Allahabad High Court
Ramchandra Kushwaha vs State Of U.P. on 23 May, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On: 13.4.2023 Delivered On: 23.5.2023 Court No. - 44 Case :- CRIMINAL APPEAL No. - 5502 of 2017 Appellant :- Ramchandra Kushwaha Respondent :- State of U.P. Counsel for Appellant :- Suresh Chandra Kushwaha,Ramesh Kumar Singh,Surendra Mohan Mishra Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Umesh Chandra Sharma,J.
1. Heard Sri Ramesh Kumar Singh, learned counsel for the appellant, Sri N.K. Srivastava, learned A.G.A. for the State and perused the record.
2. The present appeal has been preferred by the appellant against the judgment and order dated 07.09.2017 by which the learned Additional Sessions Judge, Kushi Nagar, has convicted and sentenced the accused-appellant for commission of an offence under Section 302 I.P.C. awarding life imprisonment and has imposed fine of Rs. 20,000/- and in default to undergo simple imprisonment for two years.
3. The investigation started after the information was received and F.I.R. was lodged at Case Crime No. 689 of 2014 in Police Station Ahirauli Bazaar, District Kushi Nagar. The police officer started the investigation and after recording the statements of the witnesses filed the charge-sheet.
4. The case was committed to the Court of Sessions and the accused pleaded not guilty.
5. So as to bring home the charge, the prosecution has examined 15 witnesses who are as under :
1Kamlesh, informant &son of the accused and the deceased P.W.1 2 Rajesh Kushwaha, son of the accused and the deceased P.W.2 3 Basant @ Chirkut, father of the accused P.W.3 4 Pramod Kushwaha, villager P.W.4 5 Santosh Maurya, brother of the deceased Asha Devi P.W.5 6 Rajawati, mother-in-law of the deceased P.W.6 7 Miklesh Kushwaha, son of the accused and the deceased P.W.7 8 Ramanand, witness of inquest of the dead body of Ku. Pooja P.W.8 9 Umesh, witness of inquest of the dead body of Kr. Pooja P.W.9 10 Pramod Kumar Rai, S.I. &I.O. of the case P.W.10 11 Ram Gopal Yadav, constable moharrir/writer P.W.11 12 Dr. Vijendra Prasad, who did autopsy of the dead body of Smt. Asha Devi P.W.12 13 Vinay Kumar Pathak, S.H.O. &subsequent I.O.
P.W.13 14 Dr. S.N. Tiwari, who did autopsy of the dead body of Km. Pooja P.W.14 15 Constable Ramtahal, who deposed secondary evidence for S.I. Ram Briksha Ram who did inquest of the dead body of Km. Pooja P.W.15
6. So as to give credence to these oral testimonies following documents were also filed by the prosecution:
1Written Report Ex.Ka.1 2 Site Plan Ex.Ka.2 3 Recovery memo Fawda Ex. Ka. 3 4 Inquest of deceased Asha Devi Ex. Ka. 4 5 Police Form 13 Ex. Ka. 5 6 Photonash, deceased Asha Devi Ex. Ka. 6 7 Corbon copy G.D. Ex. Ka.7 8 Chik F.I.R.
Ex. Ka. 8 9 Corbon copy G.D. Ex. Ka.9 10 Postmortem Report of dead body of Smt. Asha Devi Ex. Ka.10 11 Charge-sheet Ex. Ka.11 12 Postmortem Report of deceased, Km. Pooja Ex. Ka. 12 13 Inquest of deceased Km. Pooja Ex. Ka. 13 14 Police Form 33 Ex. Ka. 14 15 Police Paper Ex. Ka. 15 16 Photonash Km. Pooja Ex. Ka. 16 F.S.L. Report paper no. 45/Ka-1 has not been exhibited by the trial Court under Section 293 Cr.P.C.
7. Learned counsel for the appellant has heavily relied on the following judgments of the Apex Court:
(a) Jayamma & Anr : Lachma s/o Chandyanaika & Anr Vs. State of Karnataka, 2021 LawSuit (SC) 312.
(b) Mahavir Singh Vs. State of Madhya Pradesh, 2016 Law Suit (SC) 1071.
(c) Machindra Vs. Sajjan Gaplha Rankhamb & Ors, 2017 LawSuit (SC) 422.
(d) State of Haryana Vs. Bhagirath, 1999 LawSuit (SC) 617.
8. So as to contend that the accused has been wrongly convicted, all the witnesses of fact have not supported the prosecution case. The evidence of Suresh has also not been recorded. Only on the basis of the evidence of the doctor which is not even corroborated, the accused has been punished invoking Section 106 of The Evidence Act.
9. It is further contended that there were miscreants who had attacked the house and this defence of the accused under Section 313 Cr.P.C. has not been considered.
10. It is submitted by learned counsel for the appellant that the alleged incident took place on 25.4.2014 where accused-appellant has killed his wife and daughter with Fawda, however, the accused was challaned on 26.4.2014 and before being challaned he was medically examined wherein five injuries were found which make the story of the prosecution doubtful.
11. It is further submitted that the prosecution story does not support the evidence on record as on the point of time all the witnesses have turned hostile except the formal witnesses. In the present case there were 9 public witnesses and all of them have falsified the prosecution story but relying on statements recorded under Section 161 Cr.P.C., the accused-appellant has wrongly been convicted.
12. It is further submitted that the injuries do not match that of weapon recovered. The signatures of the informant was procured by the police is also not proved by the prosecution. It is submitted that the accused has been wrongly convicted by the learned Judge and the accused-appellant is entitled for being acquitted.
13. Before dealing with the evidences, let us consider the deposition of the prosecution witnesses:
(a) P.W.-1, Kamlesh, son of the accused and the deceased, has deposed that at the time of alleged incident, he had gone to Sukrauli Bazar for purchasing medicines and fertilizer. His father (accused) repairs cycle in Ahirauli Bazar. He had signed Ex. Ka-1 and several other plain papers on being told by the S.I. and the Inspector scared him for signing the same. He also threatened that if he did not sign, he will put his father in jail for years. After getting the signatures the inspector sent him home and told him that his father will go home later. Next day he came to know that his sister Pooja had died in Medical College Gorakhpur. This witness also recognized the signature at the recovery memo of fawda. He further deposed that when they were not present at home, some miscreants had beaten and killed his mother and sister but his statement was not recorded by the police when he went to the police station next day, he was not inquired about the place of incident.
This witness was declared hostile. In cross-examination by the prosecution, this witness denied recovery of blood stained fawda before him on 25.4.2014 and also preparation of recovery memo thereof and deposed that when he had signed, it was a blank paper. His signature was taken on the pretext of government help. He refused moving the application to S.P. He further deposed that he had signed this paper on the request of the villagers. This witness also denied the statement recorded by the I.O. He denied his presence at the place and time of the occurrence.
In cross-examination by defence, this witness denied prosecution story and deposed that from the villagers, he came to know that three miscreants came to his house, molested his sister and killed his mother. On the scream of his mother and sister, when villagers reached, the miscreants had fled away. When his father was coming to home from Ahrauli Bazar at about 4:30 P.M. after getting down from the Bus at Ahrauli, police took him alongwith him to the police station. As per the dictation of the police he wrote the tehrir, on refusal threatened to implicate him in the case of murder. His father was neither arrested from the house nor any murder took place before them. This witness denied any fight between her father, mother and sister. This witness has not supported the prosecution story.
(b) P.W.-2, Rajesh Kushwaha, brother of P.W.1 and son of the accused and deceased, has deposed that at the time of alleged occurrence, he was in fields with his grand father and brother Mithilesh. His father had gone to Pipraich to buy goods for his shop. Brother Kamlesh had gone to Sukrauli. His sister and mother were alone at the home. On the information that his mother and sister were killed by the miscreants, they went towards house where they found mother Asha Devi in a pool of blood and sister Pooja was taken by the villagers for treatment. After sometime his father, Ramachandra, returned from Pipraich. Police men alonwith the Inspector came to home. For initiation of legal recourse, police took signatures of his brother and father on some plain papers. In the evening, he came to know that his sister has also died during treatment in the medical college. Police took his elder brother and father to the police station but only his brother returned, his father was stopped there, he was expected to come in the morning. This witness denied the recovery of fawda before him and deposed that when he had signed the recovery memo, it was a plain paper.
This witness was also declared hostile and was cross-examined by the prosecution wherein he did not support the prosecution version. In cross-examination by defence, the witness deposed the similar story as P.W.-1.
(c) P.W.-3, Basant @ Chirkut, father of the accused-appellant has deposed that when all the persons except deceased Asha Devi and Pooja were out of home, some miscreants entered the house, killed Asha Devi and also injured Pooja who died in medical college due to injuries inflicted by the miscreants. He reached home from the field and found many people and policemen on the spot. Policemen got his signature on some plain papers. This witness denied the statement recorded by the I.O. under Section 161 Cr.P.C.
This witness was declared hostile and was cross-examined by prosecution in which he also did not support the prosecution version.
In cross-examination by defence, the witness has given the similar statement as P.Ws.1 & 2.
(d) P.W.-4, Pramod Kushwaha, has deposed that on the date of occurrence, he was coming home from Ludhiyana, there was a crowd near the school. He came to know that some miscreants have killed Asha Devi and have injured her daughter Pooja. The inspector called him and got his and other persons' signature on plain papers. This witness has proved his signature on inquest but denied that he was interrogated by the I.O. This witness was also declared hostile and was cross-examined by prosecution but he did not support the prosecution. In cross-examination by defence, the witness has reiterated the deposition of the examination-in-chief.
(e) P.W.-5, Santosh Maurya, brother of the deceased Asha Devi and maternal uncle of Pooja, has deposed that some miscreants entered the house and killed his sister and badly beaten his niece due to which she died during treatment. The police instead of arresting the real miscreants had arrested his brother-in-law Ramchandra (accused-appellant). The police neither enquired nor recorded his statement. The witness recognized his signature on affidavit. This witness was also declared hostile and was cross-examined by prosecution but in vain. In cross-examination by defence, the witness has reiterated the deposition of the examination-in-chief.
(f) P.W.-6, Rajawati, wife of Basantlal, has deposed that on the date of alleged occurrence some miscreants entered the house of his neighbour Ramchandra and killed his wife and injured his daughter Pooja who died in the medical college. When she came to village she was told that at the time of incident Ramchandra was at his shop and sons were also not present at home meanwhile the miscreants barged into and killed Asha Devi and thrashed Pooja. The witness refused that any statement was recorded by the I.O. This witness was also declared hostile and was cross-examined by prosecution but she did not support the prosecution. In cross-examination by defence, the witness has reiterated the deposition of the examination-in-chief.
(g) P.W.7, Miklesh Kushwaha, a minor witness was firstly declared to be competent witness and, thereafter, he was examined. This witness also deposed in the same manner that at about 4:00 p.m. he came to know about the incident when he was in the field with his brothers Rajesh, Kamlesh and grandfather Basant @ Chirkut. When he reached home he came to know that the sister has been taken to Gorakhpur for treatment and dead body was taken to police station. The inspector made his brother Kamlesh sit at the police station and locked his father in the lock up. They cried a lot but the police did not release his father. When they came to house, he came to know that Pooja had died during the treatment due to the injuries inflicted by the miscreants. The witness denied that he was interrogated by the police/inspector.
This witness was also declared hostile and was cross-examined by prosecution but he did not support the prosecution. In cross-examination by defence, the witness has reiterated the deposition of the examination-in-chief.
(h) P.W.-8, Ramanand, a witness of inquest of deceased Pooja, has deposed that no panchayatnama of the dead body was conducted before him. This witness was also declared hostile and was cross-examined by prosecution but he did not support the prosecution.
(i) P.W.-9, Umesh, a witness of the inquest of deceased Pooja has recognized his signature on the inquest but deposed that no such panchayatnama was conducted before him and the I.O. had not recorded his statement. This witness was also declared hostile and was cross-examined by prosecution but he did not support the prosecution.
(j) P.W.10, S.I. Pramod Kumar, I.O. of the case, has deposed that the investigation was entrusted to him. After lodging the F.I.R., he copied the written complaint, chik F.I.R. and recorded statement of the informant Kamlesh Kushwaha and prepared site plan on his pointing, recorded the statements of eyewitness Rajesh Kushwaha and accused Ramchandar. This witness has proved the spot map (Ex. Ka-2) and recovery memo ( Ex. Ka-3) alongwith other papers annexed (Ex. Ka-5 to Ex. Ka-7) with the inquest of deceased Asha Devi (Ex. Ka-4). This witness has also proved the fawda as M. Ex.-1, cloths of the deceased Asha Devi as M. Exs. 2 to 4 and blood stained and simple soil as M. Exs.- 5 to 6. This witness has deposed that the accused was arrested after the inquest. Later on he deposed that the family members and neighbors had caught the deceased when he was trying to run away after jumping from the roof.
This witness has further deposed that the fawda used in commission of crime was recovered on the pointing out of the accused but no witness of recovery has been averred in case-diary. There is no signature of the accused on it. It is signed merely by the witness and by him. No finger print were taken from the fawda of the accused. This witness did not care as to whether there were blood spot on the wearing apparels of the accused or not. He could not say on which matter, dispute arose between the accused, his wife and their daughter. The accused had not stated that he had killed the deceased from the recovered fawda but had stated that he had killed the deceased from fawda. This witness denied that when the accused had gone to police station to inform about the killing of his wife and daughter, he was arrested by the police. He has further denied that at the time of inquest and when the dead body was sent for post-mortem, the F.I.R. was not registered. This witness accepted that he had not sent the fawda and clothes etc. of the deceased to F.S.L. but it was sent by H.C. Shyama Yadav. He admitted that there was no mention of blood on the clothes of the deceased in the panchayatnama.
(k) P.W.-11, Ram Gopal Yadav, constable muharrir at police station Ahirauli, has proved preparation of chik F.I.R. (Ex. Ka-8) and proved carbon copy G.D. (Ex. Ka-9)
(l) P.W.-12, Dr. Vijendra Prasad, had conducted the post-mortem of the dead body of deceased Asha Devi at 2:45 P.M. on 26.4.2014. This witness found following injuries on dead body of the deceased Asha Devi:
i. Contusion with swelling 10.00 x 8.00 cm over right side face including right orbit. ii. Contusion with swelling 6.00 x 5.00 cm over right side forehead just above right eyebrow. iii. Lacerated wound 6.00x1.5.00 cm x bone deep over right side back of neck. iv. Incised wound 3.00 x 1.00 cm x bone deep over left infra clavicular region. v. Lacerated wound 5.00 x 1.00 cm x cavity deep over left side of neck at level of hyoid bone. vi. Abrasion with contusion with swelling 7.00 x 6.00 cm over left side neck. vii. Contusion with swelling 5.00 x 4.00 cm over post aspect of the right forearm underline fracture of the right radio ulna at the lower end. In the Internal Examination this witness found fracture of the frontal bone at the right side, cut blood vessels and hyoid bone. In the opinion of this witness the cause of death was hemorrhage and shock as a result of antimortem injury. The witness opined that injuries might have been caused by hard object and sharp weapon. The injuries had been occurred by sharp edged fawda and blunt object.
(m) P.W. -13, Vinay Kumar Pathak, Station Officer, was the subsequent I.O. of the case, he has also recorded the statement of witness Chirkut, Rajwati. He had also copied inquest report and post-mortem report of the deceased Pooja. He recorded the statements of Chandrabhan Yadav, Ram Narain Singh, Anil Sharma, Awdhesh Yadav and Manoj Gupta. This witness has submitted charge-sheet Ex. Ka-11.
(n) P.W.-14, Dr. S.N.Tiwari, District Hospital, Gorakhpur, who had conducted autopsy of deceased Km. Pooja daughter of the accused on 26.4.2014 at 4:10 P.M. and found following injuries;
(i) multiple horizontal linear abrasion in an area of 14.00 x 4.00 cm contused swelling over the past part of chest.
(ii) Contusion swelling present on chest on cutting skin underneath haematoma with ribs fracture underneath heart and lung rapture apart one litre blood present in thoracic cavity.
(iii) Stitched wound (1) over chin on udnerlying haematoma present in size of 7.00 x 1.00 cm.
In the opinion of this witness the deceased had died due to shock and as a result of antimortem injury.
(o) P.W.15, Constable Ramtahal, has deposed that in his presence, the then S.I. Ramvriksha Raj, had conducted the panchayatnama (Ex. Ka-13) of the dead body of the deceased Pooja. The dead body was sealed and given in his custody along with homeguard Ram Pratap. This witness has produced secondary evidence regarding paper no. 13 Ka and paper no. 33, photonash and challan nash. The papers annexed with the inquest report have been proved by this witness as Ex. Ka-13 to Ka-16.
14. After closure of the prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C. in which he denied the allegations of the prosecution and has stated that formal witnesses have given false statement. In addition to that he has stated that at the time of occurrence he was not at home, he had gone to his shop in the morning at 8:00 A.M. wherefrom he had gone to Pipraich to buy the goods. When he returned to Ahirauli, he was illegally arrested and beaten by the police.
15. From the above evidence it is very much clear that all the witnesses of fact have turned hostile and have not supported the prosecution version. According to prosecution some dispute arose between the accused and deceased Asha Devi and when the accused started beating Asha Devi, their daughter Pooja intervened and tried to save her mother, the accused in a fit of anger also assaulted Pooja by which she died during the course of treatment in medical college, Gorakhpur.
16. Further from the perusal of the impugned judgment, it transpires that the Sessions Judge has simply based his judgment of conviction and sentencing upon Section 106 of the Indian Evidence Act. Relying on the judgment of 'Ramesh Bhai and Others Vs. State of Rajsthan 2009 (Supplementary) ACC 860 (SC), the trial Court has concluded that it is a case of circumstantial evidence (in absence of any intact direct evidence). The trial Court has firstly dealt with the motive. The motive alleged in the F.I.R. has not been affirmed and proved by the informant or other witnesses. It is nowhere established that at the time of the incident, the accused was at home. All the witnesses alongwith accused have deposed and stated that the accused had a cycle shop in Ahirauli Bazar and on the fateful day he left the house at 8:00 A.M. and went to buy good in Pipraich Bazar wherefrom when he returned to Ahirauli Bazar at about 4:30 P.M., he came to know that his wife has been killed and his daughter was badly injured by some miscreants and when he reached the police station, he was detained and next day he was arrested and a fawda was planted as weapon used in commission of crime and a forged recovery was shown. There is no evidence that whether there was any scuffle between the accused and the deceased. According to prosecution version except deceased Asha Devi and Pooja none else was present at home. Rest of the family members were somewhere else. So far as the writing of the F.I.R. and recovery memo are concerned, the prosecution witnesses have deposed that on several plain papers their signatures were obtained by the police and police was in haste to open and conclude the case finally that is why they did not try to search and know the real miscreants.
17. Since the witnesses have turned hostile and there is no iota of evidence to take in support of the prosecution version, hence, it remains a case based on circumstantial evidence for which generally motive, last-seen, extra-judicial confession and recovery are considered and if the occurrence had taken place inside the house, in appropriate cases Section 106 of the Evidence Act can be invoked.
In para 11 of Shivaji Chintappa Patil Vs. State of Maharashtra, 2021 0 Supreme (SC) 121, principles have been laid down regarding the cases based on circumstantial evidence;
"11. The law with regard to conviction on the basis of circumstantial evidence has been very well crystalised in the 5 (2010) 9 SCC 189 6 (2019) 19 SCC 447 7 (2006) 12 SCC 254 judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra8 :-
"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 v. State of Maharashtra (1973) 2 SCC 793 where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] "19. .....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. "
18. Motive: In this case so far as the motive is concerned, it is not established that there was any motive to the accused to cause death of the deceased and to injure his daughter. It could not be known that there was any motive. The wife and husband were passing their matrimonial life peacefully and out of their wedlock three siblings were born out and all were living happily in the joint family. There is no evidence that any altercation had taken place prior to this incident between the husband and the wife.
In Bhaskar Rao and Others Vs. State of Maharashtra, (2018) 6 SCC 591, Ujjagar Singh Vs. State of Punjab, (2007) 13 SCC 90, it has been held that the motive has significance in cases based on circumstantial evidence.
In Shivaji Chintappa Patil Vs. State of Maharashtra, 2021 0 Supreme (SC) 121, it has been held that in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances. If motive could not be proved the chain of circumstances would not be said to be completed.
In cases based on direct evidence motive does not have much significance, but in the cases based on circumstantial evidence motive becomes significant and of much consequence. The legal propositions were stated in Nagraj vs. State, (2015) 4 SCC 739, Wakkar Vs. State of U.P., 2011 (2) ALJ 452 SC and Nathuni Yadav Vs. State of Bihar, (1998) 9 SCC 238.
Thus, on the basis of above discussion this Court is of the view that the prosecution has failed in establishing and proving the motive against the appellant.
19. Last-seen: So far as the last seen is concerned, none of the witnesses have deposed that at the time of occurrence, the deceased was accompanied by the accused. Certainly in the F.I.R., it has been averred that during the course of heated argument with the deceased, the accused started assaulting her by fawda and when daughter Km. Pooja tried to save the life of her mother, she was also assaulted but this fact has not been proved by either of the witness. Kamlesh, informant, P.W.-1, has deposed that he had signed Ex. Ka-1 and several other papers on being pressurized by the S.I. and the Inspector scared him to sign the same.
The dying declaration of Km. Pooja could not be recorded and she died during course of treatment at medical college, Gorakhpur. All the witnesses of fact have deposed that on the fateful day in the morning at about 8:00 A.M., the accused had left the house and had gone to Pipraich to buy goods for his shop at Ahirauli and when he returned there at about 4:00 P.M., he learnt about the incident occurred at his home and when he approached police, he was detained and next day he was booked as an accused. In absence of any reliable and cogent evidence that at the time of commission of crime the accused was at his home and during his stay at home, the deceased Asha Devi was killed and Km. Pooja was badly injured, it can not be concluded that there is any last-seen evidence against the accused-appellant. It is noteworthy that even P.W.5, Santosh Maurya, brother of the deceased Asha Devi, has not supported the prosecution version and has deposed that some miscreants entered the house and killed his sister and injured his niece badly. The police instead of arresting the real miscreants arrested his brother-in-law.
In Kulwinder Singh Vs. State of Punjab, AIR 2007 SC 2868, it has been held that there must be proximity of time and place. In this case it is lacking.
In Ganpat Singh Vs. State of M.P., (2018) 2 SCC (Cri) 159, it has been observed, it would be difficult in some cases to positively establish that the deceased was lastly seen with the accused when there is a long gap and possibility of other persons coming in between exists. In absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in such cases.
In State of Karnataka Vs. M.V. Mahesh, (2003) 3 SCC 353, it has been held that merely being last seen together is not enough to establish and indicate that the deceased had been done to death.
20. Extra-judicial confession: In this case there is no such extra-judicial confession and confession before police is barred by Section 25 of the Evidence Act.
21. Recovery: According to prosecution on the pointing of the accused fawda had been recovered which was used by the accused in commission of the alleged crime. It is noteworthy that except injury no. 4 rest of the injuries had been caused by blunt object and had not been occurred from fawda, if it is used in its normal course. Certainly if the back part of the fawda is used, the above injury may occur which is not the case of the prosecution that fawda was used from the back side as blunt object. As per the F.S.L. report there was human blood on saree and fawda but blood group could not be established. As per Ex. Ka-3, the plain fawda was recovered from the room at the roof but it was not recovered on the pointing of the accused. The witnesses Vinod Kumar and Kamlesh have denied that such fawda was recovered before them. They have deposed that their signature had been obtained on plain paper which might have been used in favor of the prosecution later on as recovery memo of fawda.
In G.L.Mangraju @ Ramesh Vs. State of A.P., AIR 2001 SC 2677, it has been held that in a case based on circumstantial evidence one circumstance by itself may not unerringly point to the guilt of the accused. It is the cumulative result of all circumstances, which could matter. Hence, it is not proper for the Court to cull out one circumstance from the rest for the purpose of giving a different meaning to it.
When the alleged fawda was not recovered on the pointing out of the accused and when blood group could not be established that the sharp edged part of the weapon was containing the blood group of the deceased, it can not be concluded that the alleged fawda was used in commission of crime by the accused-appellant.
22. About Section 106 of the Evidence Act;
Learned trial Court has solely based his judgment upon Section 106 of the Evidence Act, hence, it would be appropriate to quote the same which is as under;
"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. Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
The evidence of the witnesses has been discussed. All the witnesses have deposed that at the time of alleged incident, accused-appellant had gone to Pipraich Bazar for purchasing goods, the deceased were alone in the house with her daughter Km. Pooja. There was separate house of the accused and the deceased persons. All the witnesses were out of the house and were busy in their work. Even P.W.5, Santosh Maurya, brother of the deceased Asha Devi who was also maternal uncle of Km. Pooja has admitted the same story that some miscreants entered the house, killed his sister and injured his niece badly due to which she also died during the treatment. He is also of the firm view that his brother-in-law accused-appellant Ramchandra had not committed the alleged offence. None of the prosecution witness has supported the prosecution story. Thus it is proved that the trial Judge has wrongly concluded that at the time of incident the deceased was in the company of the accused at the house and in the presence of the accused the deceased had been killed. According to this Court there is no such evidence that the accused was not having a cycle shop in Ahirauli Bazar and in the day hours he used to live in the house leaving his shop and soon before the killing or at or after the incident, the accused was there.
In Raju Vs. State, AIR 2009 SC 2171, it has been held that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompitable with the innocence of the accused or the guilt of any other person.
In Vithal E Adlinge Vs. State of Maharshtra, AIR 2009 SC 2067, it has been held that onus is on the prosecution to prove that the chain is complete and false defence or plea can not cure the infirmity or lacuna in the prosecution case. If the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted.
In Krishna Ghose Vs. State of W.B., AIR 2009 SC 2279, it has been held that the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
In Dev Kanya Tiwari Vs. State of U.P., (2018) 5 SCC 734, it has been held that when there is no eye witness to the incident and the case is entirely based upon circumstantial evidence, then court is expected to be more careful while analyzing the evidence and convicting the accused. In other words, in all probabilities chain of circumstances should lead to irresistible conclusion that accused participated in commission of crime and committed the offence.
The learned trial Judge has relied on the following citations:
(a) Rajesh Praksh Bhatnagar Vs. State (Delhi) (1985) 28 Del Lt 357; in this case the occurrence had taken place in the night when the deceased wife, husband and two little children were inside the room and there was no chance of intervention by third party. The spouses were last seen together; in the morning dead body found on the road in such circumstances it was held that guilt of the accused was held.
In this case the occurrence took place in day light and none of the witnesses has deposed that at the time of the alleged occurrence, accused was at home. All the witnesses of fact have deposed that the accused had gone to Pipraich Bazar for buying goods for his cycle shop at Ahirauli Bazar. Hence, there being difference in facts of both the cases, the cited case can not be applied to this case.
(b) Prabhakar Vs. State of Maharashtra AIR 1982 SC 1217; in this the victim had died by asphyxia at the time of death only the accused was present with the victim. Victim tried to commit suicide by poisoning and it was held that the circumstantial evidence were enough to sustain conviction.
In this case it has not been established that at the time of commission of crime, the accused was in the company of the deceased, hence, the principles laid down in the cited case can not be applied in the present case.
(c) State of J&K Vs. Vijay Kumar and Others, AIR, 2017, Supreme Court 1507; in this case there was allegation that accused-husband had committed murder of his wife. The dead body recovered from nallah near house of the accused. Torture marks including burns marks were found on the dead body. Medical evidence established homicidal death. It was also established from the evidence that soon before the death, the deceased was living with husband, therefore, Apex Court concluded that in such circumstances burden lies on husband under Section 106 of the Evidence Act to explain the circumstances in which the deceased had died and her dead body was found near nallah. Since the involvement of the accused husband was proved in commission of crime, hence, accused was convicted under Section 302 I.P.C. and sentenced to life imprisonment.
In the present case it has not been established that soon before the death of the victim and the daughter, the accused was present in the house. All the witnesses have deposed that the accused had left his house at 8:00 A.M. as he had gone to his shop at Ahirauli Bazar and Pipraich for buying goods. In absence of reliable and cogent evidence that at the time of occurrence, the accused was at his home with the deceased and Pooja, no burden under Section 106 of the Evidence Act would lie upon the accused-appellant.
23. Fault of the trial Judge, Sri Vinay Kumar (presently posted as District and Sessions Judge, Etawah).
It is very much clear from para 21 of the judgment that the trial Judge has merely transcribed the head notes of the rulings, without going through it, he has copied the head notes of the rulings only. Citing the judgments in such a manner is showing casual approach of the trial Judge. Even he did not care to correct the spellings as 'Burder' in place of 'Burden' and 'onh' in place of 'on' have been transcribed. In para 22 of the judgment 'पोस्टमार्टम' has been written as 'पोस्मार्टम'. About injuries 'just' has been written as 'rust', 'bone deep' as 'bonedip', 'back' as 'beack', 'infra clavicular' as 'intra cla', 'region' as 'rigion', 'lacerated' as 'lacrtad', 'level' as 'loved', 'hyoid' as 'hiyod', 'abrasion' as 'abrrassion', 'swelling' as 'swiling', 'neck' as 'neack', 'aspect' as 'aspeed', 'forearm' as 'fore srm', 'underline' as 'induring' , 'ulna' as 'albon' and 'end' has not been written, 'fracture' as 'facture', 'frontal bone' as 'frontbone', 'lungs' as 'lunges', 'congested' as 'congusted', 'faecal matters' as 'fecal mater', 'gases' as 'gase', 'haemorrhage' as 'hamingri', 'antimortem injury' as 'antimortam injuri'. At page 4 of the judgment 'उसने दरख्वास्त लिखा' has been written as 'उसे दरखास्त लिख' . 'दस्तखत' has been written as 'दस्ताखत'. In para 24 & 25 of the judgment several writing mistakes have been committed such as 'thoracic cavity' has been written as 'korecil cabity', on three other places 'पोस्टमार्टम' has been written as 'पोस्टामर्टम', 'उपनिरीक्षक' as 'उपनिरीखक', ' पंचायतनामा as 'पंचायतामा नकी', on two places 'हस्तलेख' has been written as ' हस्तलखे'. In para 28 'दरख्वास्त' has been written as 'दरखास्ते'. Similar writing mistakes have been committed in para 33 & 34 of the judgment. So many other clerical mistakes have been committed by the trial Judge which shows that either he does not know to write the basic Hindi, English and judicial precedents or he has very casual approach regarding the judicial work.
Hence an instruction has to be sent to the trial Judges to remain cautious in future while writing the judgment and referring the citations.
24. The trial Court has also discussed the plea of alibi that mere assertion of plea of alibi, it can not be said to be proved. However, as per this Court when from the evidence on record it would be established beyond reasonable doubt that the accused has committed the crime and he was present on the spot at the alleged time of commission of crime only then an explanation can be sought from the accused-appellant regarding his liability. When none of the witnesses deposed that accused-appellant was present on the place of occurrence as alleged by the prosecution, why the burden of proving the alibi would be upon the accused. When from the evidence of all the eyewitnesses of fact, it has been established that the appellant had left his house as usual at 8:00 A.M. Mere disproved assertion in the F.I.R. is not enough to conclude that the version of the prosecution is true, correct and final. The F.I.R. is merely an instrument to accelerate the police machinery, it is not substantive piece of evidence which can be used only to contradict the author under Section 145 of the Indian Evidence Act. There is also allegation by the informant and other witnesses that their signatures were obtained on the plain papers which were later on used by the I.O. as per the convenience.
25. On the basis of above discussion, this Court is of the view that if it is accepted that is a case of direct evidence, since the witnesses have not supported the prosecution version and there is cross-version from the side of accused-appellant that some miscreants had committed the crime in absence of the family members, it can not be concluded that the prosecution has been successful in proving the case beyond reasonable doubt. If after ousting the oral testimonies which are not in support of the prosecution, it is concluded that it was a case of circumstantial evidence, in that case the mandatory elements such as motive, last-seen, extra-judicial confession and recovery have not been proved beyond reasonable doubt against the accused-appellant. Since there is no iota of evidence that at the time of alleged occurrence, the accused was at home, hence, no burden under Section 106 of the Evidence Act, would be upon the accused-appellant.
26. Thus, from all the four corners, this Court is of the view that the prosecution has failed miserably in proving the guilt beyond reasonable doubt against the accused-appellant. The trial Court has also failed in appreciating the evidence and law and has wrongly applied the law and has come up to the wrong conclusion and has convicted and sentenced the accused-appellant without any basis.
27. Accordingly, this appeal succeeds and the impugned judgment and order of conviction and sentencing dated 7.9.2017 is liable to be set aside.
Order
28. The appeal is allowed and the order and judgment of conviction and sentencing dated 7.9.2017 is hereby set aside. The accused-appellant, Ramchandra, is acquitted of the charge under Section 302 I.P.C. levelled against him. The appellant be set free forthwith if not warranted in any other offence.
29. We request Registrar General of this Court to place this judgment before Hon'ble The Chief Justice to circulate our concern in para 23 to concerned Judge and to trial Judges to be more careful in future while referring to medical reports and authoritative pronouncements.
30. Records of the case along with copy of this judgment be sent back to the Trial Court forthwith for consignment.
Order Date :- 23.05.2023
S.Verma
{Umesh Chandra Sharma,J} {Dr. Kaushal Jayendra Thaker,J}