Allahabad High Court
Dayaram vs State Of U.P. on 5 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 2719
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD JUDGMENT RESERVED ON : 17.07.2019 JUDGMENT DELIVERED ON : 05.08.2019 Case :- CRIMINAL APPEAL No. - 3590 of 2019 Appellant :- Dayaram Respondent :- State Of U.P. Counsel for Appellant :- Avnish Kumar Srivastava, Mohit Kumar Singh,Sujata Choudhary Counsel for Respondent :- G.A. Udit Chandra Hon. Sudhir Agarwal, J.
Hon. Om Prakash-VII, J.
(By Hon. Om Prakash-VII, J.)
1. Present Criminal Appeal has been preferred by accused-appellant Dayaram against judgment and order dated 02.06.2011 passed by Additional Sessions Judge / Special Judge (SC/ST Act), Meerut in Session Trial No. 664 of 2009 (State Vs. Dayaram and another) arising out of Case Crime No. 95 of 2009, under Sections 376, 302, 201 I.P.C., Police Station Kithor, District Meerut convicting and sentencing accused-appellant and co-accused Mahendra for the offence under Section 302 I.P.C. with imprisonment for life and also fine of Rs. 20,000/- each. In the event of default in payment of fine, they were also directed to undergo two years additional imprisonment. Both accused were also convicted and sentenced for the offence under Section 376 (G) I.P.C. for imprisonment of life and a fine of Rs. 20,000/-. In default of payment of fine they were also directed to undergo two years additional imprisonment and for the offence under Section 201 I.P.C. they were directed to undergo imprisonment for five years and a fine of Rs. 10,000/-. In default of payment of fine one year's additional imprisonment was also directed to undergo.
2. Prosecution story, in nutshell, as unfolded in written report Ext. Ka-1, is as follows:
3. On 27.02.2009, informant PW-1 Ganga Das moved written report scribed by one Munesh Pal at police station Kitthaur, District Meerut mentioning therein that victim (daughter of informant) aged about eight years was missing since previous evening. Informant along with family members searched her in village and nearby places but her whereabouts was not known. When they were searching in the morning at about 08:00 to 08:30 A.M. and reached in the field of Habib son of Munazar, dead body of victim girl was found lying there. Suspicion was shown in written report that victim girl was killed by committing rape by unknown person. It was also mentioned that there were several injuries on the face and neck of deceased. Thus, prayer was made to take legal action in the matter.
4. On the basis of written report Ext. Ka-1, chik F.I.R. Ext. Ka-15 was registered at police station concerned on 27.02.2009 at 09:10 A.M. itself against unknown person at Case Crime No. 95 of 2009, under Sections 376, 302, 201, I.P.C.. G.D. entry was also made at the same time in general diary as Ext. Ka-16. It also appears that after registration of F.I.R., police started investigation and PW-4 Vivek Ranjan Rai reached at the place of occurrence and took bloodstained and plain earth from place of occurrence and keeping the same in sealed boxes prepared sample seal and also fard Ext. Ka-4. Police (Investigating Officer) also prepared inquest report, which is Ext. Ka-1. It appears that Ext. ka-1 has been mentioned by mistake. Other police papers i.e. letter to C.M.O., letter to R.I., photo lash, Form no. 13 (Ext. ka-8, Ka-11, Ka-13 and ka-14) were also prepared. Investigating Officer (hereinafter referred as 'I.O.') also took one pair of chappal and kachchha from the place of occurrence and keeping the same in sealed cloth prepared memo Ext. Ka-3. Police has also taken peaces of Bidi from the place of occurrence and also keeping it in sealed cloth prepared memo Ext. Ka-5. Dead body of deceased was dispatched for post mortem through constables along with relevant papers.
5. Autopsy was performed on dead body of deceased on 29.02.2009 at 04:50 P.M. which was identified by constables carrying the dead body. On general examination, age of deceased was found about eight and half years. Time since death was one day. She was average body built. Rigor Mortis present all over body. No sign of decomposition was found. Dry leave, straw were present in skull hairs and body. Eyes were closed and congested. Bleeding from mouth and nostril was coming out. Bleeding was also from vagina. Two vaginal smears were also taken and keeping them in sealed condition, handed over to constables for pathological reports.
6. On examination of dead body of deceased, following injuries were found :
"(I) Semi circular multiple abraded contusion on right neck in an area of 5 cm X 4 cm surrounded by swelling 2 c.m. away of mouth. (II) Abrasion on (rt) temperal area of face 0.5 cm X 0.5 cm, 2 cm away from right eye. (III) Abraded contusion on left side of chin 4 cm X 0.2 cm.
(IV) Multiple abraded contusion (teeth mark) in semi circular size one above other in an area of 4 cm X 3.5 cm. (V) Abraded contusion on (Lt) side of chin in an area of 2 cm X 0.2 cm.
(VI) Abrasion contusion 1 cm X 0.4 cm on left side face just below left ear lobe. (VII) Abraded contusion 1.5 cm X 1 cm on (Rt) side in front of neck, 6 cm below right ear. (VIII) Abraded contusion 3 cm X 0.5 cm on right side of neck just below injury no. 7. (IX) Abraded contusion 2 cm X 0.3 cm on front side of neck on right side. (X) Multible abraded contusion in an area of 3 cm X 2 cm size ranging from 0.2 cm X 0.2 to 0.4 cm X 0.2 cm on (Rt) side of neck. (XI) Abaraded contusion 1.5 cm. X 1 cm on (Lt) side of neck 6 cm below neck. (XII) Abraded contusion 1.2 cm X 0.3 cm on left side of neck just below injury no. 11. (XIII) Abraded contusion 1 cm X 0.4 cm on front side of neck 4.5 cm left to sternoclavicular joint. (XIV) Abraded contusion 1.3 cm X 0.3 cm on supra sternalnotch .
(XV) Abrasion on front of neck above supra sternalnotch size 0.4 cm X 0.2 cm.
Note: On exploration of injuries on neck there is Ecchymosis present in supra sternalnotch, tissue under injuries.
(XVI) Multiple abrasion in an area of 1 cm X 0.5 cm size ranging from 0.2 cm X 0.1 cm to 0.1 cm X 0.1 cm left upper arm on lateral side.
(XVII) Abrasion on left forearm 3 cm X 0.5 cm.
(XVIII) Lw 3.5 cm X 2 cm X muscle deep extending from vaginal opening on both side of libia and perineal area and etheral. Hymen torn, vaginal opening, ethereal opening and anus opening with each other."
7. In the opinion of doctor, cause of death was asphyxia as a result of throttling.
8. Visiting the place of occurrence, Investigating Officer also prepared site plan Ext. ka-6 and interrogated the witnesses. Name of accused surfaced in the matter on the basis of last seen evidence. They were arrested by police. They also confessed their guilt before Investigating Officer. Thereafter, completing the entire formalities of investigation Investigating Officer submitted charge-sheet Ext. Ka-7 against accused-appellant as well as co-accused Dayaram for the offence under Sections 376, 302, 201 I.P.C.
9. Concerned Magistrate took cognizance and case being exclusively triable by Sessions Court, was committed to the Court of Sessions.
10. Accused appeared and prosecution opened its case describing entire evidence collected by Investigating Officer. Trial Court framed charge for the offence under Sections 376(G), 302, 201 I.P.C. against accused to which they denied and pleading not guilty claimed their trial.
11. In order to prove its case, prosecution examined nine witnesses, namely, PW-1 Ganga Das, informant, (father of the victim/deceased); PW-2 Sundari (mother of deceased/victim); PW-3 Dr. Devendra Kumar Singhal, who has performed autopsy on the body of deceased and prepared post-mortem report; PW-4 Vivek Ranjan Rai, Investigating Officer, who has prepared fard as well as inquest report and other police papers; PW-5 Mangate Ram, public witness of recovery; PW-6 Ganga Prasad, public witness of inquest; PW-7 S.I. Malkhan Singh, who accompanied PW-4 Vivek Ranjan Rai, Investigating Officer and assisted him in preparation of inquest report and other police papers; PW-8 Mukesh Kumar, chik writer and PW-9 Raju, witness of last seen evidence.
12. On closure of prosecution evidence, statement of accused-appellant was recorded in which he has denied entire prosecution story and stated that all witnesses examined before court have made false statement. On the point of Ext. Ka-1 (written report), he has stated that PW-1 has made false statement. Post mortem report was also wrongly proved. Police papers have been prepared on the basis of false facts. Nothing was recovered from place of occurrence and recovery memo prepared in the matter is also based on false fact. PW-6, PW-7 and PW-8 have also made false statements. Last seen evidence stated by PW-9 Raju was also said to be false. It was specifically stated that prosecution was started against appellant due to enmity. Although, appellant has stated that he will adduce defence evidence but perusal of record reveals that no evidence in defence has been adduced by accused-appellant.
13. Having heard learned counsel for parties and going through the record, trial court has found that prosecution has fully succeeded in bringing home charges against accused-appellant beyond reasonable doubt warranting his conviction and sentence, as above. Hence this appeal.
14. We have heard Ms. Sujata Chaudhary, learned counsel appearing for appellant and Shri Udit Chandra, learned AGA for state at length.
15. It was submitted by learned counsel appearing for appellant that F.I.R. was lodged against unknown person belatedly but plausible explanation in regard to delay has not been given. Prosecution was also not able to prove guilt of accused-appellant to the hilt i.e. beyond reasonable doubt. Referring to entire evidence, it was also argued that nothing is on record to connect accused-appellant with present matter. It was further argued that findings of Trial Court are based on inadmissible evidence. There are major contradictions in the statements of PW-1 and PW-9 on material points. PW-9 was not present on the spot when deceased was said to be playing near statue of Dr. Ambedkar. It is also not a case of last seen evidence. None of the witnesses examined in the matter have stated at any point of time that they have seen accused alongwith deceased going towards field of Habib. Chain of circumstances said to have been established by prosecution in the matter are also not firm and cogent and not linked with each other to form only one hypothesis regarding guilt of accused-appellant excluding innocence. It was also argued that prosecution of accused-appellant was started in the matter only on the basis of suspicion. Last seen evidence is cooked-up by prosecution and is after thought. Thus, referring to impugned judgment and order learned counsel argued that impugned judgment and order suffers from illegality, infirmity and perversity warranting interference of this Court. It is also argued that co-accused Mahendra has been acquited in Jail Appeal No. 4575 of 2011 on 19.9.2018. Role assigned to the present appellant is not distinguishable with the role of co-accused Mahendra.
16. Per contra, learned A.G.A. argued that although confession said to have been made by accused-appellant before police is not admissible in evidence yet PW-9 has seen accused-appellant and other co-accused along with deceased. It was further argued that deceased was not seen at any other place during intervening period of last seen evidence and finding of dead body, thus chain of circumstantial evidence is fully established by prosecution. Findings recorded by Trial Court on the basis of circumstantial evidence are based on correct appreciation of evidence. F.I.R. is neither delayed nor after thought. Thus, referring to entire evidence available on record, it was argued that there is no illegality or infirmity in the impugned judgment warranting interference of this Court.
17. We have considered rival submissions made by learned counsel for parties and have gone through entire record including the decision passed in Jail Appeal No. 4575 of 2011.
18. In this matter, as is evident from record, deceased was missing since evening of 26.02.2009. Family members searched her in the evening itself at several places but she could not be traced out. Thereafter, they again started searching in the morning and at about 08:00 to 08:30 A.M. dead body of deceased was found in the field of Habib. Informant proceeded to lodge F.I.R.. It is also evident from record that F.I.R. was lodged in the matter against unknown persons. If submission raised by learned counsel appearing for the appellant on the point of F.I.R. is taken into consideration in light of above factual situation, the submission is not acceptable. Delay in lodging F.I.R. is not material one in the present matter. Opinion formed by this Court finds support with the fact that F.I.R. was lodged against unknown person which clearly flows that till the lodging of F.I.R., informant was not aware about the name of accused-appellant. Had he borne ill-will against accused, F.I.R. would not have been lodged against unknown person. Non mentioning of name of accused-appellant in F.I.R. itself indicates that F.I.R. lodged in the matter is a genuine document. Delay occurred in lodging F.I.R. is natural and probable and not fatal to prosecution case and on this score prosecution case cannot be disbelieved.
19. As far as presence of PW-9 in the house of PW-1 in the evening of 26.02.2009 when deceased was playing near statue of Dr. Ambedkar is concerned, nothing is mentioned about this fact in F.I.R. nor at the stage of lodging F.I.R. PW-9 had disclosed to PW-1 about last seen theory. When examined before court on oath, PW-1 has clearly stated in cross-examination that accused-appellant and co-accused had come at Chabutara of informant at 05:00 P.M. and they stayed there only for 15 to 20 minutes and thereafter left the place. When examined before court on oath, PW-9 has stated in examination-in-chief that he had reached the house of PW-1 at about 06:00 P.M. on the day of occurrence. If submission raised by learned counsel appearing for the appellant on this issue is compared with statement made by these two witnesses, presence of PW-9 in the house of PW-1, when accused is said to be present near statue of Dr. Ambedkar, appears to be false / doubtful. It may be mentioned here that if accused-appellant had gone from Chabutara of PW-1 at 05:20 P.M. itself then statement of PW-9 that he saw deceased along with accused-appellant near statue of Dr. Ambedkar is false. PW-9 in his cross-examination has admitted that he returned form house of PW-1 in the night of 26.02.2009 at 07:30 P.M. itself. He has also admitted that on the next morning he had gone for his livelihood, meaning thereby he did not accompany PW-1 in search of deceased. Conduct of PW-9 borrowed from his statement made before court on oath itself indicates that neither this witness had seen accused-appellant along with deceased at any point of time nor he was present in the house of informant when accused-appellant is said to have gone there. On close scrutiny of entire statement made by PW-9 and comparing same with statement of PW-1 and PW-2 and also with the statement of PW-4 Vivek Ranjan Rai, we are of the considered view that PW-9 is not a reliable witness. If he was present in the house of informant in the evening on 26.02.2009, when accused were also present there, and he had seen them along with deceased, this fact would have certainly been stated by him to PW-1 and PW-2 and he should have involved himself in searching the deceased. Conduct of this witness itself place him in the category of unreliable witness. Though prosecution case solely rests on last seen theory said to have been proved by PW-9 yet on analyse of entire evidence, in our opinion, PW-9 is unreliable witness. Neither he was present in the house of PW-1 in the evening on the day of occurrence when accused are said to be present there nor he had seen deceased along with appellant at any point of time going towards field of Habib. Confessional statement said to have been made by accused-appellant before police is not admissible in evidence. No corroboration of last seen evidence has been made from statement of PW-1 & PW-2. Their statement on this point is based on hearsay statement stated by PW-9, whose presence on the spot is doubtful. Thus, we are of the view that Trial Court exceeding jurisdiction vested in it has placed reliance on that piece of facts as evidence which was not admissible in evidence. Finding recorded by Trial Court in the impugned judgment and order on this issue for the reasons discussed hereinabove is not based on correct appreciation of facts and evidence and same is not sustainable.
20. It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of accused and circumstances cannot be explained on any hypothesis other than guilt of the accused. Court has to be cautious and avoid risk of allowing mere suspicion, however strong, to take place of proof. It is also settled position of law that suspicion by itself, however strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of accused.
21. If entire evidence adduced by prosecution are minutely analysed in the light of settled position of law, there are major contradictions, improvement in deposition of witnesses which cannot be ignored. Chain of circumstances and link evidence to connect the appellant with this crime appears inconclusive. It is settled legal proposition that while appreciating evidence of witnesses, minor discrepancies on trivial matters, which do not affect core of prosecution case, must not prompt the court to reject the evidence in its entirety. Irrelevant details which do not in any way corrode credibility of a witness, cannot be levelled as omission or contradiction. In the present matter, if aforesaid legal propositions of law and entire evidence adduced by prosecution are taken in its entirety, it appears that name of accused-appellant surfaced in this matter only on the basis of suspicion. In fact neither PW-9 is witness of last seen theory nor there is other evidence adduced by prosecution to connect the accused-appellant with the present offence. Recovered materials have also not been connected by prosecution with accused-appellant. Thus, after evaluating entire evidence carefully and cautiously and sifting through evidence to separate truth from untruth, embellishments and improvements, we are of the view that Trial Court has passed impugned judgment and order ignoring settled legal propositions of law placing reliance on inadmissible evidence. Circumstances shown against accused-appellant (last seen theory) has also not been proved/established by firm and cogent evidence rather he has been implicated on the basis of suspicion only. If statement of PW-9 is taken to be true then also he saw deceased playing near statue of Dr. Ambedkar and accused-appellant was also present there then also there is no evidence at all adduced by prosecution that accused-appellant and deceased were seen together going towards said field at any point of time. Thus, on the basis of foregoing discussions, we find force in the submissions advanced by learned counsel appearing for the appellant. Evidence adduced by prosecution is very shaky and chain of link evidence connecting appellant with this crime appears inconclusive. Circumstantial evidence is completely wanting in this respect.
22. Hence, taking into account entire facts and circumstances of case and re-appreciating evidence available on record, we are of the view that prosecution has not been able to establish guilt of accused appellant. Hence, Court is inclined to grant benefit of doubt to accused appellant, keeping in mind rule of caution.
23. In view of above discussions, we are of the opinion that prosecution has failed to establish guilt of accused appellant under Sections Sections 376, 302, 201 I.P.C. beyond reasonable doubt and to the satisfaction of judicial conscience of court. So, impugned judgment and order of conviction and sentence dated 02.06.2011, which has been sought to be assailed, call for and deserves, interference. The Criminal Appeal is liable to be allowed and same is accordingly allowed.
24. Judgment and order of conviction and sentence dated 02.06.2011 passed by the trial court is hereby set aside against the appellant. Accused appellant Dayaram is found not guilty for the offence punishable under Sections Sections 376, 302, 201 I.P.C.. He is acquitted of all the charges framed against him. If he is on bail, he need not surrender. His bail bonds are cancelled and sureties are discharged. In case he is languishing in jail in this matter, if not wanted/required in any other matter, be released forthwith.
25. Let a copy of this judgment along with lower court record be sent to Sessions Judge, Meerut for compliance. Copy of this judgment be also provided to appellant, if in jail, through concerned Superintendent of Jail. Compliance report be also sent to this Court.
26. Keeping in view provisions of Section 437-A CrPC, appellant Dayaram is directed to forthwith furnish a personal bond of the sum of Rs. fifty thousand and two reliable Sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.
Order Dated : 05-08-2019.
Sachdeva