Allahabad High Court
Devendra vs State Of U.P.Td. on 23 February, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:31698-DB A.F.R. Reserved On: 01.02.2024 Delivered On: 23.02.2024 Court No. - 46 Case :- CRIMINAL APPEAL No. - 22 of 1992 Appellant :- Devendra Respondent :- State Of U.P.Td. Counsel for Appellant :- Sri Ram Babu,Amit Kumar Srivastava,Ram Babu Sharma,Ravi Kant,Sanjay Agarwal,Vijit Saxena Counsel for Respondent :- GA Hon'ble Siddharth,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Delivered by Ram Manohar Narayan Mishra,J.)
1. Heard Sri Amit Kumar Srivastava, learned amicus curiae for the appellant and learned AGA for the State and perused the material placed on record.
2. By means of instant criminal appeal, the convict-appellant has assailed the correctness of the judgement and order dated 19.12.1991, passed by learned IV Additional Sessions Judge, Bulandshahar, in S.T. No.121 of 1990, arising out of Case Crime No.122 of 1989, Police Station Khurja Dehat, District Bulandshahar, whereby, the appellant has been convicted for charges under Sections 364, 302 IPC and sentenced to undergo ten years rigorous imprisonment for offence under Section 364 IPC and imprisonment for life for offence under Section 302 IPC.
3. The prosecution case in brief is that on 24.10.1989, at about 6:00 P.M., accused Devendra carried away Rajkumar, son of Budhha, who was nephew of the informant, Pooran Singh (PW-1), on pretext of making him watch Ramleela, from home of the victim, in presence of Devi Singh and Satyaveer Singh. After two hours, at about 8:00 P.M., Chandrapal and Prakash, the co-villagers of the informant told him that they had seen Rajkumar going towards Village Jhumka, in company of Devendra on 'Patri of Bamba', from the plot of Sardar Singh, lying at a distance of 500 paces. They also heard sound of firing. These witnesses apprehended occurrence of some untoward happening. On this information, the informant together with several persons of the village, went in search of his nephew, Rajkumar, but could not get his whereabouts in the night. On next date i.e. 25.10.1989, they again proceeded in search of Rajkumar in the early morning and when they reached near plot of Sardar Singh, the dead body of Rajkumar was found in the water of 'bamba'. The dead body was taken out of the water and placed on patari, firearm injuries were visible on person of the deceased. The accused Devendra had long-standing enmity with Rajkumar but prior to 15 days of the incident, he developed friendship with the victim Rajkumar and made him to accompany him on pretext of watching 'Ram-leela', in a planned manner with intention to kill him. The informant got a written report scribed by Rajpal Singh and went to police station where he lodged the FIR. The FIR was registered vide Case Crime No.122 of 1989, at police station Khurja Dehat, on 25.10.1989, at 8:00 A.M., against named accused Devendra. The S.H.O. concerned took over the investigation of the case herself. She collected plain earth and blood stained earth from the place of recovery of the dead body of the deceased on 25.10.1989, in presence of Gram Pradhan, Jaipal Singh, son of Meva Ram and one Jaipal Singh, sone of Sadhu Singh. She had also taken into possession one pair of socks and shoes from the place of recovery of the dead body and got it sealed. The inquest on dead body of the deceased was conducted by the Investigating Officer, S.I. S.K. Singh (PW-6), between 9:00 AM to 10:00 AM on 25.10.1989, in presence of Panch witnesses, near track of Bamba, at Jungle Village Bagrai, where dead body was found. The postmortem examination on the dead body of the deceased was conducted by Doctor R.K. Lal (PW-5) on 25.10.1989, at about 4:10 PM. The Doctor received the dead body in a sealed cover, brought by two police personnel. He examined the injuries found on person of the deceased and prepared his postmortem examination report in his signature and handwriting, which was proved as Ex.Ka-2 by evidence of Doctor. Following injuries were found on the person of the deceased Rajkumar, according to his postmortem examination report:-
(1) Entry wound of gunshot on middle of chest on inter apple line; margins were inverted, size 1 inch in diameter and there was blackening and tattooing in the area of 1 ½ inches, around the injury. The direction was backwards.
(2) Gunshot wound of exit on the right side back, just by the side of vertebral column at level of thoracic vertebra, size 3/4 inch diameter; margins averted. The direction of the edges were towards forwards.
Age of the deceased as about 18 years. Time of death was about 3/4 days. Rigor mortis was present all over the body. The doctor found that 5th rib was broken in the internal examination of the dead body. The membranes of heart were badly damaged. Blood veins were lacerated near heart. Pericardium was badly lacerated. Internal injuries were caused as a result of injury No.1. In the opinion of Doctor, the cause of death was shock and haemorrhage, as a result of antemortem injuries.
4. The Investigating Officer submitted chargesheet before the Court of Magistrate having jurisdiction, as offence was exclusively triable by Court of Session, the case was committed to Court of Session for trial by learned Chief Judicial Magistrate. The trial judge i.e. IVth Additional Sessions Judge, Bulandshahar framed charges under Sections 302, 364 IPC against accused-appellant Devendra on 5.6.1990, on commencement of trial.
5. The prosecution examined PW-1 Pooran Singh; PW-2 Chandrapal; PW-3 Premvati; PW-4 Satyaveer Singh, as witnesses of fact and PW-10, Rajjan; Dr. R.K. Lal, the author of postmortem report of the deceased as PW-5; PW-6 S.I. S.K. Singh, the author of inquest report; PW-7 Constable of Police Omveer Sharma, who was entrusted dead body of the deceased Rajkumar for postmortem after inquest proceedings; PW-8 Head Constable Yogendra Singh, the scribe of chik FIR and PW-9 S.O. Kumari Mala Rani, the Investigating Officer. The statement of accused Devendra was recorded by the trial court after conclusion of prosecution evidence, in which he has stated that the witnesses have deposed against him due to village partibandi and enmity. He has not committed any offence. The accused Devendra did not adduce any defence evidence. His defence is that of denial. Learned trial judge after appreciating the evidence on record and considering the submissions of both sides, found the accused as guilty of charge under Sections 364 and 302 IPC and convicted him for said charges and sentenced him, as aforesaid, by impugned judgment and order dated 19.12.1991. The accused appellant feeling aggrieved by the impugned judgement and order, preferred present appeal under Section 374(2) Cr.P.C., before this Court. The appellant was enlarged on bail by orders of this Court dated 3.1.1992, during pendency of appeal.
6. Learned counsel for the appellant filed written submissions on behalf of the appellant, which is placed on record. The main plank of the arguments advanced by learned counsel for the appellant are as follows:-
(1) unexplained delay in lodging of First Information Report. The deceased was said to be taken by the appellant on 24.10.1989, at 6:00 PM but the First Information Report was lodged on next day i.e. 25.10.89 at 8.00 p.m., after the recovery of dead body.
(2) P.W.-1 and PW-3 have stated that there was previous enmity with the appellant despite that deceased was permitted to go with the appellant. This does not sound natural.
(3) P.W. 1 does not appear to be witness of last seen as initially he has stated that he was told by Premwati and Satyaveer that the appellant took the deceased with him, but subsequently he himself assumed the role of the witness of aforesaid fact, during trial.
(4) As per the statements of prosecution witnesses of fact they went to place of incident/ recovery of dead body in the night itself but nothing was found, however in the morning the dead body was found at the same place, where they visited in the night of 24.10.89. Thus, the manner and place of incident is highly doubtful.
(5) Conduct of P.W. 2 is highly unnatural as he heard the noise of fire of firearm but he did not even try to enquire about the said fact rather he returned back to home.
(6) P.W. 3, Smt. Premwati, is neither cited as witness in the First Information Report nor in the charge- sheet despite that she was examined during the trial as a witness of last seen.
(7) The time gap between the last seen and recovery of dead body is too long i.e. almost 12 hours and therefore the evidence of last seen is of no consequence.
(8) P.W. 10, before whom the appellant is said to have made extra judicial confession, himself admitted enmity between him and the appellant. Moreover he does not appear to be an influential persons hence there was no occasion for the appellant to make extra judicial confession before him.
(9) Prosecution story is not consistent with the medical evidence available on the record as no bullet or pellet was found in the dead body. No symptom has been found that the body was lying in the water.
(10) Prosecution failed to prove motive for committing the alleged offence, which is most important in cases based on circumstantial evidence.
(11) Links of chain of circumstances are not proved in the manner so as to form a complete chain from which an inference of the guilt of the accused could be drawn, unerringly.
7. Learned counsel for the appellant placed reliance on the judgements of Apex Court in Kanhaiya Lal vs. State of Rajasthan, (2014) 4 SCC 715 and Nizam and Another vs. State of Rajasthan, 2015 (91) ACC 243, Sahdevan vs. State of Tamil Nadu, 2012 (78) ACC 228.
8. On the basis of aforesaid submissions and in the light of case law, cited as above, learned counsel for the appellant prayed that the appeal is liable to be allowed and the appellant may kindly be acquitted of the charges, for which he has been convicted and sentenced by learned trial Judge in impugned judgement and order.
9. In Kanhaiya Lal vs. State of Rajasthan, (supra), Hon'ble Apex Court has observed that "The appellant was convicted by trial court for charge under Sections 302/201 IPC and sentenced to 3 years rigorous imprisonment with fine for charge under Section 201 IPC and imprisonment for life with fine for charge under Section 302 IPC. Co-accused were acquitted of all the charges. Judgement and order of trial court was affirmed by High Court in criminal appeal. The conviction was mainly based on evidence of last seen. The prosecution case was that the accused appellant committed murder of victim by strangulating him and threw the dead body in the well. No body witnessed the occurrence and case was registered on the basis of circumstantial evidence. Hon'ble Apex Court held that It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
10. Learned Apex Court in Kanhaiya Lal vs. State of Rajasthan, (supra) further observed as under:-
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. ........
15. The theory of last seen - the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh vs. State of Rajasthan (2010) 15 SCC 588."
11. In Nizam and Another vs. State of Rajasthan (supra), Hon'ble Apex Court while deciding appeal against judgement of conviction and sentence of appeal for charge under Section 302/201 IPC, observed as under:-
8. Case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his evidence.
9. The principle of circumstantial evidence has been reiterated by this Court in a plethora of cases. In Bodhraj @ Bodha And Ors. vs. State of Jammu & Kashmir,(2002) 8 SCC 45, wherein this court quoted number of judgments and held as under:-
"10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99, Eradu v. State of Hyderabad AIR 1956 SC 316, Earabhadrappa v. State of Karnataka (1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985) Suppl. SCC 79, Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P., 1989 Suppl. (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
10. In Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681, this court held as under:
"12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence." The same principles were reiterated in Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205, Sampath Kumar vs. Inspector of Police, Krishnagiri (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621 and a number of other decisions.
14. Courts below convicted the appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the appellants on 23.01.2001. Undoubtedly, "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. 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. It is well-settled by this Court that it is not prudent to base the conviction solely on "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.
15. Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:-
"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218)" The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319."
12. Learned counsel for the appellant also cited a judgement of Hon'ble Apex Court in Sahdevan vs. State of Tamil Nadu, 2012 (78) ACC 228, wherein Hon'ble Apex Court considered and laid down the law relating to evidentiary value of extra judicial confession and its effect on recording the verdict of guilt of an accused and observed as under:-
12. There is no doubt that in the present case, there is no eye-witness. It is a case based upon circumstantial evidence. In case of circumstantial evidence, the onus lies upon the prosecution to prove the complete chain of events which shall undoubtedly point towards the guilt of the accused. Furthermore, in case of circumstantial evidence, where the prosecution relies upon an extra-judicial confession, the court has to examine the same with a greater degree of care and caution. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra- judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.
13. Now, we may examine some judgments of this Court dealing with this aspect.
14. In Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC 259], this Court stated the principle that an extra-judicial confession, by its very nature is rather a weak type of evidence 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 loses its importance.
15. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Court held that it is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession.
16. Again in Kavita v. State of T.N. [(1998) 6 SCC 108], the Court stated the dictum that there is no doubt that conviction can be based on extrajudicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made.
17. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in the case of State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] stated the principle that an extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The Court, further expressed the view that such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused.
18. In the case of Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230], the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material, as unjustified, observed:
"87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.
89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."
19. Accepting the admissibility of the extra-judicial confession, the Court in the case of Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that :-
"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 & 42), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of W.B.]
30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872."
22. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.
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.
13. On issue of evidence of 'last seen' Hon'ble Supreme Court in Sahdevan vs. State of Tamil Nadu, (supra), observed as follows:-
31. With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of this Court. The Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. In Arjun Marik v. State of Bihar [1994 Supp.(2) SCC 372], this Court took the view that the where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased. The Court further observed that it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused and, therefore, no conviction, on that basis alone, can be founded.
32. Even in the case of State of Karnataka v. M.V. Mahesh [(2003) 3 SCC 353], this Court held that merely being last seen together is not enough. What has to be established in a case of this nature is definite evidence to indicate that the deceased had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in the absence corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the Court.
33. In the case of State of U.P. v. Satish [(2005) 3SCC 114], this Court had stated that the principle of last seen 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.
34. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. But this theory should be applied while 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.
14. Per contra, learned AGA appearing for the State submitted that there is no infirmity or any factual or legal error in the impugned judgment and order passed by learned court below, whereby the appellant has been convicted and sentenced for charge under Sections 302, 364 IPC. The case is based on circumstantial evidence but all the links of chain of circumstances are complete in the case and are proved by the prosecution evidence in present case. The complicity of accused is based on evidence of witnesses of last seen as well as extra-judicial confession made by the accused to PW-10, Rajjan. The mode and manner of commission of offence is corroborated by medical evidence also. Motive is also proved by the evidence of witnesses of fact. The delay in lodging of FIR is explained in FIR itself. The appeal deserves to be dismissed.
15. A perusal of evidence and material on record reveals that according to the FIR version and evidence of PW-1, informant, his nephew namely, Rajkumar, son of Buddha, was carried away by accused Devendra Singh on 24.10.1989, at around 6:00 P.M., from his home on pretext of watching Ram-leela, which was organized in Village Jhumka. In FIR, it is stated that the accused carried away the victim from the home. The witness Chandrapal and Prakash (PW-2) told the informant at around 8:00 PM, on same day, that they had seen Rajkumar walking alongwith Devendra towards village Jhumka, at the track of Bamba, near the field of Sardar Singh and just after they walked about 200 paces from the place where they had seen the victim and the accused, they heard sound of firing, due to which they suspected that some untoward happened to the victim Rajkumar. The informant moved to the probable place, placing reliance on the statement of the said witnesses namely, Chandrapal and Prakash, taking alongwith him some co-villagers in search of his nephew, Rajkumar, but could not find him in the night. The accused and victim could not be traced till following morning and, therefore, the informant, Pooran Singh (PW-1) again moved in search of his nephew, at around 6:00 AM, accompanied by 10 to 20 persons including Jaipal, Buddha (father of deceased), Kartar, Prakash, Sardar Singh and others. When he reached near agricultural field of Sardar Singh, at the track of Bamba, he found that wooden bandha was installed in the Bamba and dead body of Rajkumar was stuck therein. There was water also in the vicinity of the dead body. He took out the corpse from Bamba and placed the same on track of Bamba. He went back to his home where he got the report scribed by Suraj Pal, as per his dictation and after going through the contents of the written report, he filed the same at police station. PW-1, proved the written report as Ext. Ka-2 during his evidence before the Court, which is signed by him and scribed by Suraj Pal.
16. PW-1, Pooran Singh, has stated in cross-examination that prior to this incident, accused Devendra had committed mischief by fire in the grove of Rajkumar, due to which some mango trees got burnt. A claim was filed by him in this regard as the grove belong to deceased Rajkumar as well as witness Pooran Singh. He admitted that there was enmity between himself and deceased and on that of the accused Devendra on the other hand. In the case which pertains to mischief by fire, Satyaveer, Jaipal, Devi and Buddha were witnesses but Chandrapal was not witness therein. His brother, Buddha, the father of the deceased, was also present in the village on the fateful day. His sister-in-law (bhabhi), Premwati and Satyaveer had told him at around 7:00 PM, on the date of incident that the accused Devendra had carried away Rajkumar with him. The witness and his brother, Buddha, were residing separately.
17. Learned counsel for the defence pointed out that in cross-examination, PW-1, has taken a new case in contradiction to his prevision statement that his bhabhi, Premwati and Satyaveer had told him that Devendra had carried away the deceased, Rajkumar, with him and prior to this, he himself saw Rajkumar, walking in the company of Devendra, at 6:00 PM and he asked them to stop but they did not stop thereupon, he thought that it would be better if they unite. The witness admitted that he did not get this fact scribed in his statement under Section 161 Cr.P.C. that he had stopped Rajkumar and Devendra but stated that he had seen accused and deceased walking together on fateful day. He also told the Court during cross-examination that on being told by Chandrapal, he went towards Bamba but could not find anything due to darkness and they came back empty hand. The dead body was retrieved at 6:30 AM on the next morning. He remained there up to 7:30 AM and thereafter got the report scribed by his son, Surajpal, which took half an hour and place the same at police station. The witness denied the defence suggestion that Chandrapal had stated nothing to him regarding version of last seen together of deceased and accused.
18. PW-2, Chandrapal, is examined as an independent witness as no enmity with the accused has been suggested by defence with regard to him. He in his evidence stated that he had seen victim and accused Devendra walking together towards village Jhumka, at the track of Bamba. His companion Prakash was also with him at that time. He was returning after discharging some agricultural work in his field, they saw the deceased and accused near the field of Sardar. He asked them about their movement whereupon, Devendra stated that they were going to watch Ram-leela. Devendra was having a 'katta' (countrymade pistol) in his hand. They walked towards village Jhumka. He turned to his village alongwith Prakash and when they reached on pitched road, they heard the sound of firing of countrymade pistol, which came from village Jhumka. He went to his home. The witness Buddha and his wife (Premwati) met him and asked him that whether he saw Rajkumar, he stated that Rajkumar and Devendra met him near the field of Sardar. These old persons met him at the threshold of their home. No any other met him and he went straight to his home. He had not met Pooran Singh in that evening.
19. The witness Chandrapal has stated in his statement before Investigating Officer that he had told the fact that he met Rajkumar and accused when they were walking towards village Jhumka, in the evening of fateful day and had told this fact to PW-1 (Pooran Singh), however, he deviated from this fact in his evidence before the Court wherein he stated that he had not met Pooran Singh (PW-1) at that time and was declared hostile at the instance of prosecution and was permitted to be cross-examined by the prosecution, wherein, he has stated that it would be wrong to say that when he went to his home, he saw Pooran sitting in front of his house on a cot and he told him about the factum of seeing Rajkumar and Devendra together. He stated that the Investigating Officer asked about this matter on next day, he had only stated to Investigating Officer that he heard sound of firing. When he interrogated him about the incident and also told him that he had seen the victim and accused moving towards Bamba together but he had not told him that he and Prakash apprised Pooran of this fact on reaching the village when he was found sitting on his cot in front of his home. He had also not told him that mother of Rajkumar was moaning and asking about Rajkumar and thereupon, he stated to her about Rajkumar and Devendra. It is possible that Pooran might have been sitting in his house as the doors of houses of Rajkumar and Pooran are nearby each other. He further stated that on next date, he had seen the dead body of Rajkumar on track of Bamba but it was not retrieved in his presence. He had seen the dead body at 6:00 AM on the track of Bamba. On being cross-examined by defence, this witness stated that when he had seen Rajkumar and Devendra on fateful day, there was darkness and the place from where he saw them was 100 to 150 yards away from pitch road. His field fromwhere he was returning after work was lying eastwards to the track of Bamba. Ram-leeta would begin in day hours and lasted till mid night but he had not went to see Ram-leela. He failed to recollect as to whether at the time of incident, Ram-leela was being organized at village Jhumka or not. This statement of witness was recorded after one year of the incident. He admitted that he had not moved towards the place from where sound of firing came. He had seen the victim and accused around 7:00 PM.
20. PW-3, Smt. Premwati, the mother of the deceased, has stated in her evidence that the accused took her son, Rajkumar, away with him on the fateful day around 6:00 PM by giving him an offer to watch Ram-leela. She stated that she initially objected to this but accused assured her that there is nothing to worry and he would take care of everything. She has also stated that she told about this fact to his brother-in-law (devar), Pooran Singh, who also stated that he had seen them going together. After some time, her co-villagers Chandrapal and Prakash came to her place and told that they had seen Rajkumar and Devendra at the track of Bamba while walking towards village Jhumka and heard the sound of firing. Rajkumar did not turn back and the people went in search of him but failed to find him. The dead body of Rajkumar was found at the track of Bamba just on rising of sun on the next date. In cross-examination, the witness stated that she was not interrogated by Investigating Officer and she was deposing before the Court for the first time. Ram-leela would be closed at 12:00 hours in the night. She waited for her son till 8-9 PM. Ram-leela would start from 9:00 PM. She is unable to state that how Sub-Inspector recorded her statement. There was enmity between her son and accused Devendra as the accused had burnt her mango trees, which jointly belong to her and the informant Pooran. There was litigation between Devendra and Buddha (her husband). The accuse started visiting her place prior to 15 to 15 days of the incident but failed to elaborate as to how her son Rajkumar and accused got associated. When the accused took her son away with him, her husband was not present in her house. The houses of the witness and Pooran are not seprate but one. Chandrapal told her about above victim and accused on his own and without her asking. When Chandrapal told her about the incident, her husband was present in the house and just after getting the information, her family members and others went in search of Rajkumar taking lantern and torch in their hand. Chandrapal had not accompanied the witnesses in the morning.
21. PW-4, Satyaveer is also a witness of last seen, who stated that on fateful day, at around 6:00 PM, he visited the place of Buddha but could not find him. He saw Rajkumar and Devendra at the door of his house and asked about Buddha, Rakumar told him about his father Buddha and stated that he was going to Village Jhumka. He came back after making call to Buddha. A commotion occurred at around 8:00 PM in the village that Rajkumar has become untraceable. Thereafter, he visited the track of Bamba in the company of Pooran and others but could not find Rajkumar there. They again visited the place together with Surajpal and others and found the dead body, which they retrieved from Bamba and kept on track. In cross-examination, the witness stated that he met Buddha on the date of incident at about 8:00 PM, he is his uncle in relation but not real uncle. He re-visited the place of Buddha at 8:00 PM, where villagers had assembled and there he stated that Rajkumar went with Devendra. They made a search for Rajkumar in the night in the nearby places of Bamba but came back. When, he visited the place of recovery of dead body on the next day, the dead body was already taken out from the water and kept on track by Buddha and Devi. They placed dead body on other track of Bamba. The houses of Buddha and Pooran are situated at nearby. He is not having any enmity with Devendra. He is not a witness in the case of mischief by fire against accused Devendra.
22. PW-10, Rajjan Singh, is co-villager of the informant and accused, who has given evidence of extra judicial confession against accused. He has stated before the Court that after three days of the incident of murder of Rajkumar, accused Devendra, who was present before the Court, came and met him outside the home and touched his feet and expressed his regret regarding death of Rajkumar and prayed him to reconcile the matter with Buddha Ram, the father of the deceased. He also made monetary offer in the matter for compromise. He anyhow got rid off Devendra on that day. The witness stated in his cross-examination that a case under Section 307 IPC was registered at the instance of accused Devendra against him, after this incident and the fact that Devendra had confessed to him of having committed this offence, was only disclosed by him to the Investigating Officer and none else, who recorded his statement on 29.10.1989, at the police station. He had not spoken about the offer of accused Devendra to Buddha. Devendra confided to him about this matter separately at this place.
23. So far as the exhibits are concerned, PW-1, Pooran Singh has proved written report dated 25.10.1989 as Ext.Ka-1; PW-5 Dr. R.K. Lal, has proved postmortem examination report of the deceased as Ext.Ka-2; PW-6, S.I. S.K. Singh, has proved inquest report of the deceased as Ext.Ka-3 and papes relating to postmortem of the deceased as Ext.Ka-4 to Ext. Ka-8; PW-8, Head Constable Yogendra Singh, has proved chik FIR as Ext.Ka-9 and extracts of GD of registration of case dated 25.10.1989 as Ext.Ka-10 and PW-9, S.I. Kumari Mala Rani, the Investigating Officer has proved recovery memo of socks and shoe of deceased as Ext.Ka-13, site plan as Ext.Ka-11, recovery memo of plain and blood stained earth as Ext.Ka-12, statement of witness Chandrapal as Ex.-14 and chargesheet as Ext.Ka-15 by her evidence.
24. Learned trial court after appreciating the evidence on record concluded that prosecution has successfully proved its case beyond any doubt. The only conclusion from circumstantial evidence in the case can be drawn regarding guilt of the accused. The chain and link of the circumstantial evidence is very complete, which gives only one conclusion. It is proved by evidence that accused Devendra had abducted the deceased with knowledge to commit murder who succeeded in his plan and carried away Rajkumar with him, thus, the evidence under Section 364 IPC is well proved against accused. In this case, it is well proved by the circumstantial evidence that it was only Devendra and none else who committed murder of Rajkumar. Devendra was having countrymade pistol, thus, the offence of committing murder is also proved against accused Devendra. With these evidence, learned trial court has convicted and sentenced the appellant as aforesaid.
25. The prosecution case is based on circumstantial evidence as this is admitted position that there is no eye-witness of the incident. The prosecution case stands on mainly two sort of evidence:- (1) evidence of last seen of deceased together with the accused given by PW-1, Pooran Singh, PW-2 Chandrapal, PW-3 Premwati and PW-4 Satyaveer Singh; (2) extra judicial confession allegedly made by the appellant to PW-10 Rajjan. However, if we meticulously scrutinize the evidence of these witnesses, we find that there are inherent infirmities in their evidence. The prosecution case is that the accused appellant carried the deceased away from his home on pretext of watching Ram-leela with intention to kill him and killed the deceased by firing a shot at him in quick succession, at around 6/7:00 PM, on fateful day. The dead body was found stuck in the bridge lying on water of Bamba on the next day at around 6:00 AM and dead body was retrieved from water by the informant and his co-villagers. Doctor, who conducted postmortem on the dead body of the deceased opined that cause of death was shock and haemorrhage due to antemortem firearm injury. The injuries were sufficient to cause death in ordinary course of nature. In the opinion of Doctor, the death was possible in the evening of 24.10.1989, which is estimated time of death as stated in statement of witnesses of fact. The deceased suffered one wound of entry in his chest and one exit wound on his back, which reveals that deceased suffered one firearm injury. According to the opinion of Doctor, the internal injuries detected on person of the deceased were fall out of injury No.1. In view of wound of exit corresponding to the wound of entry, this is natural that no pieces of bullet or pellets were found inside the dead body.
26. The informant, Pooran Singh, who has been examined as PW-1, stated in FIR itself that there was previous enmity between the deceased and accused and in his evidence as PW-1, he has elaborated that this enmity was due to the fact that the accused caused mischief by fire in mango grove, which was jointly shared by the informant and the deceased, who was his nephew and the informant got a case registered against accused for that misdeed. The informant has also stated in FIR as well as in his evidence that the accused tried to come into close contact with the deceased 15 days prior to the incident and he has nowhere stated in the FIR as well as in his examination-in-chief that the deceased left his home in company of the accused in his presence and he has stated in FIR as well as in his examination-in-chief that at around 6:00 PM, on the date of occurrence, the accused carried away deceased on pretext of watching Ram-leela towards village Jhumka and he had received this information from witness Chandrapal, who had stated that Devendra and Rajkumar were on inimical terms; he had seen them walking towards Jhumka and he heard sound of firing and then he apprehended that something untoward had happened to him. He had clarified in examination-in-chief that prior to this nobody told him about these facts and he immediately rushed to the place alongwith 4 persons to search out Rajkumar but he failed to find him in the night. However, he has stated in cross-examination that in the case filed by him against accused for committing mischief by fire, Satyaveer, Jaipal, Devi and Buddha- his brother, were witnesses. He took a new fact in cross-examination that Premwati (PW-3), the mother of the deceased and Satyaveer (PW-4), had told him that accused Devendra carried away Rajkumar at around 7:00 PM on the date of incident. He took an entirely new case during cross-examination that prior to getting the information about Rajkumar, he had himself seen the deceased going in company of the accused, at around 6:00 PM. However, this fact is neither written in FIR nor in statement of the witness under Section 161 Cr.P.C. recorded by the Investigating Officer. His statement under Section 161 Cr.P.C. is wrongly exhibited during evidence of PW-9, S.O. Mala Rani, in violation of proviso to Section 162(1) Cr.P.C.
27. This fact is also not credible that PW-4, Chandrapal, had seen the deceased and accused together in the evening of fateful day and accused was having a countrymade pistol in his hand and even after hearing the sound of firearm, he had not tried to further enquire the fact and came back his home. PW-1 has stated that Chandrapal has stated that he had seen the accused and deceased on the track of Bamba when he was returning home from his field, near the field of Sardar Singh. He has stated that he apprised the parents of the deceased of this fact on way to his home, when they met him and made a query about Rajkumar. These persons were standing at the threshold of their home and thereafter, he went to his home. He did not meet Pooran Singh on that date. For this reason, the witness was declared hostile and cross-examined by the prosecution but even in cross-examination, he did not admit that he had communicated with PW-1, in the fateful evening. He has also admitted that he had not gone in search of Rajkumar, when PW-1 went in search of Rajkumar alongwith co-villagers. He has clarified that he had seen the dead body in the next morning, which was kept on the track of Bamba. The witness failed to state that whether any Ram-leela was organized at Jhumka in the night of said date or not. Even the Investigating Officer (PW-9) has admitted that she did not enquire the fact that whether Ram-leela was organized in village Jhumka or not on the date of incident. Thus, there is material contradiction in the statement of PW-2, who is star witness of the case, from his previous statement recorded by the Investigating Officer that he has told the fact of last seen of deceased and accused together to PW-1, the informant.
28. Another witness of last seen namely, Prakash, who is said to have accompanying PW-2, Chandrapal, when he had seen the accused and deceased together, has not been produced during trial and he was discharged from evidence on application of prosecution on ground that he had been influenced by the accused.
29. PW-3, Premwati, is mother of the deceased, who has stated in her evidence that the accused took away her son Rajkumar from her home on pretext of watching Ram-leela. The deceased had demanded some money from her but she had no money with her and she had informed her brother-in-law (devar), Pooran Singh, in this regard, who had stated that he had also seen them going together. She has taken a new case that Chandrapal and Prakash told her about seeing the accused and deceased together when she was standing with Pooran Singh on her door. This is admitted fact that even after much efforts and getting the location of the place of incident from PW-2, PW-1 and his co-villagers could not trace out the deceased in the night. PW-3 has disowned her statement under Section 161 Cr.P.C. recorded by the Investigating Officer. She has also stated that deceased and accused were on inimical terms due to litigation, which was still pending. She has stated that her husband, brother-in-law Pooran and others went in search of her son in the night and came back after one and half hours empty handed, thus, on perusal of evidence of PW-3, we find a material improvement in her testimony before the Court from her previous statement recorded under Section 161 Cr.P.C., on 29.11.1989 i.e. after more than a month of the statement and this gave ample time for after thought.
30. PW-4, Satyaveer, has also been examined as witness of last seen but his name does not find mention in FIR whereas he has stated in his evidence that the accused took away the deceased alongwith him from the home of the deceased in his presence as he had come to the place of deceased in search of his father, Buddha. He has stated that he also accompanied PW-1 in the night in search of Rajkumar and again visited the place of incident in the morning, when dead body was found. This witness is collateral of the deceased. His statement under Section 161 Cr.P.C. was recorded long after the incident on 29.11.1989 and does not inspire confidence for these reasons.
31. PW-10, Rajjan, is witness of extra-judicial confession allegedly made by the accused to him after three days of the incident, in which the accused pleaded with him for extending his support in attaining a compromise with the family of the deceased. However, there is no whisper of the evidence that this witness is an influential person of the locality and was having influence on the family of the deceased. This is also strange that this witness had not told this fact to PW-1, the uncle of the deceased or parents of the deceased prior to his statement under Section 161 Cr.P.C. recorded by the Investigating Officer on 4.11.1989, i.e. after 10 days of the incident. He has also stated in cross-examination that he had not told this fact of accused making confession to him regarding murder of the deceased to any person prior to he narrated this fact to 'Darogaji'. The defence has given suggestion to this witness that he has deposed this fact on instruction of 'Darogaji' but he denied the same.
32. On perusal of aforesaid judicial authorities, a settled position of law emerges that evidence of last seen as well as extra judicial confession are weak piece of circumstantial evidence and reliance thereon can be placed only when they are of sterling quality and free from doubt. In present case, the evidence of witnesses of last seen as well as PW-10, the witness of extra-judicial confession, are not of such quality that on the basis of their evidence, the conviction of the accused can be recorded for a charge under Section 364 and 302 IPC. This is a principle of jurisprudence that the more serious the offence, the stricter the degree of proof or in other words the graver the offence, the stricter is the standard of proof. The star witness of the case namely PW-2, Chandrapal, resiled from his previous statement on a vital aspect. There is material inconsistencies in statement of witnesses of fact, as enumerated above, which give rise to reasonable doubt in veracity and credibility of their evidence.
33. In view of foregoing discussion, were are of the considered opinion that prosecution has miserable failed to prove its case beyond reasonable doubt and learned trial court has committed legal and factual error in recording the conviction of the deceased, placing reliance on circumstantial evidence given by the witnesses of fact in present case, which do not inspire confidence. The evidence of witnesses of last seen as well as that of PW-10, the witness of extra-judicial confession, are not free from doubt. Consequently, the appeal is liable to be allowed and the accused deserves to be acquitted of all charges by giving him benefit of doubt.
34. According, present appeal stands allowed and the impugned judgement and order dated 19.12.1991, passed by learned IV Additional Sessions Judge, Bulandshahar, in S.T. No.121 of 1990, arising out of Case Crime No.122 of 1989, Police Station Khurja Dehat, District Bulandshahar, whereby, the appellant has been convicted for charges under Sections 364, 302 IPC and sentenced him to undergo ten years rigorous imprisonment for offence under Section 364 IPC and imprisonment for life for offence under Section 302 IPC, is hereby set aside and the accused is acquitted from all charges. He is on bail and he need not to surrender.
35. The appellant is directed to file his bail and surety bonds in compliance of Section 437-A of Cr.P.C., within a period of 10 days from today.
36. Office is directed to return the lower court record alongwith certified copy of this Judgement for necessary information/compliance, to court concerned, within a period of two weeks.
37. Learned Amicus Curiae is entitled to get his professional fee of Rs.15,000/- (Fifteen Thousands), within a period of one month.
Order Date :- 23.2.2024 Kamarjahan