Raghunandan vs State of U.P.

Pratyush Kumar, J.—The instant appeal, filed by the accused appellant from the jail is directed against the judgment and order dated 8th October, 2010 whereby the present appellant has been convicted under Sections 302 , 201 IPC and sentenced to undergo imprisonment for life and further to pay fine of Rs. 2000/-, to undergo rigorous imprisonment for five years and to pay fine of Rs. 1000/-, respectively. For non payment of fine he was further sentenced to undergo one year rigorous imprisonment by Sri Kailashendra Prasad, Addl. Sessions Judge, Court No. 2, Hardoi in S.T. No. 589 of 2006, State v. Raghunandan, under Sections 302 /201 IPC, P.S. Atrauli, District- Hardoi.

The prosecution case in the present appeal may be summarized as under:

"That Munshi Lal gave a written report at P.S. Atrauli stating therein that his younger brother Putan aged about 25 years had gone from the house in the company of Raghunandan on 8th August, 2005 at about 4 p.m.. When he did not come back in the night, search was made. That day during search they came to know that at Village- Sukhaukhera, Putan was seen in a drunken condition. In the nearby pond his dead body was found in the water. On the basis of written report dated 9th August, 2005, Case Crime No. 398 of 2006 was registered. Requisite entry was made in the report of the general diary. Inquest proceedings were held. The investigation started, post mortem examination on the dead body of the deceased was conducted on 9th August, 2005 at District Morturary. The Investigating Officer Pratap Bahadur Singh took over the investigation, inspected the spot, prepared the site plan, examined witnesses and charge-sheeted the present appellant."

The present appellant was charged by the Court of Session under Sections 302 , 201 IPC which he denied and claimed to be tried.

On behalf of the prosecution, written report Ext. Ka-1, Post mortem report Ext. Ka-2, Site plan Ext. Ka-3, Inquest report Ext. Ka-5, copies of report of G.D. Ext. Ka-6 and Ext. Ka-7, besides other documentary evidence were filed on behalf of the prosecution. In oral evidence, the prosecution has examined eight witnesses, out of these, Munshi is the first informant and brother of the deceased who reiterated the version contained in the first information report and has further stated that on account of dispute regarding chabutra, accused Raghunandan bore enmity with the deceased. Munni Devi, wife of the deceased supported the prosecution version and further stated that Veeram Shukla and Godhan had seen his late husband going with the accused Raghunandan, Smt. Jagrani (P.W.-3) is the mother of the deceased who has supported the version contained in the first information report. Godhan (P.W.-4) is the witness of last seen. He claims to have seen the deceased and the accused going towards Sukhaukhera at 4 p.m.. Dr. Ashok Mishra (P.W.-5) is the doctor who conducted the post mortem examination on the dead body of the deceased. He has proved post mortem report and stated that rigor mortis from the dead body had passed off. Dead body was in a swollen condition. Skin was peeling out at several places. Blisters were present. Maggots was present. In the post mortem report, he has recorded following ante-mortem injuries:--

"(i) Left eye ball protruding lacerated, right eye closed.

(ii) Contusion 7 c.m. X 5 c.m. present on left side of face just lateral to left eye.

(iii) Contusion 6.5 c.m. X 5 c.m. below left eye socket.

(iv) Contusion 8 c.m. X 4 c.m. present on the front of the neck."

During internal examination, he found pleura, lungs and membranes congested. On the left side hyoid bone was fractured. In his opinion death has occurred due to asphyxia as a result of strangulation. According to him, time of death could have been two days.

Pratap Bahadur Singh, Sub Inspector (P.W.-6) is the Investigating Officer who proved the site plan and charge sheet and gave details of steps taken during investigation. C.P. 100 Virendra Bahadur Singh (P.W.-7) is the clerk constable who proved copies of the reports of the G.D. entry Ext. Ka-6 and Ext. Ka-7. Veeram Shukla (P.W.-8) is also witness of last seen. He has also reiterated the same facts stated by Godhan (P.W.-4). After close of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. whereby he denied the facts stated by the witnesses in reference to evidence of last seen and motive. According to him, police fabricated false case against him. About the evidence of the doctor, he pleaded ignorance. The first informant asked him to give evidence against Ram Sunder, when he refused in collusion with the local police he was falsely implicated.

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat, . Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi Vs. State of West Bengal, , the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

First we propose to examine medical evidence whose correctness has not been disputed by the defence. We accept the testimony of the Dr. Ashok Mishra (P.W.-5) and hold that on the stated date and time the deceased was murdered by strangulating him.

This is a case based on circumstantial evidence. No one had seen the deceased being murdered. The prosecution has relied on two pieces of circumstantial evidence. First motive enmity due to dispute of chabutra and second evidence of last seen in the form of statement of Godhan (P.W.-4) and Veeram Shukla (P.W.-8). There is no other evidence in the form of recovery on the pointing out of the accused or in the form of extra judicial confession.

Learned counsel for the appellant submits that even from the prosecution evidence two facts have been proved, one is Putan, who was seen in a drunken condition near Village- Sukhaukhera and his dead body was found drowning in the pond of Village-Sukhaukhera. He has further submitted that in the first information report, the first informant has expressed the apprehension that Putan had died due to drowning. His main submission is that in a drunken condition Putan fell down, received ante mortem injuries causing his hyoid bone to be fractured on the left side and consequent drowning. He has also referred the statement of Dr. Ashok Mishra (P.W.-5) that doctor has admitted the suggestion that injury No. 2 could have been caused by a fall on a hard object. He has further opined that the injuries could have been caused by fall on hard object.

We would like to examine the prosecution case first. In our opinion the learned trial Judge while considering motive has not taken into account the fact that had there been motive is enmity between the accused and the deceased, the deceased neither would have gone with the accused nor his family members would have permitted him to go with the accused. We find evidence on the motive weak on this ground also that the dispute which had taken place 2-4 months before the occurrence. We find that learned trial Judge has not deliberated on this ground. Keeping in view the fact that in this case except the evidence of last seen, no other piece of circumstantial evidence is available. Only when motive is very strong and established by cogent evidence, evidence of last seen could be taken to complete the chain of circumstantial evidence. In the present case we do not think motive could be proved by the prosecution to inspire our confidence to that extent.

So far as the evidence of last seen is concerned, there is material contradiction in the evidence of Veeram Shukla (P.W.-8). He had not told the Investigating Officer that he saw the deceased and the accused together when he was talking with Godhan. Even he did not show the place to the Investigating Officer from where he had seen them together. The noticeable fact is that in spite of the knowing about the death of the deceased, he did not inform anyone about his seeing the deceased along with accused. For this reason we do not think his evidence is reliable.

Godhan (P.W.-4) has given a very weak reason for his presence at the spot where he had seen the deceased and the accused together. He claims to have gone to see how his field was plowed but he did not see anyone in the field. When his evidence is appreciated in the light of the suggestion of the defence, we are not assure that his evidence can be relied upon.

Thus, even from the evidence of prosecution, the charges against the present appellant have not been proved beyond doubt. We have doubt whether there was motive to the accused to murder the deceased. We also doubt whether they were seen together by Godhan (P.W.-4) and Veeram Shukla (P.W.-8). Keeping in view the statement of the doctor possibility of sustaining ante mortem injuries from a fall in a drunken condition by the deceased cannot be ruled out. In our opinion, learned trial Judge did not keep in mind the law laid down in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, , wherein the Hon''ble Apex Court has enumerated the conditions which are required to be fulfilled and only thereafter on the basis of circumstantial evidence accused can be convicted. In this case on circumstantial evidence, the Apex Court has laid down the following principles which are as under:

"1. 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 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 have been done by the accused."

In the present case we do not think the learned trial Judge has recorded any finding that any of the above condition is satisfied in the present case. In our view none of them has been satisfied. The appeal has substance and argument in support of the appeal are well substantiated from the record.

Therefore, appeal succeeds. Accordingly, Criminal Appeal No. 120 of 2011 is allowed. Impugned judgment and order dated 8.10.2010 are set aside. The present appellant- Raghunandan is acquitted from the charges framed under sections 302 , 201 IPC. He is in jail. He be released forthwith if he is not wanted in any other case.

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