entered in the witness-box as PW-4. He deposed that on the basis of the written report given by the first informant, after registration of the case as Case Crime No. 317 of 2004, under Sections 364, 302, 301 IPC, he had proceeded with the investigation. The GD report no. 19 at 12:15 PM was entered with regard to the first information report, before recording the statement of informant Dharampal. After recording statement of the FIR writer (Head Moharrir Ram Avtar Singh) and that of the informant Dharampal, the inspection of the spot of the incident was made and a site plan was prepared which was proved as Exhibit Ka-3. The statements of other witnesses and accused persons namely Kunta Devi and Ram Prakash were recorded. Other two accused persons namely Devidas and Chhatrapal were arrested on 15.5.2004 and 14.6.2004; respectively. In his examination-in-chief, PW-4 proved the Check report having been prepared under the writing and signature of Head Moharrir Ram Avtar Singh, marked as Exhibit Ka-4. The entry in the GD about lodging of the first information report had been exhibited as Exhibit Ka-5. The inquest in the handwriting and signature of PW-4 was proved as Exhibit Ka-2. Other related papers to the inquest had been proved as Exhibits Ka-6 to Ka 10. It is stated by PW-4 that after completion of the investigation, charge sheet was submitted by another Investigating Officer whose writing and signature were identified by him to exhibit Charge Sheet as Exhibit Ka-11.
In cross, PW-4 was confronted about the Check writer. He was also confronted about a report having been lodged in the Police Station Milak. PW-4 stated that he did not inspect the site of the inspection nor went at the said place along with the informant before lodging of the first information report. The persons who came to lodge the report along with the informant, their statements were recorded as witnesses. The dead body of the deceased was found on the spot which was Pipaliya Jungle. The inquest was prepared on the spot. The body was sealed and sent for the postmortem. About the statement of the accused persons under Section 164 Cr.P.C., it is stated by PW-4 that though an application was moved in the Court in that regard but such statement was not recorded as the application was rejected. He admitted in cross that no recovery was made under Section 27 of the Evidence Act at the instance of the accused persons. About confession of Kunta Devi, it was stated by PW-4 that Kunta Devi confessed of the commission of murder in his presence and other witnesses, at the spot of the incident. However, the confession made by Kunta Devi in the village was not in his presence. He further stated that in the postmortem paper, he had specified that the doctors should enquire about the presence of liquor in the digestive cavity of the deceased. The statements of two witnesses Nemchand and Babu Ram were recorded by him on the date of the incident at the police station after coming back from the spot of the incident. PW-4 was further confronted about the confessional statement/disclosure made by Kunta Devi on the spot. PW-4 admitted that he did not prepare the map of the place of the last seen. He was also confronted about the place of last seen as narrated in the statements of two witnesses Babu Ram and Nemchand and the purpose of their presence at the place of last seen. The suggestion that entire investigation was conducted by him while sitting in his office was denied. It was denied by PW-4 that no report was lodged till the inquest was conducted. It was admitted that appellants Kunta Devi and Ram Prakash were brought to the police station by the public, which meant by him as the informant and the witnesses. PW-4 asserted that the site plan was prepared at the pointing out of the informant and the place where the body was found was a ''jungle' of the forest department.
6. PW-6 is Constable Kunwar Lal who stated that he took the dead body of deceased Ratan Lal along with relevant papers for postmortem to the District Hospital Rampur at about 01:45 PM on 14.5.2004. The body was identified by him in the Mortuary at about 04:30 PM. When the body was handed over to the doctor for postmortem and identified, it was in sealed state and no one had touched it. PW-6 was confronted about the transportation of the dead body to the Mortuary for the postmortem.
7. PW-5 is the postmortem doctor who had deposed that the body was brought by PW-6 Constable Kunwar Lal along with another Constable in sealed state, the seal was compared and body was identified by the police personnel who brought it. PW-5 stated that there was possibility of death of deceased between 2 to 4 days during day time. The postmortem of the body was conducted at about 4:30 PM. It was an average built body. No rigor mortis was present, decomposition had started, skin was peeled off at several places and maggots were present. The face was swollen. Stomach was swollen. There were swelling in the genitals. Nails and hair were loosened. Both the eyes were closed and swollen. Tongue was out, liquid material was oozed out from ears. The skin of the left hand and palm was peeled out. Ecchymosis was present due to damage of neck tissues which meant that colour was changed. The edge of hyoid bone was broken, thyroid cartilage was broken. Blood was collected in the neck region. Face and neck were blackened and swollen.
8. On internal examination, brain membrane was found lacerated. There was liquid inside it. Bronchial and lungs were congested. Left chamber of the heart was empty and right chamber was filled with blood.
On examination of abdomen, semi digested food liquid material was present. In the small intestine, digested food and gases were there. Faecal and gases were found in the large intestine. Gall Bladder was half filled. Liver was congested. Spleen and both kidneys were congested. Bladder was empty. The cause of death as mentioned in the report was Asphyxia due to strangulation.
9. The postmortem report was proved by PW-5 being in his handwriting and signature as Exhibit Ka-12. It was stated in the examination-in-chief by PW-5 that there was possibility of the death having been occurred on 11.5.2004 by strangulation. In cross, PW-5 was confronted about the condition of the dead body and stated that decomposition of the dead body would normally start in two days of death. In the month of May, it could commence after 1 and ½ days. After rigor mortis was over, decomposition would start. The time of death could be estimated when rigor mortis was present, which was not found in the dead body in this case. It was further stated that as the death was caused two days prior to the postmortem, no rigor mortis could be found.
On internal examination, there was sign of strangulation in the neck of the deceased. However, the place where skin was decomposed, no such mark could be found but changes were noticed in the internal tissues. No sign of strangulation by hand or rope could be noticed. Hyoid bone was broken and on that basis, it was opined by him that the deceased was murdered by strangulation. The suggestion that hyoid bone could be broken on account of fall on a hard blunt object was denied by PW-5. He further stated that he did not find liquor in the stomach of the deceased and then stated that liqour could not be found after 24 hours as it would pass on in the digestive system.
10. Amongst the witnesses of fact, the first informant Dharampal who had appeared as PW-1 reiterated the statements made in the written report filed by him. He further clarified that two persons namely Babu Ram and Nemchand told him that they saw the accused persons (4 in number) and the deceased together while standing near Kameree Tiraha and the date of their last seen was 11.5.2004. After 3-4 days of missing of his brother, i.e. 14.5.2004, he along with the villagers interrogated accused appellant Kunta Devi and Ram Prakash, who then disclosed that they had relationship as husband and wife and they had conspired to remove the deceased from their way. They took the deceased on the pretext of giving him money and also involved two other accused persons namely Chhatrapal and Devidas who were friend and relative of Ram Prakash. The manner in which the murder was committed by the accused as narrated in the written report was reiterated by PW-1 in his examination-in-chief. The written report was read over to PW-1 in the Court and he proved the same as Exhibit Ka-1.
11. PW-1 deposed that they had reached Bilaspur at about 12:00 Noon and the case was lodged on his report. On confrontation, he stated that he knew about the illicit relationship of two accused Kunta Devi and Ram Prakash and on further asking, he stated that he came to know about it from the conduct and behaviour of the accused persons. He stated that the accused Ram Prakash was living in the house of Kunta Devi since after his marriage. He stated that the entire village knew about their relationship and his brother also objected to the same. About three months before the murder, Ram Prakash and Kunta Devi had beaten the deceased Ratan Lal. However, no report was lodged by the deceased and the matter was settled by the villagers.
PW-1 further stated that he went to the spot of the incident after the disclosure made by the accused persons and the said confession/disclosure was made by accused Kunta Devi and Ram Prakash at the Chakki of Kundan Lal in front of about 50 villagers. He further stated that when the disclosure was made by Kunta Devi in front of villagers, the Investigating Officer was not present. He, thereafter, went to the police station along with the Pradhan and the Investigating Officer came on the spot, who noted something in his Diary and then they again went to the police station to lodge the report. PW-1 had denied that the written report was dictated by the Investigating Officer. He reiterated that the disclosure statement was made by Kunta Devi and Ram Prakash before the villagers and around 10-12 persons went to the spot of the incident, to the Jungle, where they found the dead body of deceased Ratan Lal. Amongst the villagers, Babu Ram and Nemchand (PW-2 and PW-3) were also present. They went to the police station straight away after locating the dead body in the jungle and the scribe of the written report was also with them. The paper for writing the report was purchased from a shop in front of the police station and the report was scribed inside the police station. The Investigating Officer was present at the police station at the time when the report was scribed, which was around 11:00 AM. After registration of the report, they again went to the spot where the dead body was lying and the police had accompanied them. The body was sealed and sent for the postmortem. He was investigated at the police station by the Investigating Officer. The suggestion that there was no confession of the accused persons namely Kunta Devi and Ram Prakash before them was denied by PW-1. It was stated that the body was found in the Jungle and there was no road nearby. They went ahead after leaving the road through the way into the Jungle.
PW-1 further stated that his house and that of his brother Ratan Lal was common but his room was separate. The accused Kunta Devi had three sons and one daughter. Accused Ram Prakash was husband of the daughter of Kunta Devi and the couple had no child till the date of the incident. On further confrontation, PW-1 stated that he had no knowledge as to whether daughter of Kunta Devi was residing as wife of Ram Prakash. He further stated that one son of Kunta Devi had been married after the incident and the marriage was arranged by him. He and his deceased brother Ratan Lal had two acres of land. The suggestion that he had grabbed the property of his deceased brother, including his house and the agricultural field after his death was denied by PW-1. The suggestion that he had falsely implicated the accused persons was also denied by him. On further confrontation, as to when he got the knowledge of the illicit relationship of accused persons, PW-1 stated that he came to know of their Kunta Devi and Ram Prakash illicit relationship about three months prior to the murder and the said fact was disclosed to him by his brother Ratan Lal. His brother used to say to him that Ram Prakash ought not to have lived in his house but his wife Kunta Devi did not allow him to go. Ram Prakash and his wife (daughter of the deceased) were also residing in the same house with Ratan Lal. PW-1 admitted that he had never seen accused Kunta Devi and Ram Prakash in any objectionable state. However, Ratan Lal and Kunta Devi used to fight because of Ram Prakash living in their house. PW-1 further stated that he knew accused Chhatrapal but had not seen them going together. The suggestion that he did not know Chhatrapal prior to the incident was denied. The suggestion that Nemchand and Babu Ram did not disclose him about the last seen of the accused persons with the deceased on 11.5.2004 was also denied by PW-1. The suggestion that he was making a false statement to grab the landed property of the deceased was denied by PW-1.
12. PW-2 is the witness of last seen and extra-judicial confession of the accused persons. He stated that he had seen four accused persons together standing at Kameree Tiraha, Bilaspur at about 1:00 PM when he was accompanied by Nemchand PW-2. He and Nemchand both came back to their houses and on the next day, they came to know that deceased Ratan Lal did not return back. When they interrogated accused Kunta Devi, she had admitted her guilt that she had killed her husband because of her illicit relationship with her son-in-law. About Chhatrapal, PW-2 stated that he was friend of Ram Prakash and used to go to the house of Kunta Devi. The disclosure statement was made by Kunta Devi after three days of the incident and the police had then arrested Chhatrapal and interrogated him. The body of deceased in Pipaliya Mahto Jungle was recovered at the instance of Kunta Devi and after sometime police came.
In cross, PW-2 stated that he was called at the police station by the Investigating Officer after three days of the incident and he went along with Pradhan, PW-1 and the scribe of the report. He never witnessed any confrontation between the deceased and his wife and had also never heard about any dispute between the deceased and the accused persons namely Chhatrapal, Ram Prakash and Devidas. PW-2 was confronted about the information of the dead body lying in the Jungle given by the forest employees and he stated that the confession/disclosure statement was made by Kunta Devi at her own house. He then stated that he himself was at his own house and he had no concern with Kunta Devi. PW-2 further stated that many villagers were present in the house of Kunta Devi and then she confessed/disclosed everything to them. They then went to the Jungle, found the dead body and went to the police station Milak. He was also accompanying the villagers. The report was not lodged in the police station Milak and they were directed to the police station Bilaspur. Kunta Devi also went with them on her own and the confession was made by Kunta Devi voluntarily in the presence of all villagers including him.
When PW-2 was further confronted about the recovery of the dead body, he stated that the day they went to the police station, all of them went to the Jungle on motorcycle and Jeep but because of there being dark, the body could not be found. He stated that the day Kunta Devi had confessed her guilt they went to the Jungle to search for the dead body, two police personnel of Bilaspur also went with them in the jungle to search for the dead body. The report was lodged at the police station Bilaspur and two police personnel were sent with them. Kunta Devi also went with them and the police to the Jungle, but because of the dark they could not reach and the body could not be found. The police personnel then took Kunta Devi to the police station and she was detained there. All of them including him came back to the village and on the next day around 50-20 villagers went to the police station Bilaspur. They then went in the police Jeep to the spot of the incident. Accused Ram Prakash was also arrested in the night and both Ram Prakash and Kunta Devi were taken to the Jungle for recovery of the dead body. PW-2 stated that he was a witness of the inquest and reiterated that the body could not be found when two police personnel went along with Kunta Devi after lodging of the report. The suggestion that the police did not search for the dead body for two days along with them was denied by PW-2.
13. About the last seen, PW-2 stated that on 11.5.2004, he had seen four persons along with Kunta Devi together at Kameree Tiraha while he was going to Rudrapur, the time was around 2:30 PM. He did not talk to them. On the second day, Kunta Devi came back to her house and he had seen her inside her house on 13th May. He did not talk to Kunta Devi and the police did not reach to the village on that day. About the condition of the dead body, PW-2 stated that he had seen the mark of rope in the neck of the deceased, the inquest was conducted on the spot, the body was decomposed and it was stunk. The skin of the hand was peeled off but not of the body. He further stated that he had seen Ratan Lal with the accused for the last time near Kameree Tiraha. He was going in a truck to Rudrapur and was sitting at the front on the left side of the truck.
PW-2 was further confronted with his statement under Section 161 Cr.P.C., he stated that he did not tell the Investigating Officer that he came back home via bus and after two days came to know that Ratan Lal did not return back. He further denied the suggestion that he was making such statement because of being friend with the informant PW-1.
14. PW-3 Nemchand stated in his examination-in-chief that on 11.5.2004, at around 1:00 PM, he and Babu Ram (PW-2) had seen four accused persons standing together near Kameree Tiraha. He, however, did not talk to them. Kunta Devi had confessed about her guilt before him, PW-2 Babu Ram and all other villagers. The confession was also made by Ram Prakash about the manner in which they had murdered the deceased. The two accused also confessed that they had illicit relationship and the said fact came to the knowledge of Ratan Lal and, therefore, they had removed him from their way.
In cross, PW-3 stated that he was present at the time of confession by the accused persons. The accused persons took them to the Jungle and Kunta Devi showed the dead body to them. Few of the villagers stayed near the dead body and others catching hold of Kunta Devi went to the police station. The police again came on the spot to locate the dead body along with Kunta Devi. It was around 1-1:30 PM. PW-3 admitted his signature on the inquest. On confrontation, PW-3 stated that they went to the Jungle first, the body was shown by Kunta Devi and then they all went to the police station. No other accused went with them. They had reached the jungle at around 12:00 Noon. He stayed near the dead body along with others. The police had completed the entire investigation on the same day. The suggestion that the body was sealed in front of the police station was denied by PW-3. PW-3 further stated that confession was made by Kunta Devi at the Chakki of Kundan Lal in front of the villagers which was at a distance of 20-25 paces from the house of deceased Ratan Lal. Around 50 villagers (including females) were present when Kunta Devi had admitted her guilt. He also reached after getting information that Kunta Devi was caught in the murder of Ratan Lal. The suggestion that Kunta Devi was tortured by the villagers was denied by PW-3 and he stated that she made confession in front of the renowned/respectable persons of the village. PW-3 admitted that he had not seen Kunta Devi taking Ratan Lal from his house nor he was a witness of the incident of murder.
In cross, PW-3 stated that he and Babu Ram (PW-2) were going to Bilaspur through bus to take medicines and when they got down to drink water, they saw Kunta Devi standing near the shop. He further stated that they went to buy pesticides and after having seen the accused persons, they stayed near a hotel for sometime and came back to the village. He further stated that after four days when he saw Kunta Devi, a Panchayat was held in the village, it was not a formal Panchayat but people were collected on getting information. It was around 8:00-9:00 AM, but he did not disclose about the Panchayat to the Investigating Officer. He then stated that Panchayat was ended but he did not go to the police station and only some people went there. PW-3 admitted that he did not know Chhatrapal prior to the incident. The suggestion that he did not go to take medicines was denied and it was reiterated by PW-3 that he was going to Bilaspur but came back from Kamaree Tiraha on the asking of PW-2 Babu Ram without taking any medicines and bought medicines from Kameree itself. He then stated that he went from his village through bus and got down at the Kamaree Tiraha where he met one Purari Lal and that he and Babu Ram (PW-2) came back together. The suggestion that he was making a false statement at the instance of PW-1 Dharampal was denied by PW-3.
15. In light of the above evidence brought by the prosecution on record, it was argued by the learned counsels (and Amicus Curiae) for the appellants that the entire prosecution story is full of concoctions. The statements of the prosecution witnesses of last seen and extra-judicial confession are at variance on material aspects. The witnesses of last seen were planted by PW-1 informant, brother of the deceased on his suspicion. There is no evidence of illicit relationship of two accused persons namely Kunta Devi and Ram Prakash which is projected as motive for commission of the murder. The extra-judicial confession of the accused in front of the entire village (about 50 villagers) as admitted by the prosecution witnesses cannot be said to be voluntarily. The evidence of last seen is not such so as to place burden on the accused persons to offer any explanation. The oral evidence are contradictory to the medical evidence. The witnesses are at variance about the recovery of the dead body at the instance of the accused persons. The story of illicit relationship of mother-in-law (Kunta Devi) with the son-in-law (Ram Prakash) who was living in his ''Sasural' is ridiculous, created by the villagers so as to assign motive to the accused persons. In any case, the recovery of the dead body by the police cannot be said to be at the instance of the accused persons within the meaning of Section 27 of the Evidence Act and the said fact was admitted by the Investigating Officer. This is a case of circumstantial evidence, the prosecution had tried to connect many loose ends in a strained effort to complete the chain, which could not unerringly point towards the guilt of the accused persons. The trial court has committed grave error of law in treating each circumstances as true separately to assume a chain ignoring the fact that the circumstances of the last seen and extra-judicial confession could not be proved by the prosecution beyond reasonable doubt. A categorical suggestion was given to PW-1 that he had falsely implicated the accused Kunta Devi and her son-in-law in order to grab the landed property and the house of his brother. The fact admitted by PW-1 that he had arranged the marriage of the son of one of the deceased during pendency of the criminal case, is reflection of the fact that he had been managing the estate of the deceased by putting his wife and son-in-law in jail.
16. Reliance is placed on the decisions of this Court in Rajpal Singh vs. State of U.P.1 alongwith the connected appeals and that of the Supreme Court in Mahila Roomabai Jatav vs. the State of Madhya Pradesh2, Prem Thakur vs. State of Punjab3 and Rambraksh vs. State of Chhattisgarh4 to assert that none of the circumstance and specifically the evidence of last seen can inspire the confidence of the Court.
Reliance is placed on the decisions of the Apex Court in State of Rajasthan vs. Raja Ram5 and Sahadevan and others vs. State of Tamil Nadu6 to place the principles of appreciation of extra-judicial confession.
Reliance is placed on the decision of the Apex Court in Padala Veera Reddy vs. State of Andhra Pradesh and others7 to assert that in a case which rests on circumstantial evidence, in order to sustain conviction, the evidence 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.
Placing reliance on the decision of the Apex Court in Anand Ramachandra Chougule and others vs. Sidarai Laxman Chougala and others8, it is argued that the prosecution must stand or fall on its own feet. It cannot draw support from the weaknesses of the case of the accused, if it has not proved its case beyond reasonable doubt.
17. Learned A.G.A., on the other hand, argued that it is a case where two prosecution witnesses had last seen the deceased with the accused persons. The time gap between the last seen and the recovery of the dead body was minimal. No contradiction can be found in the statement of two witnesses of last seen. The conduct of the wife in keeping silence and not lodging any report for missing of her husband for two days has to be seen against her. The suggestion of false implication of accused Kunta Devi and Ram Prakash in order to grab the property of the deceased is without any basis, inasmuch as, it has come on record that the deceased had three sons besides a daughter.
The contention of the learned A.G.A. is that in a case of circumstantial evidence, when the dead body was located in the Jungle at the instance of accused Kunta Devi, wife of the deceased after confession of the guilt made by her, she was required to offer a reasonable explanation in defence. Vague answers given by the accused persons in their defence about the reason of their implication are itself proof of the fact that the accused persons are guilty.
18. Having heard learned counsels for the parties and perused the record, before appreciation of the facts of the present case, it may be noted that this is a case of circumstantial evidence. There is no direct evidence to implicate the accused persons. Out of four accused persons, one has been acquitted during trial and the third accused persons namely Chhatrapal had been implicated being friend of co-accused Ram Prakash, whereas motive for commission of crime had been assigned to only two accused persons namely Kunta Devi and Ram Prakash.
19. The circumstances which have been brought by the prosecution in the chain are:- (i) Motive; (ii) Extra Judicial Confession; (iii) Last seen.
(i) Motive:- As regards the motive, the so called illicit relationship of mother-in-law (Kunta Devi) with her own son-in-law (Ram Prakash) has been assigned as motive to commit the crime. The said circumstance is not proved from the evidence of PW-1 itself, who stated that his house and that of the deceased was common and he had never seen the accused persons together in any objectionable state. It is admitted by PW-1 that accused Ram Prakash (son-in-law) was residing in the house of the deceased and accused Kunta Devi since after his marriage and there were other three children of the deceased in the house including his married daughter. Not a single statement has been uttered by PW-1 that the wife of Ram Prakash, daughter of Kunta Devi had objected about illicit relationship of her mother with her husband. It is beyond comprehension that the deceased and wife of Ram Prakash would keep silence and would not object to the behaviour of their spouses. Not a single instance has been brought by PW-1 about the allegations of illicit relationship of two accused persons. The statement with regard to motive is actually based on the extra-judicial confession of the accused Kunta Devi.
(ii) Extra-judicial confession:- From the statement of the prosecution witnesses, it can be seen that Smt. Kunta Devi had confessed the crime, made extra-judicial confession, in front of around 50 villagers that two in a Panchayat held to solve the crime. Apart from there being contradictions in the statement of three prosecution witnesses of fact (PW-1, PW-2 & PW-3) with regard to the place where extra-judicial confession was made, there is variance also as to whether the said confession was made only by Kunta Devi or both, i.e. Kunta Devi and Ram Prakash. The witnesses are at variance when they spoke about the place and the number of accused persons who made extra-judicial confession in front of villagers. They are, however, consistent about one fact that the extra-judicial confession was made in front of around 50 villagers, in a Panchayat, wherein influential persons of the village were present, after three days of missing of the deceased Ratan Lal.
20. In evaluating the evidence of extra-judicial confession, we would require to note that only such extra-judicial confession which is voluntary and truthful can be taken into consideration so as to draw any conclusion with regard to the guilt of the accused persons. A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement, threat or promise. The said conclusion has to be drawn taking into consideration of three factors:- (i) having reference to the charge against the accused persons; (ii) proceeding from a person in authority: (iii) sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
21. The extra-judicial confession would be voluntary, if it is made by the accused in a fit state of mind and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement does not have reference to three above noted factors.
22. It is settled that that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appears to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. One important question, with regard to which the Court has to be satisfied with is, whether when the accused made confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession.
The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion impression caused by the inducement, threat or promise, if any, has been fully removed. [Reference State of Rajasthan vs. Raja Ram (supra)] The principles relating to extra-judicial confession laid down in Sahadevan and others vs. State of Tamil Nadu (supra) are also relevant to be noted herein, wherein it is noted that it is settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence by its very nature and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it looses its importance. The principles as laid down therein to deal with the evidence of extra-judicial confession are as under:-
"The Principles:-
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law."
23. Having noted the principles which have to be kept in mind by the Court while examining the acceptability and evidentiary value of the extra-judicial confession, we may note that in the instant case, the extra-judicial confession was alleged to have been made by one accused Smt. Kunta Devi as per the statements of PW-1 and PW-2. Whereas PW-3 in a casual statement averred that accused Ram Prakash had also made extra-judicial confession in the same manner as made by Smt. Kunta Devi. In any case, there is no extra-judicial confession of the third accused Chhatrapal as per the oral testimony of the prosecution witnesses.
24. As regards the confession made by Kunta Devi, from the statement of prosecution witnesses, it is evident that a substantial number of villagers were collected and alleged confession was made by Kunta Devi in their presence. It is stated by PW-3 that all influential/respectable persons of the village were present when confession was made by Kunta Devi. It has also come up on record that the Pradhan of the village went along with the informant to lodge the report. The village Panchayat was held though not formerly and Kunta Devi stated to have admitted her illicit relationship and her guilt in murdering her husband with the aid and assistance of three accused persons including her son-in-law Ram Prakash in the said Panchayat. The manner in which the extra-judicial confession has been made by Kunta Devi, without there being any evidence against her till the time of alleged confession, it cannot be said that the confession was without any inducement, threat or promise, in reference to the charge against her, proceedings from the persons in authority (the respectable influential persons of the village). There is no reason for the Court to believe that Smt. Kunta Devi made confession in front of more than 50 villagers reasonably supposing that by making it she would gain any advantage or avoid any evil of a temporal nature in reference of the proceedings against her. From the facts and circumstances of the case, the confession cannot be said to be voluntary and the question whether it is true or false, therefore, does not arise. Proceeding further, we may note that the recovery of the dead body had been made by the villagers allegedly after the extra-judicial confession made by Kunta Devi. The oral evidence that the recovery of dead body in the Jungle was made at the instance of Kunta Devi, therefore, is liable to be discarded. There is variation in the evidence of the prosecution witnesses about the time, date and place of the confession as also the recovery of the dead body. The testimony of the witnesses that the accused Kunta Devi has lead to the recovery of the dead body in the Jungle, therefore, is unbelievable.
(iii) Last seen evidence:- Now, we are left with the only evidence of last seen. Two witnesses namely PW-2 and PW-3 had been produced in the witness-box to prove that they had seen the deceased Ratan Lal along with his wife Kunta Devi, his son-in-law Ram Prakash and two other persons namely Chhatrapal, a friend of Ram Prakash and Devidas a relative of the deceased, at a place which was Kamaree Tiraha during day time. We may record that there was nothing unnatural about the presence of the husband and wife, son-in-law, a relative and a friend together at a public place. However, no one had seen them moving towards the Jungle from Kamaree Tiraha. No one had seen the deceased and the accused together near the Jungle nor the accused persons have been spotted together at any place near the recovery of the dead body after the murder at any point of time before the alleged confession of two of them. Even if it is accepted for a moment that two witnesses namely PW-1 and PW-2 had seen all the accused persons and the deceased together at the Kamaree Tiraha during day time, by the fact that two accused persons namely Kunta Devi and Ram Prakash came home and the deceased did not return, it cannot be inferred that accused Kunta Devi and Ram Prakash have committed the murder. No burden can be laid upon them to explain the circumstance in which the deceased had gone missing. PW-1 who was also a resident of the common dwelling unit did not state that he had noticed anything suspicious in the behaviour of Kunta Devi and Ram Prakash or that he had seen them coming back together in any suspicious manner. The simple statement of PW-1 was that when his brother did not return, he along with others started searching for him and after three days, getting suspicious, he along with the villagers had interrogated the wife of the deceased namely Kunta Devi. In these three days, from the time when the deceased and accused were last seen together at Kamaree Tiraha till the time when Kunta Devi was interrogated by the villagers, nothing suspicious could be noticed by PW-1 against the accused persons.
25. This apart, the statements of two witnesses namely PW-2 and PW-3 about the reason of them going to Kamaree Tiraha, the place of last seen and the conveyance taken by them together are at variance. PW-2 stated that they were going in a truck to Rudrapur when they saw the accused and deceased together whereas PW-3 averred that they went to buy pesticides and got down at Kameree Tiraha when they was the accused persons and they came back by bus after some time. In view of the shaky version of the witnesses of last seen and the fact that there was nothing unusual about the family members having been together at a public place during day time, no inference can be drawn against the accused persons. The evidence of last seen does not inspire confidence of the Court.
26. Moreover, the last seen theory, i.e. evidence that the deceased was seen alive in the company of the accused is only a link in the chain of circumstance, though important as it may point towards the guilt of the accused with some certainty. As noted by the Apex Court in Nizam and another vs. State of Rajasthan9 the "last seen theory" holds the Courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. The principle is based on the provisions of Section 106 of the Evidence Act which lays down that when any fact is established within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. But Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution.
It is well-settled that it is not prudent to base the conviction solely on the "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. The principle is that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. Thus, in any case, the burden to prove the guilt of the accused is always on the prosecution. If the prosecution has succeeded in proving the fact by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference can be drawn against the accused and then only the onus can be shifted upon the accused to offer explanation under Section 106 of the Evidence Act.
27. In light of the evidence before us, the conviction cannot be based only on the circumstance of the "last seen together" of the deceased with the accused. Even if, it is accepted that the accused persons were seen together with the deceased, it would at best to be the evidence of the appellants having been "seen last together" with the deceased but the prosecution story does not proceed further. Only circumstance of last seen will not make a complete chain of circumstances in itself so as to record the finding that it is consistent only with the hypothesis of the guilt of the accused persons and, therefore, no conviction on that basis alone can be founded.
Four tests to rest a case solely on circumstantial evidence, as noted below, are not satisfied in the facts and circumstances of the case:-
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
28. Lastly, the contention of the prosecution that the accused persons did not offer any explanation under Section 313 Cr.P.C. and the explanation offered by them is false, does not help the prosecution, inasmuch as, when the prosecution has not been able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. At no point of time, burden could be shifted upon the defence to offer any explanation.
29. It is settled that where there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances, it was not required to prove anything. [Reference Anand Ramachandra Chougule (supra)]
30. Last but not the least, there is no recovery at the instance of the accused persons which would fall within the meaning of Section 27 of the Evidence Act. The recovery of the dead body of deceased Ratan Lal, on the alleged pointing out of Kunta Devi after confession at the instance of the villagers, cannot be seen as a circumstance against the accused persons.
31. In the facts and circumstances of the present case, we, therefore, find that the prosecution has failed to bring cogent evidence so as to link them with each other to form a complete chain which would unerringly point towards the guilt of the accused persons leaving all other hypothesis consistent with their innocence. The circumstances brought on record are not sufficient to hold the accused persons guilty of the offence of which they have been convicted.
In view of the above discussion, we find that the judgment and order dated 5.9.2008 passed by the Additional Sessions Judge, Fast Track Court No. 2, Rampur in Sessions Trial No. 75 of 2005 (State vs. Smt. Kunta Devi and others) arising out of Case Crime No. 317 of 2004, under Sections 364, 302/34 and 201 IPC, Police Station Bilaspur, District Rampur, suffers from grave error of law. The same is hereby set aside.
The appeals are allowed.
The appellants Ram Prakash, Smt. Kunta Devi and Chhatrapal are in jail. They shall be released from the jail forthwith, if not wanted in any other case.
The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary compliance.
The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad within one month.
Sri Nipun Singh learned Amicus Curiae rendered valuable assistance to the Court. The Court quantifies Rs. 15,000/- (Rupees Fifteen Thousand only) to be paid to Sri Nipun Singh learned Advocate towards fee for the able assistance provided by him in hearing of the Criminal Appeal No. 6545 of 2008 and Jail Appeal No. 22 of 2022. The said amount shall be paid to him by the Registry of the Court within the shortest possible time.
(Subhash Chandra Sharma,J.) (Sunita Agarwal, J.)
Order Date :- 02.11.2022
Brijesh