Allahabad High Court
Somawati And Another vs State on 18 November, 2022
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 43 Case :- JAIL APPEAL No. - 3070 of 2009 Appellant :- Somawati And Another Respondent :- State Counsel for Appellant :- From Jail Counsel for Respondent :- A.G.A. Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
(Per Hon'ble Ashwani Kumar Mishra, J.)
1. This jail appeal has been instituted by the accused Somwati (since deceased) and her alleged paramour Kallu, who have been convicted vide judgment and order dated 27.9.2008, passed by Additional Sessions Judge, Court No.1, Kanpur Dehat, in Sessions Trial No.452 of 2007 and sentenced to life imprisonment under Section 302 read with Section 34 IPC, arising out of Case Crime No.223 of 2007, at Police Station Sajeti, District Kanpur Dehat.
2. The prosecution case proceeds on a written information of the Village Chowkidar, who while going to his field on 14.8.2007 at about 8.30 a.m. saw that number of villagers had gathered in front of the house of late Nanku, and when he reached there he found various villagers including Shivnandan son of Baddu, Ravindra son of Virendra Sachan, Vijay Kumar son of Ramaee, Shivram Babu son of Vidhalal, Jagroop son of Parson etc. In the hutment he found the dead body of two sons of late Nanku namely Ramchandra and Veeru. The villagers were asking their mother Somwati and her second husband Kallu as to how the incident occurred. Initially they avoided the question but later confessed that Kallu wanted to purchase a tractor for which he had to take loan by pledging agricultural land. The land, however, was in the name of the two deceased Ramchandra and Veeru, and therefore a conspiracy was hatched between them and tractor agent Jairaj Prajapati son of Ram Gopal about three days back that in the event the two sons of accused Somwati die then their land will come in the name of accused Somwati and the loan would be easily arranged. On 13.8.2007 Jairaj met the accused, who got a dozen Banana at Ghatampur. Jairaj took the Banana aside and mixed some poisonous substance and gave the poisoned Banana to the accused with the instructions that the accused may not eat it and only give it to the two sons so that they die. Jairaj further said that in the evening he will come to verify about the development and that the Banana be given to the boys at about 6.00 O'clock. The two deceased accordingly were given the poisoned Banana who consumed it and fell unconscious. Jairaj is stated to have come and after seeing the boys stated that now their work would be done and later on account of administering poisonous substance the two boys died. In the morning the information spread about death of the two brothers and the dead bodies were found lying in the hutment. Various villagers were present and that the offence has been committed by Somwati, Kallu and tractor agent Jairaj. On the basis of such information Case Crime No.146 of 2007 was registered at Police Station Sajeti, Sub-district Ghatampur, District Kanpur Nagar. The FIR was registered at 10.20 am on 14.8.2007 and the time of occurrence of crime was mentioned as the night intervening 13/14.8.2007. The police proceeded in the matter and recovered peel of Banana, which is marked as Exhibit Ka-18.
3. The inquest followed in which the witnesses observed that the deceased have been done to death by administering poison to them by their step-father and therefore the postmortem be conducted. The bodies were sealed and sent to mortuary where their postmortem was conducted at 1.45 pm on 15.8.2007. The autopsy surgeon was of the view that death had occurred about one day prior to the postmortem and the cause of death could not be ascertained. Viscera was also preserved and later it was revealed that the cause of death was administering of poison (Aluminum Phosphide) for both the deceased. Report of Forensic Science Laboratory has been exhibited as Ka-21 and Ka-22. The investigation proceeded in the matter and ultimately a chargesheet came to be filed against the two accused Somwati and Kallu, which has been exhibited as Ka-20. The magistrate took cognizance on the chargesheet and committed the case to the court of sessions. The court of sessions charged the accused appellant of committing offence under Section 302 read with Section 34 IPC vide order dated 8.1.2008. The charges were explained in Hindi to the two accused, who pleaded not guilty and demanded trial.
4. Apart from the documentary evidence produced by the prosecution in the form of F.I.R. (Exhibit Ka-4), written report (Exhibit Ka-1), postmortem report of Ramchandra (Exhibit Ka-2), postmortem report of Veeru (Exhibit Ka-3), Forensic Science Laboratory reports (Exhibit Ka-21 & Ka-22), Panchayatnama of Ramchandra (Exhibit Ka-6), Panchayatnama of Veeru (Exhibit Ka-12) and chargesheet (Exhibit Ka-20), the prosecution also adduced first informant Devicharan (PW-1). He has supported the prosecution case and in his examination-in-chief has proved the written report on the basis of which FIR itself was registered. He has identified his signatures on the written report. As none appeared for the accused an application was given for appointment of Amicus Curiae to represent the accused. PW-1, accordingly, was cross-examined by the Amicus Curiae, who stated that he is a Chowkidar for the last 20 years and has limited learning to his credit. He has also stated that house of accused Somwati is at a distance of 200 paces from his house and that he has shown the place of occurrence to the Investigating Officer. In the cross-examination he has denied that accused Somwati admitted administering of poison to the deceased in his presence. He, however, admitted that being the village chowkidar his signatures were obtained by the Investigating Officer.
5. PW-2 is Ravindra Sachan. He had scribed the written report on the instruction of PW-1 and has stated that report was written by him on the instructions of PW-1. He has stated that the information with regard to death of the two sons of late Nanku was received at 8.00 am in the morning and the police reached at about 12 O'clock in the afternoon. It is stated that after about 10 minutes of receiving the information of death he came to the house of the accused and found 100 persons standing in front of the house, who were enquiring about the cause of death. He has stated that accused Kallu has been living with Somwati for the last two years and while age of the elder son of Somwati was 15 years, the other son was about 13-14 years. Various persons made queries about the cause of death and the accused narrated the story every time before them. It is stated that village chowkidar was present when he arrived at the place of occurrence. He has denied the suggestion that Somwati and Kallu had not made any confession in his presence or he got a false report lodged.
6. Sudhir Katiyar (PW-3) is the autopsy surgeon, who has stated that a sealed body was brought to him at mortuary and that he conducted the postmortem at about 1.20 pm. He found brain, lungs, kidney, liver etc. to be congested. The cause of death was not clear, and therefore preserved the Viscera and had sent it for examination. He has stated that the death could have occurred a day prior to the conduct of postmortem. He has opined that death could have occurred in the intervening night between 13/14.8.2007. He further stated that death could have occurred due to poisoning.
7. PW-4 Gyan Sagar is the police constable, who has verified the check FIR. PW-5 Vijay is a resident of the village, who has verified the extra-judicial confession made by the accused of having killed the deceased, by administering them poison. He has denied that his statement was recorded by Investigation Officer earlier. He has, however, clearly stated that confessional statement was made by the two accused in his presence about the manner in which the deceased have been done to death. Sanjay Kumar has been produced as PW-6, who was the Station House Officer in Police Station Sajeti and has conducted the investigation in the present case. He has stated that investigation against accused Jairaj is still going on and he is absconding. He has also admitted that time in the case diary with regard to commencement of investigation or its closure has not been mentioned. He too has verified the confessional statement. In the cross-examination he has stated that none of the inquest witnesses have been shown as witness in the chargesheet and even the neighbours Vansh Lal and Ram Asare have also not been shown as a witness. He has further stated that Vijay Kumar had not given any statement that Somwati and Kallu had been asked questions by him, Shivnandan, Jagroop and Sangeeta and that no statement was given by them that Jairaj has called them to Ghatampur and had told that tractor could not be arranged as the land was in the name of the two deceased.
8. On the basis of evidence led by the prosecution the incriminating material were put to accused, who denied the accusation made against them. In reply to question no.17 the accused have stated that the villagers had poisoned their sons with an intent to grab their land and house.
9. The trial proceeded and the court of sessions on the basis of evidence led by the prosecution found the charges under Section 302 read with Section 34 IPC to be proved against them beyond reasonable doubt and consequently they have been convicted and sentenced to life.
10. In the present jail appeal we appointed Sri Virendra Pratap Yadav as Amicus Curiae to argue the appeal. He has submitted that this is a case of no evidence against the accused appellant, inasmuch as the confessional statement is the sole basis for their implication, which cannot be relied upon as it was not voluntary and had been obtained by exercising pressure. It is stated that the accused have not made any confession before the court and the alleged extra-judicial confession made before the villagers or before the police cannot be read in evidence. He further submits that the prosecution case is wholly improbable, inasmuch as the mother cannot be imagined to have consented to killing of her two sons only to arrange loan for purchase of tractor in favour of her paramour. He further submits that PW-5 has clearly admitted that four bigha land was in the name of accused Somwati and in the event loan was to be arranged, she could have offered her own land and it was not necessary for her to require the land held in the name of her sons for such purposes. He further submits that the villagers/pattidars could have committed the offence, inasmuch as on account of killing of the two sons, the mother landed in jail and has ultimately died during the pendency of present appeal and their land and house is now being used by others and that her entire property has been grabbed by the distant relatives Bhoora and Jairaj. An application has also been filed before the court to this effect on 27.9.2008, which is on record. Learned Amicus Curiae further submits that in the event aluminum phosphide was mixed in Banana, which had been purchased at Ghatampur at a distance of 10 kms, the smell would be such that none would come near it nor could have been consumed by the two boys. He places reliance upon a judgment of the Supreme Court in Jaipal Vs. State of Haryana, passed in Appeal (Crl.) No. 705 of 2001, decided on 1.10.2002, in order to submit that the prosecution case about administering of poison to the deceased in Banana is wholly improbable.
11. A photocopy of the Khatauni is on record of the court below, which clearly shows that Somwati was recorded over part of the land of Khata No.709 and she has moved an application that villagers Bhoora and Jairaj Kumhar have forcible encroached upon her land and are trying to grab her property. With reference to these two documents learned Amicus Curiae submits that obvious beneficiary of the offence had neither been identified by the prosecution nor have been prosecuted and instead the victims have been made accused on account of faulty investigation. Learned Amicus submits that this is a case of circumstantial evidence in which the chain of events have not been joined by the prosecution, so as to lead to hypothesis of guilt attributed to the accused appellant and as an alternative hypothesis seems more probable i.e. the distant relatives may have committed the offence to grab the land, the conviction and sentenced of the accused based on circumstantial evidence is clearly impermissible in law.
12. Per contra, Sri Arunendra Singh, learned AGA submits that the accused appellants have rightly been convicted and sentenced in the present case, inasmuch as the extrajudicial confession made by them is proved by the statement of witnesses, who are the residents of the same village and before whom such confessions were made. He further submits that forensic report clearly shows that aluminum phosphide was present in the peel of Banana and in view of the fact that cause of death has been found to be administering of poison to the deceased, which is clearly corroborated by the testimony of the prosecution witnesses, the appeal lacks merit. He further submits that the commissioning of offence for the benefit of her paramour was otherwise possible. He also submits that the conduct of the accused also shows that the offence was committed by them, inasmuch as no attempt was made by the accused to inform the police or even attempt to save the deceased. He submits that the deceased were in the care and custody of the accused and their death could not have occurred at the spur of the moment as the process involved consumption of time during which the deceased must have expressed their pain but nothing was done to save them. He submits that in the totality of facts and circumstances of this case the implication of the accused appellant is clearly established on record and as such the appeal lacks merit.
13. We have heard learned counsel for the parties and have carefully examined the records of the present appeal as well as the original records of the court below. The material placed on record would clearly go to show that the two sons of accused Somwati were born out of her wedlock with late Nanku, who had pre-deceased his two sons. It has further come on record that co-accused Kallu was in some sort of relationship with Somwati and was living in the same house with her for last about two years. It further transpires on record that the deceased brothers were in care and custody of the accused and were living in the same house, in which the accused persons were living. It has further come on record that the two brothers have died on account of administering of poison to them and it is a case of homicidal death.
14. The motive for administering poison is the first issue that needs careful examination by this Court. As per the prosecution Kallu wanted to purchase a tractor and for such purposes he came in contact with one Jairaj, who was an Agent of the Tractor Agency at Ghatampur. Jairaj is alleged to have informed Kallu that loan for tractor cannot be arranged as the land to be mortgaged for the purpose was in the name of two brothers Ramchandra and Veeru. The further case of the prosecution is that Jairaj suggested that in the event two brothers are poisoned the land would then come in the share of accused Somwati and loan for purchase of tractor could thus be secured.
15. There is no documentary evidence brought on record to show that any application for grant of loan was ever submitted by the accused to the Tractor Agency or the Bank. The agent Jairaj, who allegedly suggested the deceased brothers to be poisoned for arranging loan, and also informed the accused that loan cannot be arranged as the land stood in the name of the two deceased, has not been produced. Our attention has been invited to the chargesheet in which Somwati and Kallu are the only two accused against whom evidence has been collected by the prosecution upon conclusion of statutory investigation under Chapter XII of the Code of Criminal Procedure. In the chargesheet there is no narration that investigation was continuing against Jairaj or that Jairaj was absconding. Although our attention has been invited to the statement of the Investigating Officer, as per which investigation against Jairaj was continuing and he was absconding, but such bald assertion is not substantiated from the documentary evidence on record. The documentary evidence in the nature of chargesheet clearly goes contrary to the statement of Investigating Officer, inasmuch as the chargesheet was expected to contain a narration to the effect that investigation was continuing against Jairaj. The fact that no such narration is contained in the chargesheet would clearly go contrary to the prosecution case that investigation was continuing against Jairaj.
16. Presence of Jairaj for ascertaining the truth in the matter was otherwise necessary, inasmuch as the primary motive for commissioning of the offence as per prosecution is the advise of Jairaj. It is Jairaj who is said to have informed the accused that loan cannot be arranged since the land is in the name of deceased Ramchandra and Veeru.
17. At this stage, we may refer to Khatauni (record of rights), available on record, in which apart from Ramchandra and Veeru the name of Somwati is also recorded as tenure-holder over the land in question. Her share has been admitted to be half by the prosecution witness PW-5. He has further stated that the land was valued at Rs. 10,000/ to Rs. 20,000/- per bigha. The total available land in Khata No.709, held in the name of minors Ramchandra and Veeru and their mother is about 2.2530 hectare. Half of the land would thus work out to about 1.1 hectare which could be about 3 to 4 bighas. There is nothing on record to show as to what was the cost of the tractor or that how much land was required to be mortgaged for securing sufficient loan so as to purchase the tractor. There is otherwise no evidence to show that land falling in the name of Somwati was insufficient to arrange required loan warranted for purchase of tractor.
18. The prosecution case, to the contrary, is that the entire land was in the name of Ramchandra and Veeru and unless they died no land would come in the share of Somwati for being mortgaged to secure the loan. The very premise or genesis of the prosecution case, therefore, proceeds on a mistaken factual belief that no land was available with Somwati. Even otherwise, we find that no loan was applied by the accused with the Tractor Agency or with the Bank. In the event Jairaj was absconding, as is stated by the Investigating Officer, the prosecution ought to have produced any other person from the Tractor Agency to substantiate that the accused wanted to purchase a tractor or in fact had applied for loan or that such loan could not be extended to them in the absence of availability of land to be kept as mortgage. The prosecution, therefore, has failed to establish the motive for commissioning of offence on part of the appellant.
19. In the facts of the case, we also find that the accused Somwati, who is the mother of the deceased Ramchandra and Veeru has moved an application that her land has been encroached upon by villagers in her absence. This fact has to be seen in the context of the plea taken by the accused in their statement under Section 313 Cr.P.C. that the villagers had poisoned their sons so as to grab their land and house. The defence of the accused to certain extent thus find corroboration from the letter of Somwati dated 27.9.2008, which is on record. It is otherwise the position in law that after death of the two sons and their mother the land would go to the male heir of late Nanku.
20. We find that the conspiracy to poison the deceased by administering them poison by mixing it in banana was also hatched by Jairaj against whom neither any chargesheet has been filed nor he appears to have been interrogated. This is a serious flaw in the prosecution case.
21. The prosecution case essentially rests upon the confessional statement made by the two accused that they administered poison to their sons for securing the loan to purchase a tractor. The confessional statement has not been made before the Court. The extra-judicial confession is stated to have been made before the police and also before the villagers namely PW-1, PW-2 and PW-5. PW-1, however, has not supported the plea of confession at the stage of trial. PW-2 and PW-5 are villagers, who may have had to gain since the land of deceased has been usurped by the villagers.
22. We also find from the testimony of prosecution witnesses that the accused had not voluntarily made any confession. PW-1 and other witnesses of fact have clearly stated that the villagers had to be tough with the accused for them to make the confessional statement. This clearly suggests that confession was under duress. PW-1 has otherwise admitted that hundreds of persons had gathered outside the house of late Nanku and the possibility of pressure/coercion cannot be ruled out in light of the statement of prosecution witnesses themselves.
23. The basis for implication of the accused appellant primarily is the extra-judicial confessional statement of the accused Somwati and Kallu that they had administered poison to the deceased. For a confession to be relevant in criminal proceedings it must be shown not to be caused by inducement, threat or promise (see: Section 24 of the Indian Evidence Act, 1872).
24. Learned Amicus Curiae submits that the alleged confessional statement of accused was not voluntary, as the prosecution witnesses have specifically stated that the villagers had to be tough with the accused and only thereafter the accused made their confessional statement. Submission is that the alleged confession was, therefore, obtained by exercising coercion and cannot be said to be voluntary. Learned Amicus Curiae places reliance upon a judgment of the Supreme Court in the case of State of Haryana Vs. Jagbir Singh and another, reported in AIR 2003 SC 4377, wherein the Court observed as under in Paragraph 20:-
"20. Great emphasis was laid by the learned counsel for the State on the evidence of PW 4, the Additional CJM that the accused had admitted that the signature was his. This statement is of no assistance. The witness has admitted that the statement was made before him by the accused in the presence of the police officials. The second circumstance is the alleged extra-judicial confession before PW 10. The High Court has analysed the evidence in great detail. It is on record that the accused Jagbir was being taken to various places and at different points of time he was being pressurized to make a statement. Though the accused was claimed to have made the statement in the presence of a large number of persons, a combined reading of the evidence shows that nobody else speaks about the so-called extra-judicial confession, not even those who have been examined as PWs. Though PW 10 said that there were many persons who had heard it, no other person has stated about it. The statements of PWs 7 and 10 go to show that the accused was being interrogated by PWs and other villagers as well as his father and other relatives. Interrogation continued for about 3 days when allegedly Jagbir confessed his guilt. Though the first information report was lodged by PW 7 after knowing about the extra-judicial confession, there is no mention about this vital fact. In a given circumstance, omission to mention about the particular aspect may not render the prosecution version suspicious. But when circumstances in the present case are taken in their entirety the alleged extra-judicial confession is not believable. In order to make an extra-judicial confession a reliable evidence it has to be shown that the same was voluntary. The factual scenario as presented by the prosecution goes to show that the alleged extra-judicial confession cannot be termed to be voluntary even if it was said to have been made, as claimed. The High Court was right in discarding the alleged extra-judicial confession."
25. The evidentiary value of a extra-judicial confession came to be examined by the Supreme Court in State of Punjab Vs. Bhajan Singh and others, AIR 1975 SC 258, wherein the Court held as under in Paragraph 15:-
"15. Coming to the evidence of extra-judicial confessions, we find the same to be improbable and lacking in credence. According to Gurmej Singh and Jabarjang Singh PWs, the confessing accused came to them and blurted out confessions. They also requested these two witnesses to produce them before the police. The resume of facts given above would go to show that according to the prosecution case the murders of the three deceased persons were committed in a most heinous manner and under a veil of secrecy. Persons who commit such murders after taking precautions of secrecy are not normally likely to become garrulous after the commission of the offence and acquire a sudden proneness to blurt out what they were at pains to conceal. In any case it seems rather odd that all the three accused who had not been arrested till the morning of May 9, 1972 should be seized almost at the same time by a mood to make confession. It is significant that Surjit Singh, Charan Kaur and Jito accused had no particular relationship or connection with Gurmej Singh and Jabarjang Singh PWs. These two witnesses were also not in such a position that the abovementioned three accused would be willing to repose their confidence in them. If Surjit Singh, Charan Kaur and Jito wanted to surrender themselves before the police, we fail to understand as to why they should not themselves surrender before the police and go instead to Gurmej Singh and Jabarjang Singh and blurt out confessions before them. The evidence of extra-judicial confession in the very nature of things is a weak piece of evidence. The evidence adduced in this respect in the present case lacks plausibility and, as observed by the High Court, it does not inspire confidence."
26. Law is thus settled that extrajudicial confession by its very nature is a weak evidence and requires examination with a great deal of care and caution. When the extrajudicial confession is attended by suspicious circumstances its credibility otherwise becomes weak. As a matter of prudence the courts normally look forward to corroboration of facts independently, before such extrajudicial confession is taken note of or is relied upon to convict an accused.
27. The attending circumstances in the form of motive is not established in the facts of the case. We further find that the villagers have actually gained on account of the implication of the accused, inasmuch as, the landed property belonging to the accused Somwati has apparently been grabbed by the villagers. The villagers, therefore, were to gain by attributing confession to the accused Somwati and Kallu. The extrajudicial confession is thus not found to be corroborated from the evidence available on record.
28. The only other material which surfaces on record is the peel of banana which is recovered from the spot and has been subjected to forensic examination wherein it is found that the banana did contain aluminum phosphide and was apparently the cause of death. It has also come on record in the report of forensic laboratory, upon examination of viscera, that aluminum phosphide was present. This evidence would at best show that the deceased were poisoned and that poisoning was the cause of death. This in itself would not lead to an inference that the poisoning was done by the accused persons. Since we find that the confession on part of accused is not supported by any independent corroboration with regard to their role in poisoning the deceased the mere report of the forensic laboratory, on its own, would not constitute any basis to implicate the accused appellant.
29. In the event the confession is ignored the prosecution case rests upon the circumstantial evidence and the prosecution has not been able to show that only hypothesis available in this case points to the guilt of the accused and that no alternative hypothesis exists in the facts of the case.
30. This is a case of circumstantial evidence and the law on the point is well settled that the prosecution must prove the complete chain of events, which points the exclusive hypothesis of guilt attributed to the accused appellant. It is also the requirement of law that the prosecution must show that alternative hypothesis does not exist on facts.
31. Before proceeding with the deliberation any further it would be appropriate to refer to the law governing the case of circumstantial evidence.
32. In Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116, the Apex Court evolved five tests to be established by the prosecution in order to prove the guilt of accused based on circumstantial evidence. Five golden principles have been enumerated in paragraph nos. 152 to 154, which are reproduced hereinafter:-
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hunumant vs. The State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh and Ramgopal v. Stat of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
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 & Anr. V. State of Maharashtra, where the following observations were made:
"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."
33. Judgment of the Supreme Court in the case of Sharad Birdhichand Sarda (Supra) has consistently been followed and reiterated recently by the Court in the case of Ram Niwas Vs. State of Haryana reported in 2022 SCC OnLine SC 1007.
34. When we analyse the evidence on record on the above touch stone, we come to the conclusion that the prosecution has failed to prove the guilt of the accused appellant beyond reasonable doubt. It has not been proved by the prosecution that chain of events in the present case lead only to the hypothesis of guilt on part of the accused appellant and an alternative hypothesis cannot be ruled out. The accused appellant is, therefore, clearly entitled to benefit of doubt in the matter.
35. The alternative hypothesis on behalf of accused that the relatives/villagers may have administered poison as they have ultimately succeeded in grabbing their land has been probablised. We, therefore, find that an alternative hypothesis does exist in the facts of the case. Once that be so, the conviction and sentence of accused appellants based on the circumstantial evidence would clearly be impermissible.
36. Upon the evaluation of the evidence led by the prosecution, we, therefore, come to the conclusion that the prosecution has failed to establish the guilt of the accused appellants beyond reasonable doubt on the basis of which their conviction could be recorded.
37. The court below has also erred in relying upon the confessional statement without evaluating the evidentiary value of such statement in correct legal perspective. The provisions of the Evidence Act dealing with the confessional statements of the accused have not been examined by the court below while recording the guilt of the accused appellants. The judgment and order of the court below, in such circumstances, cannot be approved of.
38. For the discussions and deliberations held above, we find that the accused appellants are clearly entitled to benefit of doubt as the prosecution has not been able to prove their guilt beyond reasonable doubt.
39. Consequently, the present jail appeal succeeds and is allowed. The judgment and order dated 27.9.2008, passed by the Additional Sessions Judge, Court No. 1, Kanpur Dehat in Sessions Trial No. 452 of 2007, State vs. Somwati and another; whereby the appellants Somwati and Kallu have been convicted under section 302 r/w 34 IPC in Case Crime No.223/2007, Police Station Sajeti, District Kanpur Dehat, and sentenced to life imprisonment, is set aside. The appellant Kallu shall be released from Jail, forthwith, unless he is wanted in any other cases, subject to compliance of Section 437-A Cr.P.C. So far as accused Somwati is concerned, she has already died during pendency of the present Jail Appeal and the appeal at her instance has abated as is clear from the order dated 9.11.2022.
40. A copy of this order shall be communicated to the accused appellant in Jail through Chief Judicial Magistrate/Jail Superintendent concerned, forthwith.
41. We record our appreciation for the valuable assistance rendered by learned Amicus Curiae Mr. Virendra Pratap Yadav. He shall be entitled to his fee, which we quantify at Rs.15,000/- to be paid by the High Court Legal Services Authority.
Order Date :- 18.11.2022
Anil
(Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.)