Allahabad High Court
Savir vs State Of U.P. on 5 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 130
Bench: Kaushal Jayendra Thaker, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 49 Case :- CRIMINAL APPEAL No. - 2135 of 2013 Appellant :- Savir Respondent :- State of U.P. Counsel for Appellant :- Gyan Prakash,Neeraj Srivastava,Noor Mohammad,Vishnu Kumar Counsel for Respondent :- Govt. Advocate,R.P. Singh Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Gautam Chowdhary,J.
(Per: Hon'ble Dr. Kaushal Jayendra Thaker,J.)
1. Heard Sri Noor Mohammad, learned counsel for the appellant and learned A.G.A. for the State.
2. The appellant has preferred this appeal against the judgment and order dated 26.4.2013 passed by Additional Sessions Judge, Court No.1, Etah in Sessions Trial No.804 of 2007 convicting and sentencing him under Sections 302 of Indian Penal Code, 1860 (for short 'IPC') for life imprisonment with fine of Rs.2,000/-, Section 364 for rigorous imprisonment for 10 years and under Section 201 of I.P.C. for seven years rigorous imprisonment. All the sentences of imprisonment were directed to run concurrently.
3. The fact is not in dispute that the dead body of the deceased was found in the agricultural field. It is also not in dispute that the original accused was apprehended by the police, it is also not in dispute that during the period when the accused was in the police station, he volunteered to show the place where he had committed the act.
4. Investigating Officer submitted the charge-sheet to the competent court and as the accused was facing charges which were exclusively triable by the Court of Sessions, hence the case was committed to the Court of Sessions. On being summoned, the accused pleaded not guilty and wanted to be tried.
5. The prosecution examined about 9 witnesses which are as follows:
1Deposition of Kallan Ahmad PW1 2 Deposition of Shahid PW2 3 Deposition of Husna PW3 4 Deposition of Mohd. Aakil PW4 5 Deposition of Jaivir Singh PW5 6 Deposition of Dr. Nannumal PW6 7 Deposition of Ram Kumar Singh PW7 8 Deposition of Santosh Kumar Singh PW8 9 Deposition of Sonvir Singh PW9
6. In support of ocular version following documents were filed:
1Written Report Ex.Ka.4 2 F.I.R.
Ex.Ka.1 3 Recovery memo of human skeleton Bone Ex.Ka.2 4 Recovery memo of blood stained Cloth and sleeper Ex.Ka.3 5 Postmortem Report Ex.Ka.9 6 Panchayatnama Ex.Ka.11 7 Charge-sheet Ex.Ka.10
7. On the witnesses being examined and the prosecution having concluded its evidence, the accused was put to question under Section 313 Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellants have preferred the present appeal.
8. Learned counsel for the appellant has submitted that the incident alleged to have taken place on 26.1.2007; neither the Gumshudgi Report nor any information regarding the missing of the victim was lodged against the appellant and only after four months of the occurrence, the appellant and the other co-accused persons were named in the F.I.R only on the basis of suspicion and no plausible reason was given for the delay in lodging the F.I.R.
9. He has contended that the entire conviction has been made by the learned Trial Judge only on the basis of confession and on the theory of last seen together. He has submitted that the skeleton which was recovered at the instance of accused was not sent for D.N.A. profile which can be said to be not of the deceased in absence of D.N.A.
10. He has submitted that the accused though had confessed before the police authority that he has committed the murder of the deceased by means of Gadasa but the recovery of the same was not made at the instance of the accused.
11. It is further submitted by the learned counsel for the appellant that dead body of the deceased though was recovered at the instance of the accused, it was a case of admission of evidence, hence, conviction only under Section 201 of I.P.C. could have been made. In support of his argument, he has relied on the decision in Laldeep Bhagat Vs. State of Bihar, more particularly at paragraph No.10 which is as under:
"10. In a case of circumstantial evidence, it is necessary that the fact 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 and the circumstances should be of a conclusive nature. In the instant case the fact established are not of consistent only with the hypothesis of guilt of the appellant and the circumstances are not conclusive nature. Besides the chain of circumstances has not been established by the prosecution as stated above and hence the facts so established cannot be said to be sufficient for conviction of the appellant under Sections 302 and 376 of the Indian Penal Code save and except Section 201 of the Indian Penal Code."
Learned counsel for the appellant has further relied on the decision in State of Maharashtra Vs. Arjun, (2008) 17 SCC 53, more particularly on the following paras:
"The circumstances which were pressed into service to fasten the guilt on the accused are, as follows:
1. Illicit intimacy with accused No.1.
2. The accused No.2 purchased two packets of rat killer poison from the shop of Motichand, PW-5.
3. The accused No.2 purchased gunny bag (article 16), cotton rope (Articles 17, 18 and 19) and nylon rope (article 20) from the shop of Abhay Bhoj, PW-6.
4. Discovery of dead body of Jagnandansingh from Morda Tank at the instance of accused No.2.
5. Dead body of Jagnandansingh was found in a gunny bag that the dead body was tied by means of cotton rope and that two stones were found to have been tied to gunny bag by means of nylon rope.
So far as the purchase of rat killer poison and the gunny bag is concerned, there was no evidence to show that either the rat killer poison or the gunny bag was purchased prior to the date of occurrence. It is to be noted that the body of the deceased was found in a decomposed state. The Doctor who conducted the post mortem categorically stated that in view of the decomposed state of the dead body, it was not possible to say whether any rat killing poison was used. The only other circumstance is purported discovery of the dead body at the instance of the respondent."
The High Court has found that this so-called discovery on the basis of the information given by A-2 has not been established.
Above being the position, we find that the High Court's judgment does not suffer from any infirmity to warrant interference. The appeal is, accordingly, dismissed."
12. Learned counsel for the appellant has also relied on the decisions in Rambraksh Alias Jalim Vs. State of Chhattishgarh, (2016) 12 SCC 251, Aghnu Manjhi Vs. State of Jharkhand, 2012 LawSuit (Jhar) 1381, Uppala Bixam alias Bixmaiah Vs. State of Andhra Pradesh, (2019) 13 SCC 802 and State of Haryana Vs. Jagbir Singh and Another, 2003 4 Crimes (SC) 241.
13. Per contra, learned A.G.A. for the State has submitted that the conviction of the accused is just and proper. He has taken us through the findings of the learned Trial Judge and has contended that it was the accused at whose instance the dead body of the deceased was recovered.
14. In support of his submission, learned A.G.A. has relied on the decisions in Saktu and Another Vs. State of U.P., AIR 1973 SC 760 and in Manoj Giri Vs. State of Chattishgarh, (2013) 5 SCC 798.
15. The accused-appellant even in his statement under Section 313 of Cr.P.C., has not come out with the defence as to how he came to know that the dead body of the deceased was at a particular place. The place could not have been known to any other person but the accused alone. The recovery of the dead body and the instrument used for commission of offence further strengthen the decision of the Trial Court as according to learned A.G.A., the judgment in Saktu and Another (Supra) as well as Manoj Giri (Supra) once it is established and proved that the accused persons committed that offence the prosecution has successfully proved that the ingredients in Rakesh and another Vs. State of U.P. and another, (2014) 2 SCC and the principle laid therein cannot be made applicable to the facts of this case.
16. In the present case, the events complete the chain and, therefore, we are satisfied that the conviction of the accused-appellant requires to be upheld. Reference to the decision penned by His Lordship Justice M.R. Shah (as he then was) in the case of Nayan alias Yogesh Sevantibhai Soni Vs. State of Gujarat in Criminal Appeal No.37 of 2010 decided on 1.9.2015 where similar situation had arisen, reliance can be easily placed.
17. Reliance can be placed on the decision of the Apex Court in Raja @ Rajinder Vs. State of Haryana, JT 2015 (4) SC 57. Relevant pargraph of the aforesaid judgment is as under :
"14. Thus, if an accused person gives a statement that relates to the discovery of a fact in consequence of information received from him is admissible. The rest part of the statement has to be treated as inadmissible. In view of the same, the recovery made at the instance of the accused-appellant has been rightly accepted by the trial Court as well as by the High Court, and we perceive no flaw in it.
15. Another circumstance which has been taken note of by the High Court is that the blood-stained clothes and the weapon, the knife, were sent to the Forensic Science Laboratory. The report obtained from the Laboratory clearly shows that blood stains were found on the clothes and the knife. True it is, there has been no matching of the blood group. However, that would not make a difference in the facts of the present case. The accused has not offered any explanation how the human blood was found on the clothes and the knife. In this regard, a passage from John Pandian v. State[7] is worth reproducing:
"The discovery appears to be credible. It has been accepted by both the courts below and we find no reason to discard it. This is apart [pic]from the fact that this weapon was sent to the forensic science laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case."
In view of the aforesaid, there is no substantial reason not to accept the recovery of the weapon used in the crime. It is also apt to note here that Dr. N.K. Mittal, PW-1, has clearly opined that the injuries on the person of the deceased could be caused by the knife and the said opinion has gone unrebutted."
18. The matter based on presumptive reasoning will go to show that the accused also have motive. In the case in hand, it has come in evidence that the accused-appellant was in friendship with the deceased. The accused is known to have gone with the deceased and after the death of deceased, the accused-appellant in mysteriously came back to the village and doctrine of confession by subsequent event is founded on the fact that seizure was made at the instance of the information obtained from accused-appellant. The information might be not inculpatory in nature but if it results in a discovery of a fact, it becomes reliable information. In our case, the judgment of this High Court relied by learned counsel for the appellant cannot come to the aid him as here the learned Judge has not only relied on all the statements but also on the evidence and antecedents and the judgment is not only based only on last seen theory.
19. We are convinced that the evidence as discussed by the learned trial judge leave no room for us to take a different view then that taken by the learned trial judge for the reasons that the dead body was unearthed from the place which was though not secluded, would not be known to many as the incident occurred much before the death. The story built by the accused who was last seen with the deceased also inspires confidence as principal of falsus in uno falsus in omnibus will apply to the facts of this case as he conveyed falsely that deceased had eloped with lady to Delhi. The family members of the deceased tried to search fanatically but not able to find the deceased. After subsequent event and after the arrest of the accused, it was he who gave the name of the place where the dead body was and the instrument used for offences.
20. In this case, Sections 3 read with Section 4 and 114 of the Evidence Act, 1872 can also be invoked. The Rules of presumption are deduced from the human knowledge and experience. In this case, relation and coincidence of facts and circumstances as narrated in the case of Pratap Singh Vs. Shivram, AIR 2020 SC 1382.
21. We may also go by the judgment of the Trial Court based on the basis of extra judicial confession which has been corroborated by the independent evidence and other circumstances mentioned in the confession has been separately and independently corroborated. The corroboration needs to be the basis of preponderance.
22. Section 27 of the Evidence Act goes to show that submissions made by learned counsel for the appellant cannot be countenanced. The Judgment in Mustaq Vs. State of Gujarat, AIR 2020 SC 2799 will also have bearing on the factual data of this case. In the said matter, the appellant showed the spot where weapons had been hidden under shed. From the evidence and material on record, it can be said that the recovery of weapon of offence was from the place which was known to all. Similar is the case in hand. The judgment in Mustaq (Supra) will apply to the facts of this case as here in this case also the accused made the description of place. He himself showed the spot which would not be known to many persons. The decision of this Court in Criminal Appeal No.3337 of 2011 (Lokkhar Shukla alias Shiv Shankar Shukla Vs. State of U.P.) dated 3.10.2018 will apply to in full force to the facts of this case.
23. Re-appreciation of evidence on record, more particularly, the depositions of the police officers, the original complainant as well as the other aspects are required to be looked into. The prosecution has been successful in proving the presence of the original accused along with the deceased who can be said to have caused injuries to the deceased by instrument which was recovered at the instance of the accused. The prosecution having come to know that the accused was with the deceased, they immediately nabbed him.
24. Relying on the depositions as they emerge before us, we can safely say that the accused is the person to whom the entire circumstantial chain points out. The accused was said to have moved with the deceased from the place of residence of the deceased. His mala fide intention for giving wrong message that the deceased had eloped to Delhi and that recovering the dead body at his instance from the place which would be known to accused and accused alone also reinforces our belief that the judgment of the Trial Court does not require any interference except on the quantum of punishment which requires to be clarified.
25. We are unable to accept the submission of Sri Noor Mohammad that this is a case of no evidence. The chain of circumstances cannot be said to be broken. We have considered the statement about the matter which discovers the dead body which was made by the accused voluntarily. Reliance can be placed on the recent decision of the Apex Court in Somasundaram Vs. State, (2020) 7 SCC 722.
26. We are conscious that the statement made before the police authorities is not acceptable but in view of the fact that the place of incidence and the place where the dead body was kept/hidden, the recovery of weapon, it proves that the accused and accused alone was the perpetrator of the crime. It cannot be said that the Trial Court has committed any error in convicting the appellant/original accused.
27. From the depositions of P.W.1, the prosecution is successful in establishing and proving that it was the accused who had moved with the deceased and that the dead body was that of the deceased whose missing report was filed.
28. In the final analysis, the prosecution has been successful in proving the complete chain of events which can lead to the only conclusion that it was the accused alone and alone who had caused the death of the deceased.
29. This takes us to the question of punishment of life in this case mean till the last breath or we can grant what is known as fixed term punishment as discussed by the apex court in the case of Vikas Yadav Vs. State of U.P, 2016 (9) SCC 541 followed by the undersigned in Criminal Appeal No. 1839 of 2004 (Veersen Vs. State of U.P.) decided on 20.9.2017. We are even fortified in our view by the decision of the Apex Court in Criminal Appeal No.160 of 2006 (G.V. Siddaramesh Vs. State of Karnataka) dated 5.2.2010.
30. The accused is in jail since more than 10 years, we give him fixed term conviction for 14.6 years under Section 302 of I.P.C. Fine awarded by the Trial Judge is maintained. Conviction under Section 364 of I.P.C. and 201 of I.P.C. are maintained.
31. In view of the above, this appeal is partly allowed.
Order Date :- 5.2.2021 DKS