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2004 DIGILAW 911 (ALL)

BUDH SEN v. STATE OF U P

2004-04-26

K.K.MISRA, M.C.JAIN

body2004
M. C. JAIN, J. The accused appellant Budh Sen has lodged this appeal against the judgment and order dated 6th October, 1981 passed by the then VII Additional Sessions Judge, Bareilly in Sessions Trial No. 40 of 1981, convicting him under Section 302 I. P. C. and sentencing to undergo life imprisonment for the murder of one Afarshis Lal. The incident took place in village Pareva, P. S. Bhirupura, District Bareilly in between the night of 22/23rd April 1979 and the F. I. R. was lodged on 23-4-1979 at 9. 15 a. m. by Rohan Lal PW 1 (nephew of the deceased ). The distance of the Police Station from the place of occurrence was about 6 miles. 2. The broad essentials of the case may be noted. In between the fateful night the deceased Afarshi Lal was sleeping in the Courtyard of his house. His wife was sleeping inside. When she got up in the morning, she found that her husband had been murdered by someone. His neck bore cut marks. As per the F. I. R. , enmity existed between the accused appellant and the deceased from before. They were related as Sarhus to each other. The father-in-law of the accused appellant was not sending his wife to him. The accused appellant suspected that the deceased was instrumental in not sending his wife to him by his father-in-law. Before Holi, a quarrel had taken place between the accused appellant and the deceased over this issue and the latter had threatened the former of death. So, the accused appellant was named in the F. I. R. on suspicion. 3. On the lodging of the F. I. R. , a case was registered and investigation was taken up by S. I. Ram Avtar Tarun PW 8, who accompanying by other police personnel reached the spot and busied himself with the activities related to investigation including the preparation of the inquest report. The dead body after being sealed was sent for post mortem. Post mortem was conducted on 24-4-1979 at about 4 p. m. by Dr. D. V. S. Harit PW 9. The deceased was aged about 28 years and about 1-1/2 day had passed since he died. The following ante-mortem injuries were found on his person: (1) Incised wound 13 cm x 2 cm x vertebral column deep on left side neck, 2 cm below left ear. D. V. S. Harit PW 9. The deceased was aged about 28 years and about 1-1/2 day had passed since he died. The following ante-mortem injuries were found on his person: (1) Incised wound 13 cm x 2 cm x vertebral column deep on left side neck, 2 cm below left ear. Medial end of injury was upto middle of neck on front. Trachea, muscle and throat vessels cut. (2) Incised wound 11 cm x 1 1/2 cm x bone deep just parallel and 1 cm below injury No. 1. 4. According to the Doctor, the death had occurred due to shock and haemorrhage as a result of ante- mortem injuries. 5. Ram Lali PW 2 - wife of the deceased had also handed over a towel containing some hairs of the accused appellant to the Investigating Officer which was deposited by the latter at the Police Station. The investigation was later on taken over by S. O. Udaiveer Singh Tomar PW 7 who arrested the accused appellant in village Rahpura Ghanshyam. He allegedly recovered the Gandasa (weapons of offence) at the behest of the accused appellant. A specimen of his hairs was taken and the same as also the towel containing his hairs were sent to forensic department for comparison. They were found to be belonging to one and the same person. Charge-sheet was submitted against the accused appellant who was tried. 6. The defence was of denial. The accused appellant also denied to have handed over the alleged Gandasa to the S. I. He, however, admitted that sample of his hairs had been taken by the police and the same had been sealed. 7. The prosecution in all examined 14 witnesses including the formal witnesses-Investigating Officers and the Doctor who conducted the autopsy over the dead body of the deceased. 8. Finding the guilt of the accused appellant to be proved, the trial Court recorded the impugned judgment. 9. We have heard Sri Devendra Swarup, learned counsel for the appellant and Sri Sudhir Kumar Agarwala, learned A. G. A. from the side of the State. The argument from the side of the appellant is that the circumstantial evidence relied upon by the trial Court to record conviction was wholly insufficient and the accused appellant has been held to be guilty simply on conjectural inferences. 10. Obviously, there is no eye-witness of the alleged murder of Afarshi Lal. The argument from the side of the appellant is that the circumstantial evidence relied upon by the trial Court to record conviction was wholly insufficient and the accused appellant has been held to be guilty simply on conjectural inferences. 10. Obviously, there is no eye-witness of the alleged murder of Afarshi Lal. The case, indeed, is circumstantial nature. The apex Court has consistently held in a series of decisions 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 of a definite tendency unerringly pointing towards the 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 probabilities the crime had been committed by the accused and none else; and (iv) The circumstantial evidence must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not at all be consistent with his innocence. 11. The case at hand should be judged on the touchstone of the above criteria. The prosecution relied upon three circumstances in proof of the guilt of the accused. The first was that he had strong motive, to commit this crime. Roshan Lal PW 1-nephew of the deceased, who lodged the F. I. R. , inter alia, stated that the accused appellant is the Sarhu of the deceased and prior to the present incident before Holi, a quarrel had taken place between the deceased and the accused. The issue was that the accused appellant suspected that the deceased was preventing his father-in-law from sending his wife with him. The accused appellant then threatened to kill him (deceased ). The accused appellant had also allegedly complained to this witness that the deceased was not letting his father-in-law send his wife with him. Ram Lali PW 2 (wife of the deceased) also gave evidence regarding the alleged motive that 5-6 days before the incident, the accused had come to the village and picked up a quarrel with her husband over the question of not sending his wife along with him by his father-in-law. The accused had then threatened her husband that he would not allow him to live on earth. The accused had then threatened her husband that he would not allow him to live on earth. Her husband had turned, the accused from the house whereupon the accused had threatened that he would kill her husband within 8 days. It was also in her testimony that Ram Sanehi was her younger sister and in connection with her Gauna ceremony, her husband had gone to his Sasural. On return to the village after attending the Gauna ceremony, he told her that the accused had quarrelled with him there also and had threatened to kill him. Her sister elder to Ram Sanehi is the wife of the accused appellant. 12. Having regard to natural human conduct, the motive assigned by the prosecution, against the accused does not appear to be strong enough to drive him to commit the murder of his Sarhu. It is not the prosecution case that the wife of the accused was living with the deceased or he had some liaison with her. The role of the deceased could at best be of intervener for sending the accuseds wife with him by his father-in-law. In case the deceased had refused to act as a middleman, the accused could have either interacted with his father-in-law directly or through someone else to solve the tangle, instead of taking a crotchet into his head to commit his murder. Disinclination of the deceased in intervening personally in the matter did not present such insurmountable problem before the accused that all doors of negotiations with his father-in-law were closed and he could be driven to take his Sarhus life. In our view, therefore, the motive presented by the prosecution against the accused appellant for commission of this crime is too weak to provide a link in the chain of circumstances, to bring home the guilt to him. 13. The second circumstance is the alleged recovery of Gandasa (weapon of offence) got made by the accused appellant to the Investigating Officer. The second Investigating Officer, S. I. Udaiveer Singh Tomar PW 7 spoke in this behalf that on return from leave, he took over the investigation on 25-4-1979 and the same day he reached village Rahpura Ghanshyam, P. S. Deorania wherefrom he arrested the accused while he was harvesting wheat crop. The second Investigating Officer, S. I. Udaiveer Singh Tomar PW 7 spoke in this behalf that on return from leave, he took over the investigation on 25-4-1979 and the same day he reached village Rahpura Ghanshyam, P. S. Deorania wherefrom he arrested the accused while he was harvesting wheat crop. He allegedly got recovered the Gandasa from his house in the presence of public witnesses Hari Ram PW 3 and Kedari Singh PW 4. Phard in this behalf was prepared by him. Gandasa, according to him, appeared to have been washed off. The accused appellant in his statement under Section 313 Cr. P. C. denied to have got such recovery made to Investigating Officer. The sad feature of the case is that both the alleged public witnesses of recovery, namely, Hari Ram PW 3 and Kedari Singh PW 4 turned hostile and did not support the factum of recovery. According to them, they only made their signatures at two places at the instance of Daroga. In the absence of corroboration of the factum of alleged recovery by independent witnesses, it is rendered doubtful. It cannot be taken that the said two independent witnesses purposely turned hostile so as to help the accused appellant. The reason, is that they supported the other fact of specimen of hairs of the accused appellant having been taken by the Investigating Officer in their presence. As per the own statement of the Investigating Officer the Gandasa had seemingly been washed off. That means to say, it did not have any bloodstains. It obliterated the possibility of any scientific examination of the weapon of offence to connect it as having been used in the commission of this crime. So, the second circumstance is completely eroded. 14. The third circumstance is that a towel of the accused appellant with some hairs had been found at the spot by the wife of the deceased which she handed over to the first Investigating Officer S. I. Ram Avtar Tarun PW 8 on 24-4-1979 and on scientific examination, the hairs thereon tallied with the specimen hairs of the accused appellant taken by the subsequent Investigating Officer S. I. Udaiveer Singh Tomar P. W. 7. 15. It is to be noted that S. I. Ram Avtar Tarun PW 8 had reached the spot on 23-4-1979 itself consequent upon the lodging of the F. I. R. Inquest report etc. 15. It is to be noted that S. I. Ram Avtar Tarun PW 8 had reached the spot on 23-4-1979 itself consequent upon the lodging of the F. I. R. Inquest report etc. had been prepared by him on 23-4-1979 itself. Bloodstained and simple earth had also been collected by him from the spot on 23-4-1979. Blood stained Kathari of the deceased too was taken in possession with the preparation of the memo as also jute strings of the cot. The statement of Roshan Lal PW 1 was also recorded by him but of Ramlali (wife of the deceased) was not recorded on that date. According to him, she was present on that date but was unconscious. He recorded the statement of some other witnesses also on 23-4-1979. He again reached the village on 24-4-1979 when the wife of the deceased handed over to him a towel which she had found near the spot. It contained some hairs. The statement of Ram Lali PW 2 herself is that she had handed over the towel with some hairs stuck to it to the Investigating Officer and that he had sealed the same. According to her, the towel had been found by her near the cot of the deceased. The following day of her finding the towel, the Investigating Officer had gone to her and she handed over the towel to him. As per the statement of Om Prakash Mani Tripathi, PW 13, an expert of the Forensic Section, the hairs found on the towel tallied with the sample hairs of the accused appellant. He proved his report produced in that behalf which is Ex. Ka-30. 16. Since the two sets of the hairs tallied, as per the prosecution, it was the most strong circumstance proving that the murder of Asharfi Lal had been committed by the accused appellant who accidentally or negligently happened to leave his towel near the dead body. The alleged circumstance, however, does not stand a close test. The Investigating Officer having reached the spot on 23-4-1979 itself and having prepared the site plan and inquest report with the collection of bloodstained and simple earth as also the bloodstained guilt of the deceased, in ordinary course the towel would also have been taken in possession by him on 23-4-1979. The Investigating Officer having reached the spot on 23-4-1979 itself and having prepared the site plan and inquest report with the collection of bloodstained and simple earth as also the bloodstained guilt of the deceased, in ordinary course the towel would also have been taken in possession by him on 23-4-1979. The evidence of Ram Lali PW 2 is that she found the towel near the dead body of her husband and kept it inside her house, not knowing as to whom it belonged. Anything found near the dead body was ordinarily to be left as such till the arrival of the Investigating Officer. It is quite doubtful that the towel was picked up by Ram Lali PW 2 and kept aside. It appears to us that the theory of Ram Lali PW 2 being unconscious at the time of the visit of the Investigating Officer on 23-4- 1979 has been coined just in an attempt to explain the laches in the alleged handing over of the towel the following day on 24-4-1979 by Ram Lali PW 2 to the Investigating Officer. It has simply been planted to have been found by her near the cot of her husband and then allegedly keeping it aside, not knowing as to whom it belonged and thereafter handing it over to the Investigating Officer the following day. It does not stand to reason that the accused appellant, though wise enough to take away the weapon of offence with him, was so careless as to leave his towel near the dead body after committing the crime. The towel did not contain any bloodstains. The possibility can also not be ruled out that during his earlier visits to the house of the deceased, his towel was left there. Therefore, mere tallying of the specimen hairs of the accused appellant with those on the towel does not lead us anywhere in the direction of proving him to be guilty. 17. The result is that it is not possible to sustain the conviction of the accused appellant based on so called isolated three circumstances relied upon by the prosecution. The accused appellant was named in the F. I. R. on sheer suspicion. The case did not travel from the range of suspicion to the realm of certainty even after the prosecution adduced evidence in the Court. The accused appellant was named in the F. I. R. on sheer suspicion. The case did not travel from the range of suspicion to the realm of certainty even after the prosecution adduced evidence in the Court. To sustain conviction on circumstantial evidence, the circumstances should exclude every hypothesis excepting the guilt of the accused. The present case is nowhere near this requirement. 18. Consequently, we allow this appeal and set aside the impugned conviction and sentence passed against the accused appellant. 19. The judgment be certified to the lower Court for reporting compliance within two months after making necessary entry in the concerned register. Appeal allowed. .