Allahabad High Court
Ram Pratap Pandey vs State Of U.P. on 4 April, 2019
Equivalent citations: AIRONLINE 2019 ALL 1589, (2019) 3 ALLCRIR 2647 (2019) 5 ADJ 371 (ALL), (2019) 5 ADJ 371 (ALL)
Bench: Anil Kumar, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 10 Case :- CRIMINAL APPEAL No. - 777 of 2017 Appellant :- Ram Pratap Pandey Respondent :- State Of U.P. Counsel for Appellant :- Dharm Raj Misra,Ashok Kumar Singh Counsel for Respondent :- Govt. Advocate Hon'ble Anil Kumar,J.
Hon'ble Vikas Kunvar Srivastav,J.
(Per : Justice Anil Kumar, J.) Heard Sri Vinod Kumar Singh, learned Senior counsel assisted by Sri Ashok Kumar Singh ''Pankaj' learned counsel for appellant, Smt. Smriti Sahay, learned A.G.A. and perused the record.
Present appeal has been filed against the judgment and order dated 03.05.2017 passed by Additional Sessions Judge/F.T.C. First, District Gonda in Sessions Trial No. 374/2010 (State Vs. Ram Pratap Pandey) Police Station Kotwali Dehat, District Gonda convicting and sentencing the appellant under Section 302 I.P.C. for life imprisonment and fine of Rs. 10000/- and in default of payment of fine one year further simple imprisonment, under Section 201 I.P.C. for a period of three years imprisonment and fine of Rs. 1000/- and in default of payment of fine one month further simple imprisonment. The conviction will go on simultaneously.
As per the case of the prosecution on 29.01.2010, Ram Shekhar Dubey Village - Luvava, Thana - Kotwali Dehat, Gonda had informed that dead body of an unknown person is lying in the north ridge of sugarcane field of Suresh Chandra S/o Awadh Bihari.
After receiving the said information, a F.I.R. under Section 302 I.P.C. was registered in Thana - Kotwali Dehat, Gonda as Crime No. 28/2010, P.W. - 8/S.I. Mahendra Pratap Pandey (Retd.) went for preparing inquest report, which he prepared in presence of Jokhan Lal, Ajay Kumar Saroj, Shayam Bihari Mishra, Juggi Lal Mishra and Jagdamba Prasad Mishra. While conducting inquest of dead body, a bus ticket was found from Gosaiganj to Gonda in the pocket of the shirt of the deceased.
Thereafter, dead body was sent for postmortem to mortuary Gonda with the papers. Dr. D.K. Singh conducted the postmortem on 29.01.2010 at 04.20 p.m. As per the postmortem report the probable time of death was about one day before the postmortem. The ante mortem injuries as mentioned therein are as under:-
"1. Antimortem Ligature mark at the level of mouth all around fact and back of neck 2 cm wide. Both side of face ligature mark is just below both ear lobule.
2. Multiple abrasion over Rt. Upper arm and upper part of Rt. Forearm varying from 7 cm X 3 cm to 4 cm X 3 cm.
3. Multiple abraided contusion over antero lateral aspect of neck and chin varying from 8 cm X 2 cm upto 5 cm X 2 cm.
4. Abrasion multiple over upper part of chest varying from 6 cm X 3 cm to 4 cm X 3 cm. "
In the report, it is mentioned that abdomant/stomach consist of alcohol, undigested food of 150 gm.
The probable cause of death is informed by the doctor conduting postmortem is due to strangulation resulting in asphyxia.
Later on, father of the deceased/Raghunath Sahay Tiwari and Bhagwat Prasad Tiwari (nephew) who were already searching of deceased/Devi Prasad Tiwari who did not return to home from the house of the accused situated in village Kalyanpur Majre Bankatwa, District - Gonda when he went in the morning of 28.01.2010 and expected to come in the evening of same day, received information on 02.02.2010 of a dead body found in the said locality,.They reached the Kotwari Dehat Gonda on 02.02.2010 where cloths terms on the dead body and photograph, they recognized the dead body to be of Devi Prasad Tiwari.
In view of the abovesaid facts on 02.02.2010, Section 201 I.P.C. was added in the F.I.R.
On 08.02.2010 the accused-applicant/Ram Pratap Pandey was arrested at about 04.00 p.m. and on his confessional statement, and pointing out the place where he had hidden the Gamchha and plastic rope by which he committed the crime, it was found on the leading of the accused. The I.O. prepared to proceed there. Investigating Officer while proceeded towards the spot, in the midway, stopped two passengers boarded on the Jeep going to Faizabad, namely, Sant Prasad Kanaujiya and Lallan Prasad Tiwari and took them with him for the spot of incident. In their presence the Investigating Officer on the other side of the sugarcane filed where initially body of the deceased was found on 29.01.2010, recovered a Gamchha and plastic rope/string, prepared the recovery memo (Ext. Ka-14) signed by the accused and Investigating Officer.
After making the investigation, the chargesheet was filed before the concerned court of magistrate who committed the case as not trial by him, case was committed to the session court and S.T. Case No. 374/2010 (State Vs. Ram Pratap Pandey) has been registered in the Court of Assistant Session Judge/F.T.C. -3, Gonda in Crime Case No. 28/2010 under Section 302, 201 I.P.C, P.S. Kotwali Dehat, Godan.
By an order dated 23.02.2011, the Court has framed a charge under Section 302 read with Section 201 I.P.C. which was read over and explained to the accused, who did not admit the guilt and claimed to be tried therefore, the, trial began.
The prosecution in order to establish and prove its case in addition to documentary evidence, namely, postmortem report (Ext. -Ka- 13), recovery memo (Ext.- Ka-3), recovery memo (Ext.- Ka- 4), recovery memo (Ext.-Ka-5). inquest report (Ext. Ka-6), site plan (Ext. Ka-14), site plan (Ext. Ka-15) produced the following witnesses for examinaiton on oath before the court namely:-
P.W.-1 Ram Shekhar Dubey P.W. -2/Raghunath Sahay Tiwari P.W. 3/Sri Bhagwat Prasad Tiwari P.W. - 4/Sant Prasad Kanaujiya P.W.-5/Lallan Prasad Tiwari P.W. - 6/Nikku @ Gayatri P.W.-7/Shanti Devi @ Rita Devi @ Ranti Devi wife of deceased/Devi Prasad Tiwari P.W. - 8 /Sub-Inspector Mahendra Pratap Pandey (Retd.) P.W. - 9/Dr. D.K. Singh P.W.-10/Inspector Sarvdeo Singh (Retd.) P.W. - 11/Constable Ram Kumar Mishra P.W. -2/Raghunath Sahay Tiwari, the father of the deceased/Devi Prasad Tiwari in his statement has stated that on 28.01.2010 in the morning at about 08.00 a.m. his son went to the house of the appellant/Ram Pratap Pandey situated in village Kalyanpur Majre Bankatwa, District - Gonda for taking some money fro him.
Devi Prasad Tiwari/deceased was in jail in connection with a murder case and in the said matter Ram Pratap Pandey ws doing help and parvi.
Devi Prasad Tiwari has married his daughter / Nickku @ Gayatri by way of ''Jaimal' with son of Ram Pratap Pandey approximately fifteen days ago the date of incident.
On 28.01.2010, accused-appellant Ram Pratap Pandey asked him on phone whether the deceased/Devi Prasad Tiwari reached his house or not and he has given Rs. 8100/- to him.
As the deceased had not reached the house, he started to search the deceased. On 02.02.2010 went to Thana - Kotwali Dehat Gonda and when he asked, he was told that an unidentified body was found at Katyanpur Bankatwa Mauja. He was shown the cloths which were found on the dead body and the photography of the said dead body.
Further, in his statement P.W. 2 stated that when he has recognized the body of his son from cloth and photograph in Thana Kotwali Dehat Gonda then he lodged a F.I.R. on 02.02.2010 (Ext. K-2) In his statement, he further stated that while he was searching his son/Devi Prasad Tiwari, the accused-Ram Pratap Pandey did not allow him to meet his grand daughter/Nikku @ Gayatri and after a week from the date of incident with the help of the police he brought his grand daughter Nikku @ Gayatri to his house.
P.W. 3/Sri Bhagwat Prasad Tiwari in his statement has stated that on 28.01.2010, deceased/Devi Prasad Tiwari in the morning at 08.00 a.m. left his house to meet Ram Pratap Pandey and in the evening at 07.00-08.00 p.m. Ram Pratap Pandey on phone, asked that whether Devi Prasad had reached his house or not. As Devi Prasad Tiwari had not reached his house in the night, therefore, he along with Raghunath Sahay Tiwari, the father of the deceased started searching whereabouts of Devi Prasad Tiwari and in this course they went to the house of the Ram Pratap Pandey, however, they were not allowed to meet the daughter of the Devi Prasad, namely, Nikku @ Gayatri by his son Pappu, Raju and wife of Ram Pratap Padney. Thereafter, they searched Devi Prasad Tiwari in their relations for two-three days and only on 02.02.2010 they reached in the Thana Kotwali Dehat, Gonda when by way of cloth and the photograph of the dead body found by the police they recognized the deceased.
In his statement, he further stated that on 03.2.2010 they had brought Nikku @ Gayatri to their house. Nikku @ Gayatri told that deceased/Devi Prasad Tiwari had come to the house of accused-appellant/Ram Pratap Pandey and Ram Pratap Pandey told Devi Prasad Tiwari to marry his second daughter with his second son, however deceased/Devi Prasad Tiwari refused the same, so an ltercation took place between deceased/Devi Prasad Tiwari and accused-appellant/Ram Pratap Pandey and, thereafter Ram Pratap Pandey along with his wife, sons, Raju and Pappu had started beating deceased/Devi Prasad Tiwari and locked him in a room. Thereafter they took him somewhere-else, not known to Nikku @ Gayatri. Ultimately dead body of the deceased/Devi Prasad Tiwari was found.
P.W. - 6/Nikku @ Gayatri, the daughter of the deceased/Devi Prasad Tiwari and daughter-in-law of the accused-appellant/Ram Pratap Pandey, stated that she has been married with the Pappu @ Adalti, son of accused-appellant/Ram Pratap Pandey. On the date of incident, in the morning her father-in-law/Ram Pratap Pandey at about 10.00 a.m. told that he was going to Bazar, her husband and brother-in-law had gone for irrigation of the field.
About 2.30-3.00 p.m., Fufa of her husband/Lambu Chaubey came in Bolero vehicle along with two persons and and asked about his father-in-law and they went back.
At about 10.00 p.m. his father-in-law came in a drunken stage, at door of his house told his mother-in-law that he has committed a blunder with deceased/Devi Prasad Tiwari, bring a rope/string so that he could hang himself as she heard the said conversation from the door and just recalled that her father-in-law wanted his younger sister/Sikku @ Savitri to marry with her brother-in-law/Dadani which was refused by her father/deceased/Devi Prasad Tiwari on the ground that he will not marry two daughters in the same house. On this refusal, her father-in-law was annoyed with her father, hence he killed her father/deceased/Devi Prasad Tiwari, and thrown away the dead body.
P.W. - 6/Nikku @ Gayatri stated also that it is true that in the murder of my first father-in-law of first marriage (Rauwa Gaon) my father/deceased/Devi Prasad Tiwari was accused, sent to jail and case is still going on. Afterward, she was again married by her father/Devi Prasad Tiwari with the son of appellant-accused/Ram Pratap Pandey 15 days prior to the incident.
P.W.-6/Nikku @ Gayatri stated also that accused-appellant/Ram Pratap Pandey brought her to the P.S. Kotwali Dehat, Gonda where her family members were present and from P.S. Kotwali Dehat she along with her grand-father/Raghunath Sahai Tiwari, mother and uncle went to her parental house. Thereafter her grand father again re-married her within one month (third marriage).
P.W.-7/Shanti Devi @ Rita Devi @ Ranti Devi wife of deceased/Devi Prasad Tiwari stated that on the date of incident, deceased/Devi Prasad Tiwari at about 09.00 a.m. has gone from her house, telling her that accused-appellant has called him to give money. He wore Pant, Shirt, white coloured of Gamchha and half sweater. He further told her, that in case if he would be late, he will not be returned on the same day.
She further stated that her husband/Devi Prasad Tiwari along with appellant-accused/Ram Pratap Pandey when was in the market, a conversation had taken place with him. Deceased told that if he would be late, he will come in the next morning, Ram Pratap Pandey asked his husband to marry his second daughter with his second son/Dadani, but he refused, on the ground that two daughters cannot be married in the same house.
Again she tried to contact her husband but the phone could not be connected, so she called accused-appellant/Ram Pratap Pandeyby mobile phone at that time the same was not connected. After one hour Ram Pratap Padney on her phone told her that he has given Rs. 8000/- and Rs. 100 as conveyance expense to her husband and got boarded him on a bus. As her husband did not reach the house, so she again tried to contact Ram Pratap Pandey on phone but he did not respond in a proper manner, rather abused her, said that as her husband has not agreed to marry his second daughter, so he has killed him and thrown away. Then she contacted mother-in-law (wife of Ram Pratap Pandey) of her daughter/ Nikku, the said conversation is as: "जब हमने अपनी बेटी की सास से बात किये तो उन्होंने बताया कि तुम्हारे पति यहाँ नहीं आये है फ़ोन पर रामप्रताप पांडेय ने अपनी पत्नी से भी कहा था कि मेरे पति को मार डाले है |"
She stated, in the P.S. Kotwali Dehat, District Gonda by cloth and photograph along with the brother-in-law/Ram Chander she recognized the dead body of her husband/deceased/Devi Prasad Tiwari who has been killed by the accused-appellant only because he had refused to marry his second daughter with second son/Dadani of accused-appellant.
In her cross examination, she stated that at the time of incident, she has got the mobile but she did not know the mobile number.
When all the prosecution witnesses were examined and the evidence has been closed the accused-appellant was confronted with the material piece of evidence with the relation to charge during examination U/s 313 Cr.P.C. The accused-appellant denied the truthfulness of the evidences and and desired to defend him by adding the oral evidence of his defense witness.
D.W. -1/Sri Ved Prakash in his examination-in-chief deposed about the topography of the place where the dead body of the deceased was found as well as the location where the residence of the accused-appellant-Ram Pratap Pandey is situated.
Trial court after taking documentary/oral evidences led by the parties and awarded sentence to the appellant-accused/Ram Pratap Pandey by order dated 03.05.2017 on following points:-
(i) The prosecution has proved by way of cogent evidence that on the date of incident the deceased has met the appellant-accused/Ram Pratap Pandey. In this regard the trial court has placed reliance on the statement given by P.W. -2, P.W.-6, P.W. -7 as well as fact that in the pocket of the shirt of the deceased a ticket from Gosainganj to Gonda dated 28.01.2010 was found.
Taking into consideration the said facts and also taken into consideration the statement of P.W.-6/Nikku @ Gayatri that on the date of incident, at about 10 p.m. in the night, her father-in-law came to house and at doors, he told her mother-in-law that he has committed a mistake, and now let him also hang himself by rope. The said fact was heard by her behind the door as deceased/Devi Prasad Tiwari refused to marry his younger daughter/Sikku @ Savitri with his younger son/Dadani, so he called and killed him.
The trial court has also placed reliance on the statement of P.W.-7/Shanti Devi @ Rita Devi @ Ranti Devi wife of deceased/Devi Prasad Tiwari in respect to the fact that her husband has gone on the date of incident at 09.00 a.m. telling her that he was going to house of the accused-appellant/Ram Pratap Pandey at Gonda to take money and in respect to the telephonic conversation which has taken place between her and her husband as well as accused-appellant/Ram Pratap Pandey and his wife which she has given in the statement. As such the trial court held that the prosecution has proved the case beyond doubt which are required to take into consideration for convicting a person as per circumstantial evidence.
Further, while passing the judgment of conviction, the trial court has held that there is a motive behind killing of the deceased by accused-appellant/Ram Pratap Pandey as the deceased has refused to marry his younger daughter with his younger son/Dadani and also to the fact that in the present case the articles used for killing the deceased/Devi Prasad Tiwari i.e. Gamchha and Plastic rope/string were recovered at the pointing out of the accused-appellant/Ram Pratap Pandey in presence of two independent witnesses who produced by the prosecution as P.W. - 4/Sant Prasad Kanaujiya and P.W.-5/Lallan Prasad Tiwari and the recovery memo prepared by the Investigating Officer has been signed by them which has been duly proved by the Investigating Officer.
Sri V.K. Singh, learned Senior Counsel for accused-appellant/Ram Pratap Pandey assailing the impugned judgment, submits while convicting the appellant-accused on the ground of motive on his part that he has refused to marry his second daughter with second son/Dadani is totally incorrect and is a concocted story because his elder daughter/Nikku @ Gayatri was married only 15 days ago and within short span, no question arises for marriage of second daughter. This is a fabricated story, set up by the prosecution, not proved by any cogent evidence.
In order to establish the said facts, he argued that from statement of P.W. 2, P.W. - 3 and P.W.-7, the motive in respect to the marriage of the second daughter with the second son is shown to have been was developed on the spot but on the other hand the same is in contradiction to the evidence of elder daughter P.W. 6/Nikku who has stated that her father has refused the offer of marriage of her brother-n-law (Dever)/Dadani with her younger sister/Sikku @ Savitri, so his father-in-law called her father and committed crime, as such, keeping the said oral evidence led by prosecution as well as the judgment given by Hon'ble the Apex court in the case of Tomaso Bruno and another Vs. State of Uttar Pradesh, 2015 (7) SCC 178, as under:-
"34. Where the case is based on circumstantial evidence, proof of motive will be an important corroborative piece of evidence. If motive is indicated and proved, it strengthens the probability of the commission of the offence. In the case at hand, evidence adduced by the prosecution suggesting motive is only by way of improvement at the stage of trial which, in our view, does not inspire confidence of the court."
Sri V.K. Singh learned Senior Counsel for appellant-accused also submitted that on 08.02.2010 accused-appellant/Ram Pratap Pandey was arrested on the information given by an approver and on his pointing out, the Investigating Officer went to the spot where the accused informed that he has hidden the articles, used for committing the crime, on the way two witnesses, namely, Sant Prasad Kanaujia and Lallan Prasad Tiwari who boarded on a jeep were going to Faizabad were stopped by the Investigating Officer and were told the purpose, they voluntarily accompanied and in their presence on pointing out of the accused-appellant/Ram Pratap Pandey Gamchha and rope were recovered.
However, P.W. 4/Sant Kumar Kanaujiya, one of the witness of the recovery memo during his examination on oath although stated that he signed the recovery memo but denied the content that he was not aware of the contents of the same, he only put his signature and no statement was made by accused on report where he has hidden the articles used for committing crime.
P.W.-5/Lallan Prasad Tiwari, in his statement, denied that he has not signed the recovery memo, no recovery was made in his presence, after arresting the accused-appellant/Ram Pratap Pandey, the police did not record his statement in presence of the witnesses on the basis of which they had proceeded to recover the articles on his pointing out. In view of the said facts as well as the law laid down by the Hon'ble Apex Court in the case of Mani Vs. State of Tamil Nadu, 2008 AIR SCW 576, held as under:-
"15. The first circumstance held by the High Court against the appellant is that the Koduval (M.O.18) was found with sticking hair and it is proved that the scalp hair of the deceased was found similar to the hair sticking to the Koduval and that M.Os 15, 16 and 17 were the clothes found with strained blood. In our opinion, this circumstance by itself is of no consequence unless those material objects are connected with appellant.
16. An interesting statement was made by the High Court suggesting that if the appellant took the deceased at 6.00 p.m. on 24.11.1996 to his house where the deceased was done away with, the burden shifted on the first accused to show how the deceased died in his house. In our opinion, this is not the correct position of law. In order to hold this circumstance, the High Court has recorded the finding that the house belonged to the present appellant. The appellant had very clearly stated in his examination under Section 313 Cr.P.C. that the house did not belong to his father and that it was lying vacant and nobody had occupied it. In our opinion, atleast from the evidence on record, it cannot be concluded that the house belonged to the appellant. There is no evidence worth the name lead by the prosecution to suggest the exclusive ownership or the possession of the house belonged to the appellant. Both the courts have proceeded on the presumption that the house was owned or possessed exclusively by the appellant. Much could have been done to establish its ownership by filing the revenue record of that house. No such documentary evidence was collected by the prosecution. The High court has not discussed this aspect of exclusive ownership and possession at all and has proceeded on the presumption that the house belonged to and was possessed by the appellant herein."
And by a Division bench of this Court in the case of Dharmendra Vs. State of U.P., dated 06.08.2010 in Criminal Appeal No. 1417 of 206, held as under:-
"Now turning our attention towards charge under section 25 Arm's Act, we find that conviction and sentence on the said charge is also assailable. According to prosecution case, appellant was arrested at P.S. Sibhawali in the evening of 18.11.2003.I.O. Albeit proceeded for the spot but did not took appellant with him to fathom out the murder weapon. This raises a suspicion regarding recovery. Appellant was interrogated on 19th morning at 6.00 a.m. after his medical examination at 5.55 a.m. According to the deposition of P.W.10, he accompanied the appellant to the place from where appellant took out the country made pistol with an empty cartridge fixed in it. Before said recovery there is no evidence on record to prove what disclosure statement was made by the accused to the I.O. which led to this recovery. From perusal of recovery memo, vide Ext. Ka-6 it is born out that the same was inked subsequent to recovery. Under section 27 of the Evidence Act, what is admissible is so much of the disclosure statement by an accused while in police custody which leads to recovery not the actual recovery as such. In his deposition P.W.10 S.I. Lala Ram Verma has not stated regarding any disclosure statement made by the appellant. No other witness was examined by the prosecution to prove that disclosure. Under section 27 of the Evidence Act what can be proved is the disclosure statement made by the accused. Legally speaking it should be proved in the actual words of the accused. Ext. Ka-6 also does not contain such a statement. Once that evidence which is admissible under 27 of Evidence Act is not brought on record actual recovery is of no use nor it is admissible. In our this conclusions we draw support from following decisions of the apex court. In Geejaganda Somaiah Vs. State of Karnataka AIR 2007 SC 1355 it has been held by the apex court in paragraph 21 and 22 thereof as follows:-
" However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 the Evidence Act providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.
22. As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 the Evidence Act."
In Pulukuri Kottaya and others vs. Emperor:AIR 1947 PC 67 it was held :
"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved."
In State of Uttar Pradesh vs. Deoman Upadhyaya: AIR 1960 SC 1125 was held that :-
"Section 27 renders information admissible on the ground that the discovery of a fact pursuant to a statement made by a person in custody is a guarantee of truth of the statement made by him and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement. The principle of admitting evidence of statements made by a person giving information leading to the discovery of facts which may be used in evidence against him is manifestly reasonable"
InEarabhadrappa alias Krishnappa vs. State of Karnataka: 1983 (2) SCR 552 it was held that two conditions are sine qua non for applicability of Section 27 Evidence Act and those are (i) information must be such as has caused discovery of the fact, and (ii) the information must 'relate distinctly' to the fact discovered. Under Section 27 only so much of the information as distinctly relates to the fact really thereby discovered, is admissible.
Thus what is admissible under section 27 of the Act is disclosure statement. Hence such statements should be taken down by the police in the actual words of the accused and those actual words transcript has to be proved to gain the benefit of section 27 of Evidence Act. Moreover Ananat Ram has been produced as P.W.2 by the prosecution who is a resident of village of informant. He therefore is an interested witness. Further place of recovery was open to all and sundry which was accessible to all and hence exclusive knowledge of the appellant can not be presumed. Since we have held that prosecution has cooked up a case against the appellant, we find recovery of weapon from the appellant also to be extremely doubtful."
Confirmed by Hon'ble the Apex Court in the case of Mangu Singh Vs. Dharmendra and another, 2015 (17) SCC 488, "but the disclosure based upon which the recovery is made. The pivotal fact is making of the statement to the police which leads to recovery. The High Court rightly pointed out that during the investigation, no statement disclosing the fact/material to be discovered was proved before the Court. In our opinion, the High Court is correct to point out this serious lacunae. "
Coupled with the fact that on 29.01.2010 on the ridge (mend) of the sugarcane field of one side, the dead body was found and thereafter on 08.02.2010, on the ridge (mend) of another side of the same sugarcane field Gamchha and rope/string used in the crime were found which are an open place, make the recovery which is said to be made on the pointing out of the appellant doubtful in itself and on the basis of which conviction should not be passed by the trial court.
Lastly, it is argued since it is a case of circumstantial evidence, so in such type of cases the prosecution has to establish the facts which constitute a complete chain of sequences from which the only conclusion which is to be drawn should point out towards the guilt of the accused to the entire exclusion of all others i.e. the guilt is to be drawn, should in first instance fully established.
Moreover, the said essential factors not exist as the prosecution has failed to establish facts forming an intact chain of incident on the basis of which the accused/appellant can be held guilty because, from the statement given by P.W. 2 and P.W. 3, the position emerged out, is that they had only stated that the deceased/Devi Prasad Tiwari on 28.01.2010 at 08.00 a.m. has told that he is going to Gonda to meet accused-appellant/Ram Pratap Pandey to get money from him.
Whereas P.W.-7/Shanti Devi @ Rita Devi @ Ranti Devi in her statement has stated that on 28.01.2010 at 09.00 a.m. her husband left the house and went to village of accused-appellant/Ram Pratap Pandey situated in village Kalyanpur Majre Bankatwa, District - Gonda to meet him who has called him on phone to take the money, thereafter she had a telephonic conversation with him from the market of the village, later on when she was unable to contact her husband on telephone she called Ram Pratap Pandey who told her that he has given to her husband Rs. 8000/- and Rs. 100/- for conveyance and boarded him on bus. As her husband has not reached, she again made a mobile cell to call Ram Pratap Pandey who abused her and said that he has killed her husband and thrown him away However, the police has neither taken into custody the mobile of P.W. 7/Shanti Devi @ Rita Devi @ Ranti Devi in order to verify the veracity of the said evidence, mandatory provisions of Section 61(a)(b) of the Indian Evidence Act should be followed as the same has not been done so the accued-appellant has been wrongly convicted.
In this regard, he has placed reliance on the judgment given by Hon'ble the Apex Court in the case of Tomaso Bruno and another Vs. State of Uttar Pradesh, 2015 (7) SCC 178, "There is no doubt that conviction can be based solely on the circumstantial evidence. But it should be tested on the touchstone of the law relating to circumstantial evidence. This Court in C. Chenga Reddy Vs. State of A.P., 1996 (10) SCC 193, para (21) held as under :-
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of [pic]evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence."
As well as in the case of Shafhi Mohammad Vs. State of Himachal Pradesh, 2018 (2) SCC 801.
Further, the evidence of P.W.-7 is contrary to the evidence given by P.W.-6/Nikku and the statement of Investigating Officer/P.W.-9, so taking into consideration the fact that the prosecution has failed to make out a case of circumstantial evidence as, as per the evidence on record on the basis of which the only conclusion could have been drawn at first instance that the crime has been committed by Ram Pratap Pandey and none else. As such the judgment passed by the trial court suffered from error and the same is liable to be set aside.
Smt. Smriti Sahai, learned A.G.A. while rebutting the contention raised on behalf of the appellant-accused submits that it is not in dispute rather admitted fact that on 28.01.2010, the deceased has gone to met accused-appellant/Ram Pratap Pandey who called him to give money, established from the statement given by P.W.-2, P.W. 3 and P.W. 7, thereafter the dead body of deceased was found on 29.01.2010 in the near vicinity of the village of accused where he resides.
On 02.02.2010, the father of the deceased has recognized the body of his son by way of cloth and photograph, accordingly, the F.I.R. which was initially lodged under Section 302 I.P.C. against unknown persons, in the same Section 201 I.P.C. has been added.
After the arrest of the accused-appellant/Ram Pratap Pandey he has confessed before the Investigating Officer, on his pointing out Gamchha and Rope have been recovered from side of ridge/medh ofsugarcane field on 08.02.2010 in presence of two independent witnesses.
Even if the witness of recovery has become hostile that will not give any benefit to the accused-appellant/Ram Pratap Pandey, as he has signed recovery memo in which it has been mentioned that Gamchha and rope were recovered at his pointing out, in that circumstances the prosecution has proved that he has committed the crime.
In support of her argument she has placed reliance on the judgment given by Hon'ble the Supreme Court in the case of Ramesh HarijanVs. State of Uttar Pradesh, 2012 (5) SCC 777, "(iv) The recovery of part of the sheet and white clothes having blood and semen as per the FSL report has been dis-believed by the trial court in view of the fact that Ram Prasad alias Parsadi (PW.5) and Bhikari (PW.10) did not support the prosecution case like other witnesses who did not support the last seen theory. The trial court failed to appreciate that both the said witnesses, Ram Prasad alias Parsadi (PW.5) and Bhikari (PW.10) had admitted their signature/thumb impression on the recovery The factum of taking the material exhibits and preparing of the recovery memo with regard to the same and sending the cut out portions to the Serologist who found the blood and semen on them vide report dated 21.3.1996 (Ext. Ka 21) is not disputed. The serological report also revealed that the vaginal swab which was taken by the doctor was also human blood and semen stained.
18. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh v. The Stae of Haryana,AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848; and Khujji @ Surendre Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853).
19. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543;Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., AIR 2006 SC 951; Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320; and Subbhu Singh v. State by Public Prosecutor, (2009) 6 SCC 462.
Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. (See also: C. Maniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36) ."
Learned A.G.A. submits that so far as the argument advanced by learned Senior Counsel for appellant-accused that on 29.01.2010, the body of the deceased has been found on the one side of sugarcane field at medh/ridge and on 02.02.2010, the articles alleged to be recovered on the other side of the ridge/medh is concerned, in any manner help the accused-appellant/Ram Pratap Pandey because as per the evidence on record there is distance between two places approximately 45 paves/steps i.e. near about 60 ft. as well as status of the sugarcane filed in the month of January was of also fully grown plants. It is established from the site plan (Ext. K-15).
Learned A.G.A. further argued that prosecution on the basis of oral evidence of P.W.-6 and P.W.-7 has proved the motive of killing which is to the effect that since deceased has refused to marry his second daughter with second son of accused-appellant/Ram Pratap Pandey, so he got annoyed with deceased/Devi Prasad Tiwari and killed him. as such by way of oral evidence only conclusion which may an be drawn is that offence has been committed by the accused-appellant/Ram Pratap Pandey/who has killed Devi Prasad Tiwari.
In order to elaborate the said fact, she has placed reliance on the recovery of the ticket from Gosainganj to Gonda dated 28.01.20110 from the pocket of deceased. And the statement given by P.W. 2 and P.W. 3 that the deceased has gone to met the accused-appellant/Ram Pratap Pandey for collecting the money and also on the statement of P.W. 6 and P.W. 7 (specially), also placed reliance on the judgment given by Privi Council in the case of Pakala Narayana Swami Vs. Emperor, AIR 1939 Privy Council 47, held that:-
"Circumstances of the transaction" is a phrase o doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant fats. It is on the other hand narrower than "resgestae." Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant. In is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility, of the evidence is that "the cause of (the declarant's) death comes into question." General expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But, statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was nto the person accused. Such a statement might indeed be exculpatory of the person accused. The statement admissible under Section 32(1) may be made before the cause of death has arisen or before the deceased has any reason to anticipate being killed."
Hon'ble the Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116, wherein it has been held as under:-
"Thus, from a review of the authorities mentioned above and the clear language of s.32(1) of the Evidence Act, the following propositions emerge:-
(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to death. In this respect, as indicated above, the Indian Evidence Act,, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of s.32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under s.32.
(3) The second part of cl.1 of s.32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that s.32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of s.32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."
Learned A.G.A. further submits that in the present case, the plea taken by learned counsel for accused-appellant that the conversation between wife of the deceased and accused-appellant and his wife has not been subject to evidence as per the provisions of Section 65B of Indian Evidence Act, so on the basis of the same the case of circumstantial evidence has not been proved, is not correct as the said plea is not taken by him before the trial court, so it cannot be taken at the appellate stage.
In support of her argument she has placed reliance on the judgment given by Apex Court in the case of Surajit Sarkar Vs. State of West Bengal, 2013 (2) SCC 146, "We may mention that learned counsel for Surajit Sarkar submitted that there was a delay in forwarding the FIR to the concerned Magistrate. Since no foundation has been laid for this contention nor was this contention urged either before the Trial Court or before the High Court we see no reason to entertain it at this stage. "
Accordingly, learned A.G.A. submits that the appeal lacks merit and is liable to be dismissed.
After hearing learned counsel for parties and going through the record as well as taking into consideration the judgment cited by the counsel appearing on behalf of the parties, we feel appropriate to decide the first and foremost question whether the prosecution by way of circumstantial evidence has established beyond doubt that only conclusion can be drawn that the crime was committed by the accused.
Circumstantial evidence is used in criminal courts to decide the fate of accused by establishing guilt or innocence through reasoning.
As witnesses are the "eyes and ears of justice". But testimony of witnesses is not always credible; therefore, facts are provable not only by witnesses but also by circumstances.
Historical Background of Circumstantial Evidence Circumstantial evidence is not considered to be proof that something happened but it is often useful as a guide for further investigation. An example from genealogy would be that if census records showed several people with the same surname lived at the same address, likely relationships could be inferred from age and gender. Circumstantial evidence is used in criminal courts to establish guilt or innocence through reasoning. They also play an important role in civil courts to establish or or deny liability.
Analysis of the term Evidence Evidence" is the raw material which a judge or adjudicator uses to reach "findings of fact". The findings of fact that the evidence generates are - for all their flaws - "what happened" for all intents and purposes of the legal proceeding. If you do not agree with the fact-finding that has been made (or even if you know it to be wrong), recognize that the rules of evidence are the best rules that law know of to reach the necessary goal of fact-finding.
"In its original sense the word ''evidence' signifies, the state of being evident i.e. plain, apparent or notorious. But.... It is applied to that which tends to render evidence or generate proof .... The fact sought to be proved is called the principal fact; the fact which tends to establish it, the evidentiary fact"
Circumstantial evidence is unrelated facts that, when considered together, can be used to infer a conclusion about something unknown. Information and testimony presented by a party in a civil or criminal action that permit conclusions that indirectly establish the existence or nonexistence of a fact or event that the party seeks to prove.
An example of circumstantial evidence is the behavior of a person around the time of an alleged offense. If someone were charged with theft of money, and were then seen in a shopping spree purchasing expensive items, the shopping spree might be regarded as circumstantial evidence of the individual's guilt. Similarly if a witness arrives at a crime scene seconds after hearing a gunshot to find someone standing over a corpse and holding a smoking pistol, the evidence is circumstantial, since the person may merely be a bystander who picked up the weapon after the killer dropped it. The popular notion that one cannot be convicted on circumstantial evidence is false. Most criminal convictions are based, at least in part, on circumstantial evidence that sufficiently links criminal and crime.
Supreme Court of United State of America in Holland v. United States (348 U.S. 121, L.Ed. 1950(1954) held that "circumstantial evidence is intrinsically no different from testimonial [direct] evidence" Thus, the distinction between direct and circumstantial evidence has little practical effect in the presentation or admissibility of evidence in trials. Similarly in India the two leading case of Priyadarshani Matoo and Jessica Lal were heavily based on circumstantial evidence.
Evidence as per English Law According to Stephens the word "evidence" is used in three senses
1) words uttered, and thing exhibited in Court,
2) facts proved by those words or things , which are regarded as ground word of inference as to other facts not so proved, and
3) relevancy of a particular fact to matter under inquiry Section 3 of Indian Evidence Act 1872 defines "evidence" as only instruments by means of which relevant facts are brought before the Court.
Evidence is generally divided into three categories by which facts are brought before the Court.
1) oral or personal
2) documentary and,
3) material or real.
Further, the definition of "evidence "must be read together with that of "proved". The combine results of these two definition is that evidence under the Indian Evidence Act which is not only the medium of proof but there are in addition to this , number of other" matter" which the Courts has to take into consideration, when forming its conclusion. Thus the definition of "evidence" in the Indian evidence Act is incomplete and narrow.
In the case of Hanumant Govind Nargundkar Vs. State of M.P., AIR 1952 SC 343, Hon'ble the Apex Court held as under:-
"It is well to remember that in cases where the evidence in 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 pendency 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 for 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."
Hon'ble the Apex Court in the case of Bodhraj Vs. State of Jammu and Kashmir, 2002 (8) SCC 45, held that :-
"The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the authority of the crime becomes impossible."
Hon'ble the Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116, after taking into consideration various judgments passed earlier in respect to the matter regarding circumstantial evidence has held as under:-
"The leading decision on this question, which has been endorsed by this Court, is the case of Pakala Narayan Swami v. Emperor where Lord Atkin has laid down the following tests:
"It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the "circumstances" can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible----------- Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae". Circumstances must have some proximate relation to the actual occurrence. ----------It will be observed that "the circumstances are of the transaction which resulted in the death of the declarant."
These principles were followed and fully endorsed by a decision of this Court in Shiv Kumar & Ors v. The State of Uttar Pradesh where the following observations were made:
"It is clear that if the statement of the deceased is to be admissible under this section it must be a statement relating to the circumstances of the transaction resulting in his death. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed,---------A necessary condition of admissibility under the section is that the circumstance must have some proximate relation to the actual occurrence-------
---- The phrase "circumstances of the transaction" is a phrase that no doubt conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae" (See Pakala Narayana Swami v. The King Emperor AIR 1939 PC 47).
The aforesaid principles have been followed by a long catena of authorities of almost all the courts which have been noticed in this case. To mention only a few important once, in Manoher Lal & ors. v. The State of Punjab, the Division Bench of the Punjab & Haryana High Court observed thus:
The torture administered sometimes manifests itself in various forms. To begin with, it might be mental torture and then it may assume the form of physical torture. The physical harm done to the victim might be increased from stage to stage to have the desired effect. The fatal assault might be made after a considerable interval of time, but if the circumstances of the torture appearing in the writings of the deceased come into existence after the initiation of the torture the same would be held to be relevant as laid down in Section 32(1) of the Evidence Act."
We fully agree with the above observations made by the learned Judges. In Protima Dutta & Anr. v. The State while relying on Hanumant's case (supra) the Calcutta High Court has clearly pointed out the nature and limits of the doctrine of proximity and has observed that in some cases where there is a sustained cruelty, the proximity may extend even to a period of three years. In this connection, the High Court observed thus:
"The 'transaction' in this case is systematic ill treatment for years since the marriage of Sumana with incitement to end her life. Circumstances of the transaction include evidence of cruelty which produces a state of mind favourable to suicide. Although that would not by itself be sufficient unless there was evidence of incitement to end her life it would be relevant as evidence.
This observation taken as a whole would, in my view, imply that the time factor is not always a criterion in determining whether the piece of evidence is properly included within "circumstances of transaction. "--------"In that case the allegation was that there was sustained cruelty extending over a period of three years interspersed with exhortation to the victim to end her life." His Lordship further observed and held that the evidence of cruelty was one continuous chain, several links of which were touched up by the exhortations to die. "Thus evidence of cruelty, ill treatment and exhortation to end her life adduced in the case must be held admissible, together with the statement of Nilima (who committed suicide) in that regard which related to the circumstances terminating in suicide."
Similarly, in Onkar v. State of Madhya Pradesh while following the decision of the Privy Council in Pakala Narayana Swami's case (supra), the Madhya Pradesh High Court has explained the nature of the circumstances contemplated by S. 32 of the Evidence Act thus:
"The circumstances must have some proximate relation to the Actual occurrence and they can only include the acts done when and where the death was caused.------- Thus a statement merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction. In the instant case evidence has been led about statements made by the deceased long before this incident which may suggest motive for the crime."
In Allijan Munshi v. State, the Bombay High Court has taken a similar view.
In Chinnavalayan v. State of Mad ras two eminent Judges of the Madras High Court while dealing with the connotation of the word 'circumstances' observed thus:
"The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder. This is because the natural meaning of the words, according to their Lordships, do not convey any of the limitations such as that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the circumstances can only include acts done when and where the death was caused. But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence."
In Gokul Chandra Chatterjee v. The State the Calcutta High Court has somewhat diluted the real concept of proximity and observed thus:
'In the present case, it cannot be said that statements in the letters have no relation to the cause of death. What drove her to kill herself was undoubtedly her unhappy state of mind, but the statements in my view have not that proximate relation to the actual occurrence as to make them admissible under s. 32(1), Evidence Act. They cannot be said to be circumstances of the transaction which resulted in death."
We, however, do not approve of the observations made by the High Court in view of the clear decision of this Court and that of the privy Council. With due respect, the High Court has not properly interpreted the tenor and the spirit of the ratio laid down by the Privy Council. We are, therefore, of the opinion that this case does not lay down the correct law on the subject.
Before closing this chapter we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law where only the statements which directly relate to the cause of death are admissible. The second part of cl.(1) of 32, viz. "the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question" is not be found in the English law. This distinction has been clearly pointed out in the case of Rajindera Kumar v. The State where the following observations were made:
"Clause (1) of s. 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead,--------are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case, in which the cause of that person's death comes into question.---------- It is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under expectation of death.
In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death.
And in the case of State v. Kanchan Singh & Anr. it was observed thus:
"The law in India does not make the admissibility of a dying declaration dependent upon the person's having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under s. 32 Evidence Act.
In these circumstances, therefore, it is futile to refer to English cases on the subject.
Thus, from a review of the authorities mentioned above and the clear language of s.32(1) of the Evidence Act, the following propositions emerge:-
(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of s.32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under s.32.
(3) The second part of cl.1 of s.32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that s.32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of s.32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."
In the case of Arjun Marik Vs. State of Bihar, 1994 Supp (2) SCC 372, Hon'ble the Apex Court held as under:-
"31.Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."
Hon'ble the Apex Court in the case of C. Chenga Reddy Vs. State of A.P., 1996 (10) SCC 193, it has been held that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature, moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. That apart, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
Hon'ble the Apex Court in the case of Jaswant Gir v. State of Punjab (2005) 12 SCC 438), this Court held that in the absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed.
In the case of Vasanta Sampat Dupare Vs. State of Maharashtra, 2015 (1) SCC 253 has held as under:-
"we find that each of the incriminating circumstances has been clearly established and the chain of circumstances are conclusive in nature to exclude any kind of hypothesis, but the one proposed to be proved, and lead to a definite conclusion that the crime was committed by the accused. Therefore, we have no hesitation in affirming the judgment of conviction rendered by the learned trial Judge and affirmed by the High Court."
In the case of Rambraksh Vs. State of Chhattisgarh, 2016 (12) SCC 251, Hon'ble the Apex Court after placing reliance on its earlier judgment held as under:-
"It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.(See. Krishan Vs. State of Tamilnadu, 2014 (12) SCC 279."
In view of the abvoesaid legal position on the point of circumstantial evidence, we now proceed to examine the present case.
As per the case of the prosecution on 29.01.2010, an information was given by Sri Ram Shekhhar Dubey, Pradhan of the village, Luvana, Thana - Kotwaril Dehat, Godan that body of an unknown person was lying on north ridge/medh of the sugarcane field of Suresh Chandra S/o Awadh Bihari.
After receiving the said information, an F.I.R. was resisted under Section 302 I.P.C. in Thana Kotwali Dehat, Gonda and P.W. - 8/S.I.Mahendra Paratap Pandey/Investigating Officer went on the spot, prepared inquest report (Ext. - 6), as per the same, a roadways ticket from Gosainganj to Gonda dated 28.01.2010 was found fair was Rs. 75/-.
On 02.02.2010, father of the deceased/ Raghunath Sahay Tiwari/P.W.-2 and Bhagwat Prasad Tiwari/P.W.-3 on an information received to them went to Thana - Kotwali Dehat, Gonda recognized the unknown body by cloth and photograph of Devi Prasad Tiwari.
Later on, on 08.02.2010, the accused-appellant has been arrested and on his confessional statement/pointing out, Gamchha and plastic rope were recovered by the police.
P.W.-1/Ram Shekhar Dubey, in his statement has stated that he was a Gram Pradhan of Gram Lohuwa district - Gonda, on 29.01.2010 found a dead body of unknown person on the ridge of sugarcane field of Suresh Chand.
Raghunath Sahay Tiwari/P.W.2 in his evidence has stated that on 28.02.2010 in the morning about 08.00 a.m. his son/Devi Prasad Tiwari went to the house of accused-appellant/Ram Pratap Pandey.
And his grand-daughter/Nikku @ Gayatri has been married with the son of Ram Pratap Pandey. It is came to the knowledge that the deceased/Devi Prasad Tiwari has reached the house of Ram Pratap Tiwari and accused-appellant on 28.01.2010 at 08.00 p.m. Later on he was told by the Ram Pratap Pandey that he has given Rs. 8100/- to Devi Prasad Tiwari/deceased and got him boarded on a bus to Gosaiganj. However, when deceased/Devi Prasad Tiwari did not reach house, he along with nephew/Bhagwat Prasad Tiwari started searching him.
In his statement, he further stated that when he reached the house of Ram Pratap Pandey, where his grand daughter was married, they were neither allowed to meet nor conversation to have with her. After a week, with the help of police, he brought his grand daughter/Nikku@ Gayatri to his house where she told that when deceased came to the house of Ram Pratap Pandey he asked him to marry his second daughter to his second son, however, his father has refused on the ground that his khandan/family is not good and he has committed a mistake by marrying his elder daughter, so he became annoyed, administer the deceased alcoholliquor, beaten and killed him.
P.W.-3/Bhagwati Prasad Tiwari, stated that on 28.01.2010, deceased/Devi Prasad Tiwari at 08.00 a.m. went to the house of Ram Pratap Pandey/accused. When Devi Prasad Tiwari/deceased did not come back to his house then he along with P.W. - 1 started searching Devi Prasad Tiwari, on 02.02.2010 after receiving information, they went to the Kotwali Dehat, Gonda and identified the dead body of the deceased/Devi Prasad Tiwari by cloth and photograph of the dead body.
And on 03.02.2010 they brought Nikku @ Gayatri to their house where she told that Ram Pratap Pandey has asked Devi Pratap Pandey to marry his second daughter with his second son and when Devi Prasad Tiwari refused him then Ram Pratap Pandey, his wife, sons Raju and Pappu started beating him and also locked Gayatri in a room, so she has no knowledge that where they have taken the deceased/Devi Prasad Tiwari, later on his dead body was found.
P.W. - 4/Sant Prasad Kanaujiya a witness of the recovery of the articles said to be used for killing of the deceased/Devi Prasad Tiwari, namely Gamchha and Plastic rope/string(recovery memo Ext. K-4), stated that in his presence the police authorities have not done any investigation/Puchh-Tachh with Ram Pratap Pandey, however, at the time of recovery, Investigating Officer has written something on the paper but he does not know the contents of the same, admitted his signature on the recovery memo, the said witness has been declared as hostile.
P.W.-5/Lallan Prasad Tiwari, another witness of recovery, stated that in his presence Ram Pratap Pandey has neither told anything in respect to committing crime, as a result of which deceased/Devi Prasad Tiwari has died nor in his presence on pointing out of Ram Pratap Pandey, Gamchha and rope/string were recovered from sugarcane field, neither his presence on the the recovery memo (Ext. K-4) was prepared nor he signed it. The said witness was also declared hostile.
P.W.-6/Nikku @ Gayatri, the daughter of the deceased/Devi Prasad Tiwari in her statement stated that she has been married thrice. First marriage at Rauwa Gaon, however her father-in-law was killed in which her father/Devi Prasad Tiwari was an accused, sent to jail. In the said matter, Ram Pratap Pandey has not helped him in any manner but his grand-father/Raghunath Sahay Tiwari has given all help as well as gawahi.
Her second marriage was solemnized with the son of Ram Pratap Pandey/accused-appellant, she further stated that her father-in-law in the morning on the day of incident at 10.00 a.m. went to market from his house, her husband and brother in law went for irrigation of the field. At about 2.30 to 3.00 p.m. Uncle(Fufa) of his husband, Lambu Chaubey came to her house in a Bolero car along with two persons and asked about her father-in-law, thereafter they went. Later on, her husband and brother-in-law came from the field and after taking meal they went to sleep.
At 10.00 p.m. his father-in-law/Ram Pratap Pandey came in a drunken state, said to her mother-in-law that he has committed a mistake(galti) and along with Tiwari he should also hang himself. The said words were heard by her from the back of door.
She further stated that her father-in-law has asked her father to marry his second daughter/Sikku @ Savitri with her brother-in-law/Dadani, however, Devi Prasad Tiwari refused, on the ground that he will not marry his two daughters in a same family. In view of the said facts, her father-in-law and mother-in-law were annoyed and by some ''bahana' Ram Pratap Pandey/accused-appellant has called his father given him liquor and killed and hide his body.
After 15 days of the death of the deceased, she went to her maternal house(maika) along with her grand father/Raghunath Sahay Tiwari, mother and uncle who were waiting there in Kotwali Dehat, Gonda and she was brought upto Kotwali by her father-in-law the accused Ram Prasad Pandey.
P.W.-7/Shanti Devi @ Rita Devi wife of the deceased/Devi Prasad Tiwari in her statement stated that on the date of incident at 09.00 a.m., deceased/Devi Prasad Tiwari told her that accused-applicant/Ram Pratap Pandey has called him so he is going to his house to take money when he left the house he was wearing Pant, Shirt, white coloured Gamchha and half sweater and her elder daughter/Nikku @ Gayatri was married with Pappu, the elder son of the accused-applicant/Ram Pratap Pandey.
She further stated that when her husband/Devi Prasad Tiwari was in the market, she talked with him on mobile and he told that as he was getting late, he will come in the morning and also told that Ram Pratap Pandey has asked him to marry his second daughter/Sikku @ Savitri with his second son/Dadani, however he has not given his consent and refused the said offer on the ground that he will not marry two daughters in a same house.
She further stated that in order to talk with her husband, she called Ram Pratap Pandey on his mobile but the same was not connected, later on after an hour Ram Pratap Pandey called her and told that he has given Rs. 8000/- and Rs. 100 for fair and also boarded Devi Prasad Tiwari on a bus. Again after half an hour, she called Ram Pratap Pandey who told her that her husband has gone, later on when she called Ram Pratap Pandey then he abused her and told that as her husband has not agreed for his suggestion, so he has killed him.
Later on when she called the mother-in-law (wife of Ram Pratap Pandey) of her daughter/ Nikku, she told that " उन्होंने बताया कि तुम्हारे पति यहाँ नहीं आये है फ़ोन पर रामप्रताप पांडेय ने अपनी पत्नी से भी कहा था कि मेरे पति को मार डाले है |"
Further, she stated that at the time of incident, she has got mobile but did not remember the mobile number of P.W. - 1.
P.W. - 8 /Sub-Inspector Mahendra Pratap Pandey (Retd.) who send the body for postmortem, stated that after receiving the information from Ram Shekhar Dubey/Gram Pradhan that a dead body of unknown person was lying on the ridge of sugarcane field of Suresh Chandra, he went on the spot, did not find blood etc. at the place where the dead body was lying, but not taken any statement or signature of Suresh Chadnra at the time of preparing the necessary document sending for postmortem.
P.W. - 9/Dr. D.K. Singh who has conducted the postmortem has stated that at 04.20 p.m. on 29.01.2010 he has done the postmortem of the deceased, at the time of postmortem both the eyes of the deceased were closed, his mouth was open in his both hands there were mud.
He confirmed the postmortem report in respect to ante mortem injuries as well as cause of death, according to him the death was caused about one day before.
P.W.-10/Inspector Sarvdeo Singh (Retd.)/Investigating Officer, has proved the papers which have been prepared during the course of investigation, in his statement sated that after receiving information from approver on 08.02.2010, he arrested appellant-accused/Ram Pratap Pandey, on his pointing out he has recovered Gamchha and plastic rope/string and has prepared the recovery memo (Ext. K-4) in the presence of witnesses, namely, Sant Prasad Kanaujiya and Lallan Prasad Tiwari and taken the statement of accused-appellant.
In his cross, P.W. - 10 has stated that on the basis of investigation, it came to know that on the date of incident, the deceased was seen in the Machhli Mandi of Badgaon, District Gonda and the body of the deceased was found at about 7-8 km. from Badgaon, as per the information received to him during investigation, it reveals that the deceased is fond of liquor and non-veg.
Nobody has seen the deceased with appellant-accused/Ram Pratap Pandey, the statement of the owner of the sugarcane field where the body of the deceased was found was not recorded and there is no proof as to day/date/time when the dead body was brought on the spot.
From the combined reading of the evidence of P.W.2, P.W.3 & P.W. 6, P.W. 7 & P.W. 10 it is clear that there is major contradiction in their evidences because from the evidence/statement of P.W.2 and P.W. 3 the position which emerged out is that they have stated that on 28.01.2010, deceased/Devi Prasad Tiwari left his home at Gosaiganj and gone to the house of accused-applicant/Ram Pratap Pandey situated in village Kalyanpur Majre Bankatwa, District - Gonda and they were informed by Ram Pratap Pandey that Devi Pratap Tiwari has not reached his house.
Further, P.W. - 2 in his statement has stated that when they were searching his son, they went to the house of the Ram Pratap Pandey but they were not allowed to meet his grand daughter/Nikku @ Gayatri and later on after a week he had taken her grand daughter to his house where she told the incident in respect to motive of killing of her father.
On the other hand, P.W. 3, stated that on 03.02.2010 they have taken Nikku @ Gayatri to their house where she told the motive as stated above for killing of her father.
Moreover, from the statement of P.W. 6, the position which emerged out is that her father has not come to her house on the date of incident and his father-in-law has gone from house at 10.00 a.m. morning and at 10.00 p.m. when he came back drunken, he has told her mother-in-law that he has done blunder and killed Devi Prasad Tiwari.
And on Ram Prasad Pandey took her to the Kotwali Dehat, Gonda where she went to her maternal house along with grand father & other family members of the maternal side.
Thus, taking into consideration the facts which emerge out from the statement/evidence given by P.W.2, P.W-3 and P.W. 6, it cannot be said with certainty that deceased whether met Ram Pratap Pandey or not.
Moreover, P.W.-7 in her statement/evidence whatever deposed, the position which emerged out therefrom is that on her mobile number, her husband/Devi Prasad Tiwari told that he is with Ram Pratap Pandey in the market and as he is getting late, he will come in the next morning.
She further stated that later on, Ram Pratap Pandey on phone told her that he has given Rs. 8000/- and Rs. 100 for fair to her husband and also boarded him on a bus. Later on, when the deceased did not reach home and she called again Ram Pratap Pandey on phone has abused her and told that as her husband has not agreed with his suggestion, so he has killed him. From her statement, it is also evident that admitted only on the date of incident, she has mobile but she did not know the number.
The Investigating Officer/P.W.-10/Inspector Sarvdeo Singh (Retd.) in his statement has stated that on the basis of investigation, he has not gathered any evidence from the place of incident and he also found that nobody has seen the deceased with appellant-accused/Ram Pratap Pandey and there is no proof that when the body was brought on the spot.
In view of the said evidence and a combined reading of the statement of P.W.1, P.W.2, P.W. -10. the position which emerged out is that from their statement it cannot be said that, deceased/Devi Prasad Tiwari has met with accused-appellant/Ram Pratap Pandey as there are major contradiction in their statement.
Only thing which is established that on the basis of evidence led by the prosecution that a ticket has been found in the pocket of the deceased from Gosaiganj to Gonda dated 28.01.2010. but on the basis of the same it can be held and established that the deceased had met with accused-appellant/Ram Pratap Pandey on the date of incident and he was killed by him.
So far as the mobile conversation with the wife of the deceased with Ram Praptap Pandey/applicant-accused is concerned, the same could be the best evidence to prove the guilt of the appellant-accused as per Section 65B of Indian Evidence Act the prosecution has not made any effort. In this regard. As Hon'ble the Aepx Court in the case of Tomaso Bruno and another Vs. State of Uttar Pradesh, 2015 (7) SCC 178, held as under:-
"25. With the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life and as a result, the production of electronic evidence in cases has become relevant to establish the guilt of the accused or the liability of the defendant. Electronic documents strictu sensu are admitted as material evidence. With the amendment to th e Indian Evidence Act in 2000, Section 65A and 65 B 65B were introduced into Chapter V relating to documentary evidence. Section 65A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65B is complied with. The computer generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. Sub-section (1) of Section 65B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in sub-section (2) of Section 65B. Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act. PW-13 stated that he saw the full video recording of the fateful night in the CCTV camera, but he has not recorded the same in the case diary as nothing substantial to be adduced as evidence was present in it.
26. Production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the investigating agency and also to the prosecution. The relevance of electronic evidence is also evident in the light of Mohd. Ajmal Mohammad Amir Kasab Vs. State of Maharashtra,(2012) 9 SCC 1, wherein production of transcripts of internet transactions helped the prosecution case a great deal in proving the guilt of the accused. Similarly, in the case of State of NCT of Delhi) vs/ Mavkpt Samdji @ Afsam Guru, (2005) 11 SCC 600, the links between the slain terrorists and the masterminds of the attack were established only through phone call transcripts obtained from the mobile service providers."
And in the case of Shafhi Mohammad Vs. State of Himachal Pradesh, 2018 (2) SCC 801, Hon'ble the Apex Court after placing reliance on its earlier judgment in paragraph No. 20 held as under:-
"An apprehension was expressed on the question of applicability of conditions under Section 65B(4) of the Evidence Act to the effect that if a statement was given in evidence, a certificate was required in terms of the said provision from a person occupying a responsible position in relation to operation of the relevant device or the management of relevant activities. It was submitted that if the electronic evidence was relevant and produced by a person who was not in custody of the device from which the electronic document was generated, requirement of such certificate could not be mandatory. It was submitted that Section 65B of the Evidence Act was a procedural provision to prove relevant admissible evidence and was intended to supplement the law on the point by declaring that any information in an electronic record, covered by the said provision, was to be deemed to be a document and admissible in any proceedings without further proof of the original. This provision could not be read in derogation of the existing law on admissibility of electronic evidence."
The argument raised by learned A.G.A. has got no force because the importance of pleading in a legal proceeding, particularly in a writ petition, cannot be overstated. It is true that if facts on which a party wants to rely are not properly articulated, it has the effect of taking the other side by surprise. But law also recognizes an exception to this rule in respect of an issue relating to a point of law. The reason for making a departure for such issues based on pure questions of law is not very far to seek. When a party to a proceeding makes a factual statement that has either to be controverted or admitted or otherwise dealt with by the opposite side. In either case facts involved in a case do not emerge on their own nor can they be taken cognizance of unless specially pleaded.
But a point of law emerges from the facts pleaded. A court can also take into cognizance legal issues arising out of the factual conspectus of the case without necessarily requiring the parties to plead the same separately. The consistent judicial pronouncements on the issue make it clear that even without a formal pleading, a point of law can be taken into cognizance and adjudicated upon by a court if no denial on fact is necessary. A party is not entitled to rely on a point of law, he can also take it even before the highest court for the first time. A pure question of law can be urged at any point of time before any forum provided it does not require any further adjudication of any disputed fact.
Hon'ble Apex Court in State of Madras v. K.M. Rajagopalan, AIR 1955 SC 817, had recognized this principle decades ago. Since then there has not been any deviation from this axiomatic principle. In Ariane Orgachem Private Ltd. v. Wyeth Employees Union, 2015 (145) FLR 985, the Hon'ble Supreme Court observed that a pure question of law for which no enquiry or proof is required can be raised at any stage. In fact, in that case the Hon'ble Supreme Court allowed a plea based on a point of law to be taken for the first time before the Supreme Court itself. (See also Kolkata Municipal Corporation v. Union of India, 2018 (158) FLR 535.) In view of the abovesaid facts, once in the present case, on the basis of last seen theory/circumstantial evidence, the guilt of the accused-appellant has not been established and proved beyond all reasonable doubt, so we do not find appropriate to discuss/adjudicate the argument as raised by learned counsel for parties in respect to the recovery of weapon and motive involved in the present case.
Thus, this appeal deserves to be allowed and is hereby allowed. The judgment and order dated 03.05.2017 passed by Additional Sessions Judge/F.T.C. First, District Gonda in Sessions Trial No. 374/2010 (State Vs. Ram Pratap Pandey) Police Station Kotwali Dehat, District Gonda convicting the accused-Ram Pratap Pandey under Section 302/201 I.P.C. and sentencing him for life is hereby set aside. Appellant is acquitted of the charges levelled against him. He is in custody. He shall be released forthwith if not wanted in any other case.
Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.
(Vikas Kunvar Srivastav, J.) (Anil Kumar, J.) Order Date :- 04.04.2019 Ravi/