Kallu vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Shri Shishir Pradhan, learned counsel for the appellant, and Ms. Ruhi Siddiqui, learned AGA for the State were heard.

Under challenge in the instant criminal appeal is the judgment and order dated 23.03.2012 passed by Special Judge (Ayurved Scam Matter)/Additional Sessions Judge, Lucknow, in Sessions Trial No. 41 of 2003 arising out of Case Crime No. 40 of 2002, Police Station Bakshi Ka Talab, Lucknow, whereby the present appellant Kallu was convicted for the offence under Section 302 IPC and was sentenced to undergo imprisonment for life and also with fine of Rs. 20,000/- with default stipulation of simple imprisonment for a period of two years. Under Section 201 IPC, appellant was further convicted and sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs. 10,000/- with default stipulation of simple imprisonment for a period of one year. However, he was acquitted of the charge levelled against him under Section 120-B IPC. The other accused persons namely Bhikha, Nattha, Chotey Lal, Parasuram and Malti @ Mainiya were acquitted of the charges levelled against them.

In brief, the case of the prosecution, as narrated in the first information report, was that Rakesh Rawat @ Buddha, who happens to be the son of the present appellant, lodged a first information report on 02.03.2002 at 20.10 hours at Police Station Bakshi Ka Talab alleging therein that his mother namely Smt. Maya Devi aged about 45 years and sister Km. Anita aged about 10 years were residing in the house of his maternal uncle in village Hardasi Khera, Police Station Chinhat, Lucknow. It was also alleged that in the month of December, 2001, the informant brought his mother and sister to the house of his father Kallu (appellant) and thereafter he had been frequently visiting the house of his father. On 24.02.2002, when he again went to the house of his father then he found that his mother and sister were not present in the house. On inquiry, appellant Kallu disclosed that they have left the house without disclosing him about their destination. The informant continued to search them but he could not find out them. His mother was wearing printed Saree and Hawai Chappals, nose pin and golden tops and was of fair complexion while his sister was of dark complexion.

On the basis of this information, the case was registered. During course of investigation, on 05.03.2002 skeletons of two human heads were recovered from the jungle. Its recovery memo was prepared on the same day. Some half burnt clothes and slippers of the deceased were also recovered and its memo was prepared on the same day. One Gamcha was recovered on the same day and its recovery memo was also prepared. Thereafter, on 07.04.2002, accused Bhikha was taken on police remand and on his pointing out the weapon of offence and tool used to bury the bones i.e. Banka and spade were recovered and its memo was prepared. Likewise on 18.04.2002 accused Nattha was taken on police remand and on his pointing out, the weapon of offence i.e. Banka and spade were recovered and its memo was prepared. On 10.03.2002, appellant Kallu made a confession of this offence in the police custody and on his pointing out, a bundle of bones was recovered which was buried in a pit and its memo was prepared. Two skeletons (head), which were recovered, after inquest proceedings, were sent postmortem. The postmortem on the head of Km. Anita was conducted on 06.03.2002 at 01.00 PM. Upper jaw cavity was having 12 teeth, scalp hairs were 12 cm long, lower jaw was missing, foul smell was found and maggots were present. The cause of death and time since death could not be ascertained, hence, whole skull was sealed and handed over to Constable for examination and opinion of Medico-legal expert. Likewise, postmortem on the head of other deceased was conducted on the same day at 01.30 PM. The whole skull with upper and lower jaw were having 12 teeth, scalp hairs were 30 cm long, foul smell was coming and maggots of 1.5 cm in size were present. Similar opinion was expressed regarding this second skeleton.

After completing the investigation, charge sheet was filed.

The case of the defence was of his false implication and that because of enmity, he has been falsely implicated.

In order to prove its case, the prosecution has examined PW-1 Rakesh Rawat - the complainant of this case, PW-2 Kuldeep - brother of the deceased Mayawati Devi, who was also a witness of recovery of heads and clothes of the deceased, PW-3 Ram Vilas - cousin of the deceased Mayawati Devi, PW-4 Dr. B.P. Singh, who has conducted the postmortem, PW-5 Constable Mullu Ram, who has registered the information given by the present complainant regarding missing of his mother and sister, PW-6 Dr. Neeraj Srivastava, who has performed postmortem on the sealed bundle of bones, PW-7 SI Hans Raj- initial Investigating Officer of this case, PW-8 SI Vijay Narain Pandey, who took up the investigation from 22.03.2002, PW-9 Abhimanyu Singh, Inspector, who took up investigation of this case from 10.03.2002 and continued up to 18.03.2002 and PW-10 Babu Lal - a witness of recovery of burnt clothes, skulls, bones and Gamcha.

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

After appreciating the evidence on record, learned trial court has convicted the appellant, as above, hence, the aforesaid criminal appeal. However, other accused persons were acquitted.

Submission of learned counsel for the appellant was that in the instant case learned trial court has convicted the appellant mainly on the basis of his own confession followed by recovery alleged to have been made under Section 27 of the Indian Evidence Act. It is submitted that the doctor before whom the said bundle of bones was produced could not state as to whether the bones were of human being or of animals. Once the recovery is not connected with the offence then the confession made in the custody of the police was of no avail. He has also argued that a similar confession is alleged to have been made by some other accused persons and on their pointing out, the weapon of offence was recovered but on the basis of same evidence, the co-accused persons have been acquitted and the present appellant has been convicted. He has also argued that there is absolutely no evidence that at any point of time any of the villager or any other person had seen the deceased in the house of the appellant. So the only evidence on which learned trial court has convicted the appellant was his own confession made in the custody of the police while the same could not have been acted upon. Therefore, the conviction of the appellant was not in accordance with law and the learned trial court has erred in convicting the appellant.

Learned AGA has submitted that the complainant himself has stated that he had left his mother and sister in the house of his father (appellant). Admittedly, there was some litigation going on between the appellant and his wife (deceased Mayawati Devi) and because of that, she has been done to death by the appellant with the help of his close relatives. Learned trial court has considered all these aspects in correct perspective and has rightly convicted the appellant. His conviction needs no interference.

According to the case of the prosecution in the confessional statement of the accused the prosecution story is alleged to have been disclosed. As per the same, the appellant with the help of his other relatives (co-accused persons who have been acquitted) caused the death of Mayawati Devi and Anita and thereafter bodies were cut into pieces and the same were buried at different places. As per case of the prosecution, heads, clothes and Gamcha are alleged to have been recovered by the police on 05.03.2002. Banka on the pointing out of acquitted accused Bhikha is alleged to have been recovered on 07.04.2002 after taking him on police remand and Banka is alleged to have been recovered on the pointing out of acquitted accused Nattha on 18.04.2002. Simultaneously spades were also recovered. The bundle of bones is alleged to have been recovered on the pointing out of the appellant on 10.03.2002. Even during investigation, the prosecution has not made any effort to inquire about the exact date on which this offence was committed. Admittedly, there is no direct eyewitness account of this incident and the prosecution has proposed to prove its case on the basis of circumstantial evidence.

Before proceeding further we would like to consider the legal requirements which the prosecution is required to fulfill before a conviction can be recorded in the cases based on circumstantial evidence.

It is a case of circumstantial evidence. Law is settled on the point that all the circumstances on which prosecution places reliance must be proved beyond reasonable doubt. All the circumstances taken together must form a chain so complete in itself that it should not be capable of any other conclusion except the guilt of the accused. Reference on this point may be made to the pronouncement of Hon''ble the Apex Court in the case of Sk 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."

Thus, though a conviction can be based on circumstantial evidence, but the Court must bear in mind the aforesaid tests while deciding a case involving the commission of a serious offence.

Hon''ble the Apex Court in the case of Manthuri Laxmi Narsaiah v. 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."

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

Hon''ble the Apex Court in the case of Satni Bai v. State of M.P. , (2010) 2 SCC 646.

"11. It has been consistently laid down by this Court, that when a case rests only on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. 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 (See State of U.P v Satish reported in 2005 SCC (Crl) 462).

In Joseph v State of Kerala reported in , 2000 SCC (Crl) 926, the Court has explained under what circumstances conviction can be based purely on circumstantial evidence. It is observed that:

"It is often said that though witnesses may lie, circumstances will not, but at the same time, it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain, unerringly pointing to the guilt of the accused."

This Court in Padala Veera Reddy v State of A.P. , 1991 SCC (Crl) 407 has observed that when a case rests on circumstantial evidence, the following tests must be satisfied:

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

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

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

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

In C. Chenga Reddy v State of A.P , 1996 SCC (Crl.) 1205 this Court has held that:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn, should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

In State of U.P v Ashok Kumar Srivastava, , 1992 SCC (Crl) 241, it was pointed out that:

"9....... Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted."

"9....The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of {the guilt}."

The principle that would emerge from these decisions is that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court."

In the instant case the circumstances which the prosecution proposes to prove against the appellant are that PW-1 Rakesh Rawat had left his mother and sister at the house of the appellant and on 24.02.2002 when he again went to the house of the appellant (his father) then his mother and sister were not present there. So he gave information of missing at the police station which was registered at case crime number nil on 02.03.2002. Subsequently after recovery of the heads of the deceased crime number was allotted. The second circumstance is the recovery of heads and clothes on 05.03.2002 and the third circumstances is recovery of bones on the pointing out of the present appellant. The circumstance of recovery of weapon of offence on the pointing out of accused Bhikha and Nattha becomes irrelevant in the instant appeal as the said recovery has been disbelieved by the learned trial court and other accused persons have been acquitted of the charges levelled against them. The acquittal of all other accused persons has not been challenged by the State or by the complainant. Thus, the circumstances which are available against the present appellant are that the complainant left the deceased at the house of the appellant. On 24.02.2002 when the complainant again came to the house of the appellant then his mother and sister were not present. Information of missing was given on 02.03.2002 and subsequent recovery of bundle of bones on the pointing out of appellant was made.

Now, we will consider each circumstance separately and thereafter we will find out whether all the circumstances form the chain so complete in itself to record a conviction keeping in view the aforementioned legal position.

The first point to be considered is that the complainant left Smt. Mayawati Devi and Anita at the house of the appellant. In the first information report, it was not mentioned as to why Mayawati and Anita were living separately from the appellant but it has come in the evidence of PW-3 and also in the evidence of PW-10 Babu Lal that some matrimonial litigation between Mayawati and appellant was going on and because of the illness of the father of the present appellant, Mayawati and her daughter Anita had come to the house of the appellant. Though the fact of illness of father of the appellant was nowhere mentioned in the first information report nor PW-1 has given any such statement in his evidence but even if it is presumed that it was because of the illness of the father of the appellant even then such a visit, keeping in view the pending litigation between the deceased and the appellant, would have been for a short period. The complainant in his evidence or in the first information report has nowhere mentioned as to on what date her mother and sister came to the house of the appellant. He has stated that on 24.02.2002 when he again came to the house of the appellant then his mother and sister were not present in the house and on inquiry he was told by the appellant that they have gone somewhere without disclosing him their destination. Keeping in view the pending litigation between the two, such a conduct of the deceased cannot be said to be abnormal. Apart from it, in the instant case the prosecution has utterly failed to produce any evidence of any person of the village that he had seen the two deceased persons in the house of the appellant at any point of time or he had seen the appellant going with the deceased persons towards jungle. So virtually in the instant case there was absolutely no evidence of last seen. The fact of missing of the persons came to the notice of the complainant on 24.02.2002 but the information of the same was given to the police on 02.03.2002. The evidence of PW-2 Kuldeep is quite contrary to the case of the prosecution. He has stated that after about 15 days of the death of Mayawati Devi, he had gone to her house. He inquired there with Kallu (appellant) then he told that she might have gone to some place. Thus, according to the evidence of this witness, he had gone after about 15 days of the death of Mayawati Devi. According to the case of the prosecution for the first time the complainant side came to know about the missing of two deceased persons on 24.02.2002. No body has stated as to on what date death was caused. So even if it is assumed that they died on 24.02.2002 even then this witness went to the house of Kallu after 15 days of the occurrence. So this statement of the witness makes his evidence absolutely unreliable.

PW-3 Ram Vilas has stated about the pending litigation between the deceased and the appellant. He has stated that Paragi (father in law of the deceased) was ill. So Mayawati Devi along with her daughter Anita had gone to see him. On account of ''Khichadi'' son of Mayawati Devi had gone from his nanihal to the house of his father where he was told that Mayawati Devi had gone to her Mayaka. He asked the complainant to search her in the house of other relatives. When they could not be traced out then the complainant along with some other persons went to Bhagat Purwa where Kallu was not present in his house. His brother Nattha was present. Then they went to Bakshi Ka Talab and then the police raided the house. Thereafter they came back. In the following morning, report against appellant Kallu was lodged. After lodging the report they came back to their house and thereafter went to the village of the appellant along with some other persons and on the same day head, bones and clothes of the deceased were found by them and they gave this information to the police. In the following morning the police came to the place of occurrence and had taken the said articles to the police station and their signatures were obtained at the police station. The police also went to Mahmoodabad Sugar Mill where Kallu was working but he was not present there. Thereafter Investigating Officer went to Mahmoodabad police station where Darogaji told that he will arrest him and handover him tomorrow. On the next day, the police of Mahmoodabad arrested Kallu. He was brought to Bakshi Ka Talab where he made confession of the offence. So prosecution evidence on the point as to when and on what date the complainant sent his mother and sister to the house of the appellant does not stand established with the evidence of the witnesses. Apart from it, not even a single witness of the village could be produced that Mayawati Devi and her daughter Anita were brought to the village and they were seen in the house of the appellant Kallu. It is also strange that Paragi (grandfather of the complainant) was ill so why he did not stay in his house to look after his grandfather also creates a doubt regarding the correctness of his statement. Virtually PW-1 the complainant is a witness of recovery of the heads, clothes and bones. So the evidence of PW-1 on this point if taken to be true even then it cannot be categorized to be a very strong and clinching circumstance against the appellant.

Recovery of heads and clothes: - The recovery of heads and clothes of the deceased is alleged to have been made by the police on 05.03.2002 but PW-3 has stated that he himself along with other persons of the village had searched the articles and thereafter informed the police and on the following day its memos were prepared. It is nowhere the case of the prosecution that these articles were recovered on the pointing out of appellant or any other co-accused. So the recovery of these heads and clothes can only be the evidence to show that Mayawati Devi and Anita were murdered but such evidence by itself cannot be sufficient evidence to connect the present appellant with the instant offence.

The third circumstance is the recovery of bones on the pointing out of appellant. These bones are alleged to have been recovered on the pointing out of appellant on 10.03.2002. It has been stated by the witness during course of trial that appellant Kallu was taken into custody after the first information report was lodged and he was kept at the police station for a period of 10 days. He was beaten at the police station and thereafter he made confession of this incident and only thereafter the alleged recovery of the bones on his pointing out has been shown by the police on 10.03.2002 and after the recovery, he was sent to the court. When we considered the evidence of the prosecution witnesses then we found that the bones which are alleged to have been recovered on the pointing out of the appellant were actually recovered along with skeleton of heads and clothes. So the recovery of bones on the pointing out of appellant becomes absolutely unreliable. Confession, if any, made by the appellant was due to third degree methods after detaining him at police station for ten days. So the said statement of the appellant cannot be said to be voluntary statement. Apart from it, the doctor PW-6 Neeraj Srivastava, who has conducted the postmortem on the said bones, has stated that he is unable to say whether the bones were human bones or the bones of an animal. No other expert evidence to prove that these are human bones could be produced by the prosecution. Thus, there was absolutely no reliable evidence that the bones were of some human being and recovery of these bones stand falsified in view of the evidence of other witnesses that the said bones were recovered along with heads and clothes of the deceased, which are alleged to have been recovered on 05.03.2002 while the recovery of bones is alleged by the prosecution on 10.03.2002. PW-3 Ram Vilas has also stated that heads and bones were searched by them in the jungle and information of the same was given in the same night at the police station. PW-10 Babu Lal has also given a similar statement. PW-10 is ''Saadhu'' (co-brother) of the appellant. Thus, the evidence regarding recovery of bones of the deceased on the pointing out of the appellant also becomes unreliable.

A careful appreciation of all the three circumstances clearly shows that the prosecution was not able to prove the said circumstances beyond reasonable doubt and virtually there was no evidence that the deceased was last seen present in the house or was seen by any person of the village present in the house of the appellant. The possibility that the deceased along with her daughter herself left the house cannot be ruled out keeping in view the matrimonial cases pending between them. Since the prosecution has not been able to prove the circumstances on which it has placed reliance, therefore, in our considered opinion, even if all the circumstances are taken to be true even then the chain was not complete to lead to the only conclusion that the appellant was the author of the crime. Thus, the case of the prosecution was not proved beyond doubt and the learned trial court has committed error of fact and law in convicting the appellant.

In view of the discussions made above, this appeal deserves to be allowed and is hereby allowed. Appellant Kallu is acquitted of the charges levelled against him. He is in custody. He shall be released forthwith, if not wanted in any other case.

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