Chatra Pal vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Ram Pratap Singh, learned amicus curiae appearing on behalf of the appellant and Ms. Ruhi Siddiqui, learned A.G.A. were heard and lower court record was also perused.

Under challenge in this appeal is the judgment and order dated 19.01.2007 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Hardoi in Sessions Trial No. 87 of 2006, arising out of Case Crime No. 472 of 2005, Police Station Madhoganj, District Hardoi whereby present appellant Chatra Pal was convicted for the offence under Section 302 I.P.C. And was sentenced with imprisonment for life and also with fine of Rs. 5,000/- with default stipulation of three months additional simple imprisonment and was also convicted under Section 377 I.P.C. and was sentenced with rigorous imprisonment for a period of ten years and also with fine of Rs. 2,000/- with default stipulation of two months additional simple imprisonment and was also convicted under Section 201 I.P.C. and was sentenced with five years rigorous imprisonment and also with fine of Rs. 1,000/- with default stipulation of one month additional simple imprisonment. All the sentences were directed to run concurrently.

In brief, the case of the prosecution, as disclosed in the F.I.R., was as under:-

On 9.10.2005, son of the complainant named Amrendra Kumar aged about nine years had gone to attend Bhagwat Katha, which was going on the temple of the village. Appellant Chatra Pal had also gone to the temple. From the temple, appellant on the pretext of providing him toffee, brought him to the shop of Barai and from there, he purchased toffee and thereafter he along with son of the complainant went in the western direction towards Sindhi Bhatta. He was seen in the company of the deceased by Kamlesh Yadav, Itwari Yadav at about 10:00 p.m. Appellant Chatra Pal committed unnatural offence with the deceased near the brick kiln due to which Amrendra Kumar (deceased) become unconscious and died. The appellant threw his dead body in a pond. After conclusion of the Bhagwat Katha when son of the complainant Amrendra Kumar did not come back then his search was made. When these persons during the course of search went in the morning near Sindhi Bhatta along with Jograj, Vidya Sagar, Raju, Indra Pal, Mool Narain and Ashok Kumar then they found that dead body of his son was lying in the pond. Thereafter F.I.R. was lodged. On the basis of this information, the case was registered and investigation proceeded. The inquest proceedings were conducted and the dead body was sealed. After completing the necessary formalities, the dead body was sent for postmortem, which was conducted at District Hospital, Hardoi on 10.10.2005 at 4:00 p.m. According to the postmortem report, the duration was about one day and following ante mortem injuries were reported on the body of the deceased:-

(i) Abraded contusion 5 c.m. X 2 c.m. present on the forehead reaching upto bridge of nose. Underlying frontal and nasal bone found fractured.

(ii) Abrasion 3 c.m. x 1 c.m. on right side face.

(iii) Abrasion 2 c.m. x 1 c.m. on chin

(iv) Abrasion 3.5 c.m. x 1 c.m. in front of neck.

(v) Lacerated wound 2 c.m. x 0.5 c.m. x muscle deep present on anus. Clotted blood present.

(vi) Abrasion 1.5 c.m. x 1 c.m. Middle of right buttock.

In the opinion of the doctor, the cause of death was comma as a result of ante mortem injuries.

During course of investigation, the clothes of the deceased were recovered by the Investigating Officer on 10.10.2005 on the pointing out of appellant Chatra Pal from the field of Natthu. The clothes of the deceased were taken into custody and its memo was prepared and the place of occurrence was investigated. Initially the case was registered under Section 377, 304 and 201 I.P.C. but after investigation, charge sheet was filed under Sections 377, 302 and 201 I.P.C. as the cause of death was head injury with fracture of underlying bones.

The case of the defence was of total and his false implication because of enmity.

In order to prove its case, the prosecution has examined PW-1 Chet Ram, complainant of this case and father of the deceased, PW-2 Nanhe Lal, PW-3 Itwari Yadav, as witnesses of the fact. PW-4 Head Constable Lal Bihari, who has prepared chik report and G.D. of this case. PW-5 Dr. S.P. Mishra, who had conducted the postmortem on the body of the deceased. PW-6 Ved Ram and PW-7 Jog Raj are also the witnesses of fact. PW-8 S.S.I. Narendra Dev Pathak, who is subsequent Investigation of this case, who took up investigation from 19.11.2005 and filed charge sheet against the appellant. PW-9 S.I. Ram Chandra Chaudhary, the initial Investigation Officer of this case.

No evidence in defence was adduced on behalf of the appellant.

After appreciating the evidence available on record, the trial court has convicted the appellant as above, hence the instant criminal appeal.

Submission of learned counsel for the appellant was that in this case there is no direct evidence and the prosecution has proposed to prove its case only on the basis of the circumstantial evidence and the chain of circumstances was not complete and the trial court has committed illegality in convicting the appellant.

Learned A.G.A. has submitted that there was voluminous evidence against the appellant to connect him with the present offence. The appellant was seen at the Bhagwat with the deceased. He went along with the deceased and went to the shop and purchased toffee. This fact has also been proved by the witnesses. Thereafter he was seen in the company of deceased going towards Sindhi Bhatta and the dead body was recovered from a place near Sindhi Bhatta. The allegation of unnatural offence and the murder of the deceased stands established by the medical evidence and the subsequent recovery of the clothes of the deceased on his pointing out further makes the case of the prosecution unshakable. So the trial court has not committed any illegality in convicting the appellant and the appeal has no force and the judgment of the trial court is well reasoned and needs no interference.

It is a case of circumstantial evidence, therefore, before proceeding further, we would like to discuss the law on the point as to what are the standards, prescribed under law, for recording a conviction in a case based on circumstantial evidence. Hon''ble the Apex Court in the case of S.K. Yusuf v. State of West Bengal reported in , AIR 2011 SC 2283 in para 26 has held as under:

"Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. 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."

Hon''ble the Apex Court in the aforesaid case has followed its earlier pronouncements in the following cases:

"Sharad Birdhichand Sarda v. State of Maharashtra , AIR 1984 SC 1622, Krishnan v. State represented by Inspector of Police , (2008) 15 SCC 430 and Wakkar and another v. State of Uttar Pradesh , (2011) 3 SCC 306."

In the case of Haresh Mohandas Rajput v. State of Maharashtra , 2011 (12) SCC 56, Hon''ble Apex Court following its earlier decision in the case of Krishnan v. State represented by Inspector of Police , (2008) 15 SCC 430 observed that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

Though a conviction may be based solely on circumstantial evidence, however, the Court must bear in mind the aforesaid tests while deciding a case involving the commission of a serious offence in a gruesome manner.

Hon''ble the Apex Court in the case of Manthuri Laxmi Narsaiah Vs. State of A.P. reported in , (2011) 14 SCC 117 has held in paragraph No. 6 as under:-

"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."

Likewise in the case of Mustkeem Vs. State of Rajasthan reported in , (2011) 11 SCC 724 Hon''ble the Apex Court in paragraph No. 24 has held as under:-

"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda Vs. State of Maharashtra , (1984) 4 SCC 116 in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p. 185)

The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established;

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;

the circumstances should be of a conclusive nature and tendency;

they should exclude every possible hypothesis except the one to be proved; and

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."

The aforementioned judgments have been followed in a recent judgment in the case of Sangili alias Sanganathan Vs. State of Tamilnadu reported in , (2014) 10 SCC 264.

Keeping in view the aforementioned legal position, we will have to consider first the circumstances on which the prosecution has placed reliance and which have been proposed to be proved as incriminating circumstances against the present appellant. The said circumstances may be summarized as under:-

(i) The deceased was last seen in the company of appellant in Bhagwat.

(ii) The appellant went with him to purchase toffee from the shop of PW-6 Ved Ram.

(iii) The appellant went at about 10:00 p.m. towards Sindhi Bhatta along with the deceased.

(iv) Recovery of the dead body on the pointing out of the appellant in the presence of the villagers.

(v) Recovery of the clothes of the deceased on the pointing out of the appellant.

In the instant case, the dead body of the deceased was recovered from a water pond in a naked position. Only one black thread was found on his body and subsequently his clothes are alleged to have been recovered by the police on the pointing out of the appellant. So we will take up each circumstance separately to see whether the prosecution has proved each circumstance with reliable evidence or not.

First circumstance:

The deceased was last seen in the company of appellant in Bhagwat. On this point, PW-1 complainant Chet Ram, who happens to be father of the deceased, has stated that he had seen the deceased at Bhagwat. In his cross-examination he has stated that he had seen the appellant going with his son. However, it is not clear from his evidence that at what time, he had seen the deceased going in the company of the appellant. But his evidence is mainly on the point that he had seen the deceased in the company of appellant in Bhagwat. On this point, PW-2 Nanhe has stated that he had seen the deceased going with appellant Chatra Pal from the place of Bhagwat. He had taken him in the west direction. Prior to that he had taken him to shop of PW-6 Ved Ram. In his cross-examination, this witness has stated that he had come to listen Bhagwat at about 4:00 p.m. and deceased Amrendra had come there at about 5:00 p.m. In his cross-examination this witness has stated that when he saw Amrendra (deceased) along with Chatra Pal then it was 5:30 p.m. thereafter he had not seen Amrendra (deceased) at the place of Bhagwat. On this point, PW-3 Itwari has stated that in the evening at about 5:00 p.m., he had seen Amrendra (deceased) along with Chatra Pal going towards shop. He has also stated that time of Bhagwat started from 6:00/7:00 p.m. However, on this point, PW-1 complainant Chet Ram has stated that he, with the help of some other persons of his village, had organized Bhagwat and the timing of the Bhagwat was from 7:00 p.m. to 11 p.m. in the night. PW-6 Ved Ram and PW-7 Jog Raj have not given any evidence on this point. So the two witnesses produced by the prosecution, namely, PW-2 Nanhe and PW-3 Itwari have stated that they had seen the deceased in the company of appellant at about 5:00 - 5:30 p.m. PW-2 Nanhe has stated that Bhagwat was organized near his house and according to his evidence, he was present through out the Bhagwat and has stated in his cross-examination that he had not seen the deceased in the company of appellant Chatra Pal after 5:30 p.m. at the place of Bhagwat. While according to the evidence of PW-1 complainant Chet Ram, he had gone with his family to the place of Bhagwat at about 6:00 p.m. and the timing of Bhagwat was from 7:00 to 11:00 p.m. Thus from the evidence of this witness, he along with deceased came to the place of Bhagwat at about 6:00 p.m. However, according to the evidence of the other witnesses, the deceased was seen in the company of appellant at about 5:00/5:30 p.m. The complainant PW-1 Chet Ram has also stated that he had seen the appellant during Bhagwat. Evidence of PW-2 Nanhe goes against the case of the prosecution as he has stated that after 5:30 p.m. he had not seen the deceased and the appellant at the place of Bhagwat. So the evidence of the witnesses on this point is contradictory and does not inspire confidence.

Second Circumstance:

The next point is whether the deceased went to purchase toffee from the shop of PW-6 Ved Ram. The witnesses have stated that they have seen the deceased going to purchase toffee with the appellant. On this point, the prosecution has examined PW-6 Ved Ram, shopkeeper. He has stated that appellant Chatra Pal had not come to purchase toffee from his shop along with deceased. He has stated that the appellant alone came to his shop to purchase toffee. In his cross-examination, he has stated that he came to know about this incident in the subsequent morning, when he was going to attend the call of nature. He has nowhere stated that he had seen the deceased at that point of time near his shop or going towards Sindhi Bhatta. So the evidence of this witness loses its incriminating effect because he has not stated that at the relevant point of time, the deceased was along with appellant. So no reliable evidence could be produced by the prosecution on this point.

Third circumstance:-

The appellant went at about 10:00 p.m. towards Sindhi Bhatta along with the deceased. No evidence of last seen of any witness could be produced by the prosecution on the point that the appellant was seen going towards Sindhi Bhatta along with deceased at 10:00 p.m. as alleged in the F.I.R. This fact, from the perusal of the evidence on record, appears to have been stated by the complainant or the witnesses only on the basis of the alleged information furnished by the accused himself. According to the version of F.I.R., PW-3 Itwari was a witness on this point but he has nowhere stated that he had seen the deceased at 10:00 p.m. going towards Sindhi Bhatta along with appellant. So in our considered opinion, this point also stands not proved by reliable evidence.

Fourth circumstance:-

Recovery of dead body on the pointing out of the appellant. On this point, the trial court has considered this circumstance as a very important circumstance to connect the appellant with the instant offence. According to the initial case of the prosecution as disclosed in the F.I.R., it was nowhere mentioned in the F.I.R. that the complainant and the villagers apprehended the appellant and he made a confession of this offence and on his pointing out, the dead body was recovered. It was such an important fact that could not have been omitted to be mentioned in the F.I.R. because if this fact would have been true then the appellant ought to have been taken to the police station or at least it must have been mentioned in the F.I.R. that Chatra Pal is in the custody of the villagers. No explanation could be furnished by the complainant as to why this fact was not mentioned in the F.I.R. According to the prosecution case, which has been subsequently developed, the appellant was apprehended by the public from Madhoganj Chauraha at about 5:00 a.m. Thereafter he was beaten by complainant Chet Ram. He confessed the offence and offered to get the dead body recovered and thereafter he himself had taken out the dead body from the pond in the presence of the villagers. After recovery of the dead body, F.I.R. of this case was lodged at 7:45 a.m. While according to the version of F.I.R., dead body was lying in the pond and it was not taken out. PW-9 S.I. Ram Chandra Chaudhary, the initial Investigation Officer of this case, in his cross-examination has stated that he had inspected the place of occurrence and he himself got the dead body recovered from the water pond at about 9:00 to 10:00 a.m. At that time appellant Chatra Pal was not present and no information was given to him regarding the presence of appellant. He has stated that he got the information that the appellant has been apprehended in the afternoon by the public at Selapur Road Railway Crossing by the villagers. So the case of the prosecution that dead body was recovered on the pointing out of the appellant stands totally falsified by the evidence of the Investigating officer and this fact also brings the origin of the F.I.R. under suspicion wherein the fact that the dead body was lying in the pond was mentioned. Thus the circumstance that the dead body was recovered on the pointing out of the accused appellant in the presence of the villagers does not stand established.

Fifth Circumstance:-

Recovery of the clothes of the deceased on the pointing out of the appellant. This fact has also been stressed by the prosecution as a highly incriminating circumstance against the appellant. According to the case of the prosecution, the clothes of the deceased are alleged to have been recovered by the Investigating Officer on the pointing out of the appellant. According to the case of the prosecution and the recovery memo, the witnesses of recovery of the clothes on the pointing out of the appellant were Desh Raj, Basant Lal and Vijay Pal Chaudary. Admittedly none of the above-mentioned three witnesses has been examined in support of the case of the prosecution to prove the recovery of the clothes of the deceased on the pointing out of the appellant. PW-1 complainant Chet Ram and PW-2 Nanhe have given evidence on this point. PW-1 complainant Chet Ram and PW-2 Nanhe, both the witnesses, have stated that clothes of the deceased were lying by the side of the pond when the dead body was taken out. The complainant has admitted that said clothes were handed over by him to the police. Similar statement has been given by PW-2 Nanhe Lal. Thus the recovery of clothes of the deceased was made prior to the registration of the case and the clothes were handed over to the police as per the evidence of the witnesses. But according to the recovery memo of the clothes and the evidence of the Investigating Officer, he got the information in the afternoon that the appellant has been apprehended by the villager at Selapur Road, near the Railway Crossing. He went there and took the appellant in his custody. Thereafter the accused gave information regarding the clothes of the deceased and thereafter on his pointing out the clothes were recovered from the Jwar crop field of Natthu from a place about 5-6 paces inside the said field. In the initial site plan of the place of occurrence, the said recovery of clothes was not shown while there is specific evidence of the eyewitnesses including the complainant that the clothes of the deceased were lying by the side of the pond wherefrom the dead body was recovered. But subsequently on the same day, the recovery has been shown from the field of Natthu Pal. Thus this false circumstance has been created by the Investigating Officer himself. According to the evidence of the eyewitnesses on which the prosecution has placed reliance, these clothes were given to the police by the complainant. So the recovery of the clothes of the deceased on the pointing out of the appellant also does not stand established. The trial court has also not considered this circumstance as an incriminating circumstance because the evidence regarding the same was not reliable.

In view of the discussion made above, the evidence of the prosecution on all the circumstances on which the prosecution has placed reliance was reliable. This is the basic requirement under law in cases based on circumstantial evidence that all the circumstances on which the prosecution places reliance must be proved to the hilt and thereafter it has to be seen whether the chain of circumstances is so complete in itself to give rise to the only inference of the guilt of the accused. Since in our considered opinion, the aforementioned circumstances does not stand established with reliable evidence, therefore, the appellant becomes entitled for benefit of doubt.

In view of the discussion made above, this appeal deserves to be allowed and is hereby allowed. The judgment dated 19.01.2007 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Hardoi in Sessions Trial No. 87 of 2006 is hereby set aside. The appellant is acquitted of the charges levelled against him. He is in jail. He be set at liberty. He shall be released forthwith if not wanted in any other case.

Office is directed to communicate this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.