Prakash vs State of U.P.

Surendra Vikram Singh Rathore, J.—Mr. Vaibhav Kalia, learned amicus curiae for the appellant, Ms. Ruhi Siddiqui, learned A.G.A. for the State were heard.

Under challenge in this appeal is the judgment and order dated 13.10.2003 passed by learned Additional Sessions Judge, Court No. 7, Barabanki in Sessions Trial No. 307 of 2002, arising out of Case Crime No. 39 of 2002, under Section 302 I.P.C., Police Station Fatehpur, District Barabanki whereby appellant Prakash was convicted for the offence under Section 302 I.P.C. and was sentenced with imprisonment for life and also with fine of Rs. 4,000/- with default stipulation of six months additional imprisonment.

In brief the case of the prosecution was that on 3.2.2002 complainant Harbansh Kumar submitted a written report at Police Station Fatehpur, district Barabanki alleging therein that on 2.2.2002 Pitamber (deceased) son of Lallu of his village had gone to harvest "Tin" towards south of the village along with appellant Prakash but he did not come back. In the morning, a search was made then the dead body of Pitamber was found in the river. Thereafter the complainant leaving the dead body in the custody of his family members went to lodge the F.I.R. On this report, case was registered and investigation proceeded. Thereafter inquest proceedings were conducted and the dead body was sent for postmortem. The postmortem on the body of deceased was conducted on 4.2.2002 at 3:30 p.m. Duration of the death was about one and a half day.

As per postmortem report, following ante mortem injuries were found on the body of the deceased.

(i) Multiple abraded contusion on front and left side of neck, in an area of 14 c.m. x 4 c.m., 4 c.m. below right ear, 2 c.m. below left ear size ranging from 0.5 c.m. x 0.2 c.m. To 4.1 c.m. on cutting ecchymosis was present.

(ii) Abrasion 2 c.m. x 0.5 c.m. on top of right shoulder.

(iii) Abrasion 3 c.m. x 1 c.m. over inner aspect of right elbow joint.

(iv) Abrasion 2 c.m. x 2 c.m. on the back of left elbow. There was mud on the dorsal aspects of palms and on the soles.

After investigation, charge-sheet was filed against the appellant.

The case of the defence was that he has been falsely implicated in this case at the behest of Village Pradhan Smt. Meera Devi as the complainant Haribansh Kumar happens to be her husband and there was enmity of the election of Village Pradhan with the appellant.

In order to prove its case the prosecution has examined Haribansh Kumar, complainant of this case, PW-2 Hansraj, PW-3 Rajendra Gautam, PW-4 Moga, mother of the deceased. PW-5 S.I. Mahendra Bal Singh, who has conducted inquest proceedings. PW-6 Constable Lal Jeet Singh, who is the witness of inquest proceedings and carrier of the dead body. PW-7 Head Constable Shri Ram Pathak, who has prepared chik report and G.D. of this case. PW-8 Dr. Surendra Mehrotra, who has conducted postmortem on the body of the deceased. PW-9 S.O. Ashok Kumar Tiwari, Investigating Officer of this case. PW-10 Gauri Shankar Sharma, subsequent Investigating Officer of this case and has filed charge-sheet in this case.

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

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

Submission of learned counsel for the appellant was that in the instant case, there was only evidence of last seen against the appellant and that too cannot be taken to be any incriminating circumstance against the appellant because the deceased was a blind man and the appellant was the person who used to take him to the field. Apart from the said evidence of last seen, there was absolutely no other evidence/circumstance to connect the appellant with the instant offence, therefore, the trial court has committed error in convicting the appellant.

Learned A.G.A. has submitted that by the prosecution evidence, it is established that the deceased was last seen alive in the company of the deceased. When the appellant came back to his house then on enquiry he told the family members of the deceased that he was working in the field. So his false reply shows that he was involved in this case and therefore, he has given a false reply.

Admittedly, nothing material is alleged to have been recovered either from the possession of the appellant or on his pointing out during investigation.

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 Sk. Yusuf Vs. State of West Bengal, 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 Vs. State of Maharashtra, , Krishnan Vs. State represented by Inspector of Police, and Wakkar and Another Vs. The State of U.P., ."

In the case of Haresh Mohandas Rajput Vs. State of Maharashtra, , Hon''ble Apex Court following its earlier decision in the case of Krishnan Vs. State represented by Inspector of Police, 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., 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 @ Sirajudeen Vs. State of Rajasthan, 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, , 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 Vs. State of Tamil Nadu, .

Now in the backdrop of aforementioned legal position, we will consider the instate case. PW-1 Haribansh is not a witness of any fact. According to the evidence of this witness, his wife was the Village Pradhan and Pitamber of his village had gone with appellant Prakash to cut "Tin" and he did not come back. Thereafter in the following morning, a search was made and in the said search, dead body of Pitamber was recovered. He himself is not a witness of any fact. He has admitted this fact in his cross examination that he himself has not seen appellant along with Pitamber and has given statement as he was told by the mother of the deceased. PW-2 is Hansraj. He has stated that when he was coming back from his field from the southern side of the village, he saw that appellant Prakash and Pitamber were going in the southern direction with sickle in their hands, none else was with them. In the following morning, he got the information from other persons and made search of Pitamber then his dead body was recovered. Admittedly, Pitamber was blind. This witness has admitted that appellant used to live in the house of Pitamber. Pitamber was the only son of his parents. This witness was declared hostile. Nothing incriminating could be elicited in his cross examination to land support to the prosecution. PW-3 Rajendra Gautam. He has also stated that Pitamber was blind and appellant Prakash is his cousin and used to live with Pitamber in his house. Mother of Pitamber also used to live in the same house. His father had expired. He has seen that Pitamber and appellant Prakash cutting "Tin" in the field. However, this witness has not supported the case of the prosecution so far as co-accused Chheda is concerned, therefore, he was declared hostile. PW-4 Moga is the mother of deceased Pitamber. She has stated that appellant Prakash has sold the land of his share. He used to stay in his house whenever he wishes to stay. She has stated that her son had gone with the appellant to the field and he did not come back in the evening. The evidence of this witness shows that the deceased was a blind person. The appellant was his cousin, therefore, he used to take the deceased to the field for work. The only circumstance, the prosecution could prove against the appellant, even if it is taken to be an incriminating circumstance, would be only of last seen. According to the postmortem examination, which was conducted on 4.2.2002 at 3:30 p.m., the duration of death was one and a half day. So it transpires that the death of the deceased would have been caused after mid-night of 2.2.2002. The evidence of last seen with the appellant is that the appellant came back in the evening and by that time, the deceased had not come with him. Nothing incriminating is alleged to have been recovered on the pointing out or from the possession of the appellant.

The only argument of learned A.G.A. to connect the appellant with the instant offence was that he has taken a false plea that the deceased was working in the field. But we are not the least impressed with this submission. Perusal of the impugned judgment also shows that the trial court has also acted upon this false reply of the appellant and has not carefully scrutinized the prosecution evidence. Even according to the admitted case of the prosecution, the appellant came back in the evening of 2.2.2002. According to the medical evidence, the death could have occurred after mid-night. Thus the time gap remains unexplained and admittedly the appellant was present in the house and was not in the company of the deceased in the mid-night. Although the doctor has stated that death could have been caused at 5:00 - 6:00 p.m. on the alleged day of occurrence but this opinion appears to be not supported by the duration of death as reported in the postmortem report. Even according to the admitted case of the prosecution, the deceased was the relative of the deceased. If he had gone with the deceased to the field it would not be any incriminating circumstance, by itself, unless and until it is accompanied by some other circumstance to connect the appellant with the instant offence. But we failed to find any such other circumstance to connect the appellant with the said offence. None of the prosecution witnesses has supported the case of the prosecution that Chheda was also present there. Accordingly he was acquitted and no appeal challenging the acquittal of Chheda has been filed.

As discussed earlier, the evidence of last seen in the company of the deceased also does not stand substantiated by the time of death as disclosed in the postmortem report. According to the prosecution case, when the appellant left the deceased, at that time, he was alive and was not dead. It is nowhere the case of the prosecution that the appellant Prakash was seen in the night with the deceased near the place where dead body was recovered. He again went in the night. So the chain of circumstance cannot be said to be complete. According to the medical evidence, Pitamber was alive after appellant Prakash left, his company. What happened thereafter could not be explained by the prosecution. If the case of the prosecution is taken to be true, then duration of the death of the deceased must have been about two days old. PW-3 Rajendra has also admitted in his examination in chief that after his arrival in the evening to his house, the appellant came back after 15-20 minutes. So the time since death does not support the prosecution case at all and by no stretch of imagination, we can hold that the chain of circumstance was complete. The trial court has not appreciated the prosecution case in correct perspective, which has rendered its judgment unsustainable under law.

In view of the discussion made above, this appeal deserves to be allowed and is hereby allowed. The judgment and order dated 13.10.2003 passed by learned Additional Sessions Judge, Court No. 7, Barabanki in Sessions Trial No. 307 of 2002 is hereby set aside. The appellant is acquitted of the charges levelled against him. He be set at liberty. The appellant is in jail. He shall be released forthwith, if not wanted in any 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.