Allahabad High Court
Gulshan Alias Mekedam Singh Jatav vs State Of U.P. on 6 August, 2020
Bench: Sunita Agarwal, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- CRIMINAL APPEAL No. - 4122 of 2015 Appellant :- Gulshan Alias Mekedam Singh Jatav Respondent :- State of U.P. Counsel for Appellant :- R.B. Singh,Ambrish Kumar Kashyap,Mr Lav Srivastava,Noor Mohammad Counsel for Respondent :- Govt.Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Dinesh Pathak,J.
1. Heard Sri Ambrish Kumar Kashyap learned Advocate for the appellant and Sri Jai Narain learned A.G.A.-I for the State-respondents.
2. The present appeal is directed against the judgment and order dated 31.8.2015 passed by the Additional Sessions Judge, Court No. 8, District Aligarh in Sessions Trial No. 174 of 2014 (State vs. Gulshan alias Mekedam Singh Jatav son of Ashok Kumar, resident of Bhatoli, Thana Vijaygarh, Aligarh), arising out of Case Crime No. 292 of 2013 under Sections 452 and 302 IPC, Police Station Akrabad, District Aligarh. The sole appellant herein has been convicted for the offence under Section 302 I.P.C. and has been sentenced with life imprisonment alongwith fine of Rs. 10,000/-, with the condition that in case of default in payment of fine he shall undergo an additional one year imprisonment. The appellant has also been convicted under Section 452 I.P.C. and sentenced for a period of three years rigorous imprisonment alongwith fine of Rs. 5,000/- with the condition that in case of default in payment of fine he has to undergo additional imprisonment for a period of six months. All the punishments are to run concurrently.
3. The first information of the incident was given by Dharmendra Kumar son of Kishan Lal resident of Village Julupur Sihaur, G.T. Road near Mohkam Baba Mandir, Police Station Akrabad, District Aligarh, who is the brother of deceased Bal Kishan. The written report dated 19.10.2013 was submitted at the Police Station Akrabad, District Aligarh at about 22:00 hours (10:00 PM) reporting the incident occurred on the said date at about 1:30 PM (13:30 hours). The averments in the written report are that when the first informant Dharmendra Kumar, his wife Anju Bharti, brother Bal Kishan (deceased) and younger sister Anjali Gautam were in their house, the accused Gulshan alias Mekedam Singh Jatav entered into the house and shot dead Bal Kishan and ran away while threatening all present that he would shoot them, in case they tried to catch him. The motive to commit the crime as stated in the first information report was an altercation which took place between deceased and the accused on a day prior to the incident over Rs. 2,000/- borrowed by the accused. The accused Gulshan is distantly related to the victim party being son of maternal uncle of deceased. The information regarding the incident was given to the father of deceased by the first informant immediately on his mobile. The first informant and his wife took deceased to the Medical College and their father had also reached there. The doctors, however, had declared the victim having been brought dead. The first informant brought the dead body home after completion of the postmortem by the evening and, thereafter went to the police station concerned to lodge the first information report.
4. The inquest was done on 19.10.2013 in the J.N. Medical College, Aligarh by the Officer of Police Station Civil Lines, Aligarh, which had commenced at about 16:00 hours and concluded at 16:30 hours. The inquest report indicates that intimation was sent through a driver of J.N. Medical College, Aligarh. The inquest witnesses are family members and relatives of deceased. After inquest was completed, body was sent for postmortem to Deen Dayal Union Hospital, Aligarh. The postmortem report indicates that the body was sent by the Station House Officer, Police Station Civil Lines, Aligarh and was brought to the hospital by the Constable CP 2256 Bhagwan Singh posted in the Police Station Civil Lines, Aligarh.
5. The Antemortem Injuries (AMI) found on the person of deceased:-
" (1) Gun shot Entry wound 1.0 cm x 0.5 cm on left Side lower back just near the lt,. iliac crest & 1.5 cm lateral to vertebral column, margins were inverted, tattooing (+) around the margins.
(2) Gun Shot Exit wound 1.5 cm. x 1.0 cm. on left side Abdomen 6.0 cm. lateral to umbilicus margins everted."
The cause of death as indicated in the postmortem report was due to shock and haemorrhage as a result of Antemortem injuries. The estimated time of death was about 1/4th day back.
6. Amongst the formal witnesses, PW-7, Udal Singh proved the documents namely inquest report, letter R.I., letter C.M.O., photo Nash and Challan Nash being in his handwriting and signature, they are exhibited as Exhibits 'Ka-1', Ka-7, Ka-8, Ka-9 and Ka-10'. He had identified the clothes of deceased which were marked as Material Exhibits '1, 2 and 3'. PW-7 proved that the dead body was handed over to Constable Bhagwan Singh and Home-guard Mahaveer after completion of the inquest and they took it to the concerned hospital. PW.-6 Constable 1126, Shishpal Singh proved registration of the F.I.R. and preparation of the Chik report as Case Crime No. 292 of 2013. The written report and the Chik F.I.R. were proved and exhibited as Exhibits 'Ka-1' and 'Ka-6'. He deposed that it was the last report registered on 19.10.2013 in the Police Station Akrabad, Aligarh. The Doctor who conducted the postmortem entered in the witness box as PW-4 and proved the report being in his handwriting and signature, which was exhibited as Exhibit 'Ka-2'.
The Investigating Officer had entered in the witness-box as PW-5 and proved the site plan as Exhibit 'Ka-3' and Recovery Memo of the 'Bullet Brass Ranga' as Exhibit 'Ka-4'. He deposed that after registration of the F.I.R. and entry of the same in the General Diary, the investigation was handed over to him. He recorded the statement of the first informant on the same day and entered the written report and the said statement in the Case diary. The statement under Section 161 Cr.P.C. of other witnesses namely Anju Bharti (wife of the first informant), Km. Anjali Gautam (younger sister of deceased) and Kishan Lal (father of deceased) were, however, recorded on 30.10.2013. The accused was arrested on 6.11.2013 at C.D. Parcha No. 6 and the G.D. Rapat No. 30 at about 16:40 hours dated 6.11.2013 was entered in that respect. The charge sheet submitted by him was exhibited as Exhibit 'Ka-5'.
7. Thus, all the formal witnesses had proved the reports prepared by them. The prosecution had produced three witnesses to prove the occurrence, amongst whom PW-2 and PW-3 had appeared as eye-witnesses and stated to have seen the accused fleeing away from the spot after commission of crime. PW-1 is the father of deceased who categorically stated that he was not present in the house and got information of the incident from his elder son Dharmendra Kumar (the first informant) through telephone. He instructed the first informant to take the victim (his son) to the Medical College and informed that he would also reached there. The Doctors had declared the victim having been brought dead in the Medical College.
8. Placing the depositions of PW-2 and PW-3, it is contended by the learned counsel for the appellant that there are material contradictions in the statement of these witnesses regarding the actual occurrence and the place of incident. PW-2, the first informant stated that he was present in another room in the house and did not see the assailant entering the house. He came in the room where incident had occurred only after hearing the sound of the gun shot, however, he could recognize the assailant being Gulshan while he was running away. In the cross-examination, he states that apart from him, no other family member was present in the house and all of them came later. Whereas PW-3 (his wife) stated that she was also present in the house and saw the assailant Gulshan while he was opening fire at deceased. In her examination-in-chief, PW-3 giving an eye-witness account of the incident she stated that the deceased was shot in front of her eyes, but in the cross-examination she resile by saying that she had reached the spot hearing the sound of the gun shot and did not see the assailant opening fire and saw him only while he was running away from the spot and that her husband Dharmendra Kumar (PW-2) also reached the spot of crime at the same time.
9. The submission of learned counsel for the appellant is that the above contradictions in the statements of PW-2 and PW-3 clearly show that no one was present in the house and actually no one had seen the incident or at least they did not witness the assailant Gulshan in the house.
10. Besides that the action of the witnesses present in the house after the incident is also not natural, inasmuch as, PW-3 stated that they remained in the house for about one hour after the incident and, thereafter, took the injured victim to the Medical College by a Tempo. The Investigating Officer did not even seized the blood stained clothes of the said witnesses. No explanation is forthcoming for waiting in the house for about one hour when deceased was shot from a point blank range and there was risk to his life. The younger sister of deceased who was also present in the house as per the statement of witnesses was not produced. The mother of deceased also did not enter in the witness-box. There is an unexplained delay in recording the first statement (under Section 161 Cr.P.C.) of witnesses except the first informant by the Investigating Officer. It is contended that the first information report seems to be a result of consultation as it was lodged in the late evening and that the accused has been named after deliberations between the family members of deceased. In fact, no one knew who was the actual assailant till the postmortem was conducted. After it was ascertained that deceased was hit by one gunshot, entire story was cooked up in order to implicate the accused out of the annoyance or suspicion because of the altercation which took place on the previous day. There is no recovery of murder weapon at the pointing of the accused. There is nothing on record which would even indicate that any effort was made by the Investigating Officer to recover the murder weapon by taking the accused on remand. The place of incident was not visited by the Investigating Officer and the site plan was prepared while sitting at his desk. The site plan showing the place of incident is sketchy and recovery of an empty bullet from the place of incident is of no relevance, inasmuch as, it was planted by the first informant for recovery after three days of the incident. The Investigating Officer himself stated that he was informed by the first informant on 21.10.2013 that a brass bullet was lying in the open almirah in the room where deceased was shot. Having received the said information, the Investigating Officer reached the spot and the recovery memo Exhibit Ka-5 was then prepared showing the recovery made in the presence of two independent witnesses. No site plan of recovery of bullet was prepared by the Investigating Officer. As murder weapon was not recovered, there was no question of tallying bullet to ascertain whether it was fired by the murder weapon. Whether the said bullet had been used is also doubtful as it was not blood stained as per own deposition of the witnesses. There is no mention of any misfire and according to the witnesses only one gunshot was fired. The recovery is planted and, moreover, it cannot connect the appellant with the crime in any manner.
11. The inquest report was prepared by PW-7 who deposed that the dead body was taken out from the strong room wherein it was kept in the double lock but the inquest report does not mention the said fact. There is no public witness of the inquest though it was conducted in the Medical College. This apart, the conduct of the first informant in carrying the deceased to J.N. Medical College which was 15 kms. from his house is questionable for the reason that a Trauma Centre in the District Hospital was situated within 2 kms. distance from the place of the incident. In fact, it was a blind murder or a case of hit and run and no one had seen the incident or the assailant. The time of incident being around 1:30 PM is also disputed by the learned counsel for the appellant by saying that it was not possible to complete every formality with the conduct of postmortem by 5:45 pm, if it is accepted that the incident had occurred at 1:30 PM and victim was brought to the Medical College by 3:30 PM. The dead body though had been shown to be sent to the hospital for postmortem by the S.O, Police Station Civil Lines but it was not accompanied with Chitti Majroobi. The fact that the body was kept in the strong room of the J.N. Medical College, Aligarh further shows that none of the family members of deceased were accompanying him when he was brought to the hospital. The genesis of the incident has not been disclosed. The motive assigned to the appellant to commit the crime is very weak and remote. It cannot be believed by a reasonable man that a person would cause murder of his cousin over a petty dispute to return for Rs. 2,000/-.
12. It is, thus, vehemently argued that in the totality of the evidence on record, it cannot be said to be a case where weight of the evidence was such as to be treated as sufficient to inculpate the accused in the crime or to hold him guilty.
13. Reference has been made to the decisions of this Court in Jitendra & others vs. State of U.P.1, Shesh Narain vs. State of U.P.2, Suresh (Pradhan) vs. State of U.P.3 and Arvind Kumar vs. State of U.P.4.
14. Learned A.G.A., on the other hand, urged that it was a straight and simple case of murder inside the house where presence of witnesses was natural. Minor contradictions in the statements of witnesses who were normally residing with the deceased and had seen the assailant running away after commission of crime are not of much significance. Each and every contradiction in the deposition of eye-witnesses (PW-2 and PW-3) cannot be given undue importance to discard their testimonies. There is no contradiction in the ocular and medical evidence rather both corroborates each other. The first informant and another eye-witnesses clearly deposed that one shot was fired at the deceased and he was declared dead when he was brought to the Medical College. The act of witnesses in bringing deceased to the Medical College cannot be seen with suspicion as it is expected that the near relatives, brother and parents of the victim would make all possible efforts to give him best medical treatment. The incident had occurred within the jurisdiction of the Police Station Akrabad, District Aligarh which was near the place of incident but delay had occurred in registration of the first information report as all the family members including the first informant were accompanying the victim at the Medical College. Lot of time had been taken in completion of other formalities and there was no time with anyone to go to the police station concerned to lodge FIR.
15. Reference has been made to the decisions of the Apex Court in Darbara Singh vs. State of Punjab5 and Atmaram and others vs. State of Madhya Pradesh6 in support of his submissions.
16. Heard learned counsel for the parties and perused the record. The prosecution case rests on the evidence of two witnesses namely PW-2 and PW-3 (brother and sister-in-law of deceased) who were projected as eye-witnesses. PW-2 is the first informant who was present in the house when the incident had occurred. In his examination-in-chief, PW-2 stated that he, his wife, younger sister and brother (deceased) were present when the accused had entered in the house. In the cross examination, he, however, states that he was the only person present in the house and he reached the spot (which was another room) hearing the sound of gun shot. All other members of the family were not present and they came later. The presence of PW-3 (his wife) was, thus, belied by own version of PW-2. In the main examination, wife of the first informant namely PW-3 stated that she saw the accused opening fire on deceased Bal Kishan. However, in her cross, she contradicted her own version by saying that she reached the spot on hearing the sound of the gunshot. As per PW-3, she alongwith her husband took deceased to the Medical College where he was declared brought dead. They moved from the house after one hour of the incident and it took about one hour to reach the Medical College. The first information report was lodged by PW-2 after the body was brought back home on completion of the postmortem. The PW-1, father of the deceased was an Advocate practicing in the Civil Court, Aligarh and he was in the Civil Court premises when he got the news from his elder son. The Civil Court premises is close to the Medical College in Aligarh. The deceased had succumbed to his injury as soon as he was brought to the Medical College. The inquest was completed at about 4:30 PM and the body was then sent for the postmortem.
It is not understandable as to when both father and brother of deceased remained present in the Medical College why no one had gone to lodge the first information report when they knew the assailant. We fail to understand as to why father and brother of deceased would give time to the accused to hide or run away. According to us, the natural conduct of the family members would have been that one of them would have gone to the police station for lodging the FIR while the others had accompanied the dead body for conduct of other formalities. The concerned police station was not intimated about the crime committed within the area of their jurisdiction uptill 10:00 PM for no plausible reason. We may also note that though the concerned Police Station Akrabad, Aligarh was about 15-16 kms. from the Medical College but the prosecution had not made even an effort to explain the time taken in lodging of the first information report. It is difficult to believe that a man well versed in law (father of deceased) knowing that it was a police case did not go to the concerned police station to lodge the first information report though there was nothing for him to do in the hospital once the victim was declared dead. No effort at all was made by the first informant or his father to give information to the police about the incident. The inquest was conducted in the J.N. Medical College, Aligarh on the information given by the Hospital Authorities to the nearest police station i.e. Police Station Civil Lines, Aligarh. The inquest report, thus, became the first formal report of the crime. The relevant column of the inquest for giving details of the report and reason of death does not mention the name of the assailant though three witnesses of inquest are family members of deceased who later entered in the witness-box as eye-witnesses. It is surprising that none of the inquest witnesses disclosed the details of cause of death or the name of the assailant to the police at the time of inquest. In fact, in the instant case, the statement of Panch witnesses, two of whom had entered in the witness-box as eye-witnesses, is the first version of the witnesses about the incident and, thus, they were supposed to disclose the name of the assailant. For the first time, the name of the accused came in the first information report lodged at about 10:00 pm (22:00 hours), after about Nine (9) hours of the incident though it was a day-time occurrence. It, thus, seems to us that the witnesses and family members took time to lodge the first information report as either they were not sure as to who was the assailant or they wanted to conceal the identity of the real assailant for the reasons best known to them. The F.I.R. seems to be the result of deliberations and consultations of the family members.
The second circumstance which enhanced the impact of the delay in lodging the F.I.R. as a factor weakening the prosecution case is the undue delay on the part of the Investigating Officer in recording the statements (under Section 161 Cr.P.C.) of the other witnesses except the first informant. We may note that although these witnesses were available for interrogation when the Investigating Officer visited the scene of occurrence on the date of the incident itself being family members of deceased but their statements were recorded after eleven days of the incident, i.e. only on 30.10.2013. Only the statement of the first informant was recorded soon after lodging of the first information report. There is also a doubt about the statement of the Investigating Officer that he had visited to the scene of occurrence on the date of incident itself, i.e. on 19.10.2013 at about 11:00 PM after lodging of the first information report, inasmuch as, recovery of bullet from an open almirah from the place of crime had been made after two days on 21.10.2013, that too on the previous information given by the first informant. Even otherwise, recovery of the bullet from the scene of occurrence cannot come in the aid to the prosecution story, inasmuch as, there is no recovery of murder weapon and as such there was no question of ballistic examination of the incriminating material to connect the accused with the crime or to identify the assailant to whom the murder weapon belonged. The Investigating Officer, in a casual way, stated in his deposition before the Court that he had visited the spot of occurrence soon after the report was lodged but did not record the statement of other witnesses namely, wife of the first informant, younger sister of deceased who were allegedly present in the house at the time of incident. The statements of father and mother of deceased were also not recorded. No explanation is forthcoming as to why this delay had occurred. Another version of the Investigating Officer that though he prepared the site plan on 19.10.2013 on the spot soon after lodging of the first information report but no incriminating material was recovered by him from the spot of crime. He admits in his cross-examination that he could not see the mutilated bullet lying in the open almirah of the room wherein deceased was shot when he prepared the site plan. This seems absurd to us. The Investigating Officer was supposed to carefully inspect the scene of incident and collect every minor detail and evidences from the spot as that was the initial step of the investigation. The casual statement of the Investigating Officer in not making recovery of incriminating material while visiting the spot of crime on the first day shows his recklessness in dealing with the criminal. It seems to us that the Investigator was deliberately taking time with the view to decide about the shape to be given to the case and eye-witnesses to be introduced.
The prosecution is completely silent about the effort, if made, by the Investigating Officer to recover the murder weapon, though the accused was arrested on 6.11.2013 and the charge sheet was submitted on 23.11.2013. Younger sister of deceased who was allegedly present in the house had not been produced to throw light on the incident. There is, thus, only two witnesses related as husband and wife who claimed to be present on the spot but their testimonies are self-contradictory. PW-2 the star witness of the prosecution is not reliable as his version of witnessing the incident is not consistent. There is apparent contradiction in the statement of PW-2 and PW-3 about the place of their presence in the house. PW-3 though stated that they both took the deceased to the Medical College in a Tempo but the blood stained clothes of these witnesses were not seized by the Investigating Officer. To us, that was also necessary to ascertain the presence of these witnesses at the place of incident as the murder had been committed in the precincts of the house and there was no occasion for any independent witness being present on the spot.
17. The motive to commit the crime stated by the prosecution witnesses is too weak and remote, though it is not of much significance as the prosecution rests its case on the alleged eye-witness account. The genesis of the crime has not been disclosed in the prosecution story. The delay in filing the first information report disclosing the name of the assailant, non-recovery of murder weapon, the recovery of bullet after two days from an open almirah from the scene of occurrence and the act of recording statements (Section 161 Cr.P.C.) of witnesses available on the spot after eleven days of the incident are all the surrounding circumstances which point towards false implication of the accused. The fact that the accused was distantly related to the family lend significance to this delay. The motive for the false implication of accused obviously cannot be known to the Court.
As observed by the Apex Court in Shankarlal Gyarasilal Dixit vs. State of Maharashtra7:-
"33. Our judgment will raise a legitimate query: If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely ? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions..xxxxxxxxxx."
18. In the instant case, in light of the surrounding circumstances and evidence led by the prosecution, the unexplained delay in registration of the F.I.R. and further delay in recording the statements (Section 161 Cr.P.C.) of the material witnesses create a cloud of suspicion on the credibility of the prosecution story. In our considered opinion, the evidence on record is not sufficient to hold that the prosecution had proved its case beyond all reasonable doubts. The incriminating material evidence on record cumulatively put together are not such which would unerringly point towards the guilt of the accused. It is the cardinal principle of criminal jurisprudence that guilt of the accused must be proved beyond all reasonable doubts. If two views are possible on evidence, the golden thread which runs through the web of the administration of justice in criminal cases is that the view which is favourable to the accused should be adopted. The prosecution though is not bound to produce all the witnesses said to have seen the occurrence but the witnesses who claim to be eye-witnesses of the occurrence should be credible. The evidence of a closely related witness is required to be carefully scrutinized and appreciated before any conclusion is made to rest upon it though the evidence cannot be discarded merely on the ground that the witnesses are related to each other or to the deceased. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses though it cannot be suspicious of such evidence. The primary endeavour of the Court in such cases must be to look for consistency.
19. We find guidance in the observations of the Apex court in paragraphs '25', '26' '27' and '28' in Kali Ram vs. State of Himachal Pradesh8, in forming our opinion considering the facts and circumstances of the present case. The relevant extract of the said decision is as follows:-
"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the 73 5 court entertains reasonable doubt regarding the, guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable : it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab v. Jagir Singh [1974 (3) SCC 227, a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriv- ing at the conclusion about the guilt of the accused charged with the commission of a crime, the, court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures.
26. It needs all the same to be re-emphasised that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real. As observed on page 3 of the book entitled "The Accused" by J.A. Coutts 1966 Edition, "When once it is realised, however, that the public interest is limited to the conviction, not of the guilty, but of those proved guilty, so that the function of the prosecutor is limited to securing the conviction only of those who can legitimately be proved guilty, the clash of interest is seen to operate only within a very narrow limit, namely, where the evidence is such that the guilt of the accused should be established. In the case of an accused who is innocent, or whose guilt cannot be proved. the public interest and the interest of the accused alike require an acquittal."
27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more (1) Cr. App. 7 of 1972 decided on August 6, 1973 7 3 6 serious and its reverberations cannot but be felt in a civilized society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expidation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring. as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether. It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on page 157 of "The Proof of Guilt" by Glanville Williams, Second Edition:
"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos.
28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahabrao Bobade & Anr. (1973) 2 SCC 793 as is clear from the following observations :
"Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions".
We may also note the observations in paragraph '23' in State of Punjab vs. Jagir Singh, Baljit Singh and Karam Singh9, which is quoted as under:-
"23. A criminal trial is not like a fairy tale wherein one in free to give flight to one's imagination and phantasm. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon' its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
20. In the crux, the law is that the Court cannot reject the evidence on record on the grounds which are fanciful or in the nature of conjunctures but if a reasonable doubt arises regarding the guilt of the accused, the benefit of doubt cannot be withheld from the accused.
21. Having carefully assessed the evidence on record, for the reasons given above, we may record that we cannot form a definite opinion about the complicity of the accused. The Court is left to guess by the prosecution as to what would have happened on the fateful day inside the house of deceased and who is the real assailant? The benefit of that doubt necessarily has to go to the accused. The trial court has failed to consider all the vitiating circumstances as noted above and, thus, committed an error in scrutinizing the evidence of the prosecution witnesses holding the appellant guilty of causing murder of his cousin.
22. In view of the above discussion, we find that the decision of the trial court in conviction of the accused for the offences under Section 452 I.P.C. as also Section 302 IPC suffers from patent error of law and fact. In the entirety of the facts and circumstances of the instant case, the appellant is entitled to be given benefit of doubt. The order of conviction is liable to be set aside and the appellant deserves to be acquitted.
23. Accordingly, the judgment and order dated 31.8.2015 passed by the Additional Sessions Judge, Court No. 8, District Aligarh in Sessions Trial No. 174 of 2014 (State vs. Gulshan alias Mekedam Singh Jatav son of Ashok Kumar, resident of Bhatoli, Thana Vijaygarh, Aligarh), arising out of Case Crime No. 292 of 2013, Police Station Akrabad, District Aligarh convicting and sentencing the accused-appellant under Sections 452 and 302 I.P.C. is hereby set aside.
The appeal is allowed. The appellant is acquitted.
The accused-appellant namely Gulshan alias Mekedam Singh Jatav is in jail. He shall be released from the jail forthwith.
The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary action.
The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad.
Order Date :- 6.8.2020
Brijesh
(Dinesh Pathak,J. ) (Sunita Agarwal,J.)