Babu Ram Maurya vs State on 9 September, 2022

[Cites 13, Cited by 0]

Allahabad High Court

Babu Ram Maurya vs State on 9 September, 2022

1. This jail appeal has been preferred by the appellant, Babu Ram Maurya challenging the judgment and order dated 17th April, 2010 passed by the Special Judge (Prevention of Corruption Act)/ Additional Sessions Judge, Bareilly passed in Sessions Trial No. 117 of 2008 (State vs. Babu Ram Maurya) under Sections 302 and 201 I.P.C. as also in Sessions Trial No. 118 of 2008 (State Vs. Babu Ram Maurya) under Sections 4/25 Arm Act, arising out of Crime No. 870 of 2007, Police Station-Subhash Nagar, District-Bareilly, whereby the accused-appellant has been convicted and sentenced to undergo (i) life imprisonment under Section 302 I.P.C. with fine of Rs. 20,000/-, in default thereof, he has to further undergo two years additional imprisonment, (ii) two years rigorous imprisonment under Section 201 I.P.C. with fine of Rs. 5,000/-, in default thereof, he has to further undergo two months additional imprisonment and (iii) one year rigorous imprisonment with fine of Rs. 1,000/- under Sections 4/25 Arms Act, with the direction that all the sentences are to run concurrently.

2. We have heard Mr. Kumar Kartikay, learned Amicus Curiae on behalf of the appellant and Mrs. Archana Singh, learned A.G.A. for the State and have carefully perused the materials available on record.

3. Records of the present jail appeal reveal that a first information report was registered under Sections 302/201 I.P.C. as Crime No. 868 of 2007 on 11th June, 2007 at 07:15 a.m. (morning) on a written report of the Village Chaukidar, namely, Murari Lal son of Hori Lal, who had found an unknown naked body of a lady in the agricultural field of Dori Lal Kanaujiya with incised injury marks on her abdomen and private parts. Her intestine had come out and injuries were also found on her face and she was bleeding. Her bangles were broken. Seeing her condition, it appeared that she was killed elsewhere and thereafter her dead body was thrown in the fields of Dori Lal.

4. The inquest of deceased was conducted by the Police at 10:40 a.m. after starting the process at 09:00 a.m. In the opinion of the Panch (Inquest) witnesses, the death of the deceased was homicidal on account of injuries caused to the deceased. Thereafter the dead body of the deceased was sealed and sent for post-mortem.

5. Dr. Sri Krishna, P.W.-8 conducted the post-mortem of the dead body and his report is on record as Exhibit-Ka-9 as per which the deceased was nearly 50 years of age and had died due to shock as a result of following ante-mortem injuries:

"(i) incised wound 3 cm. X 1/2 cm x above, deep on mid part of nose, underneath bone fractured;

(ii) incised wound 2 cm x 1 c x cavity deep on the left side of abdomen just below left costal margin and 11 cm. anterolateral from navel at 1 o'clock position;

(iii) Incised wound 3 cm x 1 cm x cavity deep on the left side of abdomen, 3 cm. below from injury no. 2, flesh part of muscle coming out from wound;

(iv) Incised wound 2 cm x 1 cm x cavity deep on the left side of abdomen, 4 cm. Interolateral from injury no.3;

(v) incised wound 2 cm. x 1 cm x muscle deep to flesh of chest, mid line;

(vi) Incised wound size 3 cm. x 1 cm. muscle deep over left side of bubic syphilis area."

6. A subsequent first information report was lodged on 13th June, 2007 at 01:30 p.m. as Crime No. 870 of 2007 under Sections 4/25 Arms Act by the Investigating Officer, Sub-Inspector Rohan Lal, who was also the Investigating Officer in the earlier first information report. It was reported that while conducting investigation in the earlier matter, he met Ravi Kumar son of Seema Kashyap i.e. P.W.-2 and Rampal Kashyap, brother-in-law of Seema Kashyap i.e. P.W.-1,who informed him that the dead body found was of Seema Kashyap and that she has been killed by the accused-appellant, namely, Babu Ram Maurya. The Police party lead by Investigating Officer was informed by the informer that the accused-appellant was about to visit his elder brother at Shanti Vihar. On receiving such information the Police party reached Shanti Vihar and apprehended him. On inquiry, the accused-appellant confessed that he had killed the deceased Seema Kashyap, by stabbing her with a knife at around 08:30 p.m. on 10th June, 2007. He had heavily consumed liquor before that. After killing the deceased Seema Kashyap, the accused-appellant put her clothes, the knife with which he killed her, and a brick, in a bag and threw the same in the drain beneath the culvert situated in front of the Balaji temple.

7. The Police party along with Rampal and Ravi (P.W.-1 & P.W.-2) reached the spot and on the pointing out of the accused-appellant, a plastic bag was recovered containing a brick, clothes of the deceased Seema Kashyap and the knife, purchased by the accused-appellant for committing the crime. The subsequent first information report was registered as Crime No. 870 of 2007.

8. Memo of arrest of the accused-appellant was also prepared, which is marked as Exhibit-Ka-6.

9. Investigation proceeded and the Investigating Officer recorded the statements of Rampal Kashyap, Ravi Kumar and Chhote Lal (P.W.1, P.W.-2 and P.W.5 respectively) and upon conclusion of investigation charge-sheets in both the cases came to be submitted against the accused appellant by the Investigating Officer on 15th June, 2007 and 14th July, 2007, which are marked as Exhibit-Ka-11 and Exhibit-Ka-7 respectively.

10. On submission of charge-sheet, the concerned Magistrate took cognizance in the matter and committed the case to the Court of Sessions by whom the case was to be tried. On 15th March, 2008, the concerned Court framed following two charges against the accused-appellant:

"Firstly: That you on 10.06. 2007 at about 8.30 p.m. in the field of Dori Lal Kannojia mohalla Shanti Bihar within the circle of P.S. Subhashnagar Distt. Bareilly, did commit the murder by intentionally or knowingly causing the death of Smt. Seema by inflicting knife injuries and thereby committed an offence punishable U/s 302 IPC and within the cognizance of this court.

Secondly: That you on the aforesaid date time and place you knowing or having reason to believe that certain offence to wit-murder of Smt. Seema, punishable with death sentence has been committed by you, did cause certain evidence of said offence to disappear, to wit the blood stained clothes of Smt. Seema along with her bag with the intention of screening yourself from the legal punishment, and thereby committed an offence punishable U/s 201 of Indian Penal Code and within the cognizance of this court."

The charges were read out to the accused-appellant, who denied the accusation and demanded trial.

11. The prosecution in order to establish the charges levelled against the accused-appellant relied upon documentary evidence, which were duly proved and consequently marked as Exhibits. The same are catalogued herein below:

(i) the written report given by Chaukdar Murari Lal son of Horilal dated 11th June, 2007 has been marked as Exhibit-Ka-1;

(ii) the first information report registered on 11th June, 2007 at 07:/15 on the information of Village Chaukidar, namely, Murari Lal son of Horilal being Crime No. 868 of 2007, has been marked as Exhibit-Ka-2;

(iii) Inquest report (panchayatnama) of the body of deceased Seema Kashyap has been marked as Exhibit-Ka-13;

(iv) post-mortem report of the deceased Seema Kashyap has been marked as Exhibit-Ka-9;

(v) Memo of arrest of accused-appellant Babu Ram Maurya prepared on 13th June, 2007 by the then Station House Officer, Rohan Lal has been marked as Exhibit-Ka-6

(vi) the first information report registered on 13th June, 2007 at15.30 hours by the Investigating Officer, namely, Sub-Inspector Rohan Lal, the then Station House Officer, Police Station-Subhash Nagar, District-Bareilly being Crime No. 870 of 2007, has been marked as Exhibit-Ka-4; and

(vii) charge-sheet dated 15th June, 2007 submitted in Crime No. 468 of 2007 and charge-sheet dated 14th July, 2007 submitted in Crime No. 470 of 2007 have been marked as Exhibits-Ka-11 and 7 respectively.

12. The prosecution has also adduced oral testimony of following witnesses:-

"i). P.W.-1, namely, Rampal Kashyap, (Behnoi) brother-in-law of the deceased Seema Kashyap;

ii).P.W.-2, namely, Ravi Kumar son of deceased Seema Kashyap; ;

iii) P.W.-3, namely, Shashi wife of P.W.-1 and sister of Seema Kashyap;

iv) P.W.-4, namely, Village Chaukidar, Morarilal son of Horilal, first informant of Crime No. 468 of 2007;

v). P.W.-5, namely, Chhote Lal son of Vishram, who is said to be witness of last seen and neighbour of the deceased Seema Kashyap;

vi). P.W.-6, namely, Vijay Pathak, who proved the chik first information report of Crime No. 468 of 2007;

vii). P.W.-7, namely, Sub Inspector Rohan Lal, the then Station House Officer-Subhash Nagar, District-Bareilly, who lodged the Crime No. 470 of 2007 and investigated the matter;

viii). P.W.-8, namely, Dr. Shri Krishan, who conducted the post-mortem on the body of the deceased;

ix). P.W.-9, namely, Head Constable-270 Tejram Singh, who proved the chik first information report of Crime No. 470 of 2007 under the provisions of Arms Act;

x). P.W.-10, namely, Sub-Inspector Daya Ram Singh the first Investigating Officer; and

xi) P.W.-11, namely, Sub-Inspector Rakesh Singh, who conducted the inquest proceedings of the dead body of the deceased Seema Kashyap"

13. During the course of trial, the prosecution witnesses supported the prosecution case by stating that the deceased was previously married to Patey, who died about 7-8 years back and with whom the deceased had a son, namely, Ravi Kumar (P.W.-2); nearly after one year of the death of her first husband i.e. Patey, the deceased Seema Kashyap solemnized her marriage with the accused-appellant Babu Ram, who is a rickshaw-puller and started living with him in Katara Chand Khan; the accused-appellant is alleged to be drunkard, who had two previous wives, both of whom died. From their earlier wedlock, the accused-appellant has two sons, namely, Ajay and Vijay; the accused-appellant after consuming liquor used to beat the deceased and her son, namely, Ravi Kumar P.W.2, and snatch all money earned by deceased as a domestic aid cleaning utensils etc. of other households.

14. About a month and half before the alleged occurrence, the deceased shifted to Kargaun and started living in a rented room in the house of Roop Chand, along with Ravi Kumar P.W.-2. Rampal Kashyap and his wife Shasi (P.W.-1 and P.W.-3) respectively, were also living at Kargaun and the distance between their houses was about 100/150 meters.

15. The prosecution case is that the accused-appellant came to take the deceased from Kargaun but she denied whereafter threats were extended by him to the deceased.

16. Chhotey Lal son of Visram (P.W.-5) was also living in a room in the house of Roop Chand and thus was immediate neighbour of the deceased saw the deceased lastly in the company of accused-appellant near Balaji Temple on 10th June, 2007 at 06:00 p.m. The deceased was not seen alive thereafter. P.W.2 Ravi Kumar after about 08:30 p.m. made efforts to trace her out but failed.

17. On the next morning at about 9 to 10 a.m. Chhotey Lal (P.W.-5) allegedly informed Ravi Kumar (P.W.-2) that he had seen his mother with the accused-appellant the earlier day at about 05:00 to 06:00 p.m.

18. In his statement Ravi Kumar (P.W.-2) has deposed that on 11th June, 2007 at 10:00 a.m. an unknown lady went to the field of Dori Lal for cutting woods and saw the dead body of a lady wearing Salwar Suit and informed him about it. P.W.2 showed her the photograph of his missing mother, who told him that the dead body was of his mother. However, instead of going to the field of Dori Lal to identify the body, P.W.-2 went to the Police Station Subhash Nagar for lodging the report. The distance between the Police Station and the place of occurrence was about 21 kilometers, whereas the distance between the house of P.W.-2 and the place of occurrence was only one kilometer.

19. The prosecution version is that deceased has been killed by the accused-appellant as she refused to come with him to Katara Chand Khan and her dead body has been thrown in the fields of Dori Lal. The prosecution, therefore, rests its case of circumstantial evidence on the evidence of last seen furnished by Chhotey Lal P.W.5; recovery of the knife and clothes of the deceased at the pointing out of the accused-appellant.

20. At the outset we may note that the knife and clothes belonging to deceased allegedly recovered on the pointing out of the accused-appellant were sent to the Forensic Science Laboratory but the report of the forensic science laboratory was not produced. These articles have also not been produced or exhibited during the course of trial.

21. Statement of the accused-appellant was recorded under section 313 Cr.PC in which he has denied having married the deceased or living with her as husband and wife. He has also denied the alleged recovery. He has stated that only on suspicion, P.W. Nos. 1 to 3 took the deceased to Kargaun. In reply to question no.4, the accused-appellant has stated that due to societal pressure, she went to Kargaun for living. In reply to question no.36, the accused-appellant has stated that he was arrested from his house on 12th June, 2007 at Katara Chand Khan and he was kept at Police Station and has been falsely implicated in the present case.

22. On the basis of above evidence adduced during the course of trial, the court below has found the accused-appellant guilty of murdering the deceased as she had refused to join his company. The court below concluded that evidence available on record pointed only to the hypothesis of guilt of the accused appellant and no other hypothesis is possible on facts.

23. Being aggrieved with the impugned judgment and order of conviction passed by the trial court, the accused-appellant has preferred the present jail appeal.

24. Assailing the impugned judgment and order of conviction, learned Amicus Curiae Mr. Kumar Kartikay, has advanced following submissions:

(i) the prosecution case rests on circumstantial evidence in which the accused-appellant has been implicated only on the basis of suspicion and no evidence exist to hold the accused-appellant guilty;

(ii) evidence clearly shows that the deceased was living with accused-appellant for nearly seven years without any complaint and only on account of societal pressure as also persuasion of her son i.e. P.W.2, she shifted to Kargaun for living;

(iii) the deceased Seema Kashyap shifted to Kargaun against her free will and it is possible that she wanted to return to Katara Chand Khan and to stop her from doing so she was killed by someone else;

(iv) there is no evidence or report of forensic science laboratory to connect the weapon of assault (knife) with the accused-appellant. The recovery was otherwise not proved as the articles were neither produced nor exhibited during trial;

(v) the recovery has been made from an open place during day time from a congested area without any independent witness/person for verifying/testifying the said recovery;

(vi) Rampal Kashyap and Ravi Kumar i.e. P.W.-1 and P.W.-2 respectively, were also present and they had also participated in the recovery proceedings, which makes the prosecution case weak, particularly as P.W.-2 had not singed on the recovery memo on the spot but had signed it later at Police Station;

(vii) the theory of last seen is also not reliable, inasmuch as Chhotey Lal (P.W.-5) is relative of Rampal Kashyap (P.W.-1) and even rental accommodation was arranged by him and soon after the death, he left the house;

(viii) in view of the inconsistency in the statements of the prosecution witnesses; in absence of motive being proved; failure to produce report of Forensic Science Laboratory regarding recovered articles or its production during trial and the theory of last seen being doubtful, the prosecution has failed to establish the guilt of accused-appellant beyond reasonable doubt based on circumstantial evidence.

On the cumulative strength of the aforesaid, learned counsel appearing for the appellant submits that the impugned judgment and order of conviction ought not be sustained and the appeal be allowed.

25. Per contra, Mrs. Archana Singh, learned A.G.A. for the State, supporting the judgment and order of conviction, has made following submissions:

(i) there is definite motive for the accused-appellant to commit the offence as the deceased had declined to join his company; the deceased was otherwise spotted lastly in the company of the deceased, therefore, the statement of Chhotey Lal (P.W.-5) is absolutely credible in that regard;

(ii) since P.W.-5 Chottey Lal is a rickshaw-puller without having a fixed abode, therefore, the fact that after some time he shifted elsewhere cannot be a ground to discredit his statement;

(iii) the recovery of the knife, which was used in the offence and the clothes worn by the deceased, on the pointing out of the accused appellant, is clearly a strong material to prove that it was the accused-appellant who committed the offence; and

(iv) as per the post-mortem report, the incised wounds found on the body of the deceased, are clearly shown to have been caused by a knife and knife is also recovered at the pointing out of accused-appellant, therefore, the chain of events pointing exclusively to the guilt of the accused-appellant is firmly established during the course of trial.

On the cumulative strength of the aforesaid submissions, learned A.G.A. submits that the impugned judgment and order of conviction does not suffer from any illegally and infirmity so as to warrant any interference by this Court. As such the present jail appeal filed by the accused appellant who committed heinous crime by murdering the deceased is liable to be dismissed.

26. We have considered the submissions made by the learned counsel for the parties and have carefully examined the original records of the case as well as the impugned judgment and order of conviction challenged before us.

27. It is in the context of above submissions and materials placed on record before the Court that this Court is required to consider as to whether the prosecution has established the guilt of accused-appellants on the basis of circumstantial evidence beyond reasonable doubt?

28. Before proceeding with the deliberation any further it would be appropriate to refer to the law governing the case of circumstantial evidence.

29. In Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116, the Apex Court evolved five tests to be established by the prosecution in order to prove the guilt of accused based on circumstantial evidence. Five golden principles have been enumerated in paragraph nos. 152 to 154, which are reproduced hereiafter:

"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hunumant vs. The State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh and Ramgopal v. Stat of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. V. State of Maharashtra, where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

30. Judgment of the Supreme Court in the case of Sharad Birdhichand Sarda (Supra) has consistently been followed and reiterated recently by the Court in the case of Ram Niwas Vs. State of Haryana reported in 2022 SCC On Line SC 1007

31. This is a case of circumstantial evidence. The dead body of deceased has been found by the Village Chaukidar at 07:15 a.m. in the fields of Dorilal. The dead body was naked with multiple wounds on abdomen and her private parts. The first information report was lodged prior to the identification of deceased. The inquest (Panchayatnama) was started at 09:00 a.m. and completed by 10:45 a.m. The inquest witnesses found the deceased to have died due to injuries caused to her and in the opinion of inquest witnesses, the cause of death of the deceased was homicide. The dead body was accordingly sealed and sent to Mortuary for post-mortem, which was conducted at 04:30 p.m. on 11th June, 2007.

32. From the above evidence, it is shown that till 04:30 p.m. the dead body had not been identified and was shown as unknown.

33. The manner in which the dead body came to be identified as that of the mother of Ravi Kumar (P.W.-2) is an aspect having significance for the proper appreciation of prosecution case. Ravi Kumar (P.W.-2) in his statement claims that he met his mother last on 10th June, 2007 in the morning after which he left for work. Ravi Kumar (P.W.-2) was working in P.K. Namkeen Company, which opened at 10:00 a.m. and close at 08:30 p.m. Ravi Kumar claims that he returned early at 08:00 p.m. on 10th June, 2007 and found the room locked. He tried to search his mother along with Rampal (P.W.-1) and Shashi (P.W.-3) but they could not find her. P.W.-2 claims to be informed by a unknown lady who had gone to cut woods that she saw a dead body of a lady wearing Suit in the field of Dori Lal Kannojiya. Ram Pal (P.W.-1) and Shashi (P.W.-3) were with Ravi Kumar (P.W.-2) then. Ravi Kumar (P.W.-2) claims to have shown the photograph of his mother to this unknown lady who verified that the dead body is that of his mother. The alleged lady who saw the dead body first has neither been produced as witness nor her name has even been disclosed. This unknown lady however saw the deceased wearing a suit.

34. It is difficult to visualize as to how the lady was seen wearing a pink suit at 10:00 a.m. in the morning when as per the first information report lodged at 07:15 p.m., she was naked. We, therefore, find dichotomy in the statement of Ravi Kumar (P.W.-2) when he refers to this unknown lady having seen the dead body of her mother wearing a Suit when admittedly the dead body was found naked. In view of the fact that the unknown lady has otherwise not been identified and her statement is not corroborated by the evidence on record, we suspect the existence of this unknown lady in the statement of P.W.-2. Ravi Kumar (P.W.-2) otherwise does not claim in his statement to have seen the dead body at the place where it was found by the Police.

35. Ravi Kumar (P.W-2) on the other hand states that he met the Investigating Officer at about 11:00 a.m. on 11th June, 2007 with the photograph of the deceased and he was asked to visit the Mortuary. He claim to have identified the dead body of the deceased at 11:30 a.m. He states that the corpse bearer of the Mortuary had opened the seal of the dead body and got it identified by P.W.-2. It is however difficult to comprehend as to how the dead body was shown to P.W.-2 at 11:30 a.m. when the body itself was sealed at 10:40 a.m. upon the acquisition of inquest. The post-mortem was conducted at 04:30 p.m. and between 10:40 a.m. to 04:30 p.m., there was no occasion to open the seal of corpse or to show it to the P.W.-2.

36. P.W.-10 the Investigating Officer Daya Ram Singh has specifically been confronted with the above incongruity and he has clearly stated that the dead body remained sealed from 10:40 a.m. to 04:30 p.m. in the evening, so it is not possible for anybody to see the dead body during this period. He has also stated that the name of person to show the body to Ravi Kumar (P.W.-2) has not been disclosed.

37. The facts noticed above creates doubt in the prosecution story as to how the prosecution witnesses P.W.-1 and P.W.-2 could know before 04:30 p.m. on 11th June, 2007 that the unknown body was that of the deceased. This is so as P.W.-1 and P.W.-2 have specifically stated that they had not visited the place where the dead body was lying and have seen the dead body only in the Mortuary. There is also fallacy in the prosecution case, as P.W.-2 claims that the dead body was wearing Suit while the body recovered by the Police was naked.

38. The second aspect that requires determination is as to how P.W.-1 and P.W.-2 could know that it was the accused-appellant who had killed the deceased, prior to the alleged recovery made on the pointing out of the accused-appellant in the afternoon on 13th June, 2007. It could only have been a case of doubt on the part of Rampal Kashyap and Ravi Kumar i.e. P.W.-1 and P.W.-2 respectively against the accused-appellant.

39. The story of last seen in this case is routed through Chhotey Lal (P.W.5) who in his examination has deposed of having seen the deceased going with Babu Ram Maurya (accused-appellant) carrying a white bag while talking to each other. P.W.-5 claims that when he heard about the recovery of dead body of a lady, he suspected that accused-appellant may have killed the deceased. He informed P.W.-2 that the deceased and the accused appellant were going together at 06: p.m. on 10th June, 2007. P.W.-5 further claims that he went to Mortuary after the post-mortem was over and found the dead body of deceased Seema Kashyap. The statement of P.W.5 has been recorded by the Investigating Officer under Section 161 Cr.P.C. after four days of incident. In the cross-examination, P.W.-5 has also stated that the deceased was screaming when he saw her with the accused-appellant but this fact has not been mentioned in his statement under Section 161 Cr.P.C. P.W.-5 has specifically been confronted on this aspect.

40. In the recovery memo it has been recorded that the Investigating Officer came to know from the Informer that the murderer of the deceased is the accused-appellant and is hiding and is likely to visit his brother. The question that would arise is as to how the prosecution, even before recovery was made on the pointing out of the accused-appellant could know that it was the accused-appellant who murdered the deceased.

41. The next issue is with regard to recovery of knife and clothes of the deceased on the pointing out of the accused-appellant. First and foremost it is to be noticed that the knife and clothes allegedly recovered on the pointing out of the accused-appellant have not been produced and exhibited before the trial court. According to the prosecution, the knife and other recovered articles on the pointing of the accused-appellant were sent for forensic examination to the Forensic Science Laboratory concerned but no report in that regard was ever produced before the trial court. This is a serious lacuna in the prosecution case and renders the recovery highly suspicious.

42. Even if the recovery is otherwise examined, we find that the accused-appellant, as per the prosecution version, was apprehended at 01:30 p.m. on 13th June, 2007 and he confessed the crime and disclosed that he has thrown the clothes of deceased and knife in a bag, wherein a brick was also kept. He took the Police party to a drain below the culvert in front of Balaji Temple, where he allegedly had thrown this bag. A wet plastic bag was recovered containing a brick; pink colour Chunari having embroidery with blood stained; a pink colour Kurta and Salwar; an old white Bra with plastic on the side; and an iron knife.

43. There is admittedly no independent witness to the above recovery. Rampal Kashyap (P.W.-1) and Ravi Kumar (P.W.-2) were also present at the time of recovery. P.W.-2 has stated that memo of recovery was not signed by him but the signatures of P.W.-1, P.W.-2 and the accused-appellant were obtained on it only at the Police Station. P.W.-2 has also stated that on the spot pointed out by the accused-appellant, P.W.-2 and P.W.-1 searched for half an hour and thereafter the accused-appellant took out the bag containing knife, clothes of the deceased and a brick.

44. The manner in which the recovery is shown from the accused-appellant, is otherwise rendered doubtful in absence of any independent witness and the statement of the prosecution witness i.e. P.W.-2 himself has contradicted the recovery memo by saying that signatures of P.W.-1, P.W.-2 and the accused-appellant were obtained later at the Police Station. In the absence of any forensic report, the production of recovered articles and serious inconsistency in the statement of witnesses, we find the recovery not to be proved.

45. According to the prosecution the deceased has been murdered by the accused-appellant as she had refused to join his company and there was a fight between the deceased and the accused appellant, thereafter the dead body has been found.

46. The evidence on the aspect of motive therefore, needs to be carefully examined.

47. P.W.-1 Rampal Kashyap who happens to be the husband of younger sister of deceased, has deposed that the deceased was married to Patey, resident of Katara Chand Khan who died about 7-8 years back. Out of this wedlock, the deceased had a son, namely, Ravi Kumar (P.W.-2). Accused-appellant was the friend of Patey and used to visit the deceased house. After about one year of the death of Patey, the accused-appellant married the deceased, who started living with the accused-appellant at Katara Chand Khan along with her son Ravi Kumar (P.W.-2).

48. The relationship of deceased with the accused-appellant was not liked by the relatives of deceased and her son. This apparently was the reason for the deceased to leave the company of accused-appellant and shift to Kargaun. The statement of Ravi Kumar (P.W.-2) is relevant when he says that his mother was living willingly with the accused-appellant. He has stated that he used to hear comments from neighbor on account of living together of deceased with the accused-appellant and he felt sad. P.W.-2 has also deposed that his uncle Chhote Lal had stopped talking to him and the deceased, when they were living at Katara Chand Khan since his uncle was hurt on account of the deceased living with the accused appellant. He has also stated that he was defamed on account of living together of the deceased with the accused appellant. He has further disclosed that P.W.-1 and P.W.-3, Rampal Kashyap and Shashi Kashyap respectively were also disturbed and felt defamed and tried to persuade the deceased jointly and separately to discontinue her relationship with the accused-appellant.

49. P.W.-2 although has deposed that the accused-appellant used to beat him and his mother after consuming liquor for which a report was lodged at Police Post-Jagatpur about two years prior to the death of the deceased but the copy of complaint was not produced before the trial court. He has admitted that this fact has also not been disclosed to the Investigating Officer, earlier.

50. Evidence on record, therefore, shows two distinct versions in respect of the motive for crime. We find that the deceased was living with the accused-appellant for several years against the wishes of prosecution witnesses, i.e. P.W.-1, P.W.-2 and P.W.-3, who felt defamed on account of their living together. The prosecution witnesses have admitted their objection to the living together of the deceased with the accused appellant and making endeavors to separate them. P.W.-2 particularly felt humiliated on hearing comments against her mother on account of her living with the accused-appellant. It is, therefore, apparent that the deceased, under pressure of P.W.-1, P.W.-2 and P.W.-3, left Katara Chand Khan about a month prior to date of her murder to Kargaun. The rented accommodation was arranged by P.W.-1 close to his house. P.W.-5 was also close to P.W.-1 and his accommodation was also arranged by P.W.-1. He has supported the prosecution version by saying that the accused-appellant came twice to take the deceased but she refused to come with him. He has also claimed that the deceased was screaming when she was last seen with the accused appellant at 06:00 p.m. on 10th June, 2007.

51. From the analysis of evidence led on the aspect of the motive, it is clearly discernible that the deceased was living with the accused-appellant out of her own free will and it was the prosecution witnesses who were annoyed with their relationship. Although it is alleged that the accused-appellant used to beat her after consuming liquor but no such material in the form of any police report etc. has been produced. The deceased apparently had to shift to Kargaun only under the pressure of P.W.-1, P.W.-2 and P.W.-3 and it was not voluntary act on her part to shift to Kargaun.

52. Two eventualities could have happened. It could be the prosecution version that the accused-appellant felt bad when the deceased left his company and as she refused to join her, the accused-appellant killed her. The other eventuality could be that the deceased wanted to return to Katara Chand Khan and the family members, who were annoyed with her for the relationship with the accused-appellant, killed her so that she may not go back to the accused appellant.

53. On facts, we, therefore, find that the plea of motive has not pointed exclusively to the hypothesis of guilt against the accused-appellant but the alternative hypothesis does exist on facts, which may support the innocence of the accused-appellant.

54. On carefully evaluating all evidence existing on record, we find that chain of events pointing exclusively to the hypothesis of guilt on part of the accused-appellant is clearly not established in the facts of the case. Rather, alternative hypothesis does exist on facts to support the appellant's innocence. In such circumstances, the conviction of the accused-appellant based on the circumstantial evidence would clearly be impermissible. Contrary view taken by the trial court, while passing the impugned judgment of conviction, cannot thus be approved of.

55. We have examined the judgment and order of conviction passed by the trial court, which has merely noticed the prosecution version and thereafter has referred to various judgments to hold that the prosecution has established guilt of the accused-appellant based on circumstantial evidence. The trial court has not carefully examined the statements of the prosecution witnesses so as to evaluate the evidence in its entirety for determining whether an alternative hypothesis, other than the guilt of accused appellant exists on facts. The plea of last seen based on the statement of P.W.-5; without subjecting his statement to closer scrutiny; apparent fallacy in the recovery made on the pointing out of the accused so as to connect him with the offence; improper evaluation of motive based on evidence placed on record, clearly renders the judgment of the trial court unsustainable in the eyes of law. Even legal principles have not been correctly applied by the trial court while convicting and sentencing the accused-appellant to life imprisonment for the offence punishable under Section 302 I.P.C.

56. In view of the above discussions, we hold that the impugned judgment and order of conviction passed by the trial court cannot be legally sustained and is accordingly set aside. The accused-appellant is clearly entitled to benefit of doubt. As he has already suffered incarceration of almost 15 years since the date of his conviction, he is entitled to be released forthwith.

57. Accordingly, the present appeal stands allowed.

58. The accused-appellant shall be released on compliance of Section 437-A Cr.P.C., unless he is wanted in any other case forthwith.

59. We record our appreciation for the able assistance rendered in the case by Mr. Kumar Kartikay, learned Amicus Curiae, who would be entitled to his fee from the High Court Legal Service Authority, quantified as Rs. 15,000/-

60. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Bareilly henceforth, who shall transmit the same to the concerned Jail Superintendent for release of the accused-appellant in terms of this judgment.

                 (Shiv Shanker Prasad, J.)         (Ashwani Kumar Mishra, J.)
 
Order Date :- 9.9.2022
 
Sushil/-

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