Allahabad High Court
Natthu Singh vs State Of U.P. on 8 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1156, 2019 (6) ALJ 502, (2019) 108 ALLCRIC 526, (2019) 11 ADJ 89 (ALL)
Bench: Sudhir Agarwal, Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 13.05.2019 Delivered on 08.07.2019 Court No. - 34 Case :- JAIL APPEAL No. - 6512 of 2011 Appellant :- Natthu Singh Respondent :- State Of U.P. Counsel for Appellant :- From Jail, ,Gopal Krishna Pandey, Devendra Pratap Singh (A.C.) Counsel for Respondent :- AGA,Anil Kumar Savita,Ankit Singh,Dharmendra Singh Hon'ble Sudhir Agarwal,J.
Hon'ble Piyush Agrawal,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. This jail appeal under Section 383 Cr.P.C. has been preferred by accused-appellant, Natthu Singh from jail through Superintendent, Central Jail, Fatehgarh against judgment and order dated 30.01.2003 passed by Sri Matamber Singh, Additional District and Sessions Judge, Court No. 2, Kanpur Dehat. By impugned judgment, learned Sessions Judge has convicted accused-appellant under Section 302 IPC and sentenced him to life imprisonment along with fine of Rs. 2000/-. In case of default in payment of fine, he has to undergo further six months simple imprisonment.
2. Prosecution story in nutshell as surfacing from First Information Report (hereinafter referred to as "FIR") as well as evidence available on record may be stated as follows.
3. On 16.08.2001 at 05:55 PM, a written report (Ex.Ka-1) was submitted in Police Station Roora, District Kanpur Dehat by Informant PW-3, stating that at about 01:30 PM, same day, Informant's father Ganga Singh and his brother Bahadur Singh, Bishamber Singh, Patwari Singh and Ram Avtar Singh along with mechanic Manni Lal @ Pappu had gone to repair broken water tank of Tubewell and its hook. Aforesaid persons along with Informant and mechanic had returned to village to take lunch. After taking lunch, when they were going to Tubewell, they saw that Informant's sister's husband (Behnoi), resident of Motipur, P.S. Ghatampur, District Kanpur Nagar, was fleeing away from Tubewell towards South. When they reached the Tubewell, they saw that a rope was tied around the neck of Informant's father, Ganga Singh, aged about 60 years and he had sustained injuries on his face wherefrom blood was oozing. It is stated in the FIR that accused-appellant Natthu Singh had murdered Ganga Singh because Informant's sister, Birma Devi used to reside with her father for about ten years and not willing to go to her husband's house since she was not getting bread and butter there. Accused-appellant Natthu Singh was under misapprehension that Ganga Singh, Informant's father, was detaining and not sending Informant's sister Birma Devi to her husband's house and for this reason, accused-appellant committed murder of his father. It is further stated in the FIR that accused-appellant Natthu Singh is a habitual drinker and a man of bad character. He was also sent to jail several times.
4. On the basis of written report (Ex.Ka-1), Chik FIR (Ex.Ka-9) was prepared by PW-7, Head Moharrir Ram Pratap Singh, P.S. Roora at 05:55 PM under Section 302 IPC. He also made entry of the incident in General Diary at Report No. 34 at the same time. Immediately after registeration of FIR, PW-8 S.I. Virendra Pratap rushed to the place of occurrence. Since darkness had grown, Investigating Officer (hereinafter referred to as "I.O.") came back and again visited the spot on 17.08.2001 at 07:00 AM and prepared Inquest (Ex.Ka-2). He also prepared necessary documents namely Photo Nash, Challan Nash, Report Form No. 33 letter to R.I., Request letter to CMO and copy of specimen seal (Exts. Ka-11 to Ka-15). He also sealed material exhibits recovered from place of incident namely, bloodstained gunny bag, towel, rope and slippers (Exts. 1 to 4) and prepared recovery memo (Ex.Ka-3) in respect thereof. Bloodstained and simple soil was also taken from place of occurrence and sealed in separate phials. Recovery Memos (Exts. Ka-4 and Ka-5) in respect thereof were prepared at the spot.
5. Autopsy on the dead body of deceased Ganga Singh was conducted on 17.08.2001 at 02:45 PM by PW-6, Dr. Alok Rajjan Mishra. According to him, deceased was thin body built. On external examination, he found his eyes and mouth closed. Rigor mortis present in upper and lower limbs. Following ante mortem injuries were found on his person:-
(i) A reddish contusion with different swelling 8 cm X 6 cm on left parietal region on scalp, 1 cm away from left ear. Underlying left temporal and left parietal bones fractured.
(ii) A lacerated wound 2 cm X 1 cm X bone deep, on middle of forehead, 1 cm above bridge of nose. Clotted blood present.
(iii) A lacerated wound 2 cm X 1 cm X bone deep, on right eyebrow. Clotted blood present.
(iv) A lacerated wound 1 cm X .5 cm X bone deep, on right side of face, 2 cm away from right ear, underlying right temporal bone fractured. Clotted blood present.
(v) A lacerated wound 2 cm X 1 cm X bone deep, on the middle of nose. Nasal bone fractured. Clotted blood present.
(vi) Multiple reddish abraded contusions in an area- 14 cm X 6 cm on front of neck and chin. The largest abraded contusion measures 6 cm X 1 cm and smallest abraded contusion is 1 cm X .5 cm. Underlying subcutaneous tissues are reddish and ecchymosed. Underlying hyoid bone is fractured.
6. In the opinion of doctor, cause of death was asphyxia and coma as a result of strangulation and ante mortem head injuries. Doctor prepared postmortem report (Ex.Ka-8).
7. After conclusion of investigation, I.O. submitted charge-sheet under Section 302 IPC in the Court, cognizance whereof was taken by Chief Judicial Magistrate, Kanpur Dehat on 12.10.2001. As the case was exclusively triable by Court of Sessions, it has committed to the Court of Sessions on 07.11.2001. Learned Sessions Judge transferred the case to First Additional District and Sessions Judge, Court No. 2, Kanpur Dehat, who framed charge against accused-appellant vide order dated 19.04.2002. Charge reads as under:-
**eSa ekrkEcj flag vij ftyk ,oa l= U;k;k/kh'k] dksVZ ua0 2] dkuiqj nsgkr vfHk;qDr uRFkw flag ij fuEu vkjksi yxkrk gw¡ %& ;g fd fnukad 16-08-2001 dks le; 13%30 cts cgn xzke xqykc iwjok ¼HkkSjk½ oknh ds [ksr esa yxs V~;wcosy ij oknh ds firk xaxk flag xys esa jLlh cka/kdj pksV igqapkdj vkius e`R;q dkfjr djds gR;k dh vkSj blds }kjk vkius ,slk vijk/k fd;k tks Hkk-na-la- dks /kkjk 302 ds vUrxZr n.Muh; vijk/k fd;k tks ls'ku U;k;ky; ds laKku esa gSA ,rn~}kjk eSa funsZ'k nsrk gw¡ fd mDr vkjksi esa vkidk fopkj.k bl U;k;ky; }kjk fd;k tkosA** "I Matamber Singh, Additional Sessions Judge, Court No. 2, Kanpur Dehat charged you accused, Natthu Singh as follows:-
That on 16.08.2001 at 1330 hours you caused death of Ganga Singh, father of informant by tying rope around his neck and inflicting injuries on him at the Tubewell installed in the field of informant situated within the limits of Village Gulabpurwa (Bhaura) and thereby you committed an offence which is punishable under Section 302 IPC and within the cognizance of this Sessions Court.
I hereby direct you to be tried by this Court."
(English Translation by Court)
8. Accused pleaded not guilty and asked for trial.
9. In support of its case, prosecution examined eight witnesses out of whom, PW-1 Devi Singh, PW-2 Manni Lal Singh and PW-3, Informant Kundan Singh are witnesses of fact who have supported prosecution version in all material particulars. PW-4 Bikham Singh is the witness of recovery of bloodstained and plain earth and has proved recovery memo (Ex. Ka-4 and Ex.Ka-5). PW-5 SI Pawan Trivedi is I.O. who has proved site plan (Ex. Ka-6) as also other recovery memos. PW-6 Dr. Alok Rajjan Mishra has conducted autopsy on the deadbody of deceased and has proved postmortem report (Ex.Ka-8). PW-7 Constable Moharrir Ram Pratap Singh had lodged the report and made entry of the incident in GD. He has proved chik report (Ex.Ka-9) and copy of the GD entry (Ex.Ka-10). PW-8 SI Virendra Pratap had also participated in the investigation. He has proved Inquest (Ex. Ka-2) and various documents namely photo nash, challan nash, form 33, report of CMO (specimen seal) (Ex.Ka-11 to Ka-15).
10. After conclusion of evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded who denied his involvement in the crime and has pleaded ignorance about incident. In reply to several questions, he replied that witnesses have falsely deposed against him. He has also stated that he was looking after his family by doing labour work. His father-in-law (Sasur) wished to handover 3 bigha of land to accused's wife but Kundan had opposed whereas his (Kundan) brothers agreed. The accused had returned to his village from his in-laws (sasural). After one week, he came to know that his father-in-law (deceased) died. When accused went to his sasural, his wife told that Kundan had lodged FIR against him and thereafter, I.O. had arrested him.
11. After conclusion of evidence, learned Sessions Judge has recorded verdict of conviction and sentenced accused-appellant vide impugned judgment as stated above. Trial Court in holding appellant guilty of crime under Section 302 IPC has recorded its findings briefly as under:
(I) Death of Ganga Singh due to strangulation by rope and injuries on the head about 1.30 pm in the day of 16.08.2001 near Tubewell at Village Gulab Purva has been proved by PW-2, Manni Lal, PW-3, Kundan Singh (Informant) as also by post mortem report.
(II) PWs-2 and 3 both have said that they saw accused-appellant running from Tubewell towards south and they tried to catch him but he successfully escaped.
(III) There was a motive for murder since wife of appellant was residing with her father and appellant believed that it is the deceased who is not allowing her to go back to husband's house.
12. On the above findings Trial Court has convicted appellant and sentenced him as stated above.
13. Feeling dissatisfied with the judgment of conviction and sentence, accused-appellant has come up before this Court by means of this jail appeal through Jail Superintendent, Central Jail, Fatehgarh.
14. Learned counsel appearing for appellant contended that it is a case where there is no eye witness of the incident; appellant has been implicated falsely and convicted without any credible evidence; statements of PWs- 2 and 3 are contradictory and these contradictions have been ignored by Trial Court without any valid reason; alleged motive is non-est inasmuch as appellant and Birma Devi, from wedlock, had three sons and one daughter and, therefore, alleged motive was non-est; statement of PW-2 shows that he had gone to repair water rank of Tubewell of Ganga Singh; this repair work was continuing for the last few days and he used to reach to work in the morning at 8 am; on the date of incident he had removed plaster of tank till about 12.30 in noon and thereafter had gone to the house of Kundan Singh for lunch; he and others stayed at the house for lunch for about 20-25 minutes and when coming back saw that Natthu Singh was come out of Chappar and running fast; he was wearing a shirt of half sleeve and blue pant; they did not have any suspicion when they saw Natthu Singh since he was son-in-law but when reached Tubewell, they saw Ganga Singh lying on Takhat and a rope was tying on his neck and he was dead; PW-3 also admitted that at about 12.30 all the five brothers and PW-2, tubewel Mistry, went to house for lunch; the distance of house from Tubewell is about one furlong and they returned from house after taking meal at around 1.30 pm, when from a distance of about 25-30 paces saw that Natthu Singh coming out from the side of Tubewell and running towards south; when they reached Tubewell, found Ganga Singh lying with a rope tying on his neck and several injuries on face which were bleeding; they chased Natthu Singh but due to standing crop he escaped and could not be caught; he also said that from the place of incident slippers of accused-appellant were recovered but nobody has identified those slippers that the same belong to appellant; on the one hand PW-3 has said that he chased appellant while it is also evident from statement that allegedly he saw appellant from a distance of about 25-30 paces but first he covered the said distance, reached his father and saw him dead and thereafter attempted to catch appellant by chasing and all these process took only about one and half month; and this statement is wholly unbelievable and seriously doubtful. Learned counsel for appellant also drew our attention to another part of cross-examination of PW-3 wherein he has said that he saw Natthu Singh running from Tubewell from the distance of about 7-8 paces only. It is contended that nobody has seen appellant of committing crime and even appellant's presence at the place of incident is founded only on the statement of PWs- 2 and 3 though their statements are also contradictory; chain of circumstances is not complete and only on suspicion appellant has been convicted; PW-5, I.O. stated that Sarjoo Pandey and Lakhan Singh also told him that accused-appellant was running but those witnesses were not examined; in Exhibit Ka-3, which is a recovery memo of alleged slippers, there is no mention that slippers belong to appellant, nobody has seen appellant coming to village and entire prosecution version is wholly untrustworthy and based on no evidence, therefore, prosecution has failed to prove its case beyond reasonable doubt.
15. Learned A.G.A. on the contrary submitted that factum of running of accused-appellant from place of incident after committing crime has been proved not only by Informant, PW-3, who is son of deceased but also by independent witness, PW-2 and PW-1, Devi Singh, therefore, circumstances are complete to show that prosecution has been successful to prove their case beyond reasonable doubt.
16. We have heard Sri Devendra Pratap Singh, Amicus Curiae for appellant and Sri S.A. Murtaza, learned A.G.A. for State.
17. Ganga Singh (deceased) were four brothers and after his death only two remained, namely, Lakhan Singh and Dhoom Singh. All were residing separately in Village Banjaranpurva, P.S. Roora. They had their own houses and house of Ganga Singh was on the north of village. Ganga Singh had six sons. One had already died and remaining five, namely, Kundan Singh, Vishanbhar Singh, Bahadur Singh, Patwari Singh and Ram Autar Singh, alongwith father were residing together. Ganga Singh had two daughters also, namely, Maya Devi elder one and Birma Devi, younger one. Birma Devi married accused-appellant, Natthu Singh sometimes in the year 1983-84 and out of wedlock, had four children, three sons and one daughter. Natthu Singh normally used to visit his in-laws and as per the own statement of PW-3, on 16.08.2001, he was present at the house of Ganga Singh in the morning. This statement of PW-3, Informant, in cross-examination, reads as under:
^^fnukad 16-8-2001 dks lqcg ?kVuk okys fnu esjs cguksbZ uRFkw flag gekjs ;gkWa ?kj ij gh FksA** "On the morning of 16.08.2001, i.e., the day of the incident, my sister's husband (behnoi) Natthu Singh was present at our house only."
(English translation by Court) (emphasis added)
18. On the date of incident all five brothers alongwith father Ganga Singh and Mistry, Manni Lal had gone for repair of water tank of Tubewell. Initially Informant and his four brothers went Tubewell with Mistry and Ganga Singh reached there after sometime. They worked at water tank till midnoon and thereafter came to house back for lunch, leaving Ganga Singh alone at Tubewell. Distance of Tubewell from house is one furlong. After taking meal, when Informant, his brothers and Tubewell Mistry, Manni Lal were returning, from a distance (at one stage it is said 25-30 paces and at another 7-8 paces by PW-3) saw Natthu Singh, running from Tubewell, and going towards south. Informant, his brothers well as well Tubewell Mistry reached Tubewell and found Ganga Singh with a rope tied in his neck and several injuries on face oozing blood, whereupon Informant and others tried to chase accused-appellant but he ran away. The further fact that wife of accused-appellant was residing with her parents since accused-appellant was not in a position to take her care being drunken person having lost his entire property in gambling, are motive for causing murder of Ganga Singh and these are all facts which had been relied by prosecution to sustain conviction of appellant.
19. Admittedly this is a case of no eye witness who has seen accused-appellant committing crime. His involvement has been taken from the fact that he was seen running from Tubewell towards south by PWs- 2 and 3 and when they reached the Tubewell, found Ganga Singh dead and that is how accused-appellant has been connected with crime. Whether Ganga Singh was murdered by accused-appellant or accused-appellant saw him dead and thereafter running away or that accused-appellant actually was found running, are the real questions to be considered in the matter. We have to see whether prosecution has been able to prove the chain of circumstances to the extent that the only conclusion which can be drawn and permissible in this case that it is only accused-appellant who has committed crime and none else.
20. We may reiterate that a conviction can be sustained on circumstantial evidence but the degree of proof is higher inasmuch as chain of circumstances has to be proved to the extent that it leads to prove that it is the accused-appellant only and none else who has committed crime.
21. In a case, which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link in chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all circumstances must be consistent only with guilt of accused.
22. In Hanumant vs. The State of Madhya Pradesh, AIR 1952 SC 343, as long back as in 1952, Hon'ble Mahajan, J. expounded various concomitant of proof of a case based purely on circumstantial evidence and said:
"... circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved...... it must be such as to show that within all human probability the act must have been done by the accused."
(emphasis added)"
23. In Hukum Singh vs. State of Rajasthan, AIR 1977 SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person.
24. In Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622, Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent :-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (emphasis added)
25. In Ashok Kumar Chatterjee vs. State of Madhya Pradesh, AIR 1989 SC 1890, Court said:
"...when a case rests upon circumstantial evidence such evidence must satisfy the following tests :-
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively; should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and, (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
(emphasis added)
26. In C. Chenga Reddy and others vs. State of Andhra Pradesh, 1996(10) SCC 193, Court said:
"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 evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
(emphasis added)
27. In Bodh Raj @ Bodha and others vs. State of Jammu and Kashmir, 2002(8) SCC 45 Court quoted from Sir Alfred Wills, "Wills' Circumstantial Evidence" (Chapter VI) and in para 15 of judgement said:
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;
(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." (emphasis added)
28. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Another v. Registrar General High Court of Karnataka and Another, 2007(4) SCC 713 and Tomaso Bruno vs. State of U.P., 2015(7) SCC 178.
29. In the light of above exposition of law we have to examine in this case, whether prosecution has been able to prove all circumstances sufficient to hold accused-appellant guilty of crime in question.
30. Five sons of Ganga Singh, who according to Informant-Kundan Singh (PW-3) were going towards tuebewell after taking lunch alongwith Tubewell Mistry and must have seen the same thing what has been deposed by Informant PW-3 that accused-appellant was running towards south from Tubewell, but except, Informant, none else has been examined. Incident took place on 16.08.2001 and accused-appellant was arrested on 16.09.2001. PW-3, Informant has admitted that accused-appellant used to come to his house very regularly till 16.08.2001. His statement in this regard reads as under:
^^16-8-2001 ls igys esjs cguksbZ uRFkw flag dk gekjs ;gka vkuk tkuk jgrk Fkk tc gekjs ;gkWa uRFkw flag vk;k tk;k djrs FksA** "Prior to 16.08.2001, my sister's husband (behnoi) Natthu Singh used to visit us whenever he had been to our place."
(English translation by Court)
31. He has also stated that on 16.08.2001, in the morning, accused-appellant was present in house of Ganga Singh. He has also stated that accused-appellant, in fact, was residing in his in-laws house prior to 8-10 days of incident and he used to wear the slippers which he had seen. Statement to this effect reads as under:
^^pwWafd eqfYte gkftj vnkyr ?kVuk esa vkB nl fnu igys ls esjs ?kj ij jgs Fks ;g pIiy iguk djrs Fks blhfy, eSaus mUgsa ns[kk Fkk igpkuk FkkA** "Since 8-10 days prior to the incident, the accused present in the court had been visiting my house and he used to wear slippers; hence, I saw and identified him." (English translation by Court)
32. This fact has not been stated by Informant in FIR. He has also admitted that it was not stated by him to I.O. In cross-examination he has further improved the version by stating that on the date of incident there was a quarrel between Natthu Singh and Ganga Singh with regard to Vidai of Birma Devi. The quarrel took place at about 7.00 in morning, whereafter nobody took breakfast and around 8.00 am, Informant, other brothers and Manni Lal, Mistry, went to Tubewell. PW-1 has stated that Tubewell Mistry, Manni Lal was doing repair work for about one and half month and residing in his house but PW-2, Manni Lal in his statement has nowhere said that Natthu Singh was present in the house of his in-laws, residing there for about 8-10 days prior to the date of incident and also present in the morning on the date of incident, i.e., 16.08.2001. Manni Lal was a Mistry, working for construction of upper part of house of Ganga Singh for the last one and half month, as stated by him in his statement which reads as under:
^^dqUnu flag ds ?kj esa 1 1@2 eghus ls dke dj jgk Fkk Åij edku cu jgk Fkk ml le; eSa 100 :i;s etnwjh ysrk Fkk esjs lkFk dksbZ etnwj ugha FkkA** "I had been working at Kundan Singh's house for 1-1½ months. House was being constructed on the upper floor. At that time, I used to charge Rs. 100/- as wages. There was no labourer with me."
(English translation by Court)
33. PW-2 has not stated at all about alleged quarrel between Ganga Singh and Natthu Singh which according to PW-3 took place in the morning of 16.08.2001 whereafter Informant, his brothers and PW-2, Manni Lal, went to Tubewell for repair of water tank. On the contrary, PW-2 has said that he was informed that Ganga Singh had some quarrel with his son-in-law and statement of PW-2 in examination-in-chief in this regard reads as under:
^^eq>s xaxk flag ds ckjs esa irk pyk fd xaxk flag ds nkekn o xaxk flag esa yM+kbZ gks x;h FkhA** "I got to know that Ganga Singh had an altercation with his son-in-law." (English translation by Court)
34. Manni Lal, Mistry was working for construction of house and all brothers were assisting him as labour since it is admitted case of Manni Lal that he had not any extra labour for work. This shows that Informant, his brothers and Manni Lal had cordial relations. Manni Lal was residing in the house of Informant for the last one and half month for carrying out construction work. It is nobody's case, when PWs-2 and 3 were coming to house for taking lunch, they say Natthu Singh in the way going towards Tubewell. PW-3 has also admitted that his father, Ganga Singh loved his daughter, Birma Devi a lot, and was keeping her alongwith children since Natthu Singh was not capable of taking their care. Normal relations with which Natthu Singh who used to visit in-laws house regularly is also admitted by PW-3 in cross-examination, where he has said as under:
^^esjs firk th esjh cgu fojek nsoh dks cgqr pkgrs Fks esjs firk esjs cgu dks blfy, jD[ks Fks fd uRFkw flag ds ikl dqN ugha Fkk cPpksa dk ijofj'k ugha dj ik jgk FkkA** "My father would love my sister Virma Devi a lot. My father had kept my sister with him because Natthu Singh had nothing. He was finding it difficult to bring up the children." (English translation by Court)
35. The location of Tubewell and field around it vis-a-vis the direction of village of Informant has been given by Informant (PW-3) in his statement as under:
^^esjs xkao ls V;wccsy nf{k.k fn'kk esa gS djhc ,d QykZax dh nwjh ij gksxkA ge yksx mRrj fn'kk ls V;wc csy ij vk;s FksA bl [ksr esa ftlesa V;wc csy Fkk V;wc csy ds lkeus FkksMk [kkyh iMk Fkk ckdh esa edkbZ FkhA ikuh dh Vadh V;wc csy okyh dksBjh ds nf{k.k rjQ Fkh ftldh ejEer gks jgh Fkh V;wc csy ds dejs dk njoktk mRrj rjQ FkkA njokts ds lkeus Niij iM+k Fkk Niij ds uhps r[r ij firk th Fks V;wc csy okys [ksr ds mRrj esa fuHkZ; flag dk [ksr gS nf{k.k ljtw izlkn ik.Ms dk [ksr gSA gekjs V;wc csy okys [ksr ds iwjc esa dPph ukyh cuh gSA** "Tube-well is situated to the south of my village. It would be around one furlong away. He had come to the tube-well from the north. The field in which the tube-well was situated was a little vacant in front of the tube-well; it had maize crop on the remaining portion. The water tank was to the south of Kothri where tube-well was situated, which was under repairs. The door of the tube-well's room was towards the north. There was a thatched shed in front of the door. Father was lying on the takht (a type of wooden plank) below the thatched shed. Nirbhay Singh's field is situated to the north of field where tube-well is situated. To the south, there is the field of Sarju Prasad Pandey. To the east of our field housing the tube-well lies an un-cemented drain."
(English translation by Court)
36. Accused-appellant has also taken a defence that his father-in-law wanted to give some land to his daughter, Birma Devi, which was opposed by Kundan Singh, Informant but other brothers were agreeable and for that reason Informant has implicated accused-appellant falsely and this fact was informed to accused-appellant by his wife on telephone that his brother, Kundan Singh has lodged a false report. Though in cross-examination Informant has denied this suggestion that his father wanted to give three bigha land to his daughter, Birma Devi but defence taken by accused-appellant has not been examined by Court below at all. Court below has also not examined as to why only Kundan Singh was examined and other brothers were not examined though according to Informant, he alongwith all brothers and PW-2 were going together tubewell after taking lunch when they say accused-appellant on Tubewell running towards south and as per appellant, Informant had strong motive against appellant.
37. In any case, the only evidence in this case to implicate accused-appellant is that of PWs- 2 and 3 who allegedly saw him running from Tubewell towards south. The story of quarrel in the morning between deceased and Natthu Singh, we find it difficult to believe for the reason that PW-3 has said this, which appears to be an improvement since nothing has been said either in FIR or any other evidence has been adduced to corroborate it, particularly when PW-2 himself was also present in the house but he has not supported this version. Moreover, if accused-appellant was residing in the house for about 8-10 days prior to the date of incident, prosecution must have brought on record as to when he left house so as to reach Tubewell and to commit crime but on this aspect there is no attempt to place any evidence. If accused-appellant was in the house in morning and there is not evidence that he left the house at any point of time, subsequent story that he was seen running from Tubewell at around 1.30 pm after committing crime, becomes seriously doubtful and it cannot be said that chain of circumstances is complete. According to Informant when they went to Tubewell in the morning at 8.00 am, accused-appellant was in the house. There is no evidence that he left house at any point of time. In absence of any evidence to this effect the evidence of PWs- 2 and 3 that they saw accused-appellant running from Tubewell after committing crime leaves so many questions.
38. Moreover, PWs- 2 and 3 only have seen accused-appellant running from the side of Tubewell but whether he was running after committing crime or not, is still a gap which had to be filled in by prosecution but in vain. it is not the case where accused-appellant was seen in the accompany of Ganga Singh till Ganga Singh was found dead. On the contrary, accused-appellant was last seen in the house of Ganga Singh in the morning and there is no evidence that accused-appellant left house at any point of time thereafter. In our view, circumstantial chain is not complete. In criminal administration of justice, it is well settled that suspicion howsoever high it may be, cannot take place of proof. In a case of circumstantial evidence, we have already said that chain must be so complete that it leaves no doubt in pointing out guilt of accused-appellant and none else which is lacking in this case. In our view, accused-appellant, therefore, is entitled for benefit of doubt and Trial Court in convicting him in this case has committed grave error. Hence, judgment in question cannot sustain.
39. In the result, jail appeal is allowed. Judgment and order of conviction and sentence dated 30.01.2003 passed by Trial Court is hereby set aside. Accused-appellant is found not guilty for the offences punishable under Section 302 IPC. He is acquitted of all the charges framed against him. If he is on bail, he need not surrender. His bail bonds are cancelled and sureties are discharged. In case, he is languishing in jail in this matter, if not wanted/required in any other matter, be released forthwith.
40. Let a copy of this judgment along with lower Court record be sent to Court concerned for compliance. Copy of this judgment be also provided to appellant through concerned Superintendent of Jail. Compliance report be also sent to this Court.
41. Keeping in view provisions of Section 437-A Cr.P.C., Appellant-Natthu Singh is directed to forthwith furnish a personal bond of the sum of Rs. Ten Thousand and two reliable Sureties each of the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.
42. Sri Devendra Pratap Singh, learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri Devendra Pratap Singh, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date :-08.07.2019 AK