Kamlesh and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Both the aforesaid appeals were listed for orders today but with the consent of the parties, we proceeded to hear it on merits.

Since both the aforementioned criminal appeals arise out of the same judgment, hence all these appeals are being disposed of together.

Heard Mr. Ram Naresh Singh Chauhan, learned counsel for the appellants, Mr. Ravi Prakash Yadav, learned counsel for the complainant, Ms. Ruhi Siddiqui, learned A.G.A. for the State and perused the lower court record.

Criminal Appeal No. 1654 of 2014 has been preferred by appellant Kamlesh and Criminal Appeal No. 1637 of 2014 has been preferred by Smt. Sapna against the judgment and order dated 12.11.2014 passed by Additional Sessions Judge/Special Judge (E.C. Act) Court No. 4, Unnao in Sessions Trial No. 142 of 2012 arising out of Case Crime No. 200 of 2012, Police Station Aasiwan, District Unnao whereby both the appellants were convicted under Section 302/34 I.P.C. and were sentenced with imprisonment for life and also with fine of Rs. 10,000/- each with default stipulation of six months additional imprisonment. They were further convicted for the offence under Section 201/34 I.P.C. and were sentenced with rigorous imprisonment for a period of three years and also with fine of Rs. 5,000/- each, with default stipulation of three months additional imprisonment. Both the sentences were directed to run concurrently. By the same judgment, two other accused persons, namely, Anil Kumar and Biddu were acquitted.

In brief the case of the prosecution was that complainant Uma Shankar Yadav lodged an F.I.R. at Police Station Aasiwan, District Unnao on 15.2.2012 at 21:30 hours against some unknown persons alleging therein that on 11.2.2012 at about 9:00 p.m., his brother had gone on his TATA Magic Van registration No. UP-35 H 9478 from his house to Miyanganj Crossing. When he did not come back till late in the night, then he made call on his mobile, which responded switched off. Thereafter he started search of his brother. When in the morning he again called on the said mobile number, then some person told him that he was driving the vehicle. When he enquired with him as to who was he then he did not disclose his identity and switched off the mobile phone. Thereafter again attempts were made to contact but the mobile remained switched off. The complainant continued the search of his brother. During search, when he reached at Chaudhary Kheda Canal Bridge then he was told by some other persons that a distance of about 400-500 meters some vehicle is lying in the canal. He along with other person reached there. With the help of the other persons took out the said TATA Magic Van on the bank of canal and identified it as the vehicle of his brother. Inside the said vehicle, the dead body of his brother Shiv Shankar alias Gunnu was lying, whose hands were tied with the shoelaces and pant. The dead body was taken out from the said vehicle and placed on the bank of the canal. The neck of the deceased was tied with Muffler. F.I.R. of this case was scribed by one Mohd. Athar son of late Subhan Ali.

On the basis of this information, the case was registered and inquest proceedings were conducted. After completing necessary formalities, the dead body was sent for postmortem, which was conducted on 16.2.2012 at 2:00 p.m. at District Hospital, Unnao. The duration of death was about four days old and the appearance of the dead body was sodden. Face swollen. Abdomen swollen. Scalp hairs loosen. Mud and sands were present on face, Nostril, mouth, chest, abdomen and extremities. Following ante mortem injuries were reported by the doctor on the body of the deceased:--

"(i) Lacerated wound 12 cm x 8 cm with irregular margins on right tempo parietal region.

(ii) Contused depression of 11 cm x 2 cm size on interior aspect of neck near adam''s apple.

(iii) Lacerated wound 3 cm x 2 cm on left foot involving toes."

In the opinion of the doctor, the cause of death was asphyxia as a result of ante mortem strangulation.

During course of the investigation, Muffler, shoelaces and pant of the deceased were taken into custody and its memo were prepared. The place of occurrence were inspected and its site plan was prepared. Recovered vehicle TATA Magic Van was technically examined. On 28.2.2012, one mobile phone, which is alleged to be the mobile of the deceased was recovered on the pointing out of appellant Smt. Sapna. Nothing incriminating is alleged to have been recovered on the pointing out of appellant Kamlesh.

The defence of the appellants was of their total denial and their false implication. Kamlesh has stated that he is the only son of his parents. He got a house constructed in the village in an area of one and half bigha. He works in Mumbai and the persons of his village wanted to purchase his land and house, which he declined so he has been falsely implicated in this case.

In order to prove its case, prosecution has examined PW-1 complainant Uma Shankar, brother of the deceased. PW-2 Rajiv Singh, PW-3 Kallu, PW-4 Beche Lal, PW-5 Rameshwar, PW-6 Chaube Prasad Yadav as witnesses of different circumstances. PW-7 S.I. Ram Autar, initial Investigating Officer of this case. PW-8 Radhey Shyam Mishra, has prepared inquest report under the supervision of S.O. and has also prepared recovery memo of the clothes of the deceased under the supervision of S.O. PW-9 Constable Om Prakash Singh has prepared chik report and G.D. of this case. PW-10 Dr. Rajesh Kumar, who has conducted the postmortem on the body of the deceased.

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

Learned counsel for the appellants has submitted that in this case, the case was not proved against the appellants and the prosecution has failed to prove the circumstances on which he has placed reliance. So the case was not proved and only on the basis of the presumptions, the trial court has convicted the appellants.

Learned A.G.A. has submitted that case of the prosecution stands proved by the evidence of the witnesses. The trial court has rightly convicted the appellants and their conviction needs no interference.

Since it is a case of circumstantial evidence, therefore, before proceedings further in the matter, we would like to discuss the legal position and the standards which are required to be satisfied before a conviction can be recorded in cases based on circumstantial evidence. On this point reference may be made to the pronouncement of Hon''ble the Apex Court in the case of Tomaso Bruno and another v. State of U.P. reported in , (2015) 7 SCC 178 wherein in paragraph Nos. 12 and 13, it has been held as under:--

"12. In every case based upon circumstantial evidence, in this case as well, the question that needs to be determined is whether the circumstances relied upon by the prosecution are proved by reliable and cogent evidence and whether all the links in the chain of circumstance are complete so as to rule out the possibility of innocence of the accused.

There is no doubt that conviction can be based solely on the circumstantial evidence. But it should be tested on the touchstone of the law relating to circumstantial evidence. This Court in C. Chenga Reddy and Ors. v. State of A.P. , (1996) 10 SCC 193, para (21) held as under:

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 the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence."

Hon''ble the Apex Court in the case of Birender Poddar v. State of Bihar reported in , (2011) 6 SCC 350 in paragraph No. 7 has held as under:--

"7. It is obviously true that this case rests solely on circumstantial evidence. It is true that in cases where death takes place within the matrimonial home, it is very difficult to find direct evidence. But for appreciating circumstantial evidences, the court has to be cautious and find out whether the chain of circumstances led by the prosecution is complete and the chain must be so complete and conclusive as to unmistakably point to the guilt of the accused. It is well settled that if any hypothesis or possibility arises from the evidences which is incompatible with the guilt of the accused, in such case, the conviction of the accused which is based solely on circumstantial evidences is difficult to be sustained. (See. Hanumant Govind Nargundkar v. State of M.P. , AIR 1952 SC 343; Bhagat Ram v. State of Punjab , AIR 1954 SC 621; and Eradu v. State of Hyderabad , AIR 1956 SC 316)."

Hon''ble the Apex Court in the case of Vijay Thakur v. State of Himachal Pradesh reported in , (2014) 14 SCC 609 has held in paragraph No. 18 as under:--

"18. It is to be emphasised at this stage that except the so-called recoveries, there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. Insofar as these two appellants are concerned, there is no circumstance attributed except that they were with Rajinder Thakur till Sainj and the alleged disclosure leading to recoveries, which appears to be doubtful. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes somewhat difficult to convict the appellant only on the basis of the aforesaid recoveries."

Now we will consider the evidence of each witnesses to find out whether the chain of circumstances was complete enough to record a conviction of the appellant or not. PW-1 complainant Uma Shankar, is the brother of the deceased. Admittedly he has not seen any part of the incident. During search on the information of some other person and with the help of some other person, he took out the vehicle from the canal and recovered the dead body. He has also stated that deceased made a remark on the appellant that inspite of being Chamar, he was keeping a Yadav girl. Due to which appellant was having enmity with the deceased. But this fact was not mentioned in the F.I.R., nor any suspicion was raised against the appellants in the F.I.R. In cross-examination, this witness has stated that about 5 - 6 months prior to the incident, the deceased told this fact to him but he made no inquiry with Kamlesh and Sapna regarding this fact. PW-2 Rajiv Singh has stated that he does not know Sapna. He has expressed his ignorance about the identity of accused persons and has stated that he has absolutely no knowledge about this incident. This witness was declared hostile and was cross-examined by ADGC but nothing material could be extracted in his cross-examination. He has denied that on 11.2.2012 he had contacted the deceased on mobile phone. PW-3 Kallu has stated that on the date of incident, he was present, in the Veranda of his house and he saw that at about 9 - 10 p.m., a person went inside the house of Sapna and thereafter Kamlesh went behind her. After sometime 3 - 4 person came along with Kamlesh. Kamlesh was accompanied by Anil Kumar (acquitted accused) and two other persons. He saw them in torch light. He has also stated that after about 15 - 16 days of the incident, a mobile phone was recovered from the backside of the house of Kamlesh under a lemon tree, which was wrapped in a polythene and was given by Sapna and was in a broken condition. He has also proved the Fard of recovery of mobile. This witness has stated that he does not recognize appellant Sapna. The alleged recovered broken mobile phone was not produced before this witness. PW-4 is Beche Lal. He is only a witness of inquest. So he does not throw light on the incident and his evidence is not material to connect the appellant with the instant offence. PW-5 Rameshwar has also stated that he has no knowledge as to how the deceased was murdered. He has simply stated that he has signed the inquest report, so his evidence was also not material to connect the appellant with the instant offence. PW-6 Chaube Prasad Yadav, is also a witness of inquest. PW-7 S.I. Ram Autar, Investigating Officer, has also proved the recovery on the pointing out of appellant Sapna. However, the said case property was not produced before the court. The evidence of PW-8 Constable Radhey Shyam Mishra and PW-9 Om Prakash Singh is formal in nature. PW-10 Dr. Rajesh Kumar has stated that the deceased died because of strangulation. Thus in the instant case, at a belated stage, the complainant alleged a motive to commit the offence. Apart from it, there is no evidence that the deceased was seen in the company of the appellants at any point of time by any person or seen near the place where-from the dead body was recovered. The alleged recovery of a broken mobile phone on the pointing out of appellant Sapna also appears to be a concocted story because if the miscreants could have thrown the vehicle inside the canal, then there was no use for them to preserve a broken mobile as evidence against themselves and that too behind their own house. So we are of the considered view that it was a planted recovery. There is no other circumstance to connect the appellant with the instant offence. The possibility that any other person might have buried the said mobile phone behind the house of Kamlesh cannot be ruled out, keeping in view the specific defence of the appellant that the other persons of the village were nursing grudge against him as Kamlesh had declined to sell his property to them.

Perusal of the impugned judgment shows that the trial court has placed reliance on the alleged recovery. The trial court has observed in the judgment that PW-3 Kallu has last seen the deceased in the company of appellants and on the basis of this evidence of last seen coupled with the recovery and enmity, the trial court concluded that case of the prosecution stands proved. PW-3 Kallu in his evidence has nowhere stated that he had seen the deceased in the company of any of the appellant. So this observation of the trial court that PW-3 had seen the deceased in the company of appellants was factually incorrect. Thus the trial court has not appreciated the evidence correctly and has misread the same. Keeping in view the evidence available against the appellants in the instant case, the standards required to prove a case on the basis of the circumstantial evidence, were not the least satisfied. So the trial court has committed error in convicting the appellants.

In view of the discussion made above, both the aforesaid appeal deserve to be allowed and are hereby allowed. The judgment and order dated 12.11.2014 passed by Additional Sessions Judge/Special Judge (E.C. Act) Court No. 4, Unnao in Sessions Trial No. 142 of 2012 is hereby set aside. They are acquitted of the charges levelled against them. They be set be at liberty. Both the appellants are in jail. They shall be released forthwith, if not wanted in any other case.

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