Narayan Soni vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Nadeem Murtaza, learned counsel for the appellant and Ms. Madhulika Yadav, learned Additional Government Advocate were heard.

Under Challenge in the instant criminal appeal is the judgment and order dated 30.07.2014 passed by learned First Special Judge, S.C/S.T. A (P.A.) Act, Unnao, in Special Sessions Trial No. 141 of 2009 and 786 of 2009, arising out of Case Crime Nos. 1785 and 1795 of 2009, Police Station Gangaghat, District Unnao under Sections 302 IPC r/w. 3(2)(V) S.C/S.T. Act whereby the appellant Narayan Soni was convicted for the offence under Section 302 IPC r/w. 3(2)(V) S.C/S.T. Act and was sentenced to undergo imprisonment for life and also with fine of Rs. 10,000/- with default stipulation of one month additional imprisonment. However, he was acquitted of the charge under Section 3/25 Arms Act.

Brief facts of the case are that the complainant of this case Smt. Shanti Devi lodged an FIR at Police Station Gangaghat, District Unnao on 22.07.2009 at 13:45 hours alleging therein that her daughter aged about 28 years was living as wife for the last two years with the appellant Narayan Soni resident of Gandhi Nagar, Kasba Shuklaganj, Police Station Gangaghat, District Unnao. Complainant is resident of Chakeri area District Kanpur. On 20.07.2009 her daughter Savita came back to the house of the complainant because of some dispute with the appellant. For Vida of Savita appellant Narayan Soni came to the house of the complainant in the night of 21.07.2009 and stayed in the night there. Next day in the morning when he asked for the Vida of Savita then son of the complainant namely Balbeer (deceased) aged about 35 years declined to Vida his sister Savita and asked the appellant to do some work, earn money and only thereafter he will send his sister with him. On the same day at about 10:00 a.m. the appellant asked Balbeer to drop him up to Lalbangla/Harjinder Nagar. So he went with the appellant. At about 12:15 p.m. the complainant got the information on phone from Shuklaganj that her son Balbeer has been done to death by causing injuries to him infront of the barber shop Manoj Kumar in Mohalla Gandhi Nagar, Shuklaganj, Unnao, by the appellant. The incident is alleged to have been witnessed by several persons of the vicinity. The complainant Shanti Devi got the FIR of this case scribed by Jitendra Chaurasia and lodged the same at police station Gangaghat, on the basis of which the case was registered. The distance of the place of occurrence from the police station Gangaghat, District Unnao was about 1 kilometer.

After registration of the case the inquest proceedings were conducted and after completing the other formalities the dead body of the deceased Balbeer was sent for postmortem which was conducted on 23.07.2009 at 2:30 p.m. at District Hospital, Unnao. The duration of death was about one day old and following injuries were reported on the body of Balbeer:-

(A) Lacerated wound 3 c.m. x 1.5 c.m. x 1 c.m. below right eye.

(B) Lacerated wound over and around left ear 6 c.m. x 4 c.m. x bone deep through and through wound present on left ear pinna.

(C) Contusion 8 c.m. x 5.5 c.m. on left temporal area.

(D) Contusion over right side to face 4.5 c.m. x 4 c.m.

(E) Contusion on the top of skull 6 c.m. x 5 c.m. x 4 c.m. above root of nose.

In the opinion of the doctor, the cause of death was due to comma as a result of ante-mortem head injury.

During course of investigation the place of occurrence was inspected and its site plan was prepared. On 24.07.2009 the appellant was arrested by the police. He made confession of this offence and on his pointing out the brick which is alleged to have been used as weapon of offence was recovered and its memo was prepared in the presence of Amar Chand and Jitendra Awasthi. At the time of arrest of the appellant one countrymade pistol of 12 bore alongwith two live cartridges was also recovered and a separate case was registered on the basis of this recovery memo against the appellant under the Arms Act which was separately charge-sheeted, however, it was tried with this offence and the said case has ended in acquittal.

After concluding the investigation charge-sheet was filed against the appellant and a separate charge-sheet was filed against the appellant for the murder and also for the offence under Arms Act.

The case of the defence, as disclosed by the suggestion given to the witnesses and by his statement under Section 313 Cr.P.C. was that he has stated that a false case has been concocted against him because of brother of the complainant. He was acquainted with the complainant prior to this incident. He used to live in Shuklaganj while the complainant used to live in Kanpur. Since the son of the complainant was murdered and because of the prior acquaintance and enmity the appellant has been falsely implicated in this case.

In order to prove its case the prosecution has examined PW-1 Smt. Shanti Devi, the complainant of this case, PW-2 Smt. Savita, wife of present appellant, PW-3 Jitendra Chaurasia, scribe of the FIR, PW-4 S.I. Arun Kumar Mishra who has prepared the inquest report of this case, PW-5 Dr. P.N. Ahirwar, who has conducted the postmortem on the body of the deceased, Balbeer, PW-6 Jai Prakash Pandey, the Investigating Officer of this case, PW-7 Pramod Kumar Upadhyaya who has arrested the appellant and had recovered the country made pistol and also two live cartridges from his possession, PW-8 S.I. Dinesh Kumar, Initial Investigating Officer of this case who has investigated this case from 22.07.2009 and after conclusion of the investigation has filed charge-sheet, PW-9 Daddan Prasad Pandey, Constable the witness of recovery of countrymade pistol, PW-10 Head Constable Nandram who has prepared the chik report and G.D. of the case of murder and also the chik report and G.D. of the case under Arms Act, PW-11 Bindeshwari Prasad Pandey, S.I. the Investigating Officer of the case under Arms Act.

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

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

Submission of the learned counsel for the appellants was that it is a case of circumstantial evidence and the circumstances on which the prosecution places reliance, the case cannot be said to have been proved. He has also argued that the doctor in his evidence has stated that the injury which proved fatal can be caused only by a pointed stone and not by the brick while in the instant case full size brick is alleged to have been recovered on the pointing out of the appellant. He has further submitted that during investigation the case was developed by the police that the deceased and the complainant took liquor together while no alcohol was found in the postmortem. Independent witness of the recovery of the weapon of offence has turned hostile and therefore, the alleged recovery has been disbelieved by the trial court and in absence of recovery chain of circumstances stands incomplete. Hence, the learned trial court has committed error in convicting the appellant.

Learned Additional Government Advocate has submitted that in the instant case the deceased was last seen in the company of the appellant by the complainant herself and Smt. Savita within a short gap of about two hours he was found dead and no explanation from the appellant could be furnished as to where the deceased left the company of the appellant. He has simply pleaded his false implication. Once the evidence of last seen is relied upon then it was the burden of the appellant himself to explain as to where the deceased left his company. He has further submitted that the judgment of the trial court is well reasoned and no interference is called for in the instant appeal.

This case is based on circumstantial evidence, therefore, before proceeding further we would like to address ourselves on the point of legal standard which are required to be complied with before conviction can be recorded on the basis of circumstantial evidence. Law is settled on the point that in cases of circumstantial evidence each and every circumstance on which the prosecution places reliance must be proved to the hilt and all the circumstances taken together must form a chain so complete in itself that it shall lead to the only conclusion of the guilt of the accused and is not capable of any other inference.

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."

Thus though a conviction can be based solely 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 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."

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.

Hon''ble the Apex Court in the case of Satni Bai Vs. 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 scrutinized 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:

"21. 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}."

Now in view of the aforementioned legal position, we shall proceed with the instant case. In the instant case, the prosecution has placed reliance on following three circumstances; (1) motive (2) the evidence of last seen and (3) recovery of the brick on the pointing out of the appellant.

MOTIVE: The motive which was alleged by the prosecution was that the deceased Balbeer asked the appellant to first start doing some work and to earn money and only thereafter he would send Savita with the appellant. As per the case of the prosecution, PW-2 Savita was residing as wife of the appellant with him for the last about two years prior to this incident. It is an admitted case of the prosecution that PW-2 Savita because of some difference or quarrel with the appellant came back from his house to the house of the complainant (her mother''s house) on 20.07.2009. Thereafter, the appellant came to the house of the complainant in the following night i.e. on 21.07.2009 for the Vida of the Savita. Thus it transpires from the evidence that the relations between two sides were very cordial. Although because of some dispute with the appellant PW-2 Savita came back from his house but just on the following day the appellant came to her house and stayed there in the night. When in the next day morning at about 10:00 a.m. the appellant asked for the Vida of his wife PW-2 Smt. Savita, then the said Vida was declined by Balbeer and he asked the appellant to do some work and to earn money. It is no where the case of the prosecution that on this reply any altercation or quarrel took place or the appellant expressed any displeasure on such reply of the deceased Balbeer. On the contrary, the appellant asked Balbeer to come alongwith upto Lal Bangla (which is a place situated in District Kanpur). So virtually the motive with which the prosecution has come forward was a very weak motive from the beginning and it further weakened because of the reasons that the deceased agreed to accompany him upto Lal Bangla. It has also come in evidence that PW-2 Smt. Savita was earlier married with one Sushil and after that she started living with the present appellant and she was living with him for the last about two years as his wife. She has stated that earlier the appellant used to work as a Tailor when she solemnized marriage with him. The incident which is said to be the motive for this offence was a petty matter although she has stated that after marriage appellant started drinking, coming late to the house and also beating her which cannot be presumed to be sufficient enough to commit the murder of his own brother-in-law. Though the prosecution has led evidence on this point and we consider the evidence on this point to be reliable to some extent but the motive itself as alleged by the prosecution was a weak motive in our considered opinion.

The second circumstance is the evidence of last seen. As per the case of the prosecution after denial of vida the appellant went alongwith the deceased at about 10:00 a.m. from his house and PW-1 Smt. Shanti Devi has stated in her cross examination that her son (deceased) had told her that he is going to see off the appellant. Thus statement of this witness goes on to show that she herself has not seen the deceased going alongwith the appellant. On this point PW-2 Smt. Savita has stated that her brother Balbeer brought Narayan Soni to his house and Narayan stayed in the house during night. Thus this statement of this witness goes against the initial case of the prosecution that appellant himself came to the house of the complainant for the Vida of his wife. If Balbeer was against the vida of his sister with the appellant then there was absolutely no occasion for him to bring him to his house. This witness has also stated that the deceased told her that he is going upto Harjinder Nagar. But this incident had taken place within the territorial jurisdiction of Police Station Ganga Ghat, District Unnao which comes after crossing river Ganga. So why the deceased accompanied the appellant from Harjinder Nagar to the place of incident is a mystery and could not be explained by the prosecution. Apart from it, not even a single person of the place of occurrence could be examined by the prosecution to say that he had seen the appellant with the deceased at or near the place where the dead body was found. Perusal of the site plan shows that the place of incident was a market and as per the case of the prosecution the incident had taken place at any time about 12:00 p.m. At that time, all the shops situated at the place of occurrence must have remained opened. The site plan shows that the dead body was found lying in front of the shop of Manoj, Savita at place "A" adjacent shop was a vacant shop and thereafter there were a shop of general store of one Rajendra. Adjacent to the shop, in southern direction was the house of Om Prakash Sharma. In front of house of Om Prakash Sharma there was house of Rakesh Kureel and towards North of the place of occurrence there was a ''pakki gali'' and thereafter the house of Ram Chandra Gaur. In the west north direction from the place of incident the house of Mohan Srivastava is situated and virtually it is a crossing of two roads. On the corner of the said crossing the dead body was found. So in broad day light at about 12 p.m. it appears to be absolutely unnatural that no one had seen the incident while in the FIR it was mentioned that several persons have seen the incident. Inspite of being such crowded place not even a single person running shop or having his house or the persons passing thereby could be procured as witness of this incident. It is not an offence committed by any history sheeter or dreaded criminal but appellant was only a poor labour. So against such person no one would dare to appear as a witness does not appeal to reason.

PW-8 Dinesh Kumar Singh has nowhere stated that he made any effort to inquire about the incident from any of the person running the shop or having his house near the place of occurrence. It is not a case where no one could have seen the incident. The place and time of incident leads to the only conclusion that incident must have been witnessed by several persons. So the best evidence of the offence has been withheld by the prosecution. Here it is pertinent to mention that as per prosecution evidence the deceased was going only upto Harjinder Nagar which is in District Kanpur while dead body was found across the Ganga river in Police Station Ganga Ghat area. In absence of any other evidence to the contrary it cannot be presumed that the deceased must have accompanied the appellant from Harjinder Nagar to the place of incident also because it is nowhere the case of the prosecution that the deceased told the witnesses that he will accompany him upto Gangaghat. So if the incident had taken place in Harjinder Nagar or at any place upto Harjinder Nagar then the appellant was required to explain as to where he left the deceased. It is the case of the prosecution that deceased went with him upto Harjinder Nagar. So it cannot be presumed, in absence of any other evidence to the contrary, that after leaving Harjinder Nagar the deceased accompanied the appellant. Admittedly, there is absolutely no evidence that from Harjinder Nagar to the place where the dead body was found the appellant was seen in the company of the deceased. So in the peculiar facts of this case, the evidence of last seen also does not inspire confidence particularly keeping in view the fact that not even a single person of the vicinity or shopkeepers where the incident has taken place were inquired into during investigation. So non-examination of these persons gives rise to an adverse inference that the incident has taken place in some other manner and the prosecution has deliberately withheld those persons.

Now the last point i.e. the recovery of the weapon of offence on the pointing out of the appellant remains to be considered. The recovery of the alleged brick was made subsequent to the arrest and recovery of the appellant in case under Arms Act on 24.07.2009. The learned trial court has disbelieved the version of prosecution story so far as it relates to the arrest of the appellant. The alleged recovery of the brick on the pointing out of the appellant, comes under the shadow of doubt because the same was followed by the arrest of the appellant as alleged by the prosecution and recovery of the appellant under Arms Act. The submission of the learned counsel for the appellant has substance that once his arrest has been disbelieved then the alleged recovery on his pointing out subsequent to the said arrest also comes under shadow of doubt. Learned counsel for the appellant has also drawn our attention towards the evidence of the doctor wherein he has stated that the fatal injury could have been caused by some sharp pointed stone. Perusal of the recovery memo shows that a complete full size of brick was recovered on the pointing out of the appellant. On this point, learned A.G.A. has argued that corner of the brick is pointed so the injury may be caused by a brick. But we are not impressed with this submission. If one hold the brick then after holding the brick with the hands it becomes difficult to use the corner of the brick to cause injury to the deceased. Thus this third circumstances also does not stand proved beyond reasonable doubt because only an ordinary brick is alleged to have been recovered from a ''Naali'' and it is very easy to plant the same.

Keeping in view the discussion made above, we are of the considered view that the prosecution was not able to prove all the circumstances with reliable evidence and the non-examination of any of the witnesses of the place of occurrence by the prosecution creates doubt regarding the correctness of the prosecution story so the appellant becomes entitled for benefit of doubt. Learned trial court has not considered all these aspects in correct perspective which has rendered its judgment unsustainable under law.

Accordingly this appeal deserves to be allowed and is hereby allowed. The conviction of the appellant Narayan Soni under Section 302 IPC is hereby set aside. The appellant Narayan Soni is in custody. He is acquitted of the charge levelled against him. He be set at liberty. 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 to send back the lower court record to ensure compliance.