Raj Bahadur and Anr. vs State of U.P.

D. K. TVivedi, J.—The present Criminal Appeal arises out of the judgment and order dated 791979 passed by the IVth Additional Sessions Judge, Unnao, convicting appellants Raj Bahadur and Poley under Section 302/34, I.P.C. and sentencing each of them to undergo Imprisonment for Life. Both the accused were further convicted under Section 394, I.P.C. and sentenced to undergo Rigorous Imprisonment for a period of Five Years and to pay a fine of Rs. 1000 each and in default of payment of fine each of the two appellants were directed to undergo Rigorous Imprisonment for a further period of one year. The substantive sentences of imprisonment were directed to run concurrently.

According to the prosecution case the incident took place on 1231978 within the local limits of village Bhooranhar situate in village Islam Nagar Police Station Ashoha, District Unnao. According to the prosecution case Smt. Gumta resided in village Islam Nagar, Police Station Ashoha, District Unnao, on 1231978 at about 10.00 a.m. she had gone towards village Bhooranhar with a Khurpa for scraping grass. At about 1.00 p.m. her son Harish Chandra PW. 1 had also gone towards Bhooranhar for grazing his cattle and he saw his mother Smt. Gumta scraping grass in the Arhar field of Smt. Meera. Harish Chand went away from there and returned back to his house with his cattle at about 6.30 p.m. but he did not find his mother in the house. Harish Chandra then immediately started search for his mother and at about 7.00 p.m. he found Smt. Gumta lying dead near the northern "mend" of the Arhar field. He also found blood stained Khurpa lying there and the ornaments which she used to wear were found missing from her person. Harish Chandra then entrusted the dead body in the custody of his father and got a written report Ext. Ka1 prepared by one Gaya Prasad and lodged the same at Police Station Ashoha at about 8.15 p.m. P.W. 3 Jageshwar Singh, Head Moharrir received the report and registered the case in the General Diary. The investigation was handed over to P.W. 10 R.K. Singh, Station Officer, Police Station Ashoha. The Investigation Officer recorded the statement of Harish Chandra at the Police Station itself and thereafter the reached the place of incident in the night on 1331978. He prepared inquest report Ext. Ka12 and other relevant papers Ext. Ka13 to Ka16 and handed over the dead body to Constable Khalilul Haq for postmortem examination. He also recovered blood stained Khurpa which was lying there and prepared memo in respect thereof. He also recovered blood stained as well as plain earth from the spot and prepared site plan Ext. Ka19. he recorded the statements of theother witnesses also. On 1531978 the Investigating Officer received information through some informer that accused Raj Bahadur and Poley would go towards Banthara for selling the properties of this incident and they will cross river Sai at Deora Ghat. On this information the Investigating Officer reached Deora Ghat at about 12.30 p.m. and arrested the accused at Deora Ghat. It is said that one pair of silver Kara and one Pongi made of gold were recovered from the possession of Raj Bahadur who had wrapped them in an Angaunchha and one Sutia of silver and one pair of silver Karan phool were recovered from the possession of Poley who had wrapped them in a Paijama. The Investigating Officer thereafter prepared a memo Ext. Ka11 and siteplan Ext. Ka20 and after completing investigation submitted chargesheet against the accused persons.

P.W. 2 Dr. H.M. Saxena conducted autopsy on the dead body of the deceased on 1431978 at 3.30 p.m. thedoctor found the following injuries on the dead body of the deceased. The postmortem report is Ext.Ka2.

(1) Incised wound 8" x 1" x bone front of neck horizontal, cutting all soft tissues upto bone.

(2)Incised wound 11/4" x 1/2" x eye ball on left eye lid lower on eye.

(3) Abrasion 3/4" x 3/4" left wrist dorsum.

According to the Doctor the death was caused due to shock and haemorrhage as a result of antemortem injuries.

The prosecution in support of its case examined 10 witnesses in all. Out of them P.W. 1 Harish Chandra is the complainant who found the dead body of Smt. Gumta in the field. P.W 2 Dr. H.M. Saxena conducted autopsy on the dead body of the deceased and proved the postmortem report Ext. Ka2. P.W. 3 H.C. Jageshwar Singh received the F.I.R. and registered the case in the General Diary and prepared chik report Ext. Ka3. P.W. 4 Ayodhya Prasad is the brother of the complainant Harish Chandra. He proved that his deceased mother used to wear the ornaments which are alleged to have been recovered from the possession of the accused. P.W. 5 Raj Kumar is the witness of last seen. P.W. 6 Krishna Pal Sarpanch proved the extrajudicial confession made by the accused. P.W. 7 B.S. Chauhan, Executive Magistrate conducted identification of the case property and proved the identification memo Ext. Ka9. P.W. 8Smt. Umai'' sister of the complainant also proved that his mother used to wear these articles. P.W. 9 Pyarey Lal is the witness of recovery and P.W. 10 R.K. Singh is the Investigating Officer who conducted investigation in the case and submitted chargesheet against the accused persons.

On the other hand the accused denied the prosecution case and stated that they have been falsely implicated in this case due to enmity.

The learned Additional Sessions Judge, after considering the evidence on record came to the conclusion that the prosecution has successfully proved the guilt of the appellants beyond reasonable doubt and, therefore, he convicted and sentenced the appellants as mentioned above.

Aggrieved from the above judgment and order the appellants filed the present appeal before this Court thiougha Counsel but after the elevation of his Counsel as a Judge of the High Court, they did not engage any other Counsel, therefore, we appointed Shri Imtiaz Murtaza Advocate of this Court as atnicuscuriae.

We have heard the learned Counsel for the appellants and the Additional Government Advocate at length and perused the record.

The main contention of the learned counsel for the appellants is that there is admittedly no eyewitness account and the circumstances disclosed by the prosecution are not sufficient to connect the accused with this crime beyond reasonable doubt. According to him the extrajudicial confession, on the face of it is not believable and the testimony of P. W. 6 Krishna Pal Singh who has stated that both the accused persons made a confessional statement, is totally unreliable. P.W. 6 Krishna Pal Singh stated that on the next morning he visited the place of the incident and remained there upto 2.00 p.m. He further stated that thereafter he returned to his house and at about 5.005.30 p.m. the appellants came to his house and stated that they had killed the old lady. It is alleged that P.W. 6 Krishna Pal refused to help them and then both the accused went away. P.W. 6 Krishna Pal admits that both the accused did not visit his house earlier for his help in any other context. He also stated that he did not try to note down the statements of both the accused persons nor did he try to arrest the accused. He admits that the next day he narrated the confessional statement to the Investigating Officer but before this he did not disclose this fact to anybody including Harish Chandra. He admits that major portion of the confessional statement was disclosed by Raj Bahadur and Poley also made some corroborative statement. The relevant portion of the statement is as under:

"Raj Bahadur Zyada Baat Bataya Aur Thodi2 Poley Bhi Bataya Tha. Mainey Darogaji Sey Yeh Nahi Bataya Ka Kitni Baat Raj Bahadur Ney Batai Wa Kitni Baat Poley Ney."

In fact P.W. 6 Krishna Pal failed to point out as to which of the accused admitted his guilt and it is also not clear from his statement as to what they did state before him. As stated by this witness it is not possible to believe in the absence of any closeness with P.W 6 Krishna Pal, that the accused will visit his house and will admit their guilt. In these circumstances it is highly improbable that the accused persons would have gone to the house of P.W. 6 Krishna Pal in order to confess their guilt.

The Hon''ble Supreme Court of India in the case of Jaspal Singh alias Pali v. State of Punjab, 1997 SCC (Cr.) 358, held as under:

"The third contention of Mr. Sodhi viz., that it is highly improbable that Jaspal Singh AI would have gone to this witness along with his coaccused to confess the guilt, is equally formidable. Chhota Singh P.W. 7 has not given any reason as to why and how Jaspal Singh AI and other coaccused have reposed such a confidence in him and confessed their guilt. After going through the evidence of Chhota Singh P.W. 7 we do not find it safe to hold any of the appellants guilty in the present crime."

The other circumstances of seeing the accused coming out of the Arhar field is also not believable. P.W. 5 Raj Kumar stated that he saw the accused coming out of the Arhar field. He did not say that he saw the accused coming out of the Arhar field of Meda. It is also not the case of the prosecution that there was no other Arhar Field except the Arhar field of Meda. Apart from this he admits that he met Harish Chandra in the next morning at about 8.00 or 9.00 a.m. but he did not inform him that he saw the accused persons coming out of the Arhar field. He further stated that he informed the Investigating Officer that he saw the accused persons coming out of some Arhar field but no such fact finds place in his police statement. The fact that the accused persons had something in their hands also did not find place in the statement recorded by the Investigating Officer. In these circumstances no reliance can be placed on this circumstance also.

Now remains the fact of recovery of the looted articles from the possession of the accused persons. The question is as to whether in the absence of any other circumstance a presumption can be raised against the appellants for holding them guilty underSections302/34and 394, I.P.C.? In our opinion no such presumption can be raised on the recovery of articles specially when there is no other evidence against them.

The Hon''ble Supreme Court of India in the case of Gautam Maroti Umale v. State of Maharashtra, 1994 SCC (Cr.) 1721, took the view and held that the accused is guilty under Section 412, I.P.C. only. In the case of circumstantial evidence it is the duty of the prosecution to prove each circumstance and further the circumstances so proved should form a complete chain. The circumstances should be inconsistent with the innocence of the accused and also exclude every other hypothesis, however in the inslant case after considering the circumstances on record we are of the opinion that the prosecution has failed to connect the accused persons with the murder of Smt. Gumta and they are only liable to be convicted under Section 411, I.P.C. because the case under Sections 302/23 and 394, I.P.C. fails against the accused persons. In our opinion sentence of two years rigorous imprisonment and fine of Rs. 1,000 to each of the appellants will meet the ends of justice.

Accordingly the appeal is partly allowed and the conviction and sentence recorded by the Additional Sessions Judge, Unnao, under Sections 302/34 and 394, I.P.C. are hereby set aside and they are acquitted of the same.

However, the appellants are convicted under Section 411, I.P.C. and both of them are sentenced to undergo Rigorous Imprisonment for a period of two years and a fine of Rs. 1,000 each. In case of default in payment of fine they shall further undergo three months R.I. The appellants are directed to deposit the amount of fine within two months from today. The appellants are on bail. They are directed to surrender forthwith to serve out the sentence awarded to them.

The Chief Judicial Magistrate concerned is directed to send compliance report within six weeks.