Vishal Arora and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—Sri Piyush Asthana, learned counsel for the appellants, Smt. Madhulika Yadav, learned Additional Government Advocate for the State were heard. We have perused the material available on record.

Both these criminal appeals i.e. [Criminal Appeal No. 1691 of 2007-Vishal Arora V. State of U.P.] and [Criminal Appeal No. 1109 of 2007-Putan V. State of U.P.] arise out of same judgment, therefore, the same are being disposed of together.

Instant criminal appeals have been preferred by the appellants-Vishal Arora and Putan challenging the judgment and order dated 30.03.2007 passed by learned Additional Sessions Judge/F.T.C. Court No. 4, Lucknow, in Sessions Trial No. 799 of 2003, arising out of Case Crime No. 121 of 2003, under Sections 302 IPC, Police Station Talkatora, District Lucknow, whereby both these appellants were convicted for the offence under Section 302 IPC and were sentenced to undergo imprisonment for life and also with fine of Rs. 8000/- each.

In the instant case one Pachhoo Lal who happens to be father of the complainant, Gomti Devi was murdered. The FIR of this case was lodged by Gomti Devi on 22.03.2003 at 12:30 p.m. at Police Station Talkatora, District Lucknow alleging therein that she alongwith her mother and her sisters had gone to the parental house of her mother in village Billaura, District Unnao. On 22.03.2003. When they came back at about 10:00 a.m. to their village Deopur, Police Station Talkatora, District Lucknow then they found that both the doors of their house were closed and latch of one room was bolted from outside. On opening the door it was found that Pachhoo Lal was lying below the Takhat and the body was covered with a blanket. After removing the blanket it was found that Pachhoo Lal was dead and there was bleeding from his mouth. So a suspicion was expressed that someone has murdered her father. On the basis of this FIR the case was registered and the police came to the place of occurrence and prepared inquest report. The dead body of the deceased was sent for postmortem which was conducted on 23.03.2003 at 1:00 p.m. it appears that the date of postmortem at one place has wrongly been mentioned in the postmortem i.e. 22.03.2003 at 1:00 p.m. As per postmortem report duration of death of the deceased was about one and half day old. Following ante-mortem injuries were found on the body of the deceased:-

(a) Abraded contusion 8 c.m. x 4 c.m. on frontal part, above root of nose.

(b) Abrasion 3 c.m. x 2 c.m. right side of face below right eye.

(c) Contusion 7 c.m. x 5 c.m. on right temporal region.

(d) Contusion 8 c.m. x 4 c.m. on front of neck.

(e) Transverse ligature mark 33 c.m. x 3 c.m. around the neck below cartilage, all around the neck.

(f) Ligature mark 6 c.m. below both the ears. The base of groove of ligature mark was soft and reddish. Tissues below the ligature mark were echomised. Larynx, trachea were fractured.

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

During course of investigation the police arrested the appellant Putan and he made confession of this offence that he alongwith co-accused Vishal Arora has committed this offence. Since the shirt of the appellant Putan was found to be blood stained, therefore, it was taken into custody. Appellant Putan also disclosed to the police that during the incident the deceased caught hold of the hairs of Vishal Arora, therefore, the hairs which were found in the hands of the dead body were taken into custody. Hairs of appellant Vishal Arora were also taken into consideration and both were sent for Forensic Science Laboratory for examination. The shirt of the appellant and the blood stained and plain earth were taken into custody from the place of occurrence and were also sent for chemical analysis. The report of Serologist was to the effect that on the shirt of the appellant Putan and on the blood stained earth, human blood was found. However, sample was not found sufficient for classification of the blood group. Likewise, the hairs of Vishal Arora and the hairs which were recovered from the hand of the dead body were found to be human hairs. However, the same were not found to be sufficient for cross matching. From the possession of the appellant Putan two love letters alleged to be written by the complainant Gomti were also recovered. From the place of occurrence some broken bangles, one angaunchha (a thin towel) were also recovered and were taken into custody and its recovery memo was prepared.

After completing the investigation, the charge-sheet was filed against both the accused persons.

The defence of the appellants was of their false implication in the instant case. It was pleaded by the accused persons that the deceased was a man of bad character and on the date of incident he had called some unknown female labour to his house and wanted to commit rape with her and in the said incident the said female labour has caused the death of the deceased and during scuffling her bangles were broken and the same were recovered from the place of occurrence.

In order to prove its case, the prosecution has examined PW-1, Gomti Devi, the complainant, PW-2 Smt. Saraswati Devi, mother of Gomti Devi, PW-3 Ram Kumar, witness of recovery of shirt of the appellant Putan and also the witness of inquest. PW-4 Head Constable, Kanhaiya Prasad, who is a formal witness and he has prepared the chik report and G.D. of this cases, PW-5 is Constable Shashipal Singh, he is also a formal witness and carrier of dead body, PW-6 S.I. Haridas Prajapati, who had made the search of the appellant Putan at the house of the deceased and had recovered two love letters and had prepared the recovery memo of the same, PW-7 Dr. Rakesh Rawat who has conducted the postmortem on the body of the deceased, PW-8 Ram Lakhan, who has stated that some persons of the village had told that Putan has come to the house of Pachhoo Lal in the night at about 10/10:30 p.m. and thereafter he was arrested by the police. He has stated that no search of appellant Putan was taken in his presence nor any recovery of Angauchha was made from the dead body. This witness was declared hostile, PW-9 S.I. Gajraj Puri who has prepared the inquest report under the supervision of the S.O. and has also prepared the recovery memo of Angauchha, broken bangles, hairs from the hands of the deceased and the blood stained and plain earth, PW-10 Vimal Kumar Sarkar, Circle Officer, Maharajganj, the Investigating Officer of this case, PW-11 Akhilesh Kumar S.I. the subsequent Investigating Officer of this case who took up investigation from 09.04.2003 and sent the recovered articles for chemical examination and ultimately filed the charge-sheet.

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

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

Submission of the learned counsel for the appellants was that in that instant case the learned trial court has mainly relied on the confession of the co-accused given in police custody in the presence of other villagers and on the basis of the same the appellants have been convicted. On behalf of the appellant Vishal Arora it has been argued that there was absolutely no evidence except the confession of co-accused in police custody against him to connect him with the instant offence. Learned counsel for the appellants has also submitted that the evidence of PW-1 Gomti Devi and PW-2 Smt. Saraswati Devi was so contradictory that the same could not be categorized as wholly reliable. The learned trial court has ignored all the material contradictions which came up in their cross examination holding the same as immaterial. It has further been argued that even if their evidence is taken to be true even then it will be only with regard to motive alone. Motive howsoever strong cannot take place of proof. It has further been argued that the prosecution has come with a case that the appellant Putan had illicit relations with Gomti Devi the complainant and they were seen in objectionable position by the deceased due to which he was objecting the relations and the appellant Putan had threatened him. It is submitted that inspite of such background not even any suspicion was expressed in the FIR against the appellant Putan who happens to be son-in-law of the deceased. It is submitted that the learned trial court has committed error of fact and law in relying upon the confession of the appellant Putan which was made in the police custody and this approach of the learned trial court has rendered in its judgment is unsustainable under law.

Smt. Madhulika Yadav, learned Additional Government Advocate has submitted that so far as the appellant Vishal Arora is concerned there was no evidence against him except the confession of the co-accused. Regarding appellant Putan it has been argued that there was strong motive for him to commit the offence. He was son-in-law of PW-2 and real brother-in-law of PW-1 so there was absolutely no occasion for these witnesses to falsely implicate him in the instant case. Learned A.G.A. has also given great importance to the confession of co-accused which was made while he was in custody of police as the same was given in the presence of several other villagers. It is argued that so far as appellant Putan is concerned there is volume of evidence against him and learned trial court has not committed any illegality in convicting him for the murder of Pachhoo Lal.

In view of rival submissions the evidence has to be scrutinized. It is a case based on circumstantial evidence. We are aware that for recording conviction on the basis of circumstantial evidence the Court must be satisfied (a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt; (b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and (c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against accused as held in Mahmood Vs. State of U.P., . In an earlier case Justice Mahajan stated that where the evidence is of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused in Hanumant Vs. The State of Madhya Pradesh, . Following this decision Supreme Court in several cases has held that the following conditions must be fulfilled before a case against an accused can be said to be fully established: namely,

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established;

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, there should not be explainable on any other hypothesis except that the accused is guilty,

(3) The circumstances should be of a conclusive nature and tendency;

(4) They should exclude every possible hypothesis except the one to be proved, and

(5) 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.

In a case of circumstantial evidence the facts to be established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable of any other hypothesis except that the accused is guilty. The chain of circumstances must be so complete in itself 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. Where the prosecution failed to discharge such a burden, order of conviction would be liable to be set aside as held in Shiva Sahai Vs. State of U.P., 1990 Cr.L.J. (NOC) 15. Hon''ble the Supreme Court reiterating the principle held that when a murder is sought to be proved by circumstantial evidence, all the circumstances from which the conclusion of the guilty is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis of the guilt of the accused.

In the instant case the prosecution has proposed to prove the following circumstances:-

(i) Blood stains on the shirt of the appellant Putan.

(ii) Recovery of hairs from the hands of the deceased and samples of hairs from the appellant Vishal Arora.

(iii) Recovery of two love letters alleged to be written by the complainant Gomti Devi.

(iv) Confession of the appellant Putan in police custody.

In the instant case the FIR was lodged by PW-1 Gomti Devi. It was not stated in the FIR that they got information of this incident from someone else and no suspicion was raised against any person. The FIR was lodged against unknown persons. After registration of the case the police came to the place of occurrence and it transpires from the evidence of the prosecution that some villagers told the Investigating Officer that the appellant Putan was seen going into the house at about 10:30 p.m. in the night. On the basis of this suspicion he was taken into custody by the police and his statement was recorded by the Investigating Officer where he made confession of this offence in the presence of several persons of the village.

The first point to be considered is that whether such confession is admissible in the evidence or not. Perusal of the impugned judgment shows that the learned trial court has placed implicit reliance on the confession of the appellant Putan and has also observed that this fact stands corroborated by the evidence of the other witnesses wherein they have stated that the appellant Putan made confession of this offence in their presence.

Learned A.G.A. has also laid great stress on this confession. It is absolutely clear from perusal of the evidence of the Investigating Officer PW-10 Vimal Kumar Sarkar that the confession of appellant Putan was recorded while he was in police custody. In his examination-in-chief PW-10 the Investigating Officer has stated that thereafter appellant Putan was arrested and his statement was recorded wherein he has made confession of this offence and on the basis of his confession co-accused Vishal Arora was arrested and the hairs of Vishal Arora were also taken into custody by the police and the shirt of the appellant Putan was also taken into custody. All the witnesses of fact have stated that the confession of the appellant was recorded while he was in police custody. We fail to understand as to how learned trial court has acted upon the said confession which was given in police custody.

Sections 25 and 26 of the Indian Evidence Act bars the said confession to be used against the accused persons. Sections 25 and 26 of the Indian Evidence Act reads as under:-

Confession to police officer not to be proved--No confession made to a police officer, shall be proved as against a person accused of any offence.

Confession by accused while in custody of police not to be proved against him--No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

Explanation:-In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882.

Once confession of the appellant is washed out from the record then only evidence remains against the appellant is that of Gomti Devi and Smt. Saraswati Devi. PW-1 Gomti Devi had love affair with Putan and she wanted to marry him. She has also admitted that she had written two love letters. The alleged recovered love letters were proved during trial and this witness has admitted that the same were written by her. But a naked eye inspection of the FIR which was written by this witness Gomti Devi and the love letters shows that the same were not in the hand writing of one and the same person. No one can say that the same have been written by the same person. Even if it is assumed, for the argument sake only, that said love letters were written by her then it will only prove that there was love affair of appellant Putan with Gomti Devi. So it will be only a motive to commit the offence. PW-2 Smt. Saraswati has gone to the extent of saying that the deceased had caught them red handed and thereafter appellant Putan had threatened her husband but this part of statement of PW-2 Saraswati Devi has not been corroborated by PW-1 Gomti Devi. Learned trial court in its judgment has ignored this aspect on the ground that unmarried lady would not accept the fact of illicit relations ship as it would affect her future life. But inspite of these facts no suspicion was raised against the appellant Putan in the FIR which was lodged by Gomti Devi. It has also come in the evidence that the information of this incident was given by the appellant Putan himself and also by one Bhanja of deceased to the complainant side while they were in village Billaura District Unnao. But in the FIR it was not mentioned that after getting information of this incident they came back to the place of occurrence. So excluding the confession of the appellant Putan in police custody the only evidence that remains is that of motive only.

As stated earlier, the blood and hair samples could not be cross matched. Both the samples of hairs were found to be human hairs and could not be cross matched. So it cannot taken to be any circumstance to connect the appellant with the instant offence. Learned trial court has rightly not taken the serologist''s report as any incriminating circumstance against the appellant and has observed that such report was neither of any help to the appellant nor any help to the prosecution nor of any help to the accused persons.

Learned counsel for the appellants has placed reliance on the pronouncement of Hon''ble Apex Court in the case of Jiten Besra Vs. State of West Bengal, and has drawn our attention towards para 12 which reads as under:-

"As regards the blood stains on the clothes of the accused, this circumstance is of no consequence for the simple reason that the clothes of the accused were never sent to the Forensic Science Laboratory. That is the fact clearly admitted by P.W. 15, Ram Narayan Datta who was the Investigating Officer. Therefore, the origin of the so-called blood allegedly found on the clothes of the accused was not known nor was it established that it was the blood of the deceased that was allegedly found on the lungi of the accused. This witness also admitted that initially Malati (P.W. 1) did not say anything against the accused person and it was only subsequently that she amended her statement and complained against the accused which statement was much later, i.e., on 24.5.1997. Once it is established that the clothes of the accused or deceased persons were never sent to the Forensic Science Laboratory, it is clear that nobody knew the blood group of the accused or of the deceased persons. Under such circumstances, that circumstance loses all its significance."

Learned counsel for the appellants has also argued that in the statement under Section 313 Cr.P.C. the report of the serologist was not put to him and in absence of such an important incriminating circumstance being put to the appellant the same cannot be used as circumstances against him. On this point he has placed reliance on the pronouncement of Hon''ble Apex Court in the case of Prakash V. State of Karnataka reported in (2014) 12 SCC 133 and has drawn our attention towards paragraphs 42 and 43 of the judgment which reads as under:-

"42. In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains on Prakash''s seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains on Prakash''s clothes were those of Gangamma''s blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh. P-27] was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains on Prakash''s clothes were his own blood stains and that his blood group was also AB.

Learned counsel for Prakash contended that the report of the serologist was not put to him when he was examined under Section 313 of the Code of Criminal Procedure. The High Court dealt with this issue in a rather unsatisfactory manner. This is what the High Court had to say:

"Even assuming that the report of the Serologist had not been put to the accused in his statement recorded under Section 313 Cr.P.C. the same cannot be said to be fatal to the prosecution, more so, when the same had not prejudiced the accused in any way. In fact, we put the said Serologist''s report Ex. P29 to the learned counsel appearing for the respondent and sought for their explanation in this regard and it is submitted that they have nothing to say in that matter. That means, the respondent has no explanation to offer in this regard."

It is one thing to say that no prejudice was caused to Prakash by not affording him an opportunity to explain the serological report. It is quite another thing to put the report to his learned counsel in appeal and give him (the learned counsel) an opportunity to explain the report of the serologist. The course adopted by the High Court is clearly impermissible. The law on the subject was laid down several decades ago by the Constitution Bench in Tara Singh V. State and is to the effect that an accused must be given a chance to offer an explanation if the evidence is to be used against him and the conviction is intended to be based upon it. It follows that if the accused is not given an opportunity to explain the circumstances against him in the testimony of the witnesses, then those circumstances cannot be used against him, whether they prejudice him or not. This is what the Constitution Bench said:

"It is important therefore that an accused should be properly examined under Section 342 and, as their Lordships of the Privy Council indicated in Dwarkanath v. Emperor if a point in the evidence is considered important against the accused and the conviction is intended to be based upon it, then it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it if he so desires. This is an important and salutary provision and I cannot permit it to be slurred over. I regret to find that in many cases scant attention is paid to it, particularly in Sessions Courts. But whether the matter arises in the Sessions Court or in that of the Committing Magistrate, it is important that the provisions of Section 342 should be fairly and faithfully observed."

There is no dispute to the fact situation that the report of the serologist was not put to the accused persons during trial in his statement under Section 313 Cr.P.C. but this point is not of much consequence because learned trial court has also not taken it as incriminating circumstances against them in recording the conviction. So the appellants cannot say that their defence has been prejudiced by such omission on the part of the trial court. The evidence of PW-1 and PW-2, even if it is taken to be wholly reliable, it is only with regard to the motive. Perusal of the evidence of PW-2 Smt. Saraswati Devi shows that though in the examination-in-chief she has supported the case of the prosecution but during cross examination she has pleaded ignorance regarding all the facts which were stated by her in her examination-in-chief. She has expressed her ignorance as to what she had stated in her examination-in-chief but this part of evidence of PW-2 Smt. Saraswati Devi was ignored by the trial court on the ground that her cross examination was done on adjourned date. So even if for the argument sake we take the evidence of PW-1 and PW-2 to be wholly reliable even then the same stands restricted only to the extent of motive and can only raise suspicion against the appellant. Suspicion howsoever strong may not take place of proof it is the settled cannon of appreciation of evidence. On this point reliance may be placed on the pronouncement of Hon''ble Apex Court in the case of Varkey Joseph Vs. State of Kerala, rep. By the Circle Inspector of Police, and has observed in para 12 as under:-

"Suspicion is not the substitute for proof. There is a long distance between ''may be true'' and ''must be true'' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under Section 302 I.P.C."

It is clear that only circumstances that can be taken to be proved against the appellant is the motive only. That can give rise only to a suspicion but keeping in view the settled principles of appreciation of evidence in case of circumstantial evidence it cannot be said that the chain of circumstances was complete. On the contrary, it has also come in evidence that the appellant Putan himself informed the complainant side regarding the incident and this has been admitted by the witnesses. Apart from it, the prosecution could not explain the presence of the broken bangles on the place of occurrence. The manner in which, according to the prosecution, the offence was committed there was no question of presence of any broken bangles. The presence of broken bangles makes the defence theory probable that some lady was present there and she was responsible for the death of the deceased. It has also come in evidence that the deceased used to drink and because of some dispute with the deceased PW-2 Smt. Saraswati Devi the wife of the deceased, remained away from him for a long period of one year. It also supports the probability of the defence theory. It leads to the inference that because of such activities of the deceased PW-2 Smt. Saraswati Devi remained away from him for a long period. The prosecution has utterly failed to explain the presence of broken bangles on the place of occurrence. Not even a single person of the village or vicinity could be examined by the prosecution to say that he had seen the appellant Putan and Vishal Arora going inside the house of the deceased in that night coming out of the house. Though it has been stated by the witnesses that several persons of the village told them that they had seen the appellant Putan going into the house of the deceased but neither names of such persons could be disclosed by them nor any such witness who himself has seen it could be examined by the prosecution. So the evidence of witnesses on this point was only hearsay and was not admissible in evidence. So far as the appellant Vishal Arora is concerned virtually there was no evidence against him and this fact has been conceded by the learned A.G.A. So far as the appellant Putan is concerned the chain against him was also not complete. The circumstances on which the prosecution has placed reliance does not unerringly points towards guilt of the deceased.

In view of the discussion made above, after careful scrutiny of the evidence, we are of the considered view that the defence version is probable and prosecution has failed to prove its case beyond reasonable doubt. These appeals deserve to be allowed and are hereby allowed. Appellants Vishal Arora and Putan are hereby acquitted of the charge under Section 302 IPC. They be set at liberty. The appellants Vishal Arora and Putan are in custody. They shall be released forthwith, if not wanted in any other case.

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