Allahabad High Court
Taufeeq vs State Of U.P. Thru. Secy. Home Civil ... on 9 August, 2023
Bench: Pritinker Diwaker, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Neutral Citation No. - 2023:AHC-LKO:52664-DB Chief Justice Court Case :- CRIMINAL APPEAL No. - 1569 of 2016 Appellant :- Taufeeq Respondent :- State Of U.P. Thru. Secy. Home Civil Sectt. Lucknow Counsel for Appellant :- Akhter Abbas,Akhter Abbas,Avinash Kumar Sharma,Bhanu Pratap Mishra,Ravi Singh Counsel for Respondent :- Govt. Advocate,P.K. Singh Bisen Along with Case :- CRIMINAL APPEAL No. - 1570 of 2016 Appellant :- Mohd. Imraan And Another Respondent :- State Of U.P. Thru. Secy. Home Civil Sectt. Lucknow Counsel for Appellant :- Akhter Abbas,Alok Singh,Jitendra Kumar Singh,Mohammad Haneef Khan,Sachin Tiwari,Sandeep Singh,Santosh Kr Yadav Warsi,Vijay Kumar Counsel for Respondent :- Govt. Advocate,P.K. Singh Bisen Hon'ble Pritinker Diwaker,Chief Justice Hon'ble Jaspreet Singh,J.
1. The convicted appellants have preferred the instant two appeals under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 29th September, 2016 and the sentence dated 01.10.2016 whereby the Additional Sessions Judge, Court No. 1, Pratapgarh in Sessions Trial No. 21 of 2013 (State Vs. Mohd. Imran and two others) convicted and sentenced the appellants under Section 376 (2) (f & g) I.P.C. with life imprisonment and a fine of Rs. 10,000/- each and in default of payment of fine with a six months of additional simple imprisonment. They have also been convicted and sentenced under Section 304/34 I.PC. with life imprisonment and a fine of Rs. 10,000/- each and again in default of payment of fine with additional six months of simple imprisonment.
2. Taufique has filed Criminal Appeal No. 1569 of 2016 against his conviction while Mohd. Imran and Farhan have jointly filed Criminal Appeal No. 1570 of 2016 against their respective convictions.
3. The prosecution case as evident from the First Information Report (Exhibit-Ka-2) which was lodged by Sri Samarjeet Saroj, the elder brother of the victim, reveals that on 20.06.2012, the mother of the informant had around 03:30 PM gone to graze her goats towards Dihwa Forest situate in the northern side of the Village. The informant's sister (the victim) a 11 year old girl went behind her mother near the fields of Shiv Poojan for plucking mustard. At around 04:15 PM, the victim returned home and thereafter she started playing with the children of the neighbourhood. At around 06:00 PM, the victim went towards the Dihwa Forest to call her mother. Later, the mother of the informant returned with the goats but the victim did not return and thereafter the informant alongwith his neighbours went searching for the victim till late night. It is around 05:30 in the morning when the ladies of the village saw the disrobed body of the victim lying in the Dihwa Forest, they informed the informant who along with his mother went to the site and saw the disrobed body of the victim lying around 50 steps from the tube-well of Sri Shyam Lal Jaiswal in the Dihwa Forest. The victim was gagged with her own chemise and from the drawstrings of her lower garment, she was strangulated . At the site, the lower garment and the under-garment of the victim was lying near the body. The informant stated that Sri Dinesh Kumar Saroj, Km. Chandani and Nagendra had told the informant that on 20.06.2012 at around 05:30 PM, they had seen the victim go towards the Dihwa Forest and around the same time, they had seen the accused Imran, Mohd. Farhan, Taufeeq along with Saif Ali go behind the victim and the informant suspected that these persons have raped and strangulated the victim whose body is lying in the Dihwa Forest where other people of the village have gathered.
4. Upon the aforesaid information, investigation commenced done and as per the postmortem report dated 22.06.2012 (Exhibit-Ka-4), the cause of death was asphyxia as a result of ante mortem strangulation. It also revealed that there was blood from the vagina, posterior part of the vulva was ruptured, skin of the nipple and breast was peeled off due to de-composition, hymen ruptured, pubic hair was absent and no clothes were found on the body. After the postmortem, one sealed envelope containing two slides of vaginal smear for microscopic examination, one jar containing portion of vagina, jar no. 2 containing blood swabs and vaginal swabs were sealed and handed over to the police constable Bhuvaneshwar Singh for for M.E. examination and biochemical analysis.
5. During investigation, the Station House Officer, P.S. Nawabganj, District Pratapgarh had collected the blood stained soil and the other soil from the site into two separate jars. The clothes of the victim were also kept in two separate jars which were sealed and marked as Exhibit Ka-11. The chemise with which the victim was gagged along with the drawstrings with which the victim was strangulated, one white pearl string (Mala) and another string (Mala) with Tulsi and mixed beads, a pair of black slippers, the undergarment of the deceased victim were also collected by the S.H.O. and sealed which were marked as Exhibit Ka-12.
6. The record further reveals that on 03.04.2013 the charges were framed only against Mohd. Imran, Mohd. Farhan and Taufeeq. All the three accused were charged under Sections 376 (2) (f&g) and 302/34 I.P.C. and Section 3 (2) (5) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The prosecution in order to prove its case examined:-
(i) Sri Samarjeet Saroj (informant and the elder brother of the victim) as P.W. 1.
(ii) Sri Dinesh Kumar (who is said to have seen the victim go into the forest followed by the accused persons) as P.W. 2.
(iii) Nagendra who is a child witness (who is also said to have seen the victim go into the forest followed by the accused) as P.W. 3.
(iv) The Sub Inspector Vanshdhari Verma who was the head constable at the time of the incident was examined as P.W. 4.
(v) Dr. Suresh Singh who had conducted the postmortem was examined as P.W. 5.
(vi) The Senior Sub Inspector Arun Kumar Pathak who was the S.H.O. at the time of the incident was examined as P.W. 6
(vii) Sri Khalikul Zama who was one of the Investigating Officer and who had filed the charge sheet was examined as P.W. 7.
7. After the conclusion of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. was also recorded wherein all the accused unanimously stated that they are not guilty and that they have been framed for political reasons.
8. The Sessions Court after considering the prosecution evidence as well as the statements under Sections 313 Cr.P.C. of the accused, found that it was a case of circumstantial and last seen evidence. However, it recorded its satisfaction that the chain of events as presented by the prosecution was closely proved including the fact that the accused and the victim were last seen together at the site. The activities of the accused, the rape and death by strangulation of the victim and running away of the accused within 15 to 20 minutes and seen by the prosecution witnesses and that their presence at the site and the time-lag between which they were seen and when seen running from the spot was too short to give rise to any doubt and accordingly the Sessions Court on 01.10.2016 found that all the three accused were guilty of an offence committed under Section 376 (2) (f&g) and Section 302/34 I.P.C., however, they have been given the benefit of doubt and offence under Section 3 (2) (5) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was not proved for which they were acquitted by means of judgment dated 29.09.2016. The three accused were sentenced under Section 376 (2) (f & g) I.P.C. for life imprisonment with a fine of Rs. 10,000/- failing which they were also awarded six months' of additional simple imprisonment. All the three accused were also awarded life imprisonment under Section 302/34 I.P.C. and a fine of Rs. 10,000/- and in default thereof with additional six month's of simple imprisonment. Both the sentences were to run concurrently and half of the fine imposed was payable to the family of the victim.
9. The learned counsel for the accused-appellants while assailing the impugned judgment had tried to demonstrate that the findings of the Sessions Court are not sustainable, inasmuch as, apparently, it was a case of circumstantial evidence and the last seen theory as accepted by the Sessions Court was not proved as the complete chain of events were mired with major flaws as evident from the testimony of the prosecution witnesses, which have been ignored by the Court.
10. It is further urged that even the testimony of the witnesses who have alleged to have last seen the accused with the victim were not inspiring and were full of contradictions. Even the investigations made by the S.H.O. and the Investigating Officer were faulty which will be evident from their evidence and the level and strength of prosecution evidence as required to prove the charges beyond reasonable doubt were not present. The accused-appellants have been wrongly convicted and as such the judgment and sentence deserves to be reversed.
11. The learned State Counsel as well as counsel for the complainant while defending the judgment has taken the Court through the material and evidence on record to indicate that apparently there was no other person except the accused who were there at the site. They were seen by three persons out of whom two were examined and their testimonies clearly identified and pointed out that they had seen the victim being followed by the accused. The place of occurrence was also confirmed and the investigations also point out to all the circumstances which implicate the accused and accordingly the evidence was clinching enough to convict the appellants which has been carefully considered by the Sessions Court and as such the judgment and sentence deserves to be confirmed as it is a case of gruesome sexual assault, rape and death by strangulation of an 11 year old girl child.
12. The Court has heard the learned counsel for the parties and also perused the material on record meticulously.
13. It is not in dispute that there is no person or witness who has actually seen the occurrence or commissioning of the crime. The prosecution case is clearly of circumstantial and last seen evidence. The Sessions Court has also treated the case to be of circumstantial and last seen evidence and has proceeded to deal with the matter as such.
14. Before adverting to the respective submissions and the material on record, it will be worthwhile to take a glance at the requirements in case of circumstantial and last seen evidence. Recently, the Apex Court in Shankar Vs. State of Maharashtra 2023, SCC Online SC 268 had the occasion to consider the law relating to circumstantial evidence with the aid of the earlier decisions of the Apex Court on the said point and the relevant paras nos. 4 to 10 read as under:;-
"4. The appellants in the captioned appeals challenge the findings of conviction and consequential imposition of sentence raising various grounds. But, before considering the contentions against the concurrent findings raised by the appellants, we find it only appropriate to refer to the following decisions on the law relating circumstantial evidence.
5. In the decision in Sarbir Singh v. State of Punjab1, this Court observed and held thus:
"5. ...But in a case based on circumstantial evidence neither the accused nor the manner of occurrence is known to the persons connected with the victim. The first information report is lodged only disclosing the offence, leaving to the investigating agency to find out the offender.
6. It is said that men lie but circumstances do not. Under the circumstances prevailing in the society today, it is not true in many cases. Sometimes the circumstances which are sought to be proved against the accused for purpose of establishing the charge are planted by the elements hostile to the accused who find out witnesses to fill up the gaps in the chain of circumstances. In countries having sophisticated modes of investigation, every trace left behind by the culprit can be followed and pursued immediately. Unfortunately it is not available in many parts of this country. That is why courts have insisted (i) the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established; (ii) all the facts so established should be consistent only with the hypothesis of the guilty of the accused and should be such as to exclude every hypothesis but the one sought to be proved; (iii) the circumstances should be of a conclusive nature; and (iv) the chain of evidence should not have any reasonable ground for a conclusion consistent with the innocence of the accused.
6. Further it was held therein as under:--
7. ...It has been impressed that suspicion and conjecture should not take the place of legal proof. It is true that the chain of events proved by the prosecution must show that within all human probability the offence has been committed by the accused, but the court is expected to consider the total cumulative effect of all the proved facts along with the motive suggested by the prosecution which induced the accused to follow a particular path. The existence of a motive is often an enlightening factor in a process of presumptive reasoning in cases depending on circumstantial evidence.
7. In Brijlal Prasad Sinha v. State of Bihar2, this Court held thus:
"In a case of circumstantial evidence the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and lastly the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. The law relating to circumstantial evidence no longer remains res integra and it has been held by catena of decisions of this Court that the circumstances proved should lead to no other inference except that of the guilt of the accused so that, the accused can be convicted of the offences charged. It may be stated as a rule of caution that before the court records conviction on the basis of circumstantial evidence, it must satisfy itself that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further, all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused."
8. In the decision in Prakash v. State of Rajasthan3, this Court took note of the following principles laid down regarding the law relating circumstantial evidence in Sharad Birdhichand Sarda v. State of Maharashtra4:--
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the following observations were made:
19. ..."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 distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
9. After noting the above five golden principles, it was held in Prakash's case (supra), that they would constitute the Panchsheel of the proof of a case based on circumstantial evidence and conviction could be sustained on the basis of last seen, motive and recovery of incriminating articles in pursuance of the information given by the accused if those five golden principles of the proof of a case based on circumstantial evidence are satisfied.
10. Virtually, the law laid down relating circumstantial evidence in those decisions are unfailingly followed by this Court while dealing with the cases where conviction is rested on circumstantial evidence."
15. Now, in the backdrop of the aforesaid decisions and the principles culled out, it will be important for this Court to examine whether the chain of events and circumstances are such which clearly leads to the guilt of the accused as having been fully established.
16. From the perusal of the statement of P.W. 1 who is also the informant and the elder brother of the victim, stated that on the fateful day i.e. 20.06.2012 at around 06:00 PM, his younger sister, the victim had gone to call her mother who was grazing goats in the Dihwa Forest. It was stated that around 03:30 PM, the mother of the informant had gone for grazing the goats and behind her the victim had gone to pluck mustard from the fields of Shiv Poojan. The victim had returned home at around 04:30 PM and it is later when her mother had not returned that Sandha (another elder sister of the victim) had asked, the victim, to call mother from the forest. It was also stated that when the victim left to call her mother at around 06:00 PM, soon thereafter the mother had returned but the victim did not and despite making frantic search, the victim could not be found. It was further stated that Km. Chandani, Nagendra and Dinesh had told the informant that they had seen the accused following the victim along with Saif Ali. They had also seen that the accused had an air gun and a net with them.
17. However, from the cross-examination of this witness, it was elicited that both Dinesh Kumar and Km. Chandani are the first cousins of the informant (children of the real brothers of the father of the informant). In the cross-examination, it also transpired that the search for victim started around 07:00PM on 20.06.2012 including by going towards the Dihwa Forest and the informant was accompanied by Dinesh and Nagendra but both Dinesh, Nagendra and Km. Chandani did not inform the informant that they had seen the accused and the victim while searching. In the cross-examination, it also revealed that as per P.W. 1. the accused were called at the site in the morning of 21.06.2012. It was also stated by P.W.1 that the victim had lunch with P.W. 1 on 20.06.2012 at around 02:30 PM. The P.W. 1 also confirmed the fact that after the alleged incident there were riots in the village and in the hamlet of the accused due to the aforesaid incident.
18. The P.W. 2 stated that he had gone to the forest to graze his pigs and while he was taking his pigs for a drink of water, he had seen the accused talking with the victim. While the P.W. 2 Dinesh Kumar returned within 15 to 20 minutes, he had seen the accused running and going towards their home. This witness stated that he had informed Samarjeet, the elder brother of the victim, having seen the victim and the accused talking. P.W. 2 is also the signatory of the Panchanama (exhibit-Ka-5). This witness in his cross-examination stated that his statement was taken by police on 21.06.2012. He further stated that at the site on the morning of 21.06.2012, the police had called the accused. He also stated that the accused are the residents of a different village. He further stated that he had informed Sri Samarjeet at around 10:00 PM on 20.06.2012 of the fact that he had seen the accused and the victim and that Samarjeet had informed him that he had already spoken and met the accused in this regard. Further, in his cross-examination, he stated that he had informed the police regarding the fact that he had taken his pigs for a drink of water. However, this fact was in contradiction with the statement of the police officers who were examined.
19. The P.W. 3 was examined, as a child witness and the Court had put some preliminary questions to the witness and finding that he was capable of understanding and answering the same, he was found worthy of questioning. P.W. 3 also reiterated that he had seen the victim going towards the Dihwa Forest and that he had seen the accused following her. He further in his cross-examination stated that while his goats were grazing, he was playing with the stones and pebbles at that time and it was nearly sun down. Significantly, in his cross-examination, he stated that he had not gone to search for the victim along with Sarmajeet and Dinesh rather he had his food and had slept and it is only next morning when the sun was up that he came to know that the body of the victim was found. He confirmed that on the site the police had called the accused and that he did not know the accused or their families and that despite being in the forest, he had not heard any cries or any sound of distress. Upon questioning by the Court, he further stated that there is a temple (desecrated) where one Baba resides who used to come to the village for food and after smoking (Ganja), intoxicant he used to go back at night. He further stated that the hut of the Baba was near the desecrated temple and when he had gone to see the body of the victim in the morning, he had seen the Baba there. He further stated that the time as mentioned in his statement were on the basis of approximation as he did not have any watch.
20. Applying the golden principles relating to circumstantial evidence as noticed by the Apex Court in Shankar (supra) wherein the principles laid down in full which were followed and it would be seen that the circumstances must be so closely intertwined that the Court must come to the conclusion that the guilt can be drawn from it.
21. In the instant case, if the statement of the three witnesses of facts are examined, it would be found that there is material variance between them. It is a fact admitted that Samarjeet, P.W. 1, Dinesh Kumar, P.W. 2 and Nagendra, P.W. 3 are related being first cousins. There is no explanation to the fact that once the victim was not found and the search had started at around 07:00 PM and it is stated by P.W. 1 that Nagendra and Dinesh Kumar had accompanied Samarjeet in the search but they did not inform that they had seen the victim and the accused. This as per P.W. 1 was informed the next date whereas as per the P.W. 2 it was informed the very same day when the search had begun around 10:00 PM and the version of P.W. 1 was completely denied by P.W. 3 who stated that he had not even accompanied P.W. 1 and P.W. 2 to search the victim.
22. The evidence also reveals that while making a search, the informant and the P.W. 2 who is said to have seen the victim and the accused did not go to that particular spot in the forest where the victim was last seen. At this stage, it will also be relevant to notice that as per P.W. 2, he had seen the accused and the victim and within 15 to 20 minutes, he had seen the accused running towards their house. There is no explanation by the P.W. 2 to the fact that knowing fully well that the victim was his cousin sister who was alone, very young in age and around sundown was in forest, yet no attempt was made to find out or question her presence. The theory set up that the P.W. 2 that he had gone to graze his pigs and he was taking his pigs for a drink of water, at the relevant time when he had seen the accused and the victim, did not find support as in the investigation no such pool of water or pond was found nearby the site of crime.
23. Another fact that can be seen from the evidence of P.W. 4, 6 and 7 who are the Investigating Officers that though they had collected the samples of the blood soil and the other soil from the site, they had collected the garments of the victim and they had already apprehended the accused but neither the samples nor the swab given by the doctor who conducted the postmortem was sent for any chemical examination nor for any forensic examination.
24. The failure on the part of the prosecution to conduct a proper investigation and despite having collected the material and not sending it for forensic and chemical examination must be taken into account and for the benefit of the accused.
25. In absence of any eye-witness and knowing well that it was a case of circumstantial evidence, it was incumbent on the prosecution to have at least got the forensic examination done which could easily reveal if the accused were guilty or not. Another aspect which is glaring is the fact that two Malas (strings) were recovered from the site, one was a white pearl and the other was a Tulsi with mixed beads (stings), both were never sent for any examination. It was not even investigated that they belonged to the victim or the accused and more surprisingly, the body of the victim was found 50 steps from the tube-well of Sri Jaiswal who was not even questioned. A pair of slippers was found which also was not tested whether they fit any of the accused as no mould was prepared for its examination.
26. Another person who is said to have seen the deceased victim and the accused together is Km. Chandani whose name is mentioned in the First Information Report and was also indicated in the list of witnesses given in the charge sheet but she was not examined.
27. The Sessions Court has primarily relied upon the testimonies of Dinesh and the child witness Nagendra. At this stage, it will also be relevant to notice the latest decision of the Apex Court relating to a testimony of child witness in Pradeep Vs. State of Haryana 2023 SCC Online SC 777 where the Apex Court has noticed the principles regarding the evidence of a child witness in paragraphs 8 to 10 which read as under:-
8. Under the proviso to sub-Section (1) of Section 4, it is laid down that in case of a child witness under 12 years of age, unless satisfaction as required by the said proviso is recorded, an oath cannot be administered to the child witness. In this case, in the deposition of PW-1 Ajay, it is mentioned that his age was 12 years at the time of the recording of evidence. Therefore, the proviso to Section 4 of the Oaths Act will not apply in this case. However, in view of the requirement of Section 118 of the Evidence Act, the learned Trial Judge was under a duty to record his opinion that the child is able to understand the questions put to him and that he is able to give rational answers to the questions put to him. The Trial Judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth.
9. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution.
10. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court.
28. It is in this backdrop, if the evidence of P.W. 3 is scrutinized, this Court finds that the questions which were put by the Sessions Court to the child witness were again quite routine. His testimony is contrary to what had been stated by the P.W. 2 or as indicated by P.W. 1 in his First Information Report. The P.W. 3 had also talked about the Baba who used to come to the village and smoke (Ganja) intoxicant and would go back at night and the site of incident is not far from where the Baba had his hut. P.W. 3 stated that he had seen the Baba on the morning of 21.06.2012 when the body was found but as per the evidence of other witnesses including, the police, the Investigating Officers, it was stated that Baba was missing for two days and never questioned. The testimony of P.W. 3 appears to be tutored. The testimony of P.W. 3 also becomes shaky when he stated that he had gone home in the evening of 20.06.2012 after grazing the goats and after having his food had slept whereas the P.W. 1 and P.W. 2 stated that he accompanied them in the search for victim in the evening extending into night.
29. Thus, the evidence taken together does not give rise to a complete chain which points out directly to the guilt of the accused. There are various inconsistencies, inasmuch as, it was not considered worthwhile for the prosecution to examine and record the statements of Sri Shyam Lal Jaiswal who had his tube-well within 50 steps from the place where the body of the victim was found. Despite two (strings) malas being recovered from the site and the hut of the Baba was close to the site where the body was found, the Baba was never questioned and such Babas do generally wear such kind of strings especially when it was not investigated that the Malas did not belong to the victim or the accused. The slippers could not be matched, no forensic examination was done which could easily bring out the truth. There is apparent statements of all the accused that after the incident, there were riots in their village. It is also stated by the prosecution witnesses that the Investigating Officer, the S.H.O. was suspended soon after he had begun the investigation. He also confirmed the riots that took place in the village of the accused at the behest of the members of one particular community belonging to the victim's village.
30. The P.W. 7, the Investigating Officer who filed the charge sheet in his cross-examination stated that he had conducted the investigation after a week from the incident and had never visited the site of the crime for his investigation. Specific suggestions were given to the Investigating Officers, P.W. 6 that the First Information Report was initially lodged against unknown and later on account of pressure that the accused were named therein.
31. Even if the testimony of doctor who had conducted the postmortem is seen, in juxtaposition to the statements of P.W. 1, 2 and P.W.3, it would indicate certain loose ends, inasmuch as, according to the doctor, the death could have occurred at around 06:00 PM give or take four hours i.e. to say that it could have occurred somewhere between 02:00 PM till 10:00 PM on 20.06.2012, however, in his cross-examination, he turned down the suggestion that the death could have occurred at around 08:00 PM, however, he stated that the death could have occurred at around 03:00 PM. This was on the basis of the fact that from the body of the victim, undigested/semi digested food was found and it was sought to be proved that as per P.W. 1, the deceased victim had lunch with P.W. 1 at around 02:30 PM and the food would have been digested between 3-4 hours, however, the nature of the remains of the food which was found in postmortem indicated that the victim had had food prior to the time of her death which also depicts certain major discrepancies regarding the version of the informant.
32. In the aforesaid backdrop, all the accused in their statements under Section 313 Cr.P.C. have clearly stated unanimously that they have been framed on account of political pressure and the investigations have been botched only to get a false implication. Certain issues regarding the ante dating of the First Information Report was raised including the fact that the procedure for investigation as provided in Section 157 Cr.P.C. was not followed nor the report was sent to the Magistrate promptly in order to take cognizance and there was no satisfactory reply given by the Investigating Officer and the S.H.O. regarding the same. This has been taken as a ground by the defence which did not find favour with the Sessions Court.
33. In the aforesaid backdrop where apparently there is no clear indication pointing towards the unflinching guilt of the accused, one more important aspect that needs to be considered is the fact that no motive has been ascribed to the accused by the prosecution.
34. In Nandu Singh Vs. State of Madhya Pradesh (now Chhatisgarh) 2022 SCC Online SC 1454, a larger bench of the Apex Court has held that in cases based on circumstantial evidence, motive assumes great significance. The earlier decision of the Apex Court in Anwar Ali and Another Vs. State of Himachal Pradesh; (2020) 10 SCC 166 was also noticed in Nandu Singh (supra) and the relevant portion read as under:-
"It is not as if motive alone becomes the crucial link in the case to be established by the prosecution and in its absence the case of prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused."
We may add here that just like complete absence of motive failure to establish motive after attributing one, should also give a different complexion in a case based on circumstantial evidence and it will certainly enfeeble the case of prosecution.
In the decision in Nandu Singh's case an earlier decision of this Court in Anwar Ali v. State of Himachal Pradesh7, was quoted with agreement, thus:--
"24. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80) that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in Babu (Babu v. State of Kerala, (2010) 9 SCC 189), absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused."
35. The proposition as noticed aforesaid has also been reiterated by the Apex Court in Shatrughan Vs. State of Chhatisgarh 2023 SCC Online SC 858.
36. Therefore, considering the aforesaid facts in their totality alongwith the circumstances, this Court is of the view that the prosecution evidence does not bring out the guilt of the accused in an undoubted manner. The circumstances may give rise to some speculations which may point towards the accused but in the cases of circumstantial evidences, it is not some circumstances but the Court must ascertain that all the circumstances are such which must and should point towards the guilt of the accused and there can be no other circumstances to rule out any other hypothesis. In light of the detailed discussions. The prosecution having failed to establish the guilt of the accused to the hilt and beyond reasonable doubt on the basis of the evidence produced and noticing the tenure and texture of the evidence available this Court finds that the judgment and sentence awarded by the Sessions Court does not prove the guilt of the accused and rather the discrepancies which have been noted above must be taken into account which are sufficient to grant the benefit of doubt to the accused.
37. Thus, this Court is of the clear view that it is unsafe on the aforesaid circumstances to maintain the conviction of the accused appellants and we thus extend the benefit of doubt to the accused. Accordingly, the appeals No. 1569 of 2016 and 1570 of 2016 are allowed. The judgment of the Sessions Court dated 29.09.2016 and the sentence dated 01.10.2016 passed in Sessions Trial No. 21 of 2013 by the Court of Additional Sessions Court no. 1, Pratapgarh (State Vs. Mohd. Imran and Others) is set aside. The bonds of the accused-appellants, if any, shall stand discharged.
Order Date : 09th August, 2023 Asheesh (Jaspreet Singh,J.) (Pritinker Diwaker,C.J.)