Allahabad High Court
Vaibhav Jain vs State Of U.P. on 28 September, 2020
Equivalent citations: AIRONLINE 2020 ALL 2111
Bench: Pritinker Diwaker, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No.7 Reserved on: 21.9.2020 Delivered on: 28.9.2020 Case :- CRIMINAL APPEAL No. - 7957 of 2006 Appellant :-Vaibhav Jain Respondent :- State of U.P. Counsel for Appellant :- Gaurav Kakkar,Abhishek Mishra,K.K.Mishra,Sushil Jain,Sushil Shukla Counsel for Respondent :- Govt. Advocate,K.M.Tripathi and Case :- CRIMINAL APPEAL No. - 7044 of 2006 Appellant :- Kaushal Kishore Jain Respondent :- State of U.P. Counsel for Appellant :- Rajul Bhargava,Sushil Shukla,Vinay Kumar Tripathi Counsel for Respondent :- Govt. Advocate and Case :- CRIMINAL APPEAL No. - 7672 of 2006 Appellant :- Suresh Pal Respondent :- State of U.P. Counsel for Appellant :- Awadhesh Kumar Srivastava,K.K. Mishra,Subhash Chandra Pandey,Vishnu Kumar Counsel for Respondent :- Govt. Advocate,K.M. Tripathi and Case :- CRIMINAL APPEAL No. - 106 of 2007 Appellant :- Rajendra Vohra Respondent :- State of U.P. Counsel for Appellant :- Awadhesh Kumar Srivastava,Abhishek Mishra Amicus Curiea Counsel for Respondent :- Govt. Advocate Hon'ble Pritinker Diwaker, J.
Hon'ble Rajeev Misra,J.
(Delivered by Hon'ble Rajeev Misra, J.)
1. These four connected criminal appeals arise out of a common judgement and order dated 09.11.2006 passed by Special Judge (E. C. Act)/ Additional Sessions Judge, Rampur in Sessions Trial No. 76 of 2005 (State Vs. Vaibhav Jain and four others) under Sections 364, 302, 201, 120B and 427 I.P.C., P.S.-Bilaspur, District-Rampur arising out of Case Crime No. 315 of 2004 under Sections 302, 201, 427 I.P.C. P.S.-Bilaspur, District-Rampur whereby four of the accused namely Vaibhav Jain, Kaushal Kishore Jain, Suresh Pal and Rajendra Vohra have been held guilty of the charges framed against them, whereas the fifth accused namely Sadab has been acquitted. Accordingly aforesaid four accused have been convicted and sentenced under Section 302 I.P.C. readwith Section 149 I.P.C. They have, therefore, been sentenced to life imprisonment alongwith fine of Rs.5000/- each. In case of default in payment of fine as noted above, each of four accused are to undergo one year additional rigorous imprisonment. Aforesaid four accused have also been convicted under Section 120B I.P.C. As such, they have been sentenced to life imprisonment alongwith fine of Rs.5000/- each. On failure to pay aforesaid amount of fine, they are to undergo one year additional rigorous imprisonment. The above noted four accused have further been convicted under Section 364 I.P.C. As such they have been sentenced to life imprisonment alongwith fine of Rs.5000/- each. On failure to deposit above mentioned amount of fine, they are to undergo one year additional rigorous imprisonment. Above named four accused have further been convicted under Section 201 I.P.C. Accordingly, they have been sentenced to two years imprisonment alongwith fine of Rs.1000/ each. In case of default in payment of fine, above mentioned four accused are to further undergo additional imprisonment of three months each. Lastly, above-noted four accused have been convicted under Section 427 I.P.C. and consequently, sentenced to six months rigorous imprisonment. All the sentences are to run concurrently. It may be noticed here that State has not filed any appeal against acquittal granted by Court below to accused, Sadaf.
2. We have heard Mr. Sushil Shukla, learned counsel for accused-appellants-Vaibhav Jain and Kaushal Kishore Jain in Criminal Appeals No. 7957 of 2006 and 7044 of 2006 respectively, Mr. Abhishek Mishra learned Amicus Curiae for accused-appellant Rajendra Vohra in Criminal Appeal No. 106 of 2007, Mr. Amit Saxena, learned A.G.A. for State and Mr. K.M. Tripathi, learned counsel for complainant. No one appeared on behalf of accused-appellant Suresh Pal in Criminal Appeal No. 106 of 2007, even upon revision of cause list, though names of Mr. Vishnu Kumar, Mr. K. K. Mishra, Mr. Subhash Chandra Pandey and Mr. Awadesh Kumar Srivastava are duly published in cause list as counsel for aforesaid accused-appellant.
3. Prosecution of all the accused was set in motion when P.W.-1, Abhay Kumar Goyal, submitted a written report dated 07.05.2004 (Ext. Ka.-1) at Police Station-Kotwali Bilaspur, District-Rampur regarding death of his brother, Sanjeev Kumar Goyal (deceased) in mysterious circumstances. Aforesaid written report was entered in General Diary of Police Station-Kotwali Bilaspur on 07.05.2004 at 9:35 am by P.W.-7 C-256 Om Prakash. Thereafter P.W.-7 scribed check F.I.R. dated 07.05.2004 (Ext. Ka.-61) which was registered as Case Crime No. 315 of 2005 under Sections 302, 201, 427 I.P.C. P.S.-Bilaspur District-Rampur.
4. Prosecution story, as unfolded in F.I.R. dated 07.05.2004, can be gathered from F.I.R. itself. For ready reference same is quoted herein under:-
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Sir, it is submitted that, my brother Sanjeev Kumar Goyal who works as a contractor with Government Departments, recides along-with his family, at Avas Vikas, Rudrapur, Distt.- Udham Singh Nagar, Uttranchal. His so-called brother-in-law accused-Vaibhav Jain s/o Upendra Kumar Jain, r/o 28 Aa. Vi. Rudrapur, Distt.- Udham Singh Nagar, Uttranchal had borrowed several lacs of rupees from him. For return of this amount, Sanjeev had asked accused-Vaibhav Jain several times. Two days ago, accused-Vaibhav Jain came to my brother Sanjeev and borrowed his Maruti Van No. U.A.6B-9209 on the pretext that he has to go somewhere. Yesterday at around 07pm, Sanjeev went away informing his wife that he is going to demand his money from Viabhav Jain. Around 8:30pm (sic.) Sanjeev made a phone call to his house, Informing his wife that he is taking meal aongwith Vaibhav Jian at Sindhu Bar and further suggested her that they too should take meal. He further stated that he would return late night after inspecting the work at Rampura. Upon this phone call, Smt. Sarita Goyal developed suspicion and then she reached my home and asked me to go to Sindhu Bar to see (the matter). Thereupon, on reaching Sidhu Bar immediately, I saw aforesaid Van of my brother Sanjeev which was parked outside there and driver Suresh Pal and three other persons were standing there. Sanjeev's bike TVS Victor no-UA 06B 5780 was also parked nearby. Inside Sindhu Bar, my brother Sanjeev Goyal and accused-Vaibhav Jain were sitting together and were eating and drinking. I came back home and c conveyed aforesaid to Sanjeev's wife. Around 10.30 p.m., I received a call from Sanjeev's wife informing that Sanjeev had not returned home by then. On this, all of us got worried. We all the brothers, alongwith few others went out in search of Sanjeev. In spite of enormous effort, he could not be found. Someone gave a phone call around 2.00 a.m, informing that motor cycle of Sanjeev is lying at the railway track near Baradari railway crossing. We immediately reached there. The motor cycle was lying there in damaged condition. We tried hard to search Sanjeev, then today around 8.30 a.m, dead body of Sanjeev was found lying in village Indarpur in front of Jhala of Sardar Gyan Singh near filed of Sardar Mehar Singh. There was a cut injury on his throat. I have firm belief that accused-Vaibhav Jain and his companions have murdered my brother Sanjeev Goyal on the matter of money. I have come to Kotwali lodge the report. My report may kindly be lodged and legal action be taken . The dead body of my brother is lying at the spot.
Sd/- Illegible (In English) Dt: 7.5.04, Abhay Kumar Goyal S/o Sri Krishna Goyal R/o 108/Aa.Vi.
Rudrapur, Udham Singh Nagar Uttaranchal"
Note: I, C/c 256 Om Prakash Singh, verify that copy of the tahreer has been entered on this Chik verbatim, and which is as per the F.I.R.
ExtKa61 Sd/- Illegible 7.5.04 (English Translation by Court)
5. In the aforesaid F.I.R., two persons namely Vaibhav Jain and Suresh Pal were nominated as named accused whereas three others were nominated as unnamed accused.
6. Above mentioned F.I.R. was registered in presence of P.W.-8, S.I. Hardev Singh, who was posted as S.H.O. P.S. Bilaspur, District-Rampur. Upon registration of same, this Police Officer appointed himself as Investigating Officer. He accordingly entered written report and F.I.R. in Case Diary and immediately, proceeded to place of occurrence.
7. P.W.-8, S.I. Hardev Singh, upon reaching place of occurrence on 07.05.2004, found dead body of Sanjeev Kumar Goyal (deceased) in village Indarpur in front of Jhala of Sardar Mehar Singh near field of Sardar Gyan Singh. He recovered a sum of Rs.7500/-cash from pocket of pant worn by deceased and also a gold chain from his person. He took possession of aforesaid articles and gave them in Supurdagi of brother of deceased/first informant-Abhay Kumar Goyal (P.W.-1). He also prepared a recovery memo of same dated 07.05.2004 (Ext. Ka.-2). Aforesaid recovery was witnessed by P.W.-1, Abhay Kumar Goyal and Shyam Sundar.
8. Investigating Officer, also recovered damaged motorcycle bearing Registration No UA-06B-5780, which was of TVS Victor make belonging to Sanjeev Kumar Goyal (deceased) and was lying abandoned at a distance of 500 steps from Baradari Railway Crossing towards Rampur on the far side. Same was given in Supurdagi of brother of deceased/first informant Abhay Kumar Goyal (P.W.-1). This recovery was witnessed by Ajay Goyal and Shyam Sundar. He accordingly prepared recovery memo of above dated 07.05.2004 (Ext. Ka.-3).
9. At this juncture, Investigating Officer P.W.-8, S.I. Hardev Singh received information from informant regarding location of some of the accused. He immediately rushed to the place of their presence alongwith PW1 Abhay Kumar Goel and others to arrest them. Seeing police, accused persons who were washing Maruti Van bearing Registration No. UA-06-B-9209 belonging to Sanjeev Kumar Goyal (deceased) made an attempt to flee but were overpowered Accordingly, this witness arrested three persons, who were identified as named accused-Vaibhav Jain and Suresh Pal as well as one unnamed accused Rejendra Vohra, from paved road (Khadanja), near Guest House of Irrigation Department.
10. This Police Officer also recovered the Maruti Van described above, which belonged to Sanjeev Kumar Goyal (deceased) from aforesaid accused. On examination, it was found that rear seat of this vehicle was having marks of blood. Part of the back seat, which was having blood stains, was cut away. He accordingly sealed the same and prepared its recovery memo dated 07.05.2004 (Ext. Ka.-4). Aforesaid recovery was witnessed by P.W.-1, Abhay Kumar Goyal and P.W.4 Vishal Anand.
11. To establish place of occurrence, P.W.-8, S.I. Hardev Singh also recovered plain earth as well as earth mixed with blood from place of occurrence in presence of two witnesses namely Shyam Sundar and Ajay Goyal. He sealed them in separate boxes and prepared their's recovery memo dated 07.05.2004 (Ext. Ka. 69).
12. The knife used in commission of offence was recovered by P.W. 8 Investigation Officer on pointing of named and arrested accused-Vaibhav Jain on 7.5.2004. He, accordingly, sealed it and prepared a recovery memo of same dated 07.05.2004 (Ext. Ka.-5). Aforesaid recovery was witnessed by P.W. 1 Abhay Kumar Goyal and P.W. 4 Vishal Anand.
13. After aforesaid recoveries were made, P.W.-8, S.I. Hardev Singh prepared Map of place from where weapon of assault i.e. Knife was recovered on 07.05.2004 (Ext. Ka.-71).
14. P.W.-8, S.I. Hardev Singh also inspected place of occurrence and on pointing of first informant i.e. P.W.-1, Abhay Kumar Goyal prepared Site Plan of same on 07.05.2004 (Ext. Ka.-70).
15. After undertaking aforesaid exercise, P.W.-8, S.I. Hardev Singh proceeded to conduct inquest/panchayatnama of deceased. He, accordingly, appointed panch witnesses. Thereafter, he prepared inquest report dated 07.05.2004 (Ext. Ka.62A). Aforesaid inquest report categorically records the Case Crime Number in which inquest was performed i.e. Case Crime No. 315 of 2004 under Sections 302, 201, 427 I.P.C. P.S.-Bilaspur, District-Rampur, the place of inquest i.e. village Indarpur, time of commencement of inquest i.e. 11:05 am. In the opinion of Panch witnesses, death of deceased Sanjeev Kumar Goyal, was homicidal in nature.
16. Having completed inquest of the body of deceased, P.W.-8, Investigating Officer, took possession of dead body of deceased. He prepared detailed police scroll i.e. Ext. Ka-63, Ext. Ka-64, Ext. Ka-66, Ext. Ka-67, Ext. Ka-68 and dispatched dead body of Sanjeev Kumar Goyal (deceased) for postmortem on 07.05.2004 through P.W.-5, Constable 775, Satyveer Sing and Ram Dhani.
17. P.W.-6, Dr. H. K. Mitra, who pas posted as an Orthopadic Surgeon at District Hospital, Rampur conducted autopsy on dead body of deceased on 07.05.2004 at 5.00PM. In the opinion of autopsy surgeon cause of death of deceased was shock and haemorrhage as a result of ante-mortem injuries. He found following ante-mortem injury on the body of deceased:-
"Incised would on left side of neck 7cm. above medial 1/3rd of clavicle size 5.5cm.x1cm. x 5cm deep tail facing toward 'anteriorly upto Hyoid cartilage (Left centered cutting cut at site of wound. Left centered vein cut)."
18. On 12.05.2004, P.W.-8, S.I. Hardev Singh, recorded statement of P.W.-2, Sarita Goyal widow of Sanjeev Kumar Goyal (deceased). He thereafter received information from informant regarding location of accused Kaushal Kishore. This Police Officer, accordingly, proceeded to the place of his presence and arrested aforesaid accused on 12.5.2004.
19. Investigating Officer, who was continuing with investigation of above mentioned case crime number, arrested unnamed accused Sadab on 26.05.2004. He then recorded statements of first informant, panch witnesses and others under section 161 Cr.P.C.
20. Forensic Science Laboratory, Agra submitted FSL report dated 23.10.2004 (Ext. Ka-73) in respect of articles i.e. clothes worn by deceased, mobile cover belonging to deceased, weapon of assault i.e. knife, back seat-cover of Maruti Van which had blood-stains and earth mixed with blood, that were sent for forensic examination. As per aforesaid FSL report, blood stains found on articles sent for forensic examination were of human blood. However, same were insufficient for classification.
21. Upon completion of investigation in terms of Chapter XII Cr.P.C., Investigating Officer P.W.-8, S.I. Hardev Singh formed an opinion to submit a charge-sheet against named as well as unnamed accused, who were arrested during course of investigation as their complicity was found in commission of crime under investigation. Accordingly, P.W.-8, S.I. Hardev Singh submitted charge-sheet dated 29.05.2004 (Ext. Ka-72) against accused-Vaibhav Jain, Kaushal Kishore Jain Suresh Pal, Rajendra Vohra and Sadab under Sections 302/149, 120B, 201, 364 and 427 I.P.C. Upon submission of aforesaid charge-sheet, cognizance was taken by C.J.M., Rampur vide cognizance taking order dated 21.6.2004. Thereafter, case was committed to Court of Sessions, as it was triable by Court of Sessions, vide committal order dated 4.2.2005, passed by CJM, Rampur. Consequently, Sessions Trial No. 76 of 2005 (State Vs.Vaibhav Jain and four others) under Sections 364, 302, 201, 120B and 427 I.P.C., P.S.-Bilaspur, District-Rampur, came to be registered.
22. Court below vide order dated 30.03.2005 framed five distinct charges against all the charge-sheetted accused i.e. Vaibhav Jain, Kaushal Kishore, Suresh Pal, Rejendra Vohra and Sadab under Sections 302/149, 120B, 364,201 and 427 I.P.C.
23. Above named accused denied the charges so framed and demanded trial. Consequently, burden fell upon prosecution to prove the charges alleged against accused.
24. Prosecution in discharge of it's aforesaid burden and to bring home the charges leveled against accused, adduced eight witnesses namely:
I. P.W.-1, Abhay Kumar Goyal (First Informant).
II. P.W.-2, Sarita Goyal, Widow of Sanjeev Kumar Goyal (deceased).
III. P.W.-3, Anil Kumar (Independent Witness).
IV. P.W.-4, Vishal Anand (Independent witness).
V. P.W.-5, Satyaveer Singh (Police Constable).
VI. P.W.-6, Dr. H. K. Mitra (Doctor, who conducted postmortem of the body of deceased).
VII. P.W.-7, Om Prakash (Police Constable).
VIII. P.W.-8, S.I., Hardev Singh, S.H.O. P.S.-Bilaspur (Investigating Officer).
25. Apart from relying upon testimonies of aforesaid witnesses, prosecution further adduced documentary evidence which is tabulated herein below:
Ext. Ka.-1, Written report dated 07.05.2004 submitted by P.W.-1, Abhay Kumar Goyal, first informant/brother of deceased at P.S.-Kotwali Bilaspur, District-Rampur regarding death of Sanjeev Kumar Goyal (deceased).
Ext. Ka.-2, Recovery Memo dated 07.05.2004 regarding recovery of Rs. 7500/- cash and a Gold Chain from body of Sanjeev Kumar Goyal (deceased).
Ext. Ka.-3, Recovery Memo dated 07.05.2004 regarding recovery of Motorcycle of Sanjeev Kumar Goyal (deceased) bearing registration number UA-06-B-5780, which was of TVS Victor make.
Ext. Ka.-4, Recovery Memo dated 07.05.2004 regarding recovery of blood stained seat cover, from rear seat of Maruti Van bearing registration number UA-06B-9209 belonging to Sanjeev Kumar Goyal (deceased).
Ext. Ka.-5, Recovery Memo dated 07.05.2004, regarding recovery of weapon of assault i.e knife recovered on the pointing of named accused Vaibhav Jain.
Ext. Ka.-6 to Ext. Ka.-51, pages of diary of Sanjeev Kumar Goyal (deceased) from 2nd January to 16th February (M. Ext.-1).
Ext. Ka.-52, Account maintained by Sanjeev Kumar Goyal (deceased), regarding money lended to accused-Vaibhav Jain.
Ext. Ka.-53, Registration Certificate granted to Sanjeev Kumar Goyal (deceased) by Rural Engineering Services Authority, Dehradoon.
Ext. Ka.-54, Registration Certificate pertaining to Motorcycle of TVS Victor make having registration no. UA-06-B-5780 belonging to Sanjeev Kumar Goyal (deceased) Ext. Ka.-55, Registration Certificate dated 13.07.2001 issued by Sales Tax Officer, Udham Singh Nagar.
Ext. Ka.-56, Certificate dated 20.11.2002, issued in favour of Pragya Traders, Krishi Utpadan Mandi Parishad, Uttranchal.
Ext. Ka.-57, Letter dated 26.8.2003 issued by Joint Director (Cantt.) Krishi Utpadan Mandi Parishad. Haldwani Nainital whereby registration granted to Pragya Traders was renewed.
Ext. Ka.-58, Registration Certificate of Maruti Van bearing no. UA-06B-9209 belonging to Sanjeev Kumar Goyal (Deceased) Ext. Ka.-59, Notice dated 30.06.2003 issued by Superintending Engineer, PWD, Haldwani, Nainital.
Ext. Ka.-60, Post-mortem report dated 07.05.2004 pertaining to Sanjeev Kumar Goyal (deceased).
Ext. Ka.-61, Check F.I.R. of Case Crime No.315 of 2004 under Sections 302, 201, 427 I.P.C.
Ext. Ka.-62, Carbon Copy of G.D. regarding registration of F.I.R.
Ext. Ka.62A, Panchayatnama/inquest memo of Sanjeev Kumar Goyal (deceased) dated 07.05.2004.
Ext. Ka.-63, Letter dated 7.5.2004 sent by P.W.8- S.I. Hardev Singh to Medical Officer, Sadar Hospital, Rampur regarding Post-mortem of dead body of Sanjeev Kumar Goyal (deceased).
Ext. Ka.-64, Letter dated 07.05.2004 also sent by P.W.-8, S.I. Hardev Singh to medical officer Sadar Hospital, Rampur for post-mortem of dead body of Sanjeev Kumar Goyal (deceased).
Ext. Ka.-65, Letter dated 07.05.2004 sent by S.P. Rampur to Civil Surgeon, Civil Hospital, Rampur regarding Post-mortem of dead body of Sanjeev Kumar Goyal (deceased).
Ext. Ka.-66 Photograph of dead body.
Ext. Ka.-67, Specimen of Seal.
Ext. Ka.-68, Challan Lash.
Ext. Ka.-69, Recovery memo of plain earth and earth mixed with blood.
Ext. Ka.-70, Site Plan regarding place, where dead body of Sajeev Kumar Goyal (deceased), was found in Village Indarpur in front of Jhala of Sardar Mehar Singh near field of Sardar Gyan Singh.
Ext. Ka.-71, Site Plan/Map of place dated 07.06.2004 from where weapon of assault i.e. knife was recovered on pointing of accused Vaibhav Jain.
Ext. Ka.-72, Charge-sheet No. 83 dated 29.05.2004 submitted under Sections 364, 302, 201, 120B, 427 I.P.C. against accused-Vaibhav Jain, Suresh Pal, Rajendra Vohra, Kaushal Kishore Jain and Sadab Ext. Ka.-73, FSL report dated 23.10.2004.
26. Prosecution also relied upon material exhibits namely M. EXT.-1 Diary of deceased, M. EXT.-2 to M. EXT.-6, Vest, Shirt, Pant, Underwear, Mobile-Cover of deceased, M. EXT.-7 Knife, M. EXT.-8 Plain Earth, M. EXT.-9, Earth mixed with blood, M. EXT.-10 Plain Earth, M. EXT.-11 Earth mixed with blood, M. EXT.-12 Ring, M. EXT.-13 Challa (Ring).
27. P.W.-1, Abhay Kumar Goyel in his testimony has detailed entire prosecution case, which fully corroborates the prosecution story as unfolded in F.I.R. This witness has clearly deposed that Vaibhav Jain (accused) was very close to Sanjeev Kumar Goyal (deceased) and therefore his widow Sarita Goyal, used to treat him like her brother. This witness has further deposed that Vaibhav Jain (accused) had taken huge amount of money from Sanjeev Kumar Goyal (deceased) which remained unpaid. Two days prior to occurrence, Vaibhav Jain (accused) had borrowed Maruti Van of deceased bearing Registration No. UA-06-B-9209. According to this witness, on 06.05.2004, Sanjeev Kumar Goyal (deceased) left his home at around 7.00PM after informing his wife Sarita Goyal (PW2) that he is going to Vaibhav Jain (accused) for demanding his money. He further states that P.W.-2 Sarita Goyal came to his house at around 8.30 PM, and informed that she received a phone call from her husband Sanjeev Kumar Goyal (deceased) telling her that he is sitting in Sindhu Bar Restaurant alongwith Vaibhav Jain (accused) and shall return late after inspecting his work at Rampura, therefore, they may take their dinner. As she felt suspicious on receiving aforesaid phone call, she requested P.W.-1 to find out whereabouts of her husband Sanjeev Kumar Goyal (deceased) and also his well being. On this anxiety expressed by wife of Sanjeev Kumar Goyel (deceased) P.W. 2 Sarita Goyal, this witness proceeded to Sindhu Bar Restaurant where he found Maruti Van and Motorcycle of his brother Sanjeev Kumar Goyal (deceased) parked outside and one Suresh Pal (co-accused) alongwith three other persons was seen standing near the same. He further states that he went inside aforesaid Restaurant and saw Sanjeev Kumar Goyal (deceased) sitting with Vaibhav Jain (accused). Both were drinking beer and having their dinner together. He has further deposed that having acquired location of his brother Sanjeev Kumar Goyal (deceased) and also his well being, he did not speak to aforesaid two persons, but returned to house of P.W.-2 Sarita Goyal and informed her accordingly. He has also stated that P.W.-2 on 06.05.2004 gave a phone call in the night at around 10.00 PM that Sanjeev Kumar Goyal (deceased) has not yet returned home. He, accordingly, went out in search of his brother Sanjeev Kumar Goyal (deceased). When all attempts to find his brother Sanjeev Kumar Goyal (deceased) failed, this witness went to house of Vaibhav Jain (accused) where his mother and wife jointly informed that Vaibhav Jain (accused) is not at home. He, thereafter, returned and informed P.W.-2 Sarita Goyal, accordingly.
28. He has also categorically deposed that a phone call was received by Sarita Goyal, P.W.-2 (widow of Sanjeev Kumar Goyal ) from an unknown person at 2: 30 am in the night of 6/7-5.2004 informing her that motorcycle of Sanjeev Kumar Goyal (deceased) is lying abandoned near Baradari Railway Crossing in damaged condition. Aforesaid information was communicated by P.W.2 Sarita Goyal to P.W.1 Abhay Kumar Goyal. Upon above communication by phone, this witness alongwith others immediately proceeded to Baradari Railway Crossing and at around 2.30 P.M. i.e in the night of 6/7.05.2004 found damaged motorcycle of his brother Sanjeev Kumar Goyal (deceased) lying abandoned there. This witness has further stated as to how thereafter he alongwith others continued to search for Sanjeev Kumar Goyal (deceased) and after five to six hours, found his dead body in village Indarpur in front of Jhala of Sardar Mehar Singh near field of Sardar Gyan Singh. Thereafter, this witness has deposed that he scribed the written report dated 07.05.2004 (Ext. Ka.-1) on basis of which, F.I.R. dated 07.05.2004 (Ext. Ka. 61) was lodged and registered as Case Crime No. 315 of 2004 under Sections 302, 201, 427 I.P.C.
29. This witness goes on to state that after aforesaid F.I.R. was registered Police arrived on spot. Investigating officer recovered Rs. 7,500/- cash and a gold chain from person of deceased. Aforesaid recovery was witnessed by this witness. Thereafter, Investigating Officer P.W.8 prepared recovery memo of same dated 7.5.2004 (Ext. Ka-2). He further states that subsequently, Investigating officer recovered damaged motorcycle of Sanjeev Kumar Goyal (deceased) and prepared it's recovery memo dated 7.5.2004 (Ext. Ka-3). At this juncture, on information given by informant that some of the accused are present near Guest House of Irrigation Department, P.W.-8 S.I. Hardev Singh alongwith police team, P.W.-1, P.W.-4 and others, reached Kharanja (paved-road) near Guest House of Irrigation Department. He saw that three persons were washing a Maruiti Van which was later discovered to be belonging to Sanjeev Kumar Goyal (deceased). These three persons on seeing police attempted to run away but were overpowered. Thereafter, Investigating Officer, P.W.-8, arrested them in presence of P.W.-1. They were identified as named accused-Vaibhav Jain, Suresh Pal and one unnamed accused Rajendra Vohra. Maruti Van belonging to Sanjeev Kumar Goyal (deceased) was also recovered form their possession. Aforesaid accused at the time of arrest were washing the Maruti Van belonging to deceased and upon scrutiny the Investigating Officer in presence of P.W.-1 and P.W.-4 and others found that seat-cover of back-seat of Maruti Van was having blood stains which was cut off and sealed. P.W.-8, Investigating Officer, accordingly, prepared its recovery-memo Ext. Ka.-4. P.W.-1 is a witness of this recovery. Accordingly, Ext. Ka-1, Ext. Ka-2, Ext. Ka-3, Ext. Ka-4 and Ext. Ka-5 and the recoveries evidenced by same, have been proved by this witness.
30. This witness was contradicted by his own previous statement as recorded under Section 161 Cr.P.C. but defence failed to establish any contradiction in his testimony. He was also cross-examined by defence, but it failed to cull out any such statement from him on basis of which his testimony could be discarded on account of it being from an incredible witness and therefore, unreliable. As such, this witness has remained intact even after lengthy cross-examination by defence. The Defence has failed to establish any exaggeration, embellishment or contradiction in his testimony.
31. P.W.-2, Sarita Goyal is widow of Sanjeev Kumar Goyal (deceased). This witness in her deposition has categorically deposed that Vaibhav Jain (accused) was very intimate to her family and on account of aforesaid intimacy, she treated him like her brother. She has further deposed that huge amount of money was taken by Vaibhav Jain (accused) from her husband Sanjeev Kumar Goyal (deceased). This witness has also stated that her husband Sanjeev Kumar Goyal (deceased) repeatedly demanded return of his money from Vaibhav Jain (accused). According to this witness on 6.5.2004 at 7:00 pm, her husband Sanjeev Kumar Goyal (deceased) left home stating that he is going to Vaibhav Jain (accused) for demanding return of his money. At around 8:30 pm, her husband gave a phone call informing her that he is sitting in Sindhu Bar Restaurant along with Vaibhav Jain (accused). Therefore, they may take their dinner as he shall return late at night. On receiving above phone call, this witness alleges to have become suspicious and accordingly she went to house of P.W.1 Abhay Kumar Goyal requesting him to locate the whereabouts and also find out well being of her husband Sanjeev Kumar Goyal (deceased). She then states that on this request, P.W.1 Abhay Kumar Goyal went to Sindhu Bar Restaurant. He found Maruti Van and Motorcycle of her husband Sanjeev Kumar Goyal (deceased) parked outside the restaurant and Suresh Pal (co-accused), driver of Vaibhav Jain (accused) was standing near the same. She also stated that P.W.1 went inside and saw her husband Sanjeev Kumar Goyal (deceased) and Vaibhav Jain (accused) sitting together. Both were drinking beer and having their dinner. She further states that P.W.1 disclosed aforesaid information to her after his return from Sindhu Bar Restaurant.
32. She has thereafter deposed that on 6.5.2004, Sanjeev Kumar Goyal (deceased) did not return home even till 10:30 pm. Accordingly, P.W.2 Sarita Goyal informed P.W.1 Abhay Kumar Goyal on telephone regarding aforesaid and requested P.W.1 to search for her husband Sanjeev Kumar Goyal (deceased). On this Abhay Kumar Goyal (P.W.1) along with others went out to search Sanjeev Kumar Goyal (deceased). When all attempts to locate Sanjeev Kumar Goyal (deceased) failed, P.W.1 alongwith others reached house of Vaibhav Jain (accused). On query being raised regarding location of Sanjeev Kumar Goyal (deceased), mother and wife of Vaibhav Jain (accused) jointly stated that Vaibhav Jain (accused) himself has not returned since he left home. P.W.1, accordingly, returned and informed P.W.2 of aforesaid.
33. She then states that she received a phone call at 2:30 am in the night of 6/7.5.2004 from an unknown person who informed that motorcycle of Sanjeev Kumar Goyal (deceased) is lying abandoned near Baradari Railway Crossing in damaged condition. On receiving this information, she immediately informed her Jeth (elder brother of her husband) P.W. 1 Abhay Kumar Goyal who along with others immediately rushed to Baradari Railway Crossing and found damaged motorcycle of Sanjeev Kumar Goyal (deceased) lying abandoned near Baradari Railway Crossing. She then states that thereafter P.W.1 and others searched for Sanjeev Kumar Goyal (deceased) and after some time they found dead body of her husband Sanjeev Kumar Goyal (deceased). At around 8:00 am she received information regarding murder of her husband. This witness has also stated that Money given by Sanjeev Kumar Goyal (deceased) to Vaibhav Jain (accused) was maintained in the form of an account Ext. Ka-52. She has also deposed that her husband Sanjeev Kumar Goyal (deceased) maintained a diary (Material Ext.-1) where all transactions relating to money lended to accused accused-Vaibhav Jain (accused) as well as return made by Vaibhav Jain (accused) were entered.
34. This witness has proved Material Ext.-1- Diary of deceased. Pages from 2nd January to 16 February of aforesaid diary were marked as Ext. Ka-6 to Ext.-Ka-51, Ext. KA-52 in A/c maintained by deceased, in respect of money lended to Vaibhav Jain (accused). She also proved Ext Ka-53 i.e. Registration Certificate granted to Sanjeev Kumar Goyal by Rural Engineering Services Authority, Dehradun, Ext. Ka-54 Registration Certificate belonging to Sanjeev Kumar Goyal. Ext. Ka-55, Registration Certificate issued by Sales Tax Officer, Udham Singh Nagar. Ext. Ka-56 Certificate dated 20.11.2002, issued in favour of Pragya Traders by Krishi Utpadan Mandi Parishad, Uttranchal. Ext. Ka-57, letter dated 26.8.2003, issued by Joint Director (Cantt.) Krishi Utpadan Mandi Parishad Haldwani, Nainital, regarding renewal of registration granted to Pragya Traders. Ext. Ka- 58, Registration certificate of Maruti Van, Ext. Ka-59 Notice dated 30.6.2003, issued by Superintending Engineer P.W.D Haldwani, Nainital. Aforesaid documents were filed by P.W. 2 in court at the time of her deposition.
35. The defence objected to the filing of documents by P.W.2 i.e. Material Ext-2, Ext. KA-52 etc. during course of her deposition before Court below. Objection regarding admissibility of such documents was also raised by defence. However, it was held by Court below that question of admissibility of above documents shall be decided at later stage. Court below has, however, in the impugned judgement held that aforesaid documents are admissible in evidence.
36. This witness was specifically cross-examined by defence regarding Material Ext.-1 and other exhibits. However this witness categorically stated that she recognizes handwriting of her husband Sanjeev Kumar Goyal (deceased) and entries in the diary (Material Ex-1) are in his handwriting. She has further stated that around Rs. 5 to 6 lakhs were taken by accused-Vaibhav Jain (accused) from her husband.
37. However, defence failed to dislodge this witness even after cross examination. His testimony remains devoid of any contradiction, embellishment or exaggeration. As such this witness remains credible and reliable and consequently, her testimony is worthy of trust.
38. P.W.-3, Anil Kumar is an independent witness. He has deposed that while standing near check post near Rudravilash, he saw Maruti Van No. UA-06B-9209 belonging to Sanjeev Kumar Goyal (deceased) driven by Suresh Pal (co-accused). In the rear seat of aforesaid Maruti Van, Vaibhav Jain (accused), Sadab (co-accused) and Rajendra Vohra (co-accused, who is a waiter at Sindhu Bar Restaurant), were seen sitting alongwith Sanjeev Kumar Goyal (deceased). He also stated that aforesaid Maruti Van was being driven by Suresh Pal (co-accused and driver of Vaibhav Jain). Behind Maruti Van, Motorcycle belonging to Sanjeev Kumar Goyal (deceased) bearing No. (UA-O6B-5780) was being driven by Kaushal Kishore (co-accused and brother-in-law of accused-Vaibhav Jain). The tesimony of this witness is relevant only for the fact that the deceased was last seen in company of accused persons at 10-10.30 PM on 06.05.2004. This witness has also stated the factum regarding lending of money by Sanjeev Kumar Goyal (deceased) to Vaibhav Jain (accused).
39. Accused Sadab was put to identification before this witness. According to this witness, the accused Sadab produced before him is not that Sadab who was seen sitting by him in Maruti Van of deceased alongwith other co-accused and deceased.
40. This witness was crossed examined by defence regarding his credibility and reliability particularly his seeing deceased in company of accused persons in his Maruti Van late at night. Court below, however, believed this witness and accordingly, relied upon his testimony.
41. P.W.-4, Vishal Anand, is also an independent witness. This witness has also stated that on 6.5.2004, at around 9:30 pm, he was standing at Indra Crossing when he saw Maruti Van of Sanjeev Kumar Goyal (deceased). According to this witnees, Maruti Van of deceased was going from Rudra Pur to Bilaspur and was being driven by Suresh Pal (co-accused) driver of Vaibhav Jain (accused). On the rear seat of this vehicle, Sadab (co-accused), Vaibhav Jain (accused) and Rajendra Vohra (co-accused) were seen sitting along with Sanjeev Kumar Goyal (deceased). Following Maruti Van of deceased was motorcycle of deceased which was being driven by Kaushal Kishore (co-accused).
42. This witness then goes on to depose as to how information was received regarding motorcycle of deceased lying abandoned near Baradari Railway Crossing. On this information, this witness accompanied P.W.1 to Baradari Railway Crossing. He has then deposed regarding recovery of cash and gold chain from person of deceased, recovery of motorcycle of deceased, arrest of accused Vaibhav Jain, Suresh Pal and Rajendra Vohra, recovery of Maruti Van belonging to deceased followed by recovery of blood stains on the rear seat cover of Maruti Van (Ext. Ka-4). This witness is also a witness of recovery as evidenced, vide Recovery memo dated 7.5.2004, (Ext. Ka-4) which relates to recovery of blood stained back seat cover of Maruti Van and another recovery evidenced, vide Recovery memo dated 7.5.2020 (Ext. Ka-5) regarding recovery of weapon of assault i.e. knife.
43. For the purpose of identification, accused Sadab was put to identification before this witness. However, according to this witness, the accused Sadab produced before him, is not that Sadab who was seen sitting by him in Maruti Van of deceased along with other co-accused and deceased.
44. This witness was further corss-examined by defence to doubt his credibility and reliability regarding last seen. Court below has, however, believed this witness and accordingly relied upon his testimony.
45. P.W.-5, Constable/775 Satyaveer Singh was posted at P.S Bilaspur, District Rampur. This witness sealed the dead body of deceased. He along with constable Ram Dhani carried dead body of deceased for post mortem. After post-mortem of dead body of deceased was conducted, they brought the dead body of the deceased at Civil Hospital, Rampur. This witness was cross-examined by defence regarding timing of commencement of inquest/panchayatnama as well as recovery from the person of deceased. However, nothing adverse could be culled out from this witness. As such, his testimony remained intact.
46. P.W.-6. Dr. H.K. Mitra, was posted as Orthopedic Surgeon at District Hospital, Rampur. He conducted post-mortem of the body of deceased and prepared post-mortem report dated 07.05.2004 (Ext. Ka.-60). He proved the same. According to this witness, following ante-mortem injuries were found on the body of deceased:
"Incised would on left side of neck 7cm. above medial 1/3rd of clavicle size 5.5cm.x1cm. x 5cm deep tail facing toward 'anterior only upto Hyoid cartilage (Left created cutting cut at site of wound. Left created vein cut".
47. On internal examination, this witness found that carotid artery of deceased was cut and both ends were separate. There was gap of about 1cm. between the two ends. About 200ML of semi digested food was present in stomach. Digested food was present in small intestine. Faecal material alongwith gas was present in large intestine. Gall-bladder was full. Urine bladder was empty.
48. According to this witness, deceased was aged about 32 years and death had occurred one day prior to post-mortem. In the opinion of this witness, cause of death of deceased was asphyxia and haemorrhage on account of ante-mortem injuries. This witness further opined that death could occur within one and a half hour from the injuries sustained by deceased.
49. This witness was cross-examined by defence, particularly on behalf of accused-Vaibhav Jain. However, defence could not dislodge his testimony. As such, this witness remained intact.
50. P.W.-7, C-256, Om Prakash was posted as Police Constable at P.S. Bilaspur District Rampur on date of occurrence. He is scribe of F.I.R. (Ext. Ka.-61) and has proved the same. He has further proved G.D. Entry No. 21 dated 7.5.2004 regarding entry of written report dated 7.5.2004 in General Diary of above police station. He has also proved Carbon copy of G.D. entry (Ext. Ka-62). This witness was cross-examined by defence in respect of persons who accompanied first informant P.W. 1 Abhay Kumar Goyal to Police Station for lodging F.I.R. He was further cross-examined with regard to time of departure of S.H.O. P.S. Bilaspur i.e. P.W.-8, S.I. Hardev Singh to place of occurrence on 7.5.2004. Apart from above, this witness was specifically cross-examined regarding place of lodging of F.I.R. i.e. P.S. Bilaspur inasmuch as according to defence, occurrence took place within jurisdiction of P.S. Rudrapur. On all the above mentioned three issues, on which this witness was cross-examined, he remained intact. As such, prosecution failed to dislodge this witness.
51. P.W.-8, S.I., Hardev Singh is Investigating Officer of the crime giving rise to present criminal proceedings. At the time of occurrence, this witness was posted as Station House Officer, Police Station-Bilaspur, District-Rampur.
52. After F.I.R. dated 07.05.2004 was registered as Case Crime No. 315 of 2004 under Sections 302, 201, 427 IPC, P.S. Bilaspur, District-Rampur, this witness appointed himself as Investigating Officer. He reached place of occurrence on 07.05.2004 itself and found dead body of Sanjeev Kumar Goyal (deceased) in Village Indarpur in front of Jhala of Sardar Mehar Singh near field of Sardar Gyan Singh. He recovered Rs. 7,500/- cash and a gold chain from person of deceased. He took possession of aforesaid articles and gave them in Supurdagi of the brother of deceased/first informant Abhay Kumar Goyal (P.W.-1). He also prepared recovery memo of same dated 07.05.2004 (Ext. Ka-2). This witness also recovered motorcycle bearing registration no. UA-06B-5780 of TVS Victor make belonging to Sanjeev Kumar Goyal (deceased), which was lying abandoned near Baradari Railway Crossing in damaged condition. Same was given in Supurdagi of P.W.-1 Abhay Kumar Goyal. This witness prepared recovery memo dated 07.04.2005 (Ext. Ka-3) in respect of above. On 07.05.2004, this witness received information regarding presence of some of the accused near Guest House of Irrigation Department. He, accordingly, proceeded to arrest them. Seeing Police Party accused persons present tried to flee, but were overpowered. Accordingly, this witness arrested three persons who were identified as named accused-Vaibhav Jain and Suresh Pal and one unnamed accused namely Rajendra Vohra. From aforesaid accused, he recovered Maruti Van belonging to Sanjeev Kumar Goyal (deceased), which was bearing Registration No. UA-6B-9209 and was being washed by them to remove the blood stains on it. He further discovered that rear seat of aforesaid vehicle was having blood stains. He, accordingly, cut the same and sealed it. He also prepared its recovery memo dated 07.05.2004 (Ext. Ka-4). To establish place of occurrence, he recovered plain earth as well as earth mixed with blood from that place and sealed them separately. The recovery memo dated 07.05.2004 in respect of above (Ext. Ka.-69) was prepared. This witness also recovered the knife used in commission of offence on pointing of named and arrested accused-Vaibhav Jain. He, accordingly, prepared recovery memo of above dated 07.05.2004 (Ext. Ka.-5). He further prepared map of place from where weapon of assault (knife) was recovered (Ext. Ka.-71). On pointing of first informant, this witness prepared map regarding place of occurrence (Ext. Ka.-70). After aforesaid recoveries were made, this witness got inquest/panchayatnama of deceased performed. After completion of inquest proceeding, he prepared inquest report/ panchayatnama (Ext. Ka.-62). He, thereafter, prepared detailed Police Scroll i.e. Ext. Ka.63 letter dated 7.5.2004 sent by P.W.8- S.I. Hardev Singh to Medical Officer, Sadar Hospital, Rampur regarding Post-mortem of dead body of deceased Sanjeev Kumar Goyal. Ext. Ka.-64, Letter dated 07.05.2004 also sent by P.W.-8, S.I. Hardev Singh to Medical Officer Sadar Hospital, Rampur for post-mortem of dead body of deceased. Ext. Ka.-66 Photograph of dead body. Ext. Ka.-67, Specimen of Seal. Ext. Ka.-68, Challan Lash. This witness on the information of informant arrested accused Kaushal Kishore on 12.05.2004. On 26.05.2004, this witness arrested accused Sadab. Upon completion of investigation, this witness submitted charge-sheet dated 29.5.2004 (Ext. Ka-72) against all the five accused.
53. P.W.-8, accordingly, proved Ext. 62A-Panchyatnama of deceased Ext. Ka.63. Letter by P.W.-8, S.I. Hardev Singh to Medical Officer, Sadar Hospital, Rampur regarding post-mortem of deceased. Ext. Ka.64-Letter sent by P.W.-8, S.I.Hardev Singh to Medical Officer, Sadar Hospital, Rampur, regarding post-mortem of deceased. Ext.Ka. 65- Letter dated 07.05.2004 sent by S. P. Rampur to Civil Surgeon, Civil Hospital Rampur, regarding post-mortem of dead body of deceased. Ext. Ka. 66-Photograph of dead body (Photolash). Ext. Ka. 67-Specimen of Seal. Ext. Ka.68- Challan Lash. Ext. Ka.69-Recovery memo of plain earth and earth mixed with blood. Ext. Ka.70-Site plan of the place where dead body of deceased was found. Ext. Ka.71-Site plan of the place where weapon of assault i.e. Knife was discovered on pointing of accused Vaibhav Jain. Ext. Ka.-72, Charge-sheet No. 83 dated 29.05.2004 submitted against all the accused under Sections 364, 302, 201, 120B, 427 I.P.C.
54. This witness was cross-examined by defence regarding lodging of F.I.R. of crime in question at wrong place, non-mentioning of names of accused in Panchayatnama, deficiency in investigation regarding taking of money by accused-Vaibhav Jain from deceased, timing regarding departure of this witness from police station.
55. In spite of detailed cross-examination, this witness could not be dislodged by defence, as such his testimony has remained intact.
56. The accused neither adduced any documentary evidence to prove their innocence nor they produced any witness, nor themselves appeared in witness box to prove their innocence or false implication in the crime in question. Thus, only version of occurrence is the prosecution version.
57. After prosecution evidence was over, accused were examined under Section 313 Cr.P.C. All the incriminating materials/adverse circumstances were put to them one by one. The accused denied most of the questions put to them one by one by repeatedly saying that it is false.
58. On behalf of accused, it was urged before court below that no motive can be attached to them for committing the alleged crime. The M. Ext.-1, Diary is a forged document and cannot be relied upon. P.W.-1, Abhay Kumar Goyal, did not see the accused at Sindhu Bar Restaurant. Maruti Van of deceased was not technically examined to prove that it was in driving condition. Investigation is defective and therefore accused are liable to be acquitted of the charges levelled against them. No identification parade of accused was undertaken by Investigating Officer. P.W.-3, Anil Kumar and P.W.-4, Vishal Anand are chance witnesses. They are also interested witnesses and tutored. Material witnesses namely Owner and Manager of Sindhu Bar Restaurant have not been examined to prove the last seen theory. The recovery of weapon of assault i.e. knife on the alleged pointing of accused-Vaibhav Jain, is forged and therefore, cannot be relied upon. Statement of witnesses of recovery of weapon of assault is contradictory. Testimony of Doctor, who conducted autopsy of body of deceased namely Dr. H.K. Mitra, P.W.-6 is incomplete and therefore cannot be relied upon. Investigation should have been conducted by Police of police station Rudrapur, Uttranchal where the deceased resided. As such, entire investigation is without jurisdiction. There is serious contradiction in the statements of two eye-witnesses of last seen namely P.W.-3 Anil Kumar and P.W.-4 Vihasl Anand, who have deposed in favour of prosecution that Sanjeev Kumar Goyal (deceased) was last seen in company of accused, as such their testimony is not worthy of reliance. Crime in question has been committed by P.W.-1 Abhay Kumar Goyal, himself, who is brother of Sanjeev Kumar Goyal (deceased), so that entire property falls in his share. P.W.-2, Sarita Goyal is widow of deceased and is, therefore, an interested witness. Her testimony is, therefore, not worthy of credit. Lastly, it was submitted that no motive can be assigned to one of the accused Kaushal Kishore regarding commission of alleged crime and therefore he is liable to be acquitted.
59. Court below before proceeding to evaluate aforesaid submissions urged on behalf of accused in light of circumstances forming chain of events leading to occurrence, reiterated parameters under which case in hand has to be examined. It, accordingly, held that as case in hand is one of circumstantial evidence, therefore, same has to be decided as per mandate of law laid down by Apex Court in Sharad Birdhichand Sarda, Vs. State of Maharashtra, AIR 1984 Supreme Court 1622.
60. Submissions urged on behalf of accused were evaluated by court below in the light of evidence on record as well as law as settled by Supreme Court on each of the issues so raised.
61. Since case in hand is related to circumstantial evidence, Court below, accordingly, synchronized circumstances, which accordingly to Court below form the complete chain of events in proximity to time and manner of occurrence and to establish that in case the said circumstance are proved, same shall point at the guilt of each of accused and no other hypothesis:
62. Following circumstances were noticed by Court below against accused-Vaibhav Jain, Suresh Pal and Rajendra Vohra, in reference to above:
i. Accused-Vaibhav Jain owed huge amount of money from Sanjeev Kumar Goyal (deceased) which he had taken on loan from deceased.
ii. For return of lended amount Sanjeev Kumar Goyal (deceased) had repeatedly reminded accused-Vaibhav Jain.
iii. Amount lended by Sanjeev Kumar Goyal (deceased) to accused accused-Vaibhav Jain was not returned by him to Sanjeev Kumar Goyal (deceased).
iv. Three days before the occurrence, accused-Vaibhav Jain had borrowed car (of Maruti Van make) bearing no. UA 06 B 9209 belonging to Sanjeev Kumar Goyal (deceased).
v. On 06.05.2004, Sanjeev Kumar Goyal (deceased) went out after telling his wife PW-2 Sarita Goyal that he was going to accused-Vaibhav Jain, for demanding retrun of lended money.
vi. On 06.05.2004, Sanjeev Goyal (deceased) directed his wife PW-2 Sarita Goyal on telephone that he was having dinner with accused-Vaibhav Jain.
vii. Suspecting something foul, PW-2 Sarita Goyal told PW-1 Abhay Kumar Goyal to go and check Sindhu Bar Restaurant.
viii. When PW-1 Abhay Kumar Goyal reached Sindhu Bar Restaurant, he found Sanjeev Kumar Goyal (deceased) and accused-Vaibhav Jain sitting together inside the restaurant. They were enjoying beer while taking their meal.
ix. Outside Sindhu Bar Restaurant, Maruti Van, bearing no. UA 06B 9209 of Sanjeev Goyal and motorcycle ( of TVS Victor make) bearing no. UA 06B 5780 belonging to Sanjeev Kumar Goyal (deceased) were found parked.
x. Near aforementioned Maruti Van parked outside Sindhu Bar Restaurant, co-accused Sureshpal and 3 other persons were standing.
xi. On 06.05.2004 at 10:30 p.m., P.W.-2 Sartia Goyal w/o Sanjeev Kumar Goyal (deceased) made a phone call to P.W.-1, Abhay Kumar Goyal that Sanjeev Kumar Goyal (deceased) has not returned home by then.
xii. P.W. 1 Abhay Kumar Goyal along with other persons went out in search of Sanjeev Kumar Goyal (deceased), but did not find him.
xiii. P.W.-1, Abhay Kumar Goyal went to house of accused-Vaibhav Jain and Vaibhav's wife/mother told him that Vaibav has not returned home form the time he had left. Accused-Vaibhav Jain was thus found absent from his house.
xiv. On the intervening night of 06.05.2004/07.05.2004 at 2:00 am, an unidentified person gave a phone call informing P.W. 2 Sarita Goyal that motorcycle of Sanjeev Kumar Goyal (deceased) is lying abandoned near Railway line at Baradari Railway crossing.
xv. In the night itself, PW-1 Abhay Kumar Goyal along with others went to Baradari Railway Crossing i.e. at 2.30 P.M. on 06/7.05.2004 where he found damaged motorcycle of Sanjeev Kumar Goyal (deceased) lying abandoned.
xvi. Body of Sanjeev Kumar Goyal was discovered in the field of Sardar Mehar Singh on 09.05.2004 at 8.30AM. A cut injury was found on the neck of the deceased.
xvii. Deceased Sanjeev Goyal was last seen by PW-3 Amit Kumar and PW-4 Vishal Anand at 9:30-10:00 p.m. in the company of accused persons in former's Maruti Van bearing no. UA 06B 9209.
xviii. Body of deceased Sanjeev Kumar Goyal was found in the field of Mehar Singh at 8:30 a.m. on 07.05.2004. Thereafter, report of the occurrence was lodged, and subsequent thereto investigating officer reached place of occurrence.
xix. On the paved road in front of irrigation department at Vilaspur, accused persons were found washing blood stains present on Maruti van bearing no. UA 06 B 9209, belonging to Sanjeev Kumar Goyal (deceased).
xx. Accused persons Vaibhav Jain, Sureshpal and Rajendra Vohra, tried to flee from the spot after seeing PW-8 Investigating Officer Shri Hardev Singh and other police personnel, but they were apprehended. Attempt made by accused person to flee from the spot too, is an additional circumstance (Dhananjay Chaterjee Vs West Bengal, 1994 (2), SCC, page 220).
xxi. On back-seat of Maruti Van bearing no. UA 06B 9209, blood stains were found, which after having been examined in forensic laboratory, were stated to be of human blood.
xxii. On 08.05.2004, a knife on pointing of accused-Vaibhav Jain, was found a little farther from the spot where body of Sanjeev Kumar Goyal (deceased) was recovered.
xxiii. On being examined by Forensic Science Laboratory, blood stains on recovered knife were tested and found to be human blood.
63. Circumstances against Kaushal Kishore Jain:
i. He is behnoi (sister's husband) of accused-Vaibhav Jain.
ii. On Ext. 40 and Ext. 41 of Material Ext. - 2 (diary), names of accused persons have been entered.
iii. The motorcycle by which Sanjeev Kumar Goyal (deceased) went, was seen at Sindhu Bar Restaurant. On this very motorcycle, this accused was seen going.
iv. Following the van through which the deceased was being taken away by accused persons, this accused was seen riding the motorcycle.
v. The motorcycle was found near Baradari Railway Crossing at 2:30 a.m. vi. The motorcycle was found on Rudrapur-Vilaspur Road, which is about 2½ KM from the spot where body of Sanjeev Kumar Goyal (deceased) was found (PW-1 Abhay Kumar 'page 28').
64. None of the submissions urged on behalf of accused were found cogent enough in the back drop of circumstances noted by Court below (as according to Court below they not only form a complete chain of events in proximity to time and manner of occurrence but also point at the guilt of accused) to dislodge the prosecution case. Consequently, court below by means of impugned judgement and order dated 09.11.2006 convicted and sentenced accused Vaibhav Jain, Kaushal Kishore Jain, Suresh Pal and Rajendra Vohra under Sections 302, 120B, 364, 201 and 427 I.P.C. One of the accused namely Sadab was acquitted of the charges levelled against him. Thus feeling aggrieved by aforesaid judgement and order dated 09.11.2006 passed by court below, the four convicted and sentenced accused have preferred above mentioned four criminal appeals, before this Court.
65. We may point out here that accused-appellant Kaushal Kishore Jain has been enlarged on bail vide order dated 22.11.2006 whereas, accused-appellant, Rajendra Vohra, has been enlarged on bail vide order dated 20.02.2007. Accused-appellant-Vaibhav Jain and Suresh Pal have been denied bail vide order dated 13.08.2009. As such, these two accused-appellants are in jail since 9.11.2006.
66. Case in hand is one of circumstantial evidence. What are the parameters for deciding a case based on circumstantial evidence has been settled in the celebrated case of Sharad Birdhichand Sarda (supra) which remains the locus clasicus on the point wherein following has been observed in paragraphs 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158 and 159.
"148. We now come to the nature and character of the circumstantial evidence. The law on the subject is well settled for the last 6-7 decades and there have been so many decisions on this point that the principles laid down by courts have become more or less axiomatic.
149. The High Court has referred to some decisions of this Court and tried to apply the ratio of those cases to the present case which, as we shall show, are clearly distinguishable. The High Court was greatly impressed by the view taken by some courts, including this Court, that a false defence or a false plea taken by an accused would be an additional link in the various chain of circumstantial evidence and seems to suggest that since the appellant had taken a false plea that would be conclusive, taken along with other circumstances, to prove the case. We might, however, mention at the outset that this is not what this Court has said. We shall elaborate this aspect of the matter a little later.
150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
151. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh, 1952 SCR 1091: (air 1952 sc 343) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal v. Stat of Maharashtra, AIR 1972 SC 656. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case ( at pp. 345-46) (supra):
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra('1973) 2 scc 793 (AIR 1973 SC 2622) where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
154. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus deliciti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry, (1952) NZLR 111, thus:
"Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that up on no rational hypothesis other than murder can the facts be accounted for."
155. Lord Goddard slightly modified the expression, morally certain by 'such circumstances as render the commission of the crime certain'.
156. This indicates the cardinal principle' of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry's case (supra) was approved by this Court in Anant Chintaman Lagu v. The State of Bombay (1960) 2 SCR 460: (AIR 1960 SC 500). Lagu's case as also the principles enunciated by this Court in Hanumant's case (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases Tufail's -Tufail's case (1969 (3) SCC 198) (supra). Ramgopal's case (AIR 1972 SC 656) (supra). Chandrakant Nyalchand Seth v. State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19.2.58), Dharmbir Singh v. The State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4.11.1958). There are a number of other cases where although Hanumant's case has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration (1974) 2 SCR 694 (696); (AIR 1974 SC 691) at (693), Mohan Lal Pangasa v. State of U.P., AIR 1974 SC 1144 (1146), Shankarlal Gyarasilal Dixit v. State of Maharashtra, (1981) 2 SCR 384 (390): (AIR 1981 SC 675 at [/ 767) amd M.C. Agarwal v. State of Maharashtra (1963) 2 SCR 405 (419); (AIR 1963 SC 200 at p.206) a five-Judge Bench decision.
157. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. The State of Bihar (1955) 2 SCR 570 (582): (AIR 1955 SC 801 at p. 806) to supplement this argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:
"But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation-such absence of explanation of false explanation would itself be an additional link which completes the chain."
158. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.
(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.
159. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal's case (supra) where this Court observed thus:
"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused."
(Emphasis added)
67. Above noted legal proposition which now stands crystallized as an axiomatic principle has been reiterated in Rohtash Kumar vs State of Haryana, reported in 2013 (14) SCC 434. Paragraphs 6 and 7 of aforesaid judgement are relevant for the controversy in hand and accordingly, same are reproduced here under:-
"6. The present case is of circumstantial evidence, as there exists no eye-witness to the occurrence. The primary issue herein involves determination of the requirements for deciding a case of circumstantial evidence.
7. This Court, in R. Shaji v. State of Kerala, AIR 2013 SC 651 has held, "the prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weaknesses in the defence put up by the accused. However, a false defence may be brought to notice, only to lend assurance to the Court as regards the various links in the chain of circumstantial evidence, which are in themselves complete. The circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established. The same must be of a conclusive nature, and must exclude all possible hypothesis, except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused, and the chain of evidence must be complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must further show, that in all probability, the said offence must have been committed by the accused." (See also: Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; and Paramjeet Singh @ Pammu v. State of Uttarakhand, AIR 2011 SC 200). "
68. Recently Apex Court has also considered this very issue in State of Himanchal Pradesh Vs. Raj Kumar reported in 2018 (2) SCC 69, wherein it has been held that an inference of guilt can be drawn in a case based on circumstantial evidence. Following has been observed by Court in paragraphs 9 and 10 of the judgement which are extracted here under:-
"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and frmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain 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.
10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan V. State of Maharashtra (2006) 10 SCC 681, it was held as under:-
"12. ...........The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and frmly established; that those circumstances should be of a defnite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
69. Thus in the light of caution given by Apex Court, as noted herein above, which must be born in mind while dealing with a case based on circumstantial evidence, we proceed to evaluate the submissions urged by counsel for appellants to find out whether prosecution has successfully discharged it's burden to establish motive against accused appellants to commit the crime, the complete chain of circumstances in proximity to time and situation leading to occurrence and further if proved point at the guilt of the accused and no other hypothesis. But before we undertake aforesaid exercise, it will be prudent on our part to crystallize the circumstances ourself which complete the chain of events and are required to be dealt with to determine the guilt of accused appellants if any. According to us following circumstances form the chain of circumstance in proximity to time and manner of occurrence and if proved, shall determine the guilt of accused appellants, if any.
(I) P.W.1 Abhay Kumar Goyal is elder brother of Sanjeev Kumar Goyal (deceased).
(ii) Accused Kaushal Kishore Jain is Jija (sister's husband) of accused-Vaibhav Jain.
(iii) Relationship between accused-Vaibhav Jain and Sanjeev Kumar Goyal (deceased) was very intimate. As such, Sarita Goyal (P.W.-2) widow of Sanjeev Kumar Goyal used to call accused -Vaibhav Jain as her brother.
(iv) Accused-Vaibhav Jain took sufficient amount of money from Sanjeev Kumar Goyal (deceased).
(v) Amount taken by accused-Vaibhav Jain from Sanjeev Kumar Goyal (deceased) was not returned by him.
(vi) On 5.5.2004, i.e. two days prior to lodging of F.I.R., accused-Vaibhav Jain borrowed Maruti Van of Sanjeev Kumar Goyal (deceased) which was bearing Registration No. UA-63-9709.
(vii) In the evening of 6.5.2004 at 7:00 pm Sanjeev Kumar Goyal (deceased) left his home after informing his wife Sarita Goyal PW 2 that he is going to accused-Vaibhav Jain for demanding return of his money taken by him.
(viii) Subsequently, on 6.5.2004, Sanjeev Kumar Goyal (deceased) gave a phone call to his wife, Sarita Goyal PW 2 that he is having dinner with accused-Vaibhav Jain at Sindhu Bar restaurant and will return late after inspecting his work at Rampura, as such they may take their dinner.
(ix) After receiving aforesaid phone call from her husband Sanjeev Kumar Goyal (deceased), P.W.2 Sarita Goyal, wife of Sanjeev Kumar Goyal became suspicious. She accordingly went to P.W.1, Abhay Kumar Goyal informing him of the phone call given by Sanjeev Kumar Goyal (deceased) and requested P.W.1 Abhay Kumar Goyal to go to Sindhu Bar restarurant and enquire about her husband Sanjeev Kumar Goyal (deceased).
(x) Pursuant to the anxiety expressed by P.W.2 Sarita Goyal, wife of Sanjeev Kumar Goyal (deceased) as noted above P.W.1 Abhay Kumar Goyal, came to Sindhu Bar restaurant on 6.5.2004 a little after 8.30PM. He found motorcycle of Sanjeev Kumar Goyal (deceased) which was of TVS Victor make bearing registration No. UA-63-9709 as well as his Maruti Van bearing Registration No. UA-6B-9209 parked outside Sindhu Bar Restaurant. Aforesaid Motorcycle was parked near Maruti Van, belonging to Sanjeev Kumar Goyal (deceased), and accused Suresh Pal and three others, were standing near the same.
(xi) P.W.-1, Abhay Kumar Goyal went inside Sindhu Bar Restaurant and saw Sanjeev Kumar Goyal (deceased) and accused-Vaibhav Jain, were sitting together drinking beer and having their dinner.
(xii) After having acquired the whereabouts and well being of his brother Sanjeev Kumar Goyal (deceased), P.W.1 Abhay Kumar Goyal came to house of his brother and disclosed the location and also well being of Sanjeev Kumar Goyal (deceased) to his brother's wife Sarita Goyal P.W.2.
(xiii) On 6.5.2004 at around 10:30 pm, P.W.2 Sarita Goyal, wife of Sanjeev Kumar Goyal (deceased) made a phone call to P.W.1 Abhay Kumar Goyal that her husband Sanjeev Kumar Goyal (deceased) has not yet returned home.
(xiv) On aforesaid information P.W.1 Abhay Kumar Goyal along with others, went out to search Sanjeev Kumar Goyal (deceased).
(xv) When in spite of best efforts P.W.1 Abhay Kumar Goyal could not locate Sanjeev Kumar Goyal (deceased), he went to house of accused-Vaibhav Jain to ensure the whereabouts of his missing brother Sanjeev Kumar Goyal (deceased). On enquiry, mother and wife of accused-Vaibhav Jain responded to the query of P.W.1 Abhay Kumar Goyal by stating that accused-Vaibhav Jain himsel has not returned since he left home. Thus, accused-Vaibhav Jain was not at his home on 6.5.2004 at around 10:30 pm. (xvi) In the intervening night of 6.5.2004/7.5.2004 at around 2:00 a.m., an unidentified person gave a phone call to P.W.2 Sarita Goyal wife of Sanjeev Kumar Goyal (deceased) informing her that damaged Motorcycle of Sanjeev Kumar Goyal (deceased) is lying abandoned near Railway Track at Baradari Railway crossing in damaged condition.
(xvii) Upon communication of aforesaid information by P.W.2 Sarita Goyal to P.W.1 Abhay Kumar Goyal, in the night of 6/7.05.2004, he immediately reached Baradari Railway Crossing alongwith others at 2:30 AM and found damaged motorcycle of Sanjeev Kumar Goyal (deceased) lying abandoned, in damaged condition.
(xviii) Having recovered damaged motorcycle of Sanjeev Kumar Goyal (deceased), P.W.-1 and others accompanying him searched for Sanjeev Kumar Goyal (deceased) and ultimately found his dead body lying in front of Jhala of Sardar Mehar Singh near field of Sardar Gyan Singh. A cut injury was found on the neck of deceased.
(xix) P.W.3 Anil Kumar and P.W.4 Vishal Anand lastly saw deceased Sanjeev Kumar Goyal at arround 9:30-10 pm on 6.5.2004 in company of four of the accused persons in his Maruti Van bearing no. UA 06 B 9209 whereas one of the accused namely Kaushal Kishore was seen driving motorcycle of deceased and following Maruti Van.
(xx) After dead body of Sanjeev Kumar Goyal (deceased) was recovered, F.I.R. dated 7.5.2004 (Ext. Ka-61) was lodged at Police station- Kotwali, Bilaspur, District Rampur by P.W.1 Abhay Kumar Goyal and was registed as Case Crime No. 3015 of 2004 under sections 302, 201, 427 IPC P.S. Bilaspur, District Rampur, wherein two persons namely, Vaibhav Jain and Suresh Apal have nominated as named accused, whereas three unknown persons were nominated.
(xxi) Pursuant to aforesaid F.I.R, Investigating Officer P.W.8 S.I. Hardev Singh reached the place where dead body of deceased was lying on 7.5.2004 i.e. village Indarpur in front of Jhala of Sardar Mehar Singh near field of Sardar Gyan Singh.
(xxii) After reaching place of occurrence, P.W.8 recovered damaged motorcycle belonging to Sanjeev Kumar Goyal. This recovery was witnessed by P.W.1 Abhay Kumar and Shyam Sunder. P.W. 8, accordingly, prepared recovery memo dated 7.5.2004 (Ext. Ka-2).
(xxiii) P.W.8 S.I. Hardev Singh recovered Rs. 7,500 cash from the pocket of pant worn by deceased and also a gold chain from his person. Aforesaid recovery was witnessed by Ajay Goyal and Shyam Sunder. Recovered articles were given in supurdigi of P.W. 1 Abhay Kumar Goyal. P.W.8, accordingly, prepared recovery memo of above dated 7.5.2004 (Ext. Ka-3).
(xxiv) P.W.8 S.I. Hardev Singh received information from informant on 07.05.2004 that three accused persons are standing along with Maruti Van of Sanjeev Kumar Goyal (deceased) near guest house of irrigation department. On this information, P.W.8 S.I. Hardev Singh alongwith P.W. 1, P.W. 4 and others immediately rushed to the place of their presence. He saw accused persons present were washing the Maruti Van belonging to Sanjeev Kumar Goyal (deceased). These accused persons attempted to run away upon seeing the police but were overpowered and arrested. They were identified as accused-Vaibhav Jain, Suresh Pal and Rajendra Vohra. This in an additional circumstance against aforesaid three accused vide (Dhananjay Chatterjee Vs. State of West Bengal (1994) 2-SCC 220.
(xxv) After arrest of aforesaid three accused, P.W. 8 S.I. Hardev Singh discovered that seat cover of back seat of Maruti Van belonging to deceased was having blood stains. He, accordingly cut the same and prepared its recovery memo (Ext.Ka-4). This recovery is evidenced by P.W.1 Abhay Kumar Goyal and P.W.4 Vishal Anand.
(xxvi) P.W.8 S.I. Hardev Singh recovered plain earth as well as earth mixed with blood from place of occurrence (Material Exts. 8 and 9), in presence of P.W.1 Abhay Kumar Goyal and Ajay Goyal. He also prepared a recovery memo of same dated 7.5.2004 (Ext. Ka.-69).
(xxvii) On pointing of accused-Vaibhav Jain P.W.8 S.I. Hardev Singh recovered the knife used in commission of crime and prepared recovery memo dated 7.5.2004 (Ext. Ka-5). This recovery is witnessed by P.W.1 Abhay Kumar Goyal and P.W. 4 Vishal Anand.
(xxviii) The knife recovered on the pointing of accused-Vaibhav Jain and other articles including the clothes worn by deceased Sanjeev Kumar Goyal were sent for forensic examination. Forensic Science Laboratory submitted FSL report dated 23.10.2004 (Ext. Ka-73) stating therein that blood stains found on the same were of human blood.
(xxix) P.W.-6, Dr. H. K. Mitra, who conducted autopsy of the dead body of deceased, prepared post-mortem report ( Ext. Ka.-60) wherein cause of death of deceased i.e. Ajay Kumar Goyal is stated to be asphyxia and haemorrhage as a result of ante-mortem injury. P.W.-6, discovered a cut injury in the neck of deceased. Accordinly to injury found on the body of deceased could have been caused by sharp-edged weapon. Thus medical evidence supports the prosecution case that injury found on dead body of deceased was caused by weapon of assault i.e. knife recovered by P.W.8 on pointing of accused-Vaibhav Jain.
(xxx) P.W. 6, who prepared the post-mortem report dated 7.5.2004 (Ext.Ka-60) has deposed before Court below that 200 gm of digested food was present in stomach. Digested food was present in small intestine and faecal material along with gas was present in large intestine. Thus, medical evidence clearly corroborates prosecution case that deceased was having dinner with accused Vaibhav Jain at around 8:30 pm on 6.5.2004, (xxxi) Most of the circumstances noted above are incriminating and therefore, put to accused-appellants for their version under section 313 Cr.P.C. However, except for bald denial, no explanation was offered even when some of the accused had special knowledge of same. Accordingly, adverse inference can be drawn against them.
(xxxii). A false plea has been raised on behalf of accused that Maruti Van was not technically examined to prove whether it was in driving condition or not. Evidence of P.W.1 clearly proves that it was in driving condition as the same was driven down to police station by Police itself and thereafter it was given in his supurdigi. Therefore the same is an additional circumstance.
70. Mr. Sushil Shukla, learned counsel for accused appellant Vaibhav Jain and Kaushal Kishore Jain submits that various circumstances relied upon by prosecution firstly have not been established individually inasmuch as there is no clinching and reliable evidence to prove each of the circumstance and secondly, the circumstances do not form a complete chain of events giving conclusion about guilt of accused.
71. He has further submitted that;
(a) Prosecution has failed to establish debt of Sanjeev Kumar Goyal (deceased) upon accused-Vaibhav Jain
(b) The alleged debt of Sanjeev Kumar Goyal upon accused-Vaibhav Jain having not been established, no motive can be assigned to accused accused-Vaibhav Jain to commit the alleged crime.
(c) P.W.3 Anil Kumar and P.W.4 Vishal Anand who are witnesses of last seen are neither credible nor reliable. Hence their testimony is not worthy of trust.
(d) Prosecution has failed to establish that recovered motorcycle belonged to Sanjeev Kumar Goyal (deceased).
(e) Recovery of dead body of Sanjeev Kumar Goyal (deceased) clearly proves that death of deceased was homicidal but it does not in any way implicate accused appellants in death of Sanjeev Kumar Goyal (deceased).
(f) Recovery of blood stained seat cover from back seat of Maruti van belonging to Sanjeev Kumar Goyal (deceased) is not such circumstance so as to infer guilt of accused-appellants.
(g) Alleged recovery of weapon of assault i.e. knife on pointing of accused-Vaibhav Jain has not been proved in accordance with Section 27 of Indian Evidence Act. Hence aforesaid circumstance cannot be considered against this accused-appellant.
72. Submissions urged by Mr. Shukla have been adopted by Mr. Abhishek Mishra, learned Amicus Curiae for accused appellant Rajendra Vohra.
73. We shall now proceed to deal with each of the submissions urged by Mr. Shukla, learned counsel for accused-appellants Vaibhav Jain and Kaushal Kishore Jain, taking the first point as last.
No motive can be assigned to any of the accused-appellants for committing the crime.
74. According to Mr. Sushil Shukla, evidence of P.W-1 Abhay Kumar Goyal i.e. informant who is also elder brother of deceased is completely sketchy regarding alleged loan or debt given by deceased to accused-Vaibhav Jain for the simple reason that the said witness has not specifically stated the amount of loan given by deceased to accused-Vaibhav Jain. Besides above, P.W.-1 stood completely contradicted by his own previous statement wherein he did not state the fact that the deceased had informed him about the loan given to accused-Vaibhav Jain. The evidence of P.W.-2 Sarita Goyal i.e. widow of deceased further does not prove the said fact conclusively.
75. It is then contended that production of alleged diary (M. Ext.-1) wherein deceased used to make entries of loan given to accused-Vaibhav Jain was produced for the first time before court by P.W.-2, Sarita Goyal. The same is an afterthought and no reliance can be placed upon same in absence of it not having beeen produced before Investigating Officer of the case during course of investigation. In fact, P.W-2 (at Pg 39 of paper book) has clearly admitted that she had discovered the said diary (M. Ext.-1) only after PW-1 i.e. her Jeth (elder brother of her husband) had deposed before Court.
76. Apart from above defence has specifically challenged and disputed the writings in M. Ext.-1, diary of the deceased. As such, prosecution was burdened with bounden duty to lead further evidence before trial Court to prove genuineness of writing in the said diary i.e. M. Ext.-1, but prosecution has failed to do so.
77. Furthermore, according to Mr. Shukla when it is the case of both P.W.-1 and P.W.-2 that relationship between accused-Vaibhav Jain and deceased were cordial and deceased gave money to him on several occasions, which also used to be returned by accused-Vaibhav Jain then this circumstance in itself becomes innocuous and cannot be said to be incriminating. The fact that deceased used to consider accused-Vaibhav Jain as his Sala ( brother-in-law) also cannot be lost sight of.
78. He further contends that it is not the case of any of the prosecution witness that there was no dispute regarding repayment of loan between deceased and accused Vaibhav Jain or prior to incident accused Vaibhav Jain had refused any demand raised from deceased regarding re-payment or had threatened him.
79. According to Mr. Shukla, there is absolutely no evidence led by prosecution to suggest even remotely as to why accused Vaibhav Jain would conspire with other arrayed co-accused to commit murder of deceased. No evidence is forth coming where from an inference can be drawn about meeting of minds between accused Vaibhav Jain and other co-accused for hatching the conspiracy to kill Sanjeev Kumar Goyal (deceased).
80. Thus, it is contended by Mr. Shukla, learned counsel for two of the appellants that prosecution has utterly failed to establish motive on part of accused Vaibhav Jain or any other co-accused to commit murder of Sanjeev Kumar Goyal (deceased) nor the prosecution has successfully established that there was meeting of minds of accused to commit crime in question.
81. Mr. K. M. Tripathi, learned counsel for complainant and Mr. Amit Sinha, learned A.G.A. for State have jointly refuted the submissions urged by Mr. Shukla. They jointly contend that issues regarding absence of motive on part of accused-Vaibhav Jain and other co-accused as well as the factum regarding non-meeting of minds of accused-appellants to commit crime in question and non-admissibility of Diary of deceased (M. Ext.-1) were specifically raised before court below but were not accepted. They have invited attention of Court to paragraphs 24, 24A, 24B, 24C, 24D, 24E, 25, 26, 27A, 27B, 27C, 27D, 27F, 27G and 28 of the impugned judgement rendered by Trial Court.
82. According to both Mr. Tripathi as well as Mr. Sinha, Court below has referred to the five point test laid down by Apex Court in the case of Sharad Birdhichanda Sarda (supra) for judging a case based on circumstantial evidence. According to aforesaid counsel, there can be no quarrel with the proposition laid down in aforesaid case nor there can be any dispute regarding its applicability to the present case.
83. Court below thereafter has referred to Padlaveera Reddy vs. State of Andhra Pradesh AIR 1990 SC 79, C. Chinna Reddy Vs. State of Andhra Pradesh, 1996 (10) SCC 193, State of U.P. Vs. Satish, 2005 (3) SCC 114, Ramreddy Rajeshkhanna Reddy and others Vs. State of Andhra Pradesh, 2006 (10) SCC 172 wherein it has been held that circumstances on the basis of which guilt of accused is sought to be established must be proved conclusively.
84. They further submit that Court below firstly stated the law as settled by Apex Court regarding evaluation of a case based on circumstantial evidence and then proceeded to examine each of the hypothesis put forward on behalf of accused-appellants in support of the proposition that there was no motive on part of accused-Vaibhav Jain as well as other co-accused to commit the crime.
85. After rejecting each of the hypothesis put forward by defence that there is no motive on part of accused-Vaibhav Jain as well as other co-accused to commit the crime, Court below referred to the case law on importance attached to establishing motive in a case based on circumstantial evidence and whether establishing of or failure to establish motive could ipso-facto result in conviction of accused or his acquittal.
86. Court below referred to Dhananjay Yadav Vs. State of U.P., 2206 (54) ACC 394 wherein it has been held that failure to prove motive will not automatically result in disbelieving the proved circumstances against accused. Reference has then be made to Ram Reddy Rajesh Khanna Reddy and others (supra) wherein it has been held that motive by itself is not sufficient to convict an accused.
87. Having elaborately discussed factual and legal matrix of the issue as to whether there is any motive on the part of accused-appellants to commit the crime and the relevance of motive in recording a finding of guilt, court below in paragraph 27 of the impugned judgement recorded a categorical finding that prosecution has successfully established motive on part of accused-appellants to commit crime.
88. Regarding the time of admissibility of Material Ext.-1-Diary of Sanjay Kumar Goyal (deceased), it was urged on behalf of accused before court below that aforesaid Diary is forged and fabricated. Same has been engineered only to give colour to prosecution case. The sanctity of this document was sought to be disputed on the ground that one of the entries in the Diary is dated 01.08.2004. Therefore, it was sought to be urged that once death of Sanjeev Kumar Goyal (deceased) itself has taken place on 6/7. 05.2004, no entry could have been made on 01.08.2004. As such this document is not reliable. Apart from above, the handwriting in this Diary (M. Ext.-1) was disputed and according to defence, the entries in the Diary were not in the handwriting of Sanjeev Kumar Goyal (deceased).
89. Court below rejected aforesaid objections and relied upon testimony of P.W.-2 Sarita Goyal wherein she clearly deposed that entries made in disputed Diary were in handwriting of Sanjeev Kumar Goyal (deceased). In respect of date 01.08.2004, mentioned in the diary of deceased, Court below found that only at one page only date i.e. 01.08.2004 has been mentioned but nothing else was written. Therefore, simply on this ground the document could not be held to be forged or fabricated.
90. On the aforesaid premise, it is next contented by both Mr. Tripathi as well as Mr. Sinha that learned counsel for appellants has failed to point out any perversity or illegality in the findings recorded by court below regarding above. They thus submit that in absence of any perversity or illegality being fully established in respect of findings recorded by court below regarding motive on part of accused-appellants or non-admissibility of M. Ext.-1, impugned judgement and order is not liable to be interfered with on this score.
91. To lend legal support to his submission, Mr. Tripathi, learned cousnel for informant has referred to Sukhpal Singh Vs. State of Punjab, 2019 (15) SCC 622 and has relied upon paragraph 15, which reads as under:-
"15. The last submission which we are called upon to deal with is that there is no motive established against the appellant for committing murder. It is undoubtedly true that the question of motive may assume significance in a prosecution case based on circumstantial evidence. But the question is whether in a case of circumstantial evidence inability on the part of the prosecution to establish a motive is fatal to the prosecution case. We would think that while it is true that if the prosecution establishes a motive for the accused to commit a crime it will undoubtedly strengthen the prosecution version based on circumstantial evidence, but that is far cry from saying that the absence of a motive for the commission of the crime by the accused will irrespective of other material available before the court by way of circumstantial evidence be fatal to the prosecution. In such circumstances, on account of the circumstances which stand established by evidence as discussed above, we find no merit in the appeal and same shall stand dismissed."
92. We have already referred to the evidence on record in detail. The documentary evidence on record and testimonies of P.W. 1 and P.W.-2, clearly establish that accused Vaibhav Jain has taken huge amount of money from Sanjeev Kumar Goyal (deceased) but amount so taken on loan was not returned. All the hypothesis raised on behalf of accused Vaibhav Jain before court below to doubt capacity of Sanjeev Kumar Goyal (deceased) to lend money to accused-Vaibhav Jain or otherwise were only fancy-full doubts for which no evidence was led.
93. Irrespective of aforesaid we find that there is no direct evidence on record in respect of motive on part of other co-accused to commit the crime in question. The only evidence available on record is that names of co-accused were mentioned in the diary of the deceased. Accordingly, we are persuaded to modify the finding recorded by court below in respect of motive on part of accused-appellants Kaushal Kishore Jain, Suresh Pal and Rajendra Vohra to commit crime by holding that except for accused -Vaibhav Jain, no motive to commit the crime in question can be gathered from record against other co-accused.
94. The argument raised by Mr. Shulka for disputing the admissibility of M. Ext.-1-Diary was repelled by court below. However, learned counsel for appellants could not demolish the reasoning recorded by court below for rejecting the challenge regarding admissibility of M. Ext.-1. We find that same argument has been raised before us. Being the last court of fact, we ourselves perused the original of M. Ext.-1 i.e. Diary and find that the entry of date 01.08.2004 is simplicitor and is not explained by any other writing above or below the said date. Therefore, according to us simply on aforesaid ground the genuineness or admissibility of aforesaid document cannot be disputed. We are therefore therefore not inclined to hold that Diary of deceased was not admissible in evidence. Furthermore, pages of Diary M. Ext.-1 have been marked as Ext. Ka.-6 to Ext. Ka-51. Once the pages of the Diary have been marked as Exhibits their proof is no longer required. Once the diary itself has been proved its contents also stand proved by virtue of section 9 of the Evidence Act. Consequently, we do not find any force in this submission of Mr. Shukla. As the said submission sans merit, we reject the same.
The Theory of Last seen evidence
95. In present case, there are two sets of evidence regarding last seen. The first set of evidence comprises of oral testimony of P.W.-2 Sarita Goyal widow of Sanjeev Kumar Goyal and P.W.-1 Abhay Kumar Goyal elder brother of deceased. The second set of evidence originates from the testimonies of P.W.-3, Anil Kumar and P.W.-4, Vishal Anand, who are independent witnesses. The credibility and reliability of P.Ws. 3 and 4 and whether their testimonies are worthy of trust, shall be dealt with separately. At this stage, we are concerned only with P.W.- 1 and P.W.- 2.
96. Perusal of deposition given by P.W.-2 Sarita Goyal widow of deceased reveals that Sanjeev Kumar Goyal (deceased) left his home on 06.05.2004 at 7.00PM informing his wife i.e. P.W.-2 Sarita Goyal that he is going to accused-Vaibhav Jain for demanding return of money taken by him. This witness has further deposed that her husband Sanjeev Kumar Goyal gave a phone call at 8.30PM on same day informing her that he is having dinner at Sindhu Bar Restaurant along-with accused-Vaibhav Jain and shall return late after inspecting work at Rampura. Feeling suspicious, P.W.-2 went to house of P.W.-1 and requested him to enquire the whereabouts of her husband Sanjeev Kumar Goyal (deceased) and also his well being.
97. On above anxiety expressed by P.W.-2, Sarita Goyal, P.W.-1, Abhay Kumar Goyal, went to Sindhu Bar Restaurant. Outside aforesaid restaurant, he found Maruti Van and Motorcycle of Sanjeev Kumar Goyal (deceased) parked outside. He further saw co-accused Suresh Pal (driver of accused-Vaibhav Jain) standing near Maruti Van of Sanjeev Kumar Goyal (deceased) along-with three other persons. He went inside the aforesaid restaurant and saw his brother Sanjeev Kumar Goyal (deceased) sitting with accused -Vaibhav Jain. Both were drinking beer and having dinner. P.W.1 did not speak to his brother or accused-Vaibhav Jain, as he felt satisfied about the safety and well being of his brother He returned and accordingly informed P.W.-2 about above.
98. Sanjeev Kumar Goyal (deceased) did not return home till 10.00PM. P.W.-2 feeling nervous, desperately informed P.W.-1 that her husband Sanjeev Kumar Goyal (deceased) aforesaid and requested him to trace out her husband Sanjeev Kumar Goyal (deceased). P.W.-1 immediately went out to search his brother. When all attempts to find Sanjeev Kumar Goyal (deceased) failed, he along-with others went to the house of accused-Vaibhav Jain. On query raised by P.W.-1 regarding location of his brother, mother and wife of accused-Vaibhav Jain jointly stated that Vaibhav Jain (accused) has not returned since he left home. Consequently, P.W.-1 returned and informed P.W.-2 of aforesaid.
99. According to Mr. Shukla, learned counsel for accused-appellants Vaibhav Jain and Kaushal Kishore Jain, evidence of P.W-2, Sarita Goyal i.e. widow of deceased does not lend any support to prosecution case on the point of last seen inasmuch as it is not her case that while she received telephonic call from her husband at 7:00 PM. on 6.5.2004, her husband uttered anything suspicious against accused-Vaibhav Jain in whose company he was drinking beer and having dinner at Sindhu Bar Restaurant. The fact that both were in cordial relationship was known to her therefore, her statement to the effect that she suspected something fishy on receiving phone-call is absolutely unreliable and not genuine. More so, it was witnessed by P.W.-1 Abhay Kumar Goyal, who went to Sindhu Bar Restaurant to enquire about Sanjeev Kumar Goyal (deceased) that both were quietly having dinner and he himself did not notice any foul play at Sindhu Bar Restaurant.
100. Apart from above, according to Mr. Shukla, it is unnatural on part of PW-1 Abhay Kumar Goyal, who had gone to Sindhu Bar Restaurant for making enquiry about Sanjeev Kumar Goyal (deceased) to ask or enquire or even talk to deceased at the bar. Clearly therefore, the prosecution story has been set up as an after thought to build up prosecution case.
101. Even otherwise, evidence of P.W.-1 and P.W.-2 does not raise any suspicion against accused-Vaibhav Jain or any other accused and is therefore, not incriminating, even if, believed to be true.
102. On perusal of record, we find that doubts expressed by Mr. Shukla regarding credibility and reliability of P.W.1 and P.W.-2 fall in the realm of fancy-full doubt. Both these witnesses were not cross-examined on any of the issues raised before us. Court below has already held that both P.W.-1 and P.W.-2 are not only credible and reliable but their testimonies are also worthy of credit. We see no reason to disagree with aforesaid conclusion of trial court.
103. Moreover, conversation in between P.W.-2 and Sanjeev Kumar Goyal (deceased) and P.W.-2 Sarita Goyal and P.W.-1 Abhay Kumar Goyal and vice-versa are contemporaneous in nature. Even though part of their testimony falls in the category of hearsay evidence yet it is admissible in evidence being part of the same transaction and therefore covered by the rule of res-gestae as embodied in Section 6 of Indian Evidence Act. For ready reference Section 6 of Evidence Act is quoted herein under:-
"6. Relevancy of facts forming part of same transaction.--Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the 1[Government of India] by taking part in an armed insurrection in which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.
(d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact."
104. A Division Bench of this Court in Dalveer and Others Vs. State of U.P. 2020 (30) ADJ 373 has dealt with the scope and applicability of Section 6 of Evidence Act to hearsay evidence. The Bench noticed to the evidence in above case and thereafter referred to various judgements of Supreme Court on the point and has observed in paragraphs 44,45 and 46 as under:
44. Now we shall examine whether the statement of PW2 in respect of culpability of the accused appellant on the basis of statement of the informant could be considered admissible under section 6 of the Evidence Act, as found by the trial court. The rule of res gestae embodied in section 6 of the Evidence Act in essence is that the facts which, though not in issue, are so connected with the fact in issue as to form part of the same transaction, become relevant by itself, whether they occurred at the same time and place or at different times and places. The apex court had the occasion to examine the said principle in several decisions. In Gentela Vijayavadhan Rao and another v. State of A.P. : (1996) 6 SCC 241, the apex court, in paragraph 15 of the judgment, as reported, held as follows:-
"The principle or law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English Law. The essence of the doctrine is that fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction-becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or atleast immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman, (1896) 2 O.B. 167 a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between making the statement and the act of rape. Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. Reginam, (1952) 2 All E.R. 447, thus :
"The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement."
The correct legal position stated above needs no further elucidation." (Emphasis Supplied)
45. In Vasa Chandrasekhar Rao vs Ponna Satyanarayana & Anr. : (2000) 6 SCC 286, a question had arisen whether statement of prosecution witness that accused's father had told the prosecution witness over the telephone that his son (the accused) had killed the deceased, could be read in evidence under Section 6 of the Evidence Act, particularly, when the accused's father, in the witness box, had denied making any such statement. The apex court, in paragraph 7 of its judgment, though had found that the prosecution had been able to prove the case against the accused on the basis of circumstantial evidence but as regards admissibility of the said statement, under Section 6 of the Evidence Act, it proceeded to observe as follows:-
"The question arises whether the statement of PW21 that PW1 told him on telephone at 6 p.m. that his son has killed the deceased, could go in as evidence under Section 6 of the Evidence Act. PW1, not having supported the prosecution during trial, the aforesaid statement of PW 21 would be in the nature of an hearsay but Section 6 of the Evidence Act is an exception to the aforesaid hearsay rule and admits of certain carefully safeguarded and limited exceptions and makes the statement admissible when such statements are proved to form a part of the res gestae, to form a particular statement as a part of the same transaction or with the incident or soon thereafter, so as to make it reasonably certain that the speaker is still under stress of excitement in respect of the transaction in question. In absence of a finding as to whether the information by PW1 to PW 21 that accused has killed the deceased was either of the time of commission of the crime or immediately thereafter, so as to form the same transaction, such utterances by PW1 cannot be considered as relevant under Section 6 of the Evidence Act." (Emphasis Supplied)
46. In Dhal Singh Dewangan vs State Of Chhattisgarh : (2016) 16 SCC 701, a three-judges bench of the Apex Court had the occasion to deal with the applicability of section 6 of the Evidence Act. In this case, a question had arisen whether the testimony of prosecution witnesses that after receipt of information about the crime they had reached the spot and had found Kejabhai (PW.6 of that case) shouting that the accused had killed his wife and children could be considered admissible under section 6 of the Evidence Act. After examining the provisions of section 6 of the Evidence Act and the law laid down in earlier decisions, the apex court, by its majority view, in paragraphs 24 and 25 of the judgment, held as follows:-
"The general rule of evidence is that hearsay evidence is not admissible. However, Section 6 of the Evidence Act embodies a principle, usually known as the rule of res gestae in English Law, as an exception to hearsay rule. The rationale behind this Section is the spontaneity and immediacy of the statement in question which rules out any time for concoction. For a statement to be admissible under Section 6, it must be contemporaneous with the acts which constitute the offence or at least immediately thereafter. The key expressions in the Section are "...so connected... as to form part of the same transaction". The statements must be almost contemporaneous as ruled in the case of Krishan Kumar Malik (Supra) and there must be no interval between the criminal act and the recording or making of the statement in question as found in Gentela Vijayvardhan Rao's case (Supra). In the latter case, it was accepted that the words sought to be proved by hearsay, if not absolutely contemporary with the action or event, at least should be so clearly associated with it that they are part of such action or event. This requirement is apparent from the first illustration below Section 6 which states .... "whatever was said or done.... at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."
Considered in the aforesaid perspective, we do not find the statements attributed to PW-6 Kejabai by PWs 3 and 5 to be satisfying the essential requirements. The house of the appellant, according to the record, was at a distance of 100 yards from Gandhi Chowk, where these witnesses are stated to have found PW-6 Kejabai crying aloud. Both in terms of distance and time, the elements of spontaneity and continuity were lost. PW-6 Kejabai has disowned and denied having made such disclosure. But even assuming that she did make such disclosure, the spontaneity and continuity was lost and the statements cannot be said to have been made so shortly after the incident as to form part of the transaction. In the circumstances, we reject the evidence sought to be placed in that behalf through PWs 3 and 5. Even if we were to accept the version of PWs 1 and 2, the same would also suffer on this count and will have to be rejected." (Emphasis Supplied)
105. Having referred to various authorities of Supreme Court wherein ambit and scope of Section 6 of the Evidence Act has been explained, the Bench ultimately expressed its view in paragraph 47 which is as under:
"47. From the decisions noticed above, the legal principle deducible is that section 6 of the Evidence Act is one of the exceptions to the rule against hearsay evidence therefore hearsay statement of a witness, by taking the aid of Section 6 of the Evidence Act, would be admissible in evidence only if that statement was made to the witness contemporaneous with the acts which constitute the offence or at least immediately thereafter so as to form part of the same transaction. As to whether it forms part of the same transaction is to be found out from the proven facts and circumstances of each case. One of the tests is whether such statement has been made so contemporaneous with the transaction in question as to make it reasonably certain that the speaker is still under stress of excitement in respect of the transaction in question. Where it is not clear from the evidence led as to what was the time gap between the incident and the making of that statement and whether the maker of the statement was still under stress of excitement in respect of the transaction in question, it would be unsafe to rely upon such statement by invoking the provisions of section 6 of the Evidence Act inasmuch as the principle embodied under section 6 of the Evidence Act is an exception to the general rule against hearsay evidence. Where the time gap between the statement and the fact in issue is such that it does not make it contemporaneous with the fact in issue, or where there is no satisfactory evidence to show that the statement is contemporaneous with the fact in issue, or where the distance between the place of occurrence and the place where the statement is made is such, which could be considered sufficient to douse the stress or the emotions, thereby giving opportunity to the possibility of concoction, the statement would not fall within the exception to the rule against hearsay and, hence, would not be admissible."
106- In the light of above, when oral evidence of P.W.1 and P.W.2 is evaluated the logical conclusion is that their testimonies insofar as they relate to hearsay evidence are part of the same transaction and therefore, clearly admissible on account of the exception to the Rule of hearsay evidence as embodied in Section 6 of Evidence Act.
107. Apart from above, the incriminating circumstances emerging from the testimonies of P.W.-1 and P.W.-2 were specifically put to accused-Vaibhav Jain under Section 313 Cr.P.C. He, however, simply denied all the questions put to him regarding above by repeatedly stating that it is false. He has not offered any explanation even in respect of facts which were in his special knowledge and thus failed to discharge the burden arising out of Section 106 of Evidence Act.
108. It has come in evidence that accused-Vaibhav Jain was not at his home at 10.30PM on 06.05.2004 when P.W.-1 visited his home to enquire about his brother Sanjeev Kumar Goyal (deceased). His presence at any other place was in his special knowledge and by virtue of Section 106 of Indian Evidence Act, accused-Vaibhav Jain was under legal obligation to disclose the same failing which adverse inference can be drawn. Neither any witness has been adduced on behalf of defence, nor accused have themselves appeared as witness nor they have offered any explanation in reply to questions put to them under Section 313 Cr. P. C regarding above. Accused Vaibhav Jain has failed to discharge this burden and therefore, the attempt to discard the testimonies of P.W.-1 and P.W.-2 regarding last seen is nothing else, but a futile attempt to dislodge the same. We, accordingly, reject this submission urged by Mr. Shukla.
P.W.-3, Anil Kumar and P.W.-4 Vishal Anand, who are independent witnesses are neither credible nor reliable as such their testimonies are not worthy of trust.
109. P.W.-3 Anil Kumar and P.W.-4 Vishal Ananad are independent witnesses and also witnesses of last seen. According to these two witnesses, deceased was last seen in company of three accused persons on 06.05.2004 at 10/10.30PM, who were sitting alongwith him in his Maruti Van which was being driven by co-accused Sureshpal. The fifth accused Kaushal Kishore was seen driving Motorcycle of deceased and was following Maruti Van. Court below has held these two witnesses are credible and consequently, their testimonies have been considered and relied upon by Court below for deciding the guilt of accused. Apart from their deposition that accused were last seen in the company of deceased, P.W.4 has further deposed that he accompanied P.W.1 when he went out to look for the motorcycle of deceased on the information given by P.W.2. This witness is thus a witness of recovery of the back seat of Maruti Van (Ext. Ka-4) as well as recovery of weapon of assault (Ext. Ka-5).
110. It is vehemently contended by Mr. Shukla that P.W. 3 and P.W-4, who are witnesses of last seen, are completely untrustworthy in so far as they claim to have seen deceased in his Maruti Van in company of accused persons including accused-Vaibhav Jain on the previous night of the day when his dead body was recovered. It is thus urged that they are got up witness created merely to fabricate prosecution case.
111. In elaboration of aforesaid submission, Mr. Shukla, learned counsel for two of the accused appellants has pointed out following reasons for disbelieving the testimonies of P.W.3 and P.W.4, in so far as they relate to last seen.
(A) P.W.-3 Anil Kumar, who is an independent witness claims his presence at Rudrapur-Vilaspur check post at 10:00 pm in the night of 6.5.2004. Same is completely false and unreliable as he assigns no reason for his being present there at such point of time which is late at night.
(B.) P.W.-3 Anil Kumar, has clearly admitted that he does not know either accused-Vaibhav Jain or his relative from before and is not acquainted with deceased from before, He even went on to state that he had never seen any of the brothers of deceased including PW-1 before. He further admitted of not having any relationship with them. In such circumstances and clear admission by P.W.3, it is totally unbelievable that he would notice deceased and identify accused sitting in Maruti Van on the previous night of incident.
(C). The evidence of P.W.-3 identifying Maruti Van and Motorcycle belonging to deceased is most incredible part of his evidence and cannot be relied upon specially when he did not know the deceased prior to last seen and assigns no reason for his having recognized the accused persons.
(D). More so, P.W.-3 has failed to identify co-accused Sadab in the trial court who is alleged to have been seen in the company of deceased in Maruti Van along with other co-accused.
(E). P.W.-3 goes on to claim to have known the fact regarding money lended by deceased to accused-Vaibhav Jain, which on the facts as noted above makes his testimony completely false and cooked up therefore unreliable.
(E). P.W.4 in his testimony admits that he did not know deceased from before. He also stated that he never visited house of deceased or did any business with deceased or had any other kind of relationship with deceased. Inspite of aforesaid, he incredibly stated to have identified deceased in Maruti Van who was travelling in company of accused.
109. P.W.4 further claims not to have known co-accused kaushal Kishore Jain from before or prior to the night he had seen him yet he asserts that he had seen said co-accused driving motorcycle of deceased which was following Maruti Van in which deceased with other accused persons was seen sitting.
112. The claim of P.W.-4 that motorcycle of deceased was of Hero Honda make/company is belied completely from record of the case, which shows that said motorcycle was of TVS Victor make. Most incredible part of his testimony is that he claims to have known the registration number of motorcycle even when he was not knowing deceased from before (Page No. 49 of the paper book).
113. PW-4 does not mention his presence at the time of recovery of damaged motorcycle of deceased Sanjeev Kumar Goyal, which was lying abandoned near Baradari Railway Crossing whereas P.W-1 has asserted his presence at the place of recovery of motorcycle.
114. The statement of P.W.-4 about his presence near the dead body of deceased does not get any corroboration. To the contrary, his claim to have reached the place where dead body of deceased was lying and his assertion that PW-1 i.e. informant came later along with police is rendered false and contrary to testimony given by P.W.-1 who has stated that P.W.-4 came later after he had already reached near dead body.
115. More so, testimony of both PW-3 and P.W.-4 regarding last seen further becomes doubtful when examined in light of evidence of PW-1 who claimed to have been informed by both of them that they had seen the deceased being killed by the accused persons and later his dead body being thrown by them (Pg No. 22 of the paper book).
116. The claim of P.W.-4 to be present at cross road for smoking a cigarette is clearly engineered to assert his false presence. It is totally unbelievable that he will particularly notice Maruti Van of deceased when he himself admitted the fact that the traffic there was heavy and large number of vehicles were plying at relevant time.
117. On the above premise, it is sought to be urged that having regard to the nature of evidence of both PW-3 and PW-4 regarding last seen, it would not be exaggerating that their evidence is completely unreliable to prove the fact of last seen i.e. deceased was in company of accused. The circumstance of last seen by P.W. 3 and P.W.4 therefore is false and hence wiped out from the chain of events/circumstances.
118. It is thus urged by learned counsel for appellants that testimonies of P.W. 3 and P.W. 4 on the point of last seen are not reliable and therefore the circumstance that deceased was last seen at 10-10.30 P.M. on 6.5.2004 in company of accused is not proved. Consequently the chain of circumstances gets broken and accused-appellants are therefore, liable to be acquitted.
119- Mr. Tripathi and Mr. Sinha, learned A.G.A. have to the contrary, vehemently urged that P.W.3 and P.W.4 are both credible and reliable. It was on account of aforesaid that the testimony of these two witnesses on the point of last seen was relied upon by court below. They accordingly, placed various paragraphs of the impugned judgement to buttress their submission.
120. We have gone through the testimonies of these two witnesses and have examined the same threadbare. We find that these two witnesses have clearly stated that they saw deceased travelling in company of three accused namely Vaibhav Jain, Rajendra Vohra and Sadab in his Maruti Van which was being driven by accused Suresh Pal (driver of accused Vaibhav Jain). They have further stated that they saw accused-Kaushal Kishore, driving Motorcycle of deceased, which was following Maruti Van. Though there is clear deposition regarding above, but the testimony does not inspire confidence for the simple reason that there is no evidence to show as to how there was so much intimacy between deceased and these two witnesses or how these witnesses knew accused persons so well that they could recognize him and accused at 10/10.30PM in night at a place where there was heavy traffic. The various contradictions pointed out by learned counsel for two of the appellants coupled with the fact that these two witnesses are totally ignorant about the family members of deceased as well as acccused Vaibhav Jain and also their failure to identify accused Sadab, who was placed before them for identification and also the exaggeration in their testimonies could not be contradicted by Mr. Tripathi, learned counsel for informant and learned A.G.A. We therefore conclude that submissions made by Mr. Shukla, learned counsel for two of the appellants, are sustainable and reflect reasons cogent enough to discard the testimonies of P.W.3 and P.W.4 on the point of last seen.
121. We according set aside the finding of Court below regarding credibility and reliability of these two witnesses and conclude that P.W.-3 is neither credible nor reliable and hence his testimony is not worthy of credit. P.W.4 though he is an independent witness, his testimony, insofar as it relates to last seen, is not liable to be accepted for the various contradictions, noted herein above. Accordingly, circumstance No. xix gets excluded from the chain of circumstance pointed out by us in paragraph 69 of this judgement.
RECOVERY OF DAMAGED MOTORCYCLE OF DECEASED AND HIS DEAD BODY
122. According to Mr. Shukla, the prosecution has completely failed to connect the damaged motorcycle allegedly belonging to deceased with the crime in question. No evidence is forthcoming connecting the said motorcycle with any of the accused persons, which could be said to be incriminating in nature. It is also not clear as to how the same was damaged or placed near the railway crossing. It is further urged that recovery of dead body merely proves homicidal death of deceased and not the fact that accused-appellants are guilty of committing the murder of Sanjeev.
123. Thus in the submission of learned counsel for appellants, this circumstance is also not connected in any manner with the chain of events and as such cannot be pressed against accused appellants.
124. Submission urged by Mr. Shukla appears to be attactive at the first flush. However, on deeper scrutiny, we find that this submission is devoid of any substance. Excluding the testimoies of P.W.-3 and P.W.-4, who are independent witnesses, on last seen yet this recovery has a material bearing. We have already excluded circumstance no. xix from the chain of circumstances pointed out by us on account of disbelieving P.W.-3 and P.W.-4. on the point of last seen. Irrespective of above, this argument does not help accused, Vaibhav Jain.
125. It has come in evidence of P.W.-1, Abhay Kumar Goyal that when he went to Sindhu Bar Restaurant, he found Maruti Van and Motorcycle of deceased parked outside. Sanjeev Kumar Goyal (deceased) and accused Vaibhav Jain were sitting together inside the restaurant. They were enjoying beer and having their dinner. Therefore, when P.W.-1 last saw deceased, his motorcycle was seen at Sindhu Bar Restaurant around 8:30 P.M.
126. In reply to question nos.7 and 8 put to accused under section 313 Cr.P.C. which relate to aforesaid incriminating circumstances, accused Vaibhav Jain has denied the factum of his going to Sindhu Bar Restaurant alongwith deceased. Thus, accused-Vaibhav Jain has failed to discharge the burden clothed upon him under Section 106 of Evidence Act. He has completely failed to give any evidence as to when this accused and deceased parted company. Apart from above, this witness was not found at his home at 10:30 pm on 6.5.2004. No explanation regarding his place of presence at aforesaid point of time has come forward. Both the aforesaid circumstances were put to accused under Section 313 Cr.P.C, but except for giving a bald denial, he has not given any explanation, even when same were in his special knowledge. As such, adverse inference can safely be drawn against this accused by virtue of section 106 of evidence Act. Therefore, this circumstance becomes incriminating and when considered in its cumulative effect along-with other circumstances in proximity to time and manner of occurrence points at the guilt of accused-Vaibhav Jain.
RECOVERY OF MARUTI VAN BELONGING TO DECEASED AND BLOOD STAINED SEAT COVER
127. Mr. Shukla then submits that it is not an incriminating circumstance that Maruti Van was found to be in possession of accused-Vaibhav Jain inasmuch as it is own case of prosecution that it was taken by him from deceased two days before the date when the dead body of deceased was recovered and deceased had parted with his car voluntarily as both were close to each other.
128. The presence of bloodstain on the back seat cover of Maruti Van belonging to Sanjeev Kumar Goyal (deceased) in itself is not such a incriminating circumstance by which it can be established that deceased was done to death therein or there, more particularly when there was no forensic evidence to suggest that the blood group of those bloodstain matched with blood group of deceased. Similarly, since the blood group of blood-stains found on the recovered knife alleged to be weapon of assault has not been ascertained with blood group of deceased, the Forensic report Ext. Ka.-73 relied upon by prosecution does not lend any support to its case. Learned counsel for appellants has referred to Ramchandra Sao V. State of Bihar (2000) 10 SCC 467 and has relied upon paragraph 6 of the judgement, which reads as under:
"We have heard learned counsel and we have also examined the available records. In our view, the circumstances above enumerated are not enough to maintain the conviction of the appellants. The father and the son had been living together all along and Smt. Asha Devi was the lone female who had been inducted into the family. The act of appellant No. 2 in catching hold of the arm of her daughter-in-law was viewed as an amorous suggestion and the deceased was successful in having a Panchayat convened for the purpose. The Panchayat, as said before advised separate residents for the father and son. Despite such suggestion father and son lived together and so did the deceased with them. There is no evidence that there was any untoward incident thereafter. Had there been any it would have been complained about. The appellants were living in a neighbourhood. If the deceased was murdered in the house as suggested and her dead body was thrown away at some distance, it is difficult to believe that the appellants could do so stealthily without attracting the attention of the neighbours either at the time of the homicidal death or when carrying and disposing of the dead body by throwing it in a well. The presence of blood-stains on the floor of the room of the house and the shawl by themselves are not such circumstances to establish that the deceased was killed in the room of the house or that those blood stains were matching, with the blood group of the deceased. During the course of the investigation, efforts were made to match the blood group but unsuccessfully. No report came from the expert. The recovery of the dead body from the well even was not at the instance of the appellants by means of disclosure statements. Rather the dead body surfaced on its own and was noticed by the villagers. Thus in nutshell the only incriminating circumstance which can be said to have been established is that there was perhaps motive for appellant No. 2 to avenge himself for the accusation made against him by the deceased. Even so the deceased could have met homicidal death in other ways and not necessarily at the hands of the appellants. When links in the chain of circumstances are missing, we cannot jump to the conclusion that the assailants of the deceased could be no other than the appellants, thus, in our view, it is unsafe on the aforementioned circumstances to maintain the conviction of the appellants, we thus extend to them the benefit of doubt, we, therefore, order the appellants' acquittal. The appeal is thus allowed, upsetting the judgment and order of the High Court as also that of the Court of Session. The appellants shall, as a result, be set at liberty forthwith."
129. He has then referred to Hardyal Prem Vs. State of Rajsthan 1991(Supp.) 1SCC 148 and has relied upon paragraph 5, which is reproduced herein under:
5. The first circumstance relied upon by the prosecution is that these appellants made an inquiry from the deceased herself about her movement which she had later on report ed to her sons PWs. 1 & 7 and her husband. It transpires from the evidence that this report was made by the deceased about 15 or 20 days prior to her death. This piece of evidence, in our view, cannot serve as an incriminating circumstance involving these appellants and Narain in this dastardly murder. The second piece of evidence is that of PWs. 3 & 4. These two witnesses speak about the suspicious movement of these two appellants in the company of Narain on the night of occurrence at about 8 or 9 p.m. Though the investigation started even on 2-10-74, these two witnesses who were the residents of the same locality, did not volunteer any statement at the earliest. They offered themselves as witnesses only after 3 or 4 days after the recovery of the dead body. The third piece of circumstantial evidence pressed into service is that the appellant Prem at the time of arrest was in possession of a letter exhibit P 26 written under his hand admitting that he had committed some illegal act. The court below has strongly relied upon this circumstance as a piece of formidable evidence. In our opinion this evidence cannot be relied upon for the reasons namely (1) that the story that Prem was carrying on a letter admitting an illegal act is highly unbelievable and (2) that the letter does not make any reference to this particular case. The other circumstantial piece of evidence relied upon by the courts below is the recovery of two weapons exhibit P 8 and P 7 from the houses of Prem and Narain respectively on a search made on 7-10-74. These two weapons are said to have been stained with human blood but the prosecution has not satisfactorily established that the blood found on these two weapons tallied with the blood group of the deceased. Lastly we are left with the evidence relating to the recovery of the ornaments, Articles 1 to 6. These ornaments are said to have been recovered from the houses of the appellants on various dates i.e. a silver kada from the house of Narain on 7-10-74, some other silver articles from the houses of Prem and Hardyal on 8-10-74 and the blood stained clothes of Hardyal from his house on 29-10-74. Though much reliance was placed on the recovery of these ornaments, we are unable to agree with the view of the courts below for more than one reason. First, in exhibit P-1, there is absolutely no description of the ornaments of the deceased which she is said to have been wearing on the date of occurrence. Secondly, these ornaments were not recovered in pursuance of any statement made by the appellants. Thirdly, though even on 7-10-74 the houses of the appellants were searched, no ornament was recovered. Similarly no blood stained cloth was recovered from the house of Hardyal till 29-10-74 i.e. for nearly a month from the date of occurrence. Fourthly, these appellants and Narain though were arrested even on 5-10-74, it seems that no effort has been made by the police either on 5-10-74 or on 6-10-74 to make searches of the respective houses of the accused. When these appellants and Narain had been arrested even on 5-10-74, it is incomprehensible that the inmates of the houses of these appellants were safely keeping these ornaments which were the subject matter of robbery thereby enabling the police to recover these articles on 8-10-74. Fifthly, these ornaments are of common-pattern usually worn by the ladies in Rajasthan. Though the appellants are claiming these ornaments as belonging to them, we are unable to accept the appellants' statement in the absence of tangible evidence in support of their statements, instead hold that this piece of evidence relating to the recovery of ornaments was not at all worth accepting.
130. He has also referred to State of Rajasthan Vs. Raja Ram (2003) 8SCC 182 wherein follow observations have been made in paragraph 21 "Coming to the bloodstains on the cloth which were allegedly seized on being pointed out by the accused, the forensic laboratory report indicated that there were blots of human blood on the shirts and trousers of the accused. There was no effort to find out the blood group. In fact, the High Court noted this position and observed that presence of PW-4 at the time of recovery is doubtful as he has been found to be an unreliable witness. It was observed that even if it is accepted that there was existence of blood, this circumstance is not such from which it can be found that the accused was perpetrator of the crime. In the aforesaid report (Ex.61) it was clearly stated that the blood group of blood found on the clothes could not be determined. Neither the blood group of the deceased nor that of the accused was determined. In that background, the High Court held that the possibility of the blood being that of the accused cannot be ruled out. In view of the findings recorded by the High Court about the non- acceptability by evidence relating to alleged extra judicial confession, the conclusions of the High Court cannot be said to be one which are unsupportable. We decline to interfere in the appeals, and the same are dismissed." (emphasis supplied)
131. Thus, it is urged by Mr. Shukla that this circumstance also is not proved by clinching evidence and is not by in itself sufficient to connect accused with the crime in question.
132. Mr. Amit Sinha, learned A.G.A. has strongly disputed the later part of the submission urged by Mr. Shukla and submits that if the origin of blood stains on recovered articles is not found, the same shall not be fatal for the prosecution. To buttress his submission, he has referred to State of Rajasthan Vs. Teja Ram AIR, 1999 SC 1776 and relied upon paragraphs 24, 25, 26 and 27. The same are reproduced herein under:-
24. Normally, the above circumstance should have been given weighty consideration iii the evaluation of circumstantial evidence. But the High Court down staged it on a reasoning which is difficult to sustain. This is what the High Court has observed regarding the evidence relating to the recovery of the two axes (Kulhadi) "The evidence of the blood stained Kulhadi is not sufficient as the prosecution has not been able to prove that Kulhadi which was stained with human blood was recovered from whom. Thus it is not clear whether the recovered Kulhadi was of Teja Ram or of Ramlal. The other infirmity in the Chemical Examiner' Report is that it does not mention the extent of blood seen on the Kulhadi. It has not been established clearly as to which particular accused, the incriminating axe belonged. As such, it can not be used against any one of these' two accused."
25. Failure of the Serologist to detect the origin of the blood, due to disintegration of the serum in the meanwhile, does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to hematological changes and piasmatic coagulation that a Serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such a guess work that blood on the other axe would have been animal blood is unrealistic and far fetched in the broad spectrum of this ease. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity no benefit can be claimed by the accused.
26. Learned counsel for the accused made an effort to sustain the rejection of the above said evidence for which he cited the decisions in Prabhu Babaji v. State of Bombay, AIR (1956) SC. 51 and Raghav Prapdnna Tripathi \. State of UP, AIR (1963) SC 74. In the former Vivian Bose J. has observed that the Chemical Examiner's duty is to indicate the number of blood stains found by him on each exhibit and the extent of each stain unless they are too minute or too numerous to be described in detail. It was a case in which one circumstance projected by the prosecution was just one spot of blood on a dhoti. Their Lordships felt that "blood could equally have spurted on the -dhoti of a wholly innocent person passing through in the circumstances described by us earlier in the judgment." In the latter decision this Court observed regarding the certificate of a chemical examiner that inasmuch as the; blood stain is not proved to be of human origin the circumstance has no evidentiary value. "In the circumstances" connecting the accused with the murder. The further part of the circumstance in that case showed that a shirt was seized from a dry cleaning establishment and the proprietor of the said establishment had testified that when the shirt was given to him for dry cleaning it was not blood stained.
27. We are unable to find out from the aforesaid decisions any legal ratio that in all cases where there was failure of detecting the origin of the. blood the circumstance arising from recovery of the weapon would stand relegated to disutility. The observations in the aforesaid cases were made on the fact situation existed therein. They cannot be imported to a case where the facts are materially different."
133:- He has then referred to R. Shaji Vs. State of Kerala, AIR 2013 SC 651 wherein following has been observed in paragraphs 17 and 18:-
"17. It has been argued by the learned counsel for the appellant, that as the blood group of the blood stains found on the chopper could not be ascertained, the recovery of the said chopper cannot be relied upon.
A failure by the serologist to detect the origin of the blood due to dis-integration of the serum, does not mean that the blood stuck on the axe could not have been human blood at all. Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question. However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard.
Once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood group (s) loses significance. (Vide : Prabhu Babaji Navie v. State of Bombay, AIR 1956 SC 51; Raghav Prapanna Tripathi v. State of U.P., AIR 1963 SC 74; State of Rajasthan v. Teja Ram, AIR 1999 SC 1776; Gura Singh v. State of Rajasthan, AIR 2001 SC 330; John Pandian v. State, represented by Inspector of Police, Tamil Nadu, (2010) 14 SCC 129; and Dr. Sunil Clifford Daniel v. State of Punjab, JT 2012 (8) SC 639).
18. In view of the above, the Court finds that it is not possible to accept the submission that in the absence of a report regarding the origin of the blood, the accused cannot be convicted, for it is only because of the lapse of time, that the blood could not be classified successfully. Therefore, no advantage can be conferred upon the accused to enable him to claim any benefit, and the report of dis- integration of blood etc. cannot be termed as a missing link, on the basis of which the chain of circumstances may be presumed to be broken. "
134. Reliance is also placed upon AIR 2017 SC 279, Kishore Bhadke Vs. State of Maharashtra, wherein following observations have been made in paragraph 24:-
"24. It was then contended that the circumstance of blood stained clothes recovered at the instance of accused No.3 was questionable because no evidence regarding the blood group or the fact that the blood stains belonged to the blood group of deceased Raman is forthcoming. Further, the recovery itself was doubtful. Even this aspect has been considered by both the courts below and negatived. The absence of evidence regarding blood group cannot be fatal to the prosecution. The finding recorded by the courts below about the presence of human blood on the clothes recovered at the instance of accused No.3 has not been questioned. The Courts have also found that no explanation was offered by the accused No.3 in respect of presence of human blood on his clothes. Accordingly, we affirm the concurrent finding recorded by the courts below in that behalf including about the legality of such recovery at the instance of accused No.3. "
135. Lastly learned A.G.A. has referred to Prabhu Dayal Vs. State of Rajashthan, AIR 2018 SC 3199, wherein following has been observed in paragraph 12:-
"12. The reports of the Forensic Science Laboratory as well as those of the Ballistic Experts have been perused by us. The Forensic Science Laboratory report discloses that the samples collected from the scene of the offence had bloodstains of human origin. However, since the bloodstains were disintegrated by the time the bloodstains were examined by the Forensic Science Laboratory, the blood group could not be determined. For the same, the accused cannot be unpunished, more particularly when the bloodstains were found of human origin. In State of Rajasthan v. Teja Ram, (1999) 3 SCC 507, this Court concluded that even when the origin of the blood cannot be determined, it does not necessarily prove fatal to the case of the prosecution. In that case, the murder weapons had been recovered with blood on them, and the origin of the blood on one of the weapons could not be determined. Therein, the Court held as follows:
"25. Failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.
26. Learned counsel for the accused made an effort to sustain the rejection of the abovesaid evidence for which he cited the decisions in Prabhu Babaji Navle v. State of Bombay [AIR 1956 SC 51 : 1956 Cri LJ 147] and Raghav Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1 Cri LJ 70] In the former, Vivian Bose, J. has observed that the chemical examiner's duty is to indicate the number of bloodstains found by him on each exhibit and the extent of each stain unless they are too minute or too numerous to be described in detail. It was a case in which one circumstance projected by the prosecution was just one spot of blood on a dhoti. Their Lordships felt that "blood could equally have spurted on the dhoti of a wholly innocent person passing through in the circumstances described by us earlier in the judgment". In the latter decision, this Court observed regarding the certificate of a chemical examiner that inasmuch as the bloodstain is not proved to be of human origin the circumstance has no evidentiary value "in the circumstances" connecting the accused with the murder. The further part of the circumstance in that case showed that a shirt was seized from a drycleaning establishment and the proprietor of the said establishment had testified that when the shirt was given to him for drycleaning, it was not bloodstained.
27. We are unable to find out from the aforesaid decisions any legal ratio that in all cases where there was failure of detecting the origin of the blood, the circumstance arising from recovery of the weapon would stand relegated to disutility. The observations in the aforesaid cases were made on the fact situation existing therein. They cannot be imported to a case where the facts are materially different."
136. At this juncture, Mr. Tripathi, learned counsel for informant and Mr. Sinha, learned A.G.A. have jointly urged that it is not in dispute that Maruti Van belonging to deceased was borrowed by accused-Vaibhav Jain two days prior to the occurrence. P.W.1 Abhay Kumar Goyal has clearly deposed that Maruti Van and Motorcycle of deceased was seen by him at 8:30 P.M. when both were parked at Sindhu Bar Restaurant. It is further not in dispute that three accused namely Vaibhav Jain, Suresh Pal and Rajendra Vohra were arrested by P.W.-8 when they were washing Maruti Van belonging to deceased. Seeing Police, aforesaid accused attempted to flee but were overpowered which is also an additional circumstance. It is at this juncture, P.W.-8 noticed blood-stains on back seat of Maruti Van. He according cut it and prepared its recovery memo (Ext. Ka.-4). Aforesaid recovery is witnessed by P.W.-1, Abhay Kumar Goel and P.W.-4 Vishal Anand. Maruti Van was thereafter given in "supurdagi" of P.W.-1, Abhay Kumar Goyal.
137. It is also contended that P.W.-1, Abhay Kumar Goyal was not cross-examined as to whether Maruti Van given in his 'supurdagi' was in driving condition or not. It has come in statement of P.W.1 that Maruti Van was driven down by Police up to Police Station Bilaspur and thereafter, same was given in supurdigi of this witness.
138. Upon evaluation of rival submission, in view of above, doubt expressed by learned counsel for two of the appellants that since it was not ascertained that Maruti Van belonging to deceased was in driving condition or not is of no help. To the contrary, according to us, burden was upon accused Vaibhav Jain himself to explain how Maruti Van of deceased reached the paved-road near Irrigation Department when it was last seen at Sindhu Bar Restaurant secondly why it was being washed and lastly how blood stains came on the seat cover of back seat of Maruti Van. Further in reply to question no. 19 put to accused-Vaibhav Jain under Section 313 Cr.P.C., this accused has simply made a bald denial without offering any explanation in terms of Section 106 of Indian Evidence Act. The recovery of Maruti Van was made by P.W.8 the Investigating Officer and accordingly, he prepared the recovery memo of the same dated 7.5.2004 (Ext-Ka-4). Aforesaid recovery has been witnessed by P.W.1 Abhay Kumar Goel and P.W.4 Vishal Anand. The memo of recovery has been proved by P.W.1 and P.W.4. Thus the contents of recovery memo also stand proved by virtue of Section 9 of Evidence Act. Therefore, the recovery of Marute Van belonging to Sanjeev Kumar Goyal (deceased) from 3 of the named accused were examined in the light of other circumstances related to them, clearly dislodge the submission lodged by learned counsel for appellant. Accordingly, we reject the argument so urged by Mr. Shukla.
Recovery of blood-stained knife i.e. weapon of assault on pointing of accused-Vaibhav Jain in furtherance of his alleged statement
139. Pursuant to F.I.R dated 07.05.2004 (Ext. Ka.-61), P.W.-8, S.I., Hardev Singh, Investigating Officer, proceeded with investigation. He received information on 07.05.2004 that some of the accused are present near Guest House of Irrigation Department on paved-road (Kharanja). He, accordingly, reached the place of their presence and saw three persons washing Maruti Van. Seeing Police Party and others, the accused present attempted to flee but were overpowered. Upon arrest, they were identified as accused-Vaibhav Jain, Suresh Pal and Rajendra Vohra. It was also discovered that Maruti Van washed by these accused belonged to Sanjeev Kumar Goel (deceased). Aforesaid arrest was made on 06.05.2004 and on the same day on pointing of accused Vaibhav Jain, recovery of weapon of assault i.e. knife was recovered by P.W.-8, S.I. Hardev Singh. Thereafter, recovery memo of same (Ext. KA-5) was prepared. Aforesaid recovery was made in presence of P.W. 1 Abhay Kumar and P.W. 4 Vishal Anand.
140. According to Mr Sushil Shukla, learned counsel for appellants, recovery of blood stained knife has been falsely shown against accused-Vaibhav Jain on account of collective mischief of Investigating Officer of the case alongwith informant and other relatives of deceased. The showing of recovery at the behest of accused-Vaibhav Jain is a clear case of ingenuity on part of Investigating Officer who fabricated this piece of evidence just to make prosecution case impregnable. Circumstances clearly point out that since very beginning prosecuting agency instead of impartially endeavouring to unravel the truth behind murder of deceased was bent upon creating circumstances/evidence to get accused-Vaibhav Jain falsely implicated in instant case.
141. The recovery of alleged weapon of assault cannot be used against accused-Vaibhav Jain and is simply not reliable inasmuch as it does not conform to the requirement of Section 27 of Evidence Act. Before the said recovery becomes admissible, prosecution is required to prove the information supplied by accused to the Investigating Officer of the case otherwise, such recovery of weapon of assault becomes inadmissible in law and cannot be read or used against accused Vaibhav Jain. As the prosecution has failed to do so inasmuch as P.W.-8 has failed to prove the alleged recovery as required in law recovery of alleged weapon of assault cannot be used as an incriminating circumstance against accused-Vaibhav Jain.
142. To buttress his submission, he has relied upon State of Karnatka Vs. David Rozrio (2002) 7SCC 728 and has refferred to paragraph 5, which according to learned counsel for appellants, supports his argument. The same reads as under:
"5.The first question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Evidence Act is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. V. Balakrishan (AIR 1972 SC 3) and Md. Inayatullah v. State of Maharashtra (AIR 1976 SC483). The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible underSection 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor (AIR 1947 PC 67), is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see State of Maharashtra v. Danu Gopinath Shirde and Ors. (2000) Crl.LJ 2301]. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."
143. He has then referred to Mujeeb Vs. State of Kerala, (2000) 10 SCC 315 and has relied upon paragraphs 19 and 20, which are reproduced herein under:
" 19. We find from the evidence of the investigating officer, PW 13 that the accused were taken to various places for the alleged recovery of the above articles. Though according to the investigating officer the recovery was made on the basis of the statement of the accused but we find from the evidence that actual words in verbatim leading to recovery were not recorded by the investigating officer. For example in case of the recovery PW 49 deposed in the following words:
"Thereafter, based on the statement of the same accused that he knows the person who runs a blade company and provision shop at Ambalavayal with whom he had pledged the gold bangles and that he could show the same place as led by the accused we reached the same place questioned the witness and recorded his evidence"
20. In our opinion such a statement by the accused cannot be treated as statement of the accused leading to recovery. Moreover witnesses to the recoveries were co-drivers of the deceased residing far away at a distance of about 100 km. Therefore, such recoveries are not legally acceptable."
144. He thus concludes that when aforesaid recovery of weapon of assault is examined in light of above quoted judgement defining the scope, content and applicability of S.27 of Evidence Act, it is evident that testimony of Investigating Officer of the case i.e. PW-8 (as at Pg 64 of paper book) does not prove the information obtained by him from accused-Vaibhav Jain leading to recovery of knife, Consequently, alleged recovery of weapon of assault becomes wholly irrelevant and is rendered inadmissible besides being suspicious.
145. It is also urged that as far as blood stains on knife are concerned, since the recovery itself is inadmissible in law, no explanation worth is required for this piece of evidence. However it is once again reiterated that prosecution has not proved the fact that blood stains found on the knife matched with blood group of deceased. For the very reasons submitted in respect of blood stained seat cover of Maruti Van belonging to deceased, this fact of blood stained knife also loses its significance.
146. Even otherwise, the recovery of knife in absence of any other proved incriminating circumstances connecting the accused with crime in question, cannot be relied upon to fasten guilt on the accused for committing murder of deceased.
147. Before proceeding to evaluate the submissions urged by learned counsel for appellant, it is appropriate to reproduce Section 27 of Indian Evidence Act. The same is quoted herein under:-
27. How much of information received from accused may be proved.--Provided 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.
148. What is the scope of Section 27 of Indian Evidence Act, has been explained in recent judgement of Supreme Court in Asar Mohammad and Others Vs. State of Uttar Pradesh, (2019) 12 SCC 253. Paragraph 21 of above noted judgement is relevant for the controversy in hand. Same is accordingly reproduced below:-
"21.It is a settled legal position that the facts need not be self probatory and the word "fact" as contemplated in Section 27 of the Evidence Act is not limited to "actual physical material object". The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in thecase of Vasanta Sampat Dupare v. State of Maharashtra, in particular, paragraphs 23 to 29 thereof. The same read thus :
"23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayyav. King Emperor23 has held thus: (IA p. 77) "...it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
24.In Mohd. Inayatullah v. State of Maharashtra24, while dealing with the ambit and scope of Section 27 of the Evidence Act, the Court held that: (SCC pp. 831-32, paras 11-13) "11. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be reminded of its requirements. The section says:
'27. How much of information received from accused may be proved.--Provided 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.'
12. The expression 'provided that' together with the phrase 'whether it amounts to a confession or not' show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The lastbut the most important condition is that only 'so much of the information' as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded.The word 'distinctly' means 'directly', 'indubitably', 'strictly', 'unmistakably'. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly relates to the fact thereby discovered' is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.
13. At one time it was held that the expression 'fact discovered' in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Emperor25; Ganu Chandra Kashid v.Emperor26).
14. Now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Pulukuri Kotayya v.King Emperor27; Udai Bhan v. State of U.P.28)."
(emphasis in original)
25.In Aftab Ahmad Anasari v. State of Uttaranchal29 after referring to the decision in Pulukuri Kotayya30, the Court adverted to seizure of clothes of the deceased which were concealed by the accused. In that context, the Court opined that (Aftab Ahmad Anasari case, SCC p. 596, para 40 "40. ... the part of the disclosure statement, namely, that the appellant was ready to show the place where he had concealed the clothes of the deceased is clearly admissible under Section 27 of the Evidence Act because the same relates distinctly to the discovery of the clothes of the deceased from that very place. The contention that even if it is assumed for the sake of argument that the clothes of the deceased were recovered from the house of the sister of the appellant pursuant to the voluntary disclosure statement made by the appellant, the prosecution has failed to prove that the clothes so recovered belonged to the deceased and therefore, the recovery of the clothes should not be treated as an incriminating circumstance, is devoid of merits."
26.In State of Maharashtra v. Damu 31 it has been held as follows: (SCC p.283, para 35) "35. ... It is now well settled that recovery of an object is not discovery of a fact as envisaged in [Section 27 of the Evidence Act, 1872]. The decision of the Privy Council in Pulukuri Kotayya v. King Emperor32 is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
The similar principle has been laid down in State of Maharashtra v. Suresh 33, State of Punjab v. Gurnam Kaur34, Aftab Ahmad Anasari v. State of Uttaranchal35, Bhagwan Dass v. State (NCT of Delhi)36, Manu Sharma v. State (NCT of Delhi)37 and Rumi Bora Dutta v.State of Assam38.
27.In the case at hand, as is perceptible, the recovery had taken place when the appellant was accused of an offence, he was in custody of a police officer, the recovery had taken place in consequence of information furnished by him and the panch witnesses have supported the seizure and nothing has been brought on record to discredit their testimony.
28.Additionally, another aspect can also be taken note of. The fact that the appellant had led the police officer to find out the spot where the crime was committed, and the tap where he washed the clothes eloquently speak of his conduct as the same is admissible in evidence to establish his conduct. In this context we may refer with profit to the authority in Prakash Chand v. State (Delhi Admn.) 39 wherein the Court after referring to the decision in H.P. Admn. v. Om Prakash40 held thus: (Prakash Chand case, SCC p.95, para 8) "8. ...There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by Section 162 of the Criminal Procedure Code.What is excluded by Section 162 of the Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act."
29.In A.N. Venkatesh v. State of Karnataka, it has been ruled that: (SCC p.721, para 9) "9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.). Even if we hold that the disclosure statement made by the appellants-accused (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act." (emphasis supplied)\ 149- Reference may also be made to Jai Karan Pasi Vs. State of U.P. reported in 2019 (6) ALJ 177, wherein a Division Bench of this Court has considered scope and import of section 27 of the Evidence Act. Following has been observed in paragraphs 26 and 27, which are quoted herein under:
"Now the most incriminating piece of evidence is or would have been so if duly proved, the recovery of the incriminating articles at the instance of the accused i.e. the alleged recovery of blood stained knife and that of the wearing apparel 'kurta' belonging to the accused which too is claimed by the prosecution to have contained blood stains. It goes without saying that if a particular fact is discovered in consequence of an information furnished by the accused while being in police custody then so much of such information which distinctly relates to the discovery of such facts becomes a relevant circumstance to be considered. It does not need any elaboration on the point and is a matter of settled law that the discovery of such alleged 'fact' is not tantamount to the discovery of such 'article' or 'object' which may be discovered by the police in consequence of such information furnished by the accused-appellant. As was so pithily observed by the Privy Council that if a knife is discovered in consequence of an information furnished by the accused it cannot be said to be a discovery owing to the statement of accused because the knifes were discovered many centuries back! It is not the discovery of knife which is relevant. Actually such kind of discovery will assume importance and relevance only if it can be proved that the discovered article is connected with the crime in question. If it can be shown that the article or object recovered has a connecting nexus with the crime committed, it becomes an incriminating article or an incriminating object. But in order to call or term the recovered knife an incriminating article it has to be shown and proved by prosecution as to how is it connected with the crime in question. It is for this purpose that the prosecution seeks to prove in such cases that the article recovered contained the blood which was or which could have been that of the deceased. If the recovered knife and the kurta of the accused contained such human blood, it would be then called an incriminating article or an incriminating object having evidentiary relevance. Then shall arise the question as to how and why the accused of a particular case acquired the conspicuous knowledge about such incriminating article having been placed or concealed at a particular place which could not be within common sight of people. If the recovered weapon was containing such blood or such features which demonstrated it to be a weapon of offence and if the kurta of the accused contained such blood which could be that of the deceased then the question would arise as to how had he acquired the knowledge about its whereabouts i.e. about the place of its concealment from where it has been recovered. Question will also arise as to how and under what circumstances the clothing belonging to the accused got the blood which could be or was that of the deceased. In fact, it is this guilty knowledge of the accused, the knowledge about the place of concealment of the weapon of offence or any such incriminating article like the Kurta which should be called a relevant fact and indeed be called the 'fact' discovered as a consequence of the information furnished by the accused as has been contemplated u/s 27 of Evidence Act. The time honoured observations made by the Privy Council in this regard while pronouncing its celebrated judgement in Kottaya v. Emperor, AIR (34) 1947 Privy Council 67 may be recalled profitably at this stage :
"8. The second question, which involves the construction of Section 27 of the Indian Evidence Act, will now be considered. That section and the two preceding sections, with which it must be read, are in these terms:-
'25. No confession made to a Police officer shall be proved as against a person accused of any offence.
26. No confession made by any person whilst he is in the custody of a Police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.'
9. The explanation to the section is not relevant.
27. Provided 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.
10. 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 the 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. The section seems 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 can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
150. However, when facts of present case are examined in light of observation made in paragraph 27 of the judgement State of Maharashtra Vs. Damu, (2000) 6-SCC 269 which has been quoted with approval in paragraph 21 in the case of Ashar Mohammad and others. (Supra), we find that recovery of weapon of assault i.e. knife had taken place when accused Vaibhav Jain was accused of an offence and was in custody. The recovery had taken place in consequence of an information furnished by him and the witnesses of recovery memo (Ext. Ka.-5) i.e. P.W.-1 and P.W.-4 have supported the seizure. Nothing has been brought on record to discard their testimony. Moreover, once the recovery memo regarding weapon of assault has been proved and marked as an exhibit, it's contents are also proved by virtue of Section 9 of Evidence Act. Consequently, aforesaid argument is not tenable and therefore rejected.
Circumstances relied upon by prosecution do not form a complete chain of events nor they have been individually established as there is no clinching and reliable evidence to prove the same.
151. It is submitted by learned counsel for accused-appellants Vaibhav Jain and Kaushal Kishore Jain that in instant case, it is easily demonstrated that various circumstances relied upon by prosecution firstly have not been established individually inasmuch as there is no clinching and reliable evidence to prove each of the circumstances. Secondly, the circumstances do not form a complete chain of events giving conclusion about guilt of accused.
152. To lend support to his aforesaid submission, he has relied upon Sudama Pandey Vs. State of Bihar (2002) 1SCC 679 wherein following has been observed in paragraphs 5 and 6:-
"5. The law relating to circumstantial evidence, in clear and unmistakable terms, has been laid down by this Court in various decisions and it is sufficient to quote statement of law made by this Court in Tanviben Pankajkumar Divetia vs. State of Gujarat 1997(7) SCC 156:-
45. The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions.
6. These principles have been elaborately dealt with in Sharad Birdhichand Sarda vs. State of Maharashtra1984(4) SCC 116 and in various other decisions and reference to such cases is not necessary."
153. Mr. K.M. Tripathi, learned counsel for informant, on the other hand has relied upon judgement in the Case of Sharad Birdhichand Sarda (Supra) and contends that the test laid down in aforesaid judgement in paragraphs 152, 158 and 159 (already quoted above) is fully satisfied in present case. According to learned counsel for informant the various circumstances of present case (as detailed by us in paragraph 69 of this judgement except circumstance no.19.) form a complete chain of events in proximity to time and manner of occurrence and point at the guilt of accused appellants and no other hypothesis.
154. Mr. Amit Saxena, learned A.G.A has adopted the aforesaid argument of learned counsel for complainant and therefore, contends that present criminal appeals on behalf of accused appellants are liable to be dismissed as the chance of circumstances even after excluding circumstance No. xix in complete and proved which point at the guilt of the accused and no other hypothesis.
155. On the rival submissions so urged before us by learned counsel for parties, this Court now has to decide whether part of the test laid down by Apex Court in the case of Sharad Birdhichand Sarda (supra) i.e. "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" for deciding a case based on circumstantial evidence is satisfied in the case in hand or not.
156. We have already pointed out 32 circumstances of this case and even after excluding circumstance no. 19, they according to us complete the chain of events in proximity to time and manner of occurrence. While deciding the issue relating to credibility and reliability of P.W.3 Anil Kumar a witness of last seen and P.W.4 Vishal Anand, who is a witness of last seen and also recovery of the weapon of assault (Ext. Ka-5), we have already held that P.W.3 is neither credible nor reliable and hence his testimony is not worthy of trust. His testimony is relevant only in respect of circumstance no. xix. Similar is the position regarding testimony of P.W.4 on last seen. As such, his testimony in so far as it relates to aforesaid is liable to be discarded. Once we have discarded testimonies of P.W.-3, Anil Kumar and P.W.-4, Vishal Anand, who are independent witnesses, in so far it relates to last seen circumstance no. xix gets wiped out from the chain of circumstances. Therefore, the question which arises for our consideration is:- once circumstance no.xix is removed from the chain of circumstances, the chain of circumstances in proximity to time and manner of occurrence remains intact or gets broken.
157. P.W.3 and P.W. 4 are witnesses of last seen. They both have deposed before Court below that deceased was last seen in company of four of the accused persons in his Maruti Van, while one of the accused was driving motorcycle of deceased and was following the Maruti Van. They are said to have been seen by these witnesses at around 10-10:30 pm.
158. Even if we discard above piece of evidence and consequently, circumstance no. 19, from the chain of circumstances, yet the chain of circumstances in proximity to time and manner of occurrence, still remains intact. The remaining circumstances stand proved by clinching and reliable testimonies of P.W. 1, P.W. 2 and P.W. 8 as well as other documentary and material evidence on record, to which we have already referred and dealt whith in previous part of the judgement.
159. P.W. 1, P.W.2 and P.W.8 have already been held by us to be credible and reliable and therefore, worthy of trust. Their testimonies insofar as they relate to hearsay evidence are part of same transaction and contemporaneous to the occurrence and therefore admissible under the Rule of res gestae embodied in Section 6 of Indian Evidence Act.
160. There is another aspect of the matter and that is whether accused have successfully discharged their burden under section 106 of Indian Evidence Act. The relevancy of aforesaid provision in a case based on circumstantial evidence, and failure on the part of accused in not offering any explanation even in respect of facts which were in his special knowledge, has been considered in detail by a Division Bench of this Court comprising one of us Rajeev Misra,J. in Ashok Kumar and Others Vs. State of U.P. 2018 (ADJ) Online 0377. The relevant portion of aforesaid judgement regarding its applicability to the present case are to be found at pages 34 35, 36, 37, 38, 39, 40, 45, 46, 47, 48 and 49, of the judgement. The bench has observed at page 34 that Apex Court in the case of State of West Bengal Vs. Mir Mohammad Umar and others 2000 (8) SCC, 382 held that it is difficult to put the extreme burden on the prosecution to lead such evidence which can only be gathered from those who have proximity with the deceased. It is in this context that the Court proceeded to discuss the presumption that can be raised on the basis of existing facts so as to allow the Court to treat the onus having been shifted on the accused.
161. The Bench thereafter, referred to paragraph nos. 13 to 18, 20, 21 and 22 of the judgement in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra 2006 (10) SCC 681: The same are reproduced herein under:
"13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.
14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
16. A somewhat similar question was examined by this Court in connection with Sections 167 and 178-A of the Sea Customs Act in Collector of Customs v. D. Bhoormall AIR 1974 SC 859 and it will be apt to reproduce paras 30 to 32 of the reports which are as under:
"30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167 to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But, in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and-as Prof. Brett felicitously puts it - 'all exactness is a fake'. El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case.
31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. at p.65 "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.
32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result, prove him guilty. As pointed out by Best in 'Law of Evidence', (12th Edn., Article 320, page 291), the "presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property", though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumptions of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden, to discharge which, very slight evidence may suffice.
17. The aforesaid principle has been approved and followed in Balram Prasad Agrawal v. State of Bihar & Ors. AIR 1997 SC 1830 where a married woman had committed suicide on account of ill- treatment meted out to her by her husband and in-laws on account of demand of dowry and being issueless.
18. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar & Ors. (2000) 8 SCC 382. In this case the assailants forcibly dragged the deceased, Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports :
"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof on the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts.
Presumption is a course recognised by the law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody."
20. In Ram Gulam Chaudhary & Ors. v. Sate of Bihar (2001) 8 SCC 311, the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they have murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference.
21. In a case based on circumstantial evidence where no eye- witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)].
22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.
The aforesaid decision has been followed in the case of Raj Kumar Prasad Vs. State of Bihar 2007 (10) SCC 433, in the case of Narendra Vs. State of Karnataka 2009 (6) SCC 61 and in the decision of Gajanan Dashrath Kharate Vs. State of Maharashtra 2016 (4) SCC 604."
162. Evidence has been defined in Section 3 of the Indian Evidence Act, 1872 as follows:-
"Evidence"- "Evidence" means and includes-
(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) [All documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence."
157. The evidence relating to a fact can be understood from the definition of the word fact which is defined under the same as follows:-
"Fact"- "Fact" means and includes-
(1) anything, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.
3. A fact is stated to be proved according to the Act by the following definition:-
"Proved"- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
163. Apart from this, the Indian Evidence Act, 1872 contains a guidance as to the presumption of a fact by a Court while appreciating evidence as to when a fact may be presumed to exist and proved or when the Court shall presume the fact to have been proved. Section 4 of the Indian Evidence Act, 1872 is extracted hereinunder:-
4. "May presume".--Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
"Shall presume".--Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved:
"Conclusive proof".--When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
164. While defining the relevancy of facts Section 8 of the Indian Evidence Act, 1872 also brings within it its fold the conduct of a party in the following terms:-
"........The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1- The work "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
Explanation 2--When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct is relevant."
165. On the issue of the burden of proof under Chapter 7 of the Act, Section 106 prescribes the burden of proving a fact on a person especially within the knowledge of that person. Section 106 is extracted hereinunder:-
106. Burden of proving fact especially within knowledge- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
166. A case where circumstantial evidence is the only available evidence then in such cases, the task of the Court is to find out the motive for the commission of the offence in order to link it with the commission of the crime by an accused. This has to be done by following the principles relating to a conviction or an acquittal in a case arising out of circumstantial evidence. For this reference may be had to the celebrated decision of Sharad Viridhi Chandra Sharda Vs. State of Maharashtra 1984 (4) SCC 116. The principles that were culled out therein have been followed time and again in a large number of cases including the latest decision in the case of State of Himanchal Pradesh Vs. Raj Kumar 2018 (2) SCC 69 where the Court has ruled that an inference of guilt can be drawn in a case based on circumstantial evidence.
167. In order to prove the case on the basis of the evidence available whether direct or circumstantial, it is the duty of the prosecution to discharge its initial burden by adducing material on the basis whereof an inference of the commission of an offence involving the accused can be drawn. This discharge of initial burden is mandatory as held in several cases and reiterated in the case of Joydeb Patra and others Vs. State of West Bengal 2014 (12) SCC 444 where in paragraph 10, the supreme Court has ruled as follows:-
10. We are afraid, we cannot accept this submission of Mr. Ghosh. This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Indian Evidence Act to establish that he was not guilty. In Sucha Singh Vs. State of Punjab (2001) 4 SCC 375, this Court held:
"19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference."
168. Similarly, in Vikramjit Singh Vs. State of Punjab (2006) 12 SCC 306, this Court reiterated:
"14. Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute."
Once the initial burden is discharged, then the onus shifts on the accused to explain the status of his innocence or involvement.
169. The burden to prove as to whether the death of the deceased was by an accident in the Kitchen lay on the accused. However, in view of the provisions of Sections 103 and 106 of the Indian Evidence Act 1872, the same does not absolve the prosecution of its initial burden to firmly establish it's own stand as held by the Apex Court in the case of Sawal Das Vs. State of Bihar 1974 (4) SCC 193 paragraph no. 10 is extracted hereinunder:-
"10. Neither an Application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which if believed will sustain a conviction, or, which makes out prima facie case that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is: Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt?"
170. The Apex Court however in the same judgment in paragraph no. 9 has observed, relying on the case of Gurcharan Singh & Another Vs. State of Punjab AIR 1956 SC 460, that an accused having special knowledge of a fact has to come out with an explanation and discharge the burden as transcripted in paragraph no. 9 which is extracted hereinunder:-
"9. Learned Counsel for the appellant contended that Section 106 of the Evidence Act could not be called in aid by the prosecution because that section applies only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did a particular act alleged to constitute an offence. The language of Section 106 Evidence Act does not, in our opinion, warrant putting such a narrow construction upon it. This Court held in Gurcharan Singh v. State of Punjab(1), that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance, absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt."
171- Paragraphs 155 onwards are quoted from judgement in the case of Ashok Kumar (Supra). Since the aforesaid judgement is not paragraphed, we have numbered the quoted portion for convenience.
172- Having referred to the judgement of Apex Court as well as this Court on burden of proof and how and when the burden shifts. The provision contained in Section 313 Cr.P.C. requires to be noticed. What is the purpose of Section 313 Cr.P.C. has been succinctly explained in the case of Jai Karan Pasi (Supra) in paragraph 27, which reads as under:-
"Now when we advert to the facts of the present case we find nothing on record on the basis of which it may be said that either the knife so recovered at the instance of the accused or the kurta which is also said to have been recovered at the instance of accused ever contained the blood of the deceased. The only way to prove the same was the forensic or the chemical examiner's report. The articles were actually sent to the chemical examiner in this case and the report in that regard has also been received which we find available in lower court record showing that both of these articles contained human blood. But it was to our shock when we found that this important evidential piece of paper was never tendered by prosecution in evidence and as a consequence of this lapse it remained an unproved document and was never marked or exhibited! Though we have referred to this chemical examiner's report after having gone through it but we have serious doubts whether an unproved document ought to have been even referred to by us. Another serious hurdle in making any use of the same is for the reason that this circumstance of the aforesaid two articles having contained human blood was never put to the accused while he was examined under section 313 of Cr.P.C. The prosecution side either out of recklessness or for reasons best known to itself never chose either to prove this document and exhibit it as evidence nor it took care to put this fact before the accused as an incriminating circumstance to be used as evidence against him while he was being examined by the Court. The court itself also has never put this circumstance to the accused during the course of his examination under section 313 of Cr.P.C. In this context it may be pertinent to recall the law on the point. The purpose and object of putting the circumstances or the evidence and confront the accused with them directly is to give a first hand opportunity at a personal level to the accused so that he may explain those circumstances, if at all he could, which have been proposed to be used against him by the prosecution. There are so many things done in defence of the accused by his counsel but this part of the trial when the accused is examined u/s 313 Cr.P.C. has a solemn motto and object behind it. It is neither a casual exercise nor a purposeless exercise and the law as has evolved in this regard has remained consistent all throughout which asserts that any violation of statute in this regard goes to the root of the matter and may even vitiate the trial if prejudice can be shown to have been occasioned. Certainly those circumstances or the pieces of evidence which have not been put to the accused during the course of his examination u/s 313 of Cr.P.C., have to be kept beyond the ken of consideration by the court and shall certainly not be reckoned against him in order to prove his guilt. Such facts and circumstances and pieces of evidence have got to be excluded by the court from consideration unless we may hold that such an omission has in fact not occasioned any prejudice to the accused for given reasons which may sometimes be conspicuously present in a given case. We may pile up a number of authorities in order to bring home this point but that is perhaps not needed as the point involved does not admit of any great controversy. Nevertheless it may be of use to cite some pertinent observations made by the Hon'ble Apex Court in this regard as were given in Nar Singh vs. State of Haryana (2015) 1 SCC 496 which reads as under :
9. The power to examine the accused is provided in Section 313 Cr.P.C. which reads as under:-
313. Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2). No oath shall be administered to the accused when he is examined under sub- section (1).
(3). The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4). The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(5). The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.
10. There are two kinds of examination under Section 313 Cr.P.C. The first under Section 313 (1) (a) Cr.P.C. relates to any stage of the inquiry or trial; while the second under Section 313 (1) (b) Cr.P.C. takes place after the prosecution witnesses are examined and before the accused is called upon to enter upon his defence. The former is particular and optional; but the latter is general and mandatory. In Usha K. Pillai v. Raj K. Srinivas & Ors., (1993) 3 SCC 208, this Court held that the Court is empowered by Section 313 (1) clause (a) to question the accused at any stage of the inquiry or trial; while Section 313(1) clause (b) obligates the Court to question the accused before he enters his defence on any circumstance appearing in prosecution evidence against him.
11. The object of Section 313 (1)(b) Cr.P.C. is to bring the substance of accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him. The examination of accused under Section 313 (1)(b) Cr.P.C. is not a mere formality. Section 313 Cr.P.C. prescribes a procedural safeguard for an accused, giving him an opportunity to explain the facts and circumstances appearing against him in the evidence and this opportunity is valuable from the standpoint of the accused. The real importance of Section 313 Cr.P.C. lies in that, it imposes a duty on the Court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby, an opportunity is given to him to explain any such point.
12. Elaborating upon the importance of a statement under Section 313 Cr.P.C., in Paramjeet Singh alias Pamma v. State of Uttarakhand, (2010) 10 SCC 439 (para 22), this Court has held as under: Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration. (vide Sharad Birdichand Sarda v. State of Maharashtra(1984) 4 SCC 116 and State of Maharashtra v. Sukhdev Singh (1992) 3 SCC 700.
13. In Basava R. Patil & Ors. v. State of Karnataka & Ors., (2000) 8 SCC 740, this Court considered the scope of Section 313 Cr.P.C. and in paras (18) to (20) held as under:-
18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him. In Jai Dev v. State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:
The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.
19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.
20. 20. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word may in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him."
173. The prosecution has successfully discharged its burden, inasmuch as circumstances relied upon by prosecution (detailed by us in paragraph 69 of this judgement but excluding circumstance no. xix) have been proved by leading evidence. Some of these circumstances, which were incriminating in nature were put to accused for their version in terms of section 313 Cr.P.C. However, the accused have simply made a bald denial and have failed to offer any explanation even in respect of facts which were in their special knowledge. Consequently, adverse inference has rightly been drawn against accused. However, the circumstances, pointed out by us in paragraph 69 form a complete chain and have proved by but they point at the guilt of accused appellant Vaibhav Jain and no other. There are only three pieces of evidence against co-accused and one additional circumstance against them. The same shall be referred to in the later part of the judgement. Therefore, we partly accept the submission urged by Mr. Shukla, and hold that the circumstances form a chain of events in proximity to time and manner of occurrence. They have been proved but point at the guilt of accused Vaibhav Jain
174. In view of the discussion made above, the inescapable conclusion is that that the test laid down by Apex Court in parapraphs 152, 158, 159 of the judgement in the case of Sharad Birdhichand Sarda (Supra) for deciding the guilt of an accused, in a case, based on circumstantial evidence, is fully proved against accused-appellant Vaibhav Jain. "The circumstances from which the conclusion of guilt is to be drawn (detailed in paragraph 69 of this judgement and after excluding circumstance No. 19) are fully established. They are consistent only with the hypothesis of guilt of aforesaid accused appellant and no other. Above mentioned circumstances are of a conclusive nature and tendency. They exclude every possible hypothesis except the guilt of this accused appellant which is sought to be proved. Lastly, the circumstances are so complete that they do not leave any reasonable ground for the innocence of accused and in all probability point that the offence has been committed by above noted accused appellant."
(Quoted with modification from judgement in Sharad Birdhichanda Sarda)
175. So far as the other three accused appellants namely, Kaushal Kishore Jain, Suresh Pal and Rajendra Vohra are concerned, prosecution has failed to lead any evidence for establishing motive against these three appellants for committing the crime in question nor the chain of circumstances (detailed in paragraph 69 but excluding circumstance no. xix), point at the guilt of aforesaid three accused. The only legal evidence against these accused on record is that accused-appellant Suresh Pal, who is driver of accused-Vaibhav Jain was seen standing by P.W.1 Abhay Kumar Goyal at around 8:30 pm in front of Sindhu Bar Restaurant near Maruti Van of deceased, which was parked nearby. Apart from above, accused appellants Rajendra Vohra and Suresh Pal were arrested by P.W.8 S.I. Hardev Singh along with accused-Vaibhav Jain on 7.5.2004, when they were washing the blood stains on Maruti Van of deceased. Seeing Police, they attempted to flee but were overpowered which is an additional circumstance against them (Vide Dhananjay Chatterjee Vs. State of U.P. (1994) 2SCC 220. The names of accused persons are mentioned in the dieary of the deceased. As such the test laid down in Sharad Birdhichandra Sharda is not completely satisfied in present case qua the other three accused i.e. Kaushal Kishore, Rajendra Vohra and Suresh Pal.
176. The remaining three accused have also been convicted under sections 149 and 120-B IPC also and therefore, there must be clinching evidence on record to show that there was meeting of minds. Prosecution has miserably failed to lead any such evidence nor Court below has recorded specific finding to that effect. At this stage, it shall be useful to refer Firozuddin Basheeruddin and others Vs. State of Kerala, (2001) 7 SCC, 596, wherein Court has considered the constituents of Sections 120-A and 120-B IPC. In paragraphs 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33, Court has observed as follows:-
21. Section 120-A of the Indian Penal Code defines Criminal Conspiracy as follows :
"120-A. When two or more persons agree to do, or cause to be done---
(1) an illegal act, ot (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
22. Section 120B, which prescribes in sub-section (1) the punishment for criminal conspiracy provides :
"120-B. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence."
23. Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. In the face of modern organised crime, complex business arrangements in restraint of trade, and subversive political activity, conspiracy law has witnessed expansion in many forms. Conspiracy criminalizes an agreement to commit a crime. All conspirators are liable for crimes committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity. To put it differently, the law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Contrary to the usual rule that an attempt to commit a crime merges with the completed offense, conspirators may be tried and punished for both the conspiracy and the completed crime. The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identity of his co-conspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of co-operation between the accused. What people do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy.
24. Another major problem which arises in connection with the requirement of an agreement is that of determining the scope of a conspiracy who are the parties and what are their objectives. The determination is critical, since it defines the potential liability of each accused. The law has developed several different models with which to approach the question of scope. One such model is that of a chain, where each party performs a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. No matter how diverse the goals of a large criminal organisation, there is but one objective: to promote the furtherance of the enterprise. So far as the mental state is concerned, two elements required by conspiracy are the intent to agree and the intent to promote the unlawful objective of the conspiracy. It is the intention to promote a crime that lends conspiracy its criminal cast.
25. Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendants liability than the fact that the crime was performed as a part of a larger division of labor to which the accused had also contributed his efforts.
26. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co- conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Explaining this rule, Judge Hand said:
"Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made a partnership in crime. What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all. (Van Riper v. United States 13 F.2d 961, 967 (2d Cir.1926)."
27. Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres.
28. Interpreting the provisions in Sections 120A and 120B of the IPC, this Court in the case of Yash Pal Mittal v. State of Punjab (1977) 4 SCC 540 in para 9 at pages 543 & 544, made the following observations :
"9. The offence of criminal conspiracy under Section 120-A is a distinct offence introduced for the first time in 1913 in Chapter V-A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-conspirators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. The significance of criminal conspiracy under Section 120-A is brought out pithily by this Court in Major E.G.Barsay v. State of Bombay (1962) 2 SCR 195 thus:
'The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable. ' We are in respectful agreement with the above observations with regard to the offence of criminal conspiracy.
29. In the case of Kehar Singh and Others v. State (Delhi Administration, (1988) 3 SCC 609, a bench of three learned Judges in paras 271 to 276 held : (SCC pp. 731-33) "271. Before considering the other matters against Balbir Singh, it will be useful to consider the concept of criminal conspiracy under Sections 120-A and 120-B of IPC. These provisions have brought the Law of Conspiracy in India in line with the English law by making the overt act unessential when the conspiracy is to commit any punishable offence. The English law on this matter is well settled. The following passage from Russel on Crime (12th edn., Vol.I, p.202) may be usefully noted :
'The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough.'
272. Glanville Williams in the Criminal Law (2nd edn. p.382) explains the proposition with an illustration :
'The question arose in an Iowa case, but it was discussed in terms of conspiracy rather than of accessoryship. D, who had a grievance against P, told E that if he would whip P someone would pay his fine. E replied that he did not want anyone to pay his fine, that he had a grievance of his own against P and that he would whip him at the first opportunity. E whipped P. D was acquitted of conspiracy because there was no agreement for concert of action, no agreement to co-operate". '
273. Coleridge,J., while summing up the case to jury in Regina v. Murphy (173 Eng. Reports 508) pertinently states :
'I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, Had they this common design, and did they pursue it by these common means the design being unlawful?""
274. It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to Sections 120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.
275. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand explains the limited nature of this proposition :
'Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties actually came together and agreed in terms to pursue the unlawful object : there need never have been an express verbal agreement, it being sufficient that there was a tacit understanding between conspirators as to what should be done".'
276. I share this opinion, but hasten to add that the relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group if irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard.
30. In the case of State of Maharashtra & Ors. vs. Som Nath Thapa & Ors., (1996) 4 SCC 659, a bench of three learned Judges observed in paras 22 24 :
"22. As in the present case the bomb blast was a result of a chain of actions, it is contended on behalf of the prosecution, on the strength of this Courts decision in Yash Pal Mittal v. State of Punjab which was noted in para 9 of Ajay Aggarwal case (1993)3 SCC 609 that of such a situation there may be division of performances by plurality of means sometimes even unknown to one another; and in achieving the goal several offences may be committed by the conspirators even unknown to the others. All that is relevant is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy, even though there may be sometimes misfire or overshooting by some of the conspirators.
23. Our attention is pointedly invited by Shri Tulsi to what was stated in para 24 of Ajay Aggarwal case wherein Ramaswamy, J. stated that the law has developed several or different models or techniques to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of the other, a role that aides succeeding parties in accomplishing the criminal objectives of the conspiracy. The illustration given was what is done in the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case, smugglers, middlemen, retailers are privies to a single conspiracy to smuggle and distribute narcotics. The smugglers know that the middlemen must sell to retailers; and the retailers know that the middlemen must buy from importers. Thus the conspirators at one end of the chain know that the unlawful business would not, and could not, stop with their buyers, and those at the other end know that it had not begun with their settlers. The action of each has to be considered as a spoke in the hub there being a rim to bind all the spokes together in a single conspiracy.
24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
31. This Court in the case of Mehbub Samsuddin Malek & Ors. Vs. State of Gujarat, (1996) 10 SCC 480, holding the conviction of the accused under Section 120-B of the IPC on drawing inference regarding an agreement from the circumstances, observed in para 37: (SCC pp. 495-96) "37. It was, however, contended by the learned counsel for the appellants that even if the prosecution evidence against Appellant 1 is believed his conviction under Section 120-B cannot be sustained. It was contended that when the bus started from the station Appellant 1 did not know that a communal disturbance had taken place near Mandavi and that a mob of Muslim boys would be standing at the entrance of Rajpura Pole. Thus there was no scope whatsoever for him to hatch a conspiracy with the mob near the entrance of Rajpura Pole. It was also submitted that Appellant 2s getting down from the bus and going near the mob was consistent with his innocence and in all probability he had gone near the mob to say that he was a Muslim and therefore he should not be beaten. He submitted that before an accused can be convicted under Section 120-B the prosecution has to establish an agreement and an agreement requires at least two persons. In this case there is nothing on record to show that there was an agreement between Appellant 1 and any person from that mob. In our opinion there is no substance in this contention. The prosecution case was that sensing some trouble and seeing a mob of armed Muslim boys standing at the entrance of Rajpura Pole Appellant 1 stopped the bus just opposite Rajpura Pole with a view to facilitate an attack on the passengers by the said mob. In spite of the request of passengers he did not start the bus before the mob and had some discussion with the persons of that mob. Thereafter the mob came near the bus and assaulted the passengers. That was the conspiracy alleged by the prosecution. If really the bus had stopped because of the mob coming in front of it then it was not necessary for him to get down from the bus. He could have disclosed his identify even by remaining in the bus. In view of the evidence of the eyewitnesses, the explanation given by him has to be regarded as false. His conduct is also inconsistent with his innocence. The stopping of the bus at a place where there was no necessity to stop it, his getting down from the bus and going across the road right up to the entrance of the Rajpura Pole and talking to the persons in the said mob leads to an irresistible inference that he not only facilitated the attack on the passengers by stopping the bus just opposite the assembly to attack the passengers. Thus an agreement between him and the said unlawful assembly is satisfactorily established by the prosecution and therefore his conviction under Section 120-B IPC also deserves to be upheld."
32. In the case of State through Superintendent of Police, CBI/SIT etc.etc. vs. Nalini & Ors. Etc.etc., (1999) 5 SCC 253, discussing the principles governing the Law of Conspiracy in the case under Sections 120-A, 120-B and 302 of IPC, Wadhwa, J., summarised the principles in para 583 as follows : (SCC pp 515-18) " 583. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.
1. Under Section 120-A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed.
2. Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.
3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
4. Conspirators may for example, be enrolled in a chain A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrols. There may be a kind of umbrella-spoke enrolment, where a single person at the centre does the enrolling and all the other members are unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell which conspiracy in a particular case falls into which category. It may however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse roles to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.
6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
7. A charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders.
8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose A conspirator is not responsible, however, for acts done by a co- conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.
A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.
33. Interpreting the provisions in Sections 120A and 120B of the IPC, this Court in the case of Saju vs. State of Kerala, (2001) 1 SCC 378 held:
"7. To prove the charge of criminal conspiracy the prosecution is required to establish that two or more persons had agreed to do or caused to be done, an illegal act or an act which is not legal, by illegal means. It is immaterial whether the illegal act is the ultimate object of such crime or is merely incidental to that object. To attract the applicability of Section 120-B it has to be proved that all the accused had the intention and they had agreed to commit the crime. There is no doubt that conspiracy is hatched in private and in secrecy for which direct evidence would rarely be available. It is also not necessary that each member to a conspiracy must know all the details of the conspiracy. This Court in Yash Pal Mittal v. State of Punjab (1977) 4 SCC 540 held: (SCC p.543-44, para 9) '9. The offence of criminal conspiracy under Section 120-A is a distinct offence introduced for the first time in 1913 in Chapter V-A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are con-conspirators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. The significance of criminal conspiracy under Section 120-A is brought out pithily by this Court in E.G.Barsay v. State of Bombay (1962) 2 SCR 195 (SCR at p.228) thus:
"The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable."
We are in respectful agreement with the above observations with regard to the offence of criminal conspiracy. '
10. It has thus to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew was leading to the commission of a crime by one or more persons to the agreement, of that offence. Besides the fact of agreement the necessary mens rea of the crime is also required to be established.
177. In light of above, we can safely conclude that the remaining three accused-appellants i.e. Kaushal Kishore Jain, Suresh Pal and Rajendra Vohra are liable to be acquitted of the charges under Sections 120-B and 149 IPC. We are fortified in taking this view by judgement of Supreme Court in Soyebbhai Yusufbhai Bharania and others Vs. State of Gujarat (2017) 13-SCC 342 wherein Supreme Court upheld the view taken by High Court which granted benefit of acquittal to one of accused on aforesaid ground. Paragraph 15 of aforesaid judgement is relevant for present controversy and is accordingly reproduced herein-under:
"15. Learned senior counsel further submitted that the proposition submitted by the State are incorrect in view of the fact that Section 149 is not attracted in the absence of the overt act being attributed to each accused, since there is no finding to the effect that five or more persons were involved in the act.
178. In view of above, it would not be prudent or logical to maintain the sentence and conviction awarded by Court below to aforesaid three accused appellants.
179. This brings us to the issue as to whether in the light of findings returned by us upon reappraisal and re-appreciation of evidence, the conviction and sentence awarded to accused-appellant Vaibahv Jain can be maintained or is liable to be modified.
180. The golden test laid down in Shard Birdhichand Sarda's case (supra) is fully satisfied against accused-appellant Vaibhav Jain. However, as has already been held above, there is no evidence of meeting of minds to commit the crime in question, therefore, his conviction and sentence under Sections 120-B and 149 IPC cannot be sustained.
181. With regard to conviction and sentence of accused Vaibhav Jain under Section 364 is concerned, we may first refer to the Code wherein abduction has been defined in Section 362 IPC as follows:-
"According to section 362 of Indian penal code, Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person."
182. The offence of abduction is punishable under Section 364 IPC. From the chain of circumstances coupled with the fact that accused-appellant Vaibhav Jain has failed to discharge the burden in terms of Section 106 IPC, inasmuch as he has neither deposed before the Court as a witness, nor adduced any witness, in support of his defence and except for a bald denial of the questions put to him under section 313 Cr.P.C., he has not offered any explanation of facts which were even in his special knowledge. It has come in evidence of P.W.1 whom we have held to be credible and reliable has clearly deposed that deceased was seen in the company of appellants at Sindhu Bar Restaurant at 8-8:30 pm when he went out to look for his brother Sanjeev Kumar Goel (deceased). It has further come in his evidence that when Sanjeev Kumar Goel (deceased) did not return at his home, this witness made a search regarding his whereabouts and visited the house of accused at 10:30 pm to find out his brother but the accused Vaibhav Jain was not present at his home. Therefore, by drawing adverse inference, the commission of offence punishable under Section 364 IPC is fully proved against Vaibhav Jain. The conclusion drawn by Court below with regard to above requires no interference by us. We reiterate that deceased was abducted for committing his murder.
183. With regard to conviction and sentence for offences punishable under Section 427 IPC, we may state that three of the accused-appellants have already been acquitted by us for offences under Sections 120-B and 149 IPC. There is nothing on record to conclude that accused-appellants are also guilty of an offence punishable under Section 427 IPC. Once co-accused have been acquitted of the charges under Sections 120-B and 149 IPC, dictates of prudence compel us to acquit accused-appellant Vaibhav Jain of the charges under Sections 120-B, 149 and 427 IPC.
184. In the result, Criminal Appeal No. 7957 of 2006 (Vaibhav Jain Vs. State of U.P.) succeeds in part and is liable to be partly allowed. It is, accordingly, partly allowed. The conviction and sentence of above named accused-appellant under Sections 120 B, 149, 201 and 427 I.P.C. are set aside. However, his conviction under Sections 302 and 364 IPC is maintained. Impugned judgement and order passed by Court below shall stand modified to that extent. Accused appellant Vaibhav Jain is in jail. He shall remain in jail to serve out the sentence awarded by Court below.
185. Criminal Appeal No. 7044 of 2006 ( Kaushal Kishore Jain Vs. State of U.P.), Criminal Appeal No. 7672 of 2006 (Suresh Pal Vs. State of U.P.) and Criminal Appeal No. 106 of 2007 (Rajendra Vohra Vs. State of U.P.), succeed and are allowed. The impugned judgment and order dated 09.11.2006 passed by Special Judge (E. C. Act)/ Additional Sessions Judge, Rampur in Sessions Trial No. 76 of 2005 (State Vs. accused-Vaibhav Jain and four others) under Sections 364, 302, 201, 120B and 427 I.P.C., P.S.-Bilaspur, District-Rampur arising out of Case Crime No. 315 of 2004 under Sections 302, 201, 427 I.P..C. P.S.-Bilaspur, District-Rampur, in so far it relates to accused appellants Kaushal Kishore Jain, Suresh Pal and Rajendra Vohra, is set aside. They are acquitted of the charges alleged against them. Accused Appellants Kaushal Kishore Jain and Rajendra Vohra are on bail. Their bail bonds are canceled. Accused appellant Suresh Pal is in jail. He shall be set free forthwith, if not wanted in another case. Copy of this judgement be sent to Court below immediately for compliance.
Order Date :- 28.9.2020 Arshad