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2009 DIGILAW 2304 (ALL)

PRASSAN KUMAR v. STATE OF U. P.

2009-05-22

POONAM SRIVASTAV, RAJESH CHANDRA

body2009
JUDGMENT Mrs. POONAM SRIVASTAV, J. Heard learned Counsel for the appellant and learned A.G.A for the State. 2. This is an appeal at the behest of accused Prasann Kumar against the judgment and order dated 14.8.2003 convicting. him to undergo life imprisonment under sections 302 and 364 I.P.C. and 2 years R.L under section 377/511 I.P.C. and 2 years R.I. under section 201 I.P.C. in S.T. No. 896 of 2001. All the sentences have been directed to run concurrently. This is a case of circumstantial evidence. Single accused is named in the First Information Report which was registered on 1.9.2001 at 4.00 a.m. Police Station Deoband, District Saharanpur situated at a distance of 6 kilometers from the place of occurrence. The first informant is Praveen Kumar, brother of the deceased Sonu aged about 10 years. Initially an information was given to the police station about missing of the deceased and the report was only for an offence under section 364 I.P.C. but subsequently after the recovery of the dead body at the pointing out of the accused, the case was registered under sections 364, 302 and 201 I.P.C. at case crime No. 528 of 2001. 3. The prosecution story as narrated in the First Information Report is that the complainant Praveen Kumar, brother of the deceased did not return to his house on 31.8.2001 and the first. informant started searching for Sonu in the village Miragpur, Police Station Deoband, District Saharanpur. Mintu son of Sri Kawal Singh and Pitam Singh son of Sri Tohfa Singh informed the complainant that they had seen Sonu going along with accused at about 5.30 p.m. in the village towards Kali river. The report was only regarding abduction of the deceased, a description of Sonu and also clothes etc. which he was wearing was detailed in the report. The police immediately started looking for the accused-appellant and after receiving some information proceeded along with certain other persons in a jeep towards Dugcharhi Vishram Grih where the accused was arrested. After his arrest the accused confessed that he attempted sodomy with Sonu by using force and he has killed him. On pointing out of the accused, the body of the deceased Sonu was recovered at about 9.45 a.m. just lying by the side of the popular tree which had fallen down across the river. One Havai Chappal was also recovered from the fields of Udai Singh. On pointing out of the accused, the body of the deceased Sonu was recovered at about 9.45 a.m. just lying by the side of the popular tree which had fallen down across the river. One Havai Chappal was also recovered from the fields of Udai Singh. The deceased was wearing only a T-shirt and no other apparel was found on his body. Subsequent to the postmortem, offence under section 377 I.P.C. was added with the aid of section 511 I.P.C. Charge was framed on 14.5.2002 against the accused under sections 364, 377/511, 302 and 201 I.P.C. The accused denied having given out any confessional statement and also the recovery, as well as, other allegations levelled by the prosecution at the stage of framing of the charge. 4. The prosecution examined as many as 8 witnesses; PW-1 Pritam Singh, PW-2 Praveen Kumar, PW-3 Dr. R.K. Chanana, PW -4 Sub Inspector Charan Singh PW -5 Vijendra Singh, PW -6 Sub Inspector Gajendra Singh Bansala, PW-7 Ram Niwas and P.W.-8 H.C. Jai Prakash Singh. The conviction was recorded on the basis of the circumstantial evidence and circumstano which weighed with the Court below was; (a) Motive for murder was an abortiv attempt to commit sodomy on the deceased. (b) Evidence of last seen together wit the deceased on 31.8.2001 at 5.3 p.m. (c) Extra-judicial confession said , have been made before the police. (d) Recovery under section 27 Evidence Act of the body of the deceased lying next to the popular tree near the river and a Havai Chappal from the field of Jai Prakash Singh. 5. The first submission of the learned Counsel for the appellant is that inquest commenced at 11.00 a.m. and 'was completed at 1.00 p.m. Perusal of the inquest report shows that. crime number as well as the offences under sections 364, 302 and 201 I.P.C. are clearly mentioned at the top, whereas PW-6 S.L Gajendra Singh who was the Investigating Officer, admits in his cross-examination that the first information report was registered under section 364 I.P.C. and investigation commenced for the said offence. No Fard was prepared when the accused was arrested, neither any site plan was prepared from where the accused is alleged to have been taken into custody. The confessional statement has also not been recorded separately. No Fard was prepared when the accused was arrested, neither any site plan was prepared from where the accused is alleged to have been taken into custody. The confessional statement has also not been recorded separately. Neither he tried to get an endorsement by taking CJ signature of the accused on the said confessional statement. After completing all these formalities, he reached the police station at 2.00 p.m. and it was at that time while making entries in the General Diary, the offence under sections 302 and 201 I.P.C. were also added. 6. Thus the learned Counsel has challenged the veracity of the inquest report. While disputing the story set-up by the prosecution, Sri Kamal Krishna has also , pointed out that there is overwriting on the - crime number and the Investigating Officer , was specifically questioned on this point that why number 8 in crime No. 528 was s corrected later, overwriting was apparent, when original crime number in the F.I.R. was 526. This has though, been denied by the Investigating Officer but the learned Counsel was very emphatic while placing original documents such as chik, F.I.R. and Fard of recovery of the dead body of the deceased Sonu and the Havai Chappal. In support of his contention that a number of 10 manipulations and interpolations have been made during investigation, he submits that the investigation is tainted. Learned Counsel has pointed out that the word "Koshish" (attempt) has been added at two places subsequently in the recovery memo which is sufficient to establish that the entire prosecution has tried to set-up a c motive against the appellant which is cooked up. In fact the prosecution was un- able to establish any motive whatsoever, thus the prosecution has tried to come up f with the theory that the accused has made an unsuccessful attempt to commit sodomy on the deceased Sonu and thereafter killed him. It is argued by learned Counsel for the appellant that subsequently when the postmortem was conducted on the body of the deceased on 1.9.2001 at 4.00 p.m., there was no injury on any private pan of the body of the deceased which could point a finger towards the act of sodomy and, therefore, the word "Koshish" was added and section 377 I.P.C. with the aid of section 511 I.P.C. was given to be a motive for commission of the crime. 7. 7. The next argument advanced on behalf of the accused is on the post-mortem report where the cause of death is shown to be as a result of ante-mortem injury. Following ante-mortem injuries have been recorded in the post-mortem report by the doctor injury (1) Left ear (external) absent, clotted blood present on the margins (2) Pinna and upper part of right ear absent, clotted blood present on the margins. (3) Tip of the nose lacerated in an area of 1.0 cm. x 1/2 cm. (Tip of the nose absent) Note: There is no abrasion or contusion on any part of anus or any other signs of sodomy (unnatural offence). On internal examination of the dead body: The doctor has found that second and third cervical vertebra were fractured and haematoma was present. 8. The submission is that the antemortem injuries are not sufficient to cause death and the doctor has also not given his opinion that the victim died on account of drowning whereas perusal of the confesional statement recorded by the police, it alleged that the accused confessed that he killer Sonu by drowning him in Kali Nadi and further made a confession that he can get the body recovered from the Kali -Nadi where he drowned the -deceased Sonu and killed him. The specific case of the prosecution is said to have been extracted from the confessional statement of the accused himself. Learned Counsel has chalenged the entire recovery, which is another circumstance relied upon by the prosecution for recording a judgment of conviction against him. The accused had received injuries and injury report is Exhibit Kha-1. He was taken to the doctor by C.P. 995 Madan Mohan Singh. There were three injuries on his body. The following injuries were found on him: 1. Dark red contusion 12 cm. x 1.5 cm. on the left side back of chest lower part. 2. Multiple dark red contusions on the back of whole of the left upper limb with swelling of the whole of the left upper limb. Size of the contusion, 10 cm. x 1 cm. to 4 cm. x 2 cm. Kept under observation. Advised X-ray of the left elbow and left wrist joints and hand. 3. Multiple dark red contusion on the back of whole of the right forearm back of the right hand and wrist joint. Kept under observation. Advised X-ray. Size of the contusion, 10 cm. x 1 cm. to 4 cm. x 2 cm. Kept under observation. Advised X-ray of the left elbow and left wrist joints and hand. 3. Multiple dark red contusion on the back of whole of the right forearm back of the right hand and wrist joint. Kept under observation. Advised X-ray. According to the doctor, injury Nos. 2 and 3 were kept under observation and Xray was advised. All the injuries were caused by blunt and hard object. This goes to show that the accused was given a thorough beating and so called confessional statement as well as alleged recovery are not voluntary but it has been extracted and coerced by the police, specially the confessional statement is not even signed by the accused as well as the recovery under section 27 Evidence Act cannot be read in evidence since no disclosure statement was recorded by the notice before making the recovery. It is also submitted that the recovery was from a open place. It was lying next to the popular tree and visible to all passers by and it cannot be said that the recovery was at the instance of the accused or that it was the accused who only had the knowledge about the place from where the body of the deceased coul1 be got recovered. Havai Chappal we recovered from the open field of Jai Prakash Singh which was only identified by the accused. 9. The next submission is that the accused was taken away from his house in the night of 31.8.2001 itself and, therefore, the arrest shown to be at 8.00 a.m. from the Vishram Grih on 1.9.2001 is absolutely false. Learned Counsel has substantiated this argument from the statement of the witness PW-2 Praveen Singh. In his cross-examination, he has admitted that Mintu and Pritam had informed him that they had seen Prasann Kumar accused near the Tanga stand along with deceased going towards Kali Nadi. He had gone searching for Sonu along with some other villagers and also near the river. The police of police station Deoband had already arrived while the first informant was searching the accused and deceased Sonu along with other villagers at about 9.30 p.m. on 31.8.2001 itself. He had gone searching for Sonu along with some other villagers and also near the river. The police of police station Deoband had already arrived while the first informant was searching the accused and deceased Sonu along with other villagers at about 9.30 p.m. on 31.8.2001 itself. The entire cross-examination of PW-2 has been placed before us to controvert the arrest of the accused on 1.9.2001 and that the police was informed only at 4.00 a.m. on 1.9.2001. There is specific admission by PW-2 that the police had arrived in the night as well as the fact that the complainant had not sent anyone to the police station to inform the involvement of the present accused. The accused had also admitted in his statement under section 313 Cr.P.C. that he was taken away by the police on the previous night and it was for this reason that no site plan showing the place of arrest of the accused has been prepared. Neither any arrest memo nor statement of the accused was recorded before so called recovery under section 27 Evidence Act. Thus taking into consideration all these circumstances, the arrest as well as the subsequent recovery stands falsified. 10. Sri Raghuraj Kishore has disputed each and every arguments of Sri Kamal Krishna and has tried to support the recovery under section 27 of the Evidence Act, confessional statement as well as the evidence of last seen. It is submitted on behalf of the prosecution that since the witnesses had seen the accused going along with Sonu at 5.30 p.m. towards Kali Nadi and thereafter the subsequent recovery of the Havai Chappal as well as body of the deceased has to be read in its totality along with confessional statement. The motive for committing murder cannot be 'anything else but the one suggested by the prosecution. In fact it is an admission by the accused and the prosecution had to do nothing in the matter since all the material was supplied by the accused himself. The State Counsel submits that the order of conviction recorded against the accused is well deserved and does not call for any interference whatsoever. 11. We have given a careful consideration to the arguments advanced by the respective counsels and gone through the oral as well as documentary evidence. The State Counsel submits that the order of conviction recorded against the accused is well deserved and does not call for any interference whatsoever. 11. We have given a careful consideration to the arguments advanced by the respective counsels and gone through the oral as well as documentary evidence. In a case of circumstantial evidence, a judgment of conviction can be recorded only if the chain of events is complete and a cumulative consideration of each event leads to one and only conclusion that the offence was committed by the accused and none else. If there is a possibility of any other conclusion then we have to be very cautious before recording a judgment of conviction. 12. In the present case, the motive attributed for the commission of crime is an attempt to commit an unnatural offence defined under section 377 I.P.C. Admittedly there is no evidence that such an act was committed. The post-mortem report completely negates the theory of sodomy and it was precisely for this reason that the prosecution has come up with the theory that the motive was commission of an offence under section 377 I.P.C. with the aid of section 511 LP.C. We have closely scrutinized the F.I.R. as well as the Fard prepared at the time when the recovery was made and the insertion of the word "Koshish" (attempt) at every places speaks volume and cannot be casually over looked It is apparent to the naked eye that this word "Koshish" (attempt) has been introduced in the recovery memo. It is, therefore, very essential to examine whether the motive suggested by the prosecution that the accused had made a futile attempt for committing sodomy can be believed or not, or whether the prosecution has been able to establish its motive beyond doubt. On perusal of the original record of the Trial Court, it transpires that at the initial stage the F.I.R. has been registered under section 364 I.P.C but subsequently after the recovery of the dead body of the deceased, as admitted by the Investigating Officer himself, sections 302 and 201 I.P.C were added when he reached the police station after arresting the accused, making the recovery of the dead body of the deceased and completing the inquest as well. There is clear admission that this was done at 2.00 p.m. on 1.9.200, we have no other option but to agree with the submission of the learned Counsel for the appellant that if the offence under sections 302 and 201 I.P.C were added at 2.00 p.m. then how is it possible that the original inquest mentions the offences under sections 302 and 201 I.P.C along with the offences 364 I.P.C The next question. to be examined and appears important once again is that the Investigating Officer has failed to show at what stage section 377/511 I.P.C was added in case crime No. 528 of 2001. Neither a question was put to the Investigating Officer by the defence during cross-examination nor the prosecution has come forward regarding insertion of sections 377/511 I.P.C However we fail to understand even if we hold that offences under sections 302/201 I.P.C was added subsequently in the inquest report, even then the accused is not to gain any benefit. It is therefore, immaterial, the inquest was prepared after recovery of the dead body. Argument of the learned Counsel even if accepted on the basis of admission in his cross-examination, it is not going to make any difference. However we cannot loose sight after examining the record that it is only in the last Parcha of the Case Diary these two sections 377/511 I.P.C have been added. In absence of anything on record to substantiate the insertion of the offences which is the sole motive for commission of the offence, the argument of the learned Counsel regarding subsequent insertion of the word "KOSHISH" is relevant and gains a magnitude of toppling the entire theory of the prosecution. We find it very difficult to accept that only motive for commission of the crime was an abortive attempt to commit sodomy and since the accused was not successful, he killed the deceased. Thus the motive suggested by the prosecution could not be established beyond doubt. 13. The next aspect of this case is that the prosecution has not been able to explain the injuries found on the body of the deceased because the only evidence that the prosecution can rely for upholding the conviction is the recovery and the confession. So far the confession is concerned that alone is not sufficient as the confession before the police has no evidentiary value. So far the confession is concerned that alone is not sufficient as the confession before the police has no evidentiary value. Besides, in absence of any disclosure statement and also that the said confession was not signed by the accused coupled with the injuries on the body of the accused which were examined on 1.9.2001 itself by the doctor at the instance of the police. On the face of no explanation coming forward from the side of the prosecution regarding injuries, we have no other option but to agree with the submission that the recovery and the confession by the accused cannot be relied upon specially• when that alone is basis for recording a judgment of his conviction. 14. The Apex Court in the case of fuskaran Singh v. State of Punjab held that the absence of signature and thumb impression of the appellant on the disclosure statement and the recovery memo is crucial and in the said case though the consequent opinion of the ballistic expert connecting the empty cartridge with the weapon used in the crime was held to be irrelevant. Absence of signature or thumb impression on the disclosure statement recorded under section 27 of the Evidence Act detracts materially from the authenticity and reliability of the disclosure statement. Similar view was express£ d by the Apex Court in the case of Saddatiya @ Satish Ranjanna Kartalla v. State of Maharashtra.- The prosecution failed to produce any document containing recording, of statement allegedly made by the appellant expressing his desire to facilitate of the recovery of the clothes and half blade allegedly used for commission of crime was not relied on. The recovery was also not accepted for the reason that the place from wt(ere half blade is said to have been recovered is an open place and every body has assess to the site from where the half blade is said to have been recovered and, therefore, the Apex Court discarded the prosecution story. 15. We have also noticed that the post-mortem shows damage of 2nd and 3rd cervical which is sufficient to cause instant death. Specially in absence of any evidence to substantiate that the deceased was drowned to death. This is the basis on which the prosecution case proceeds. 15. We have also noticed that the post-mortem shows damage of 2nd and 3rd cervical which is sufficient to cause instant death. Specially in absence of any evidence to substantiate that the deceased was drowned to death. This is the basis on which the prosecution case proceeds. The ante-mortem injuries such is injuries on the ears and tip of the nose are not sufficient to cause death as well, in our opinion since the said injuries cannot cause fracture of 2nd and 3rd vertebra. There is no corresponding ante-mortem injury. We are unable to accept that the ante mortem injuries detailed in the post-mortem Report caused the death of Sonu (deceased). It is a case based only on circumstantial evidence and therefore almost impossible to accept the theory relied upon by the prosecution. 16. In a case which depends wholly upon circumstantial evidence, the circumstances must be of such nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say, the circumstances establishing the involvement of the accused must be clinching and in a case no other inference can be arrived at and the fingers point at only one and only conclusion that the accused is the person responsible for commission of crime. 17. In the case of Prem Thakur v. State of Punjab, it was a case of five murder. There was no direct evidence to connect the appellant with the five murder. The Lower Court had relied upon circumstantial evidence which consisted of: (i) motive for the offence; (ii) the fact that the appellant was seen last in the company of the deceased on the evening preceding the discovery of the dead bodies; (iii) fact that the accused has absconded; (iv) extra-judicial confession of the appellant; (v) the recovery 6f a Tangli' in pursuance of the statement made by the appellant; (vi) the recovery of the dead bodies from the pit near the tubewell; (vii) a false statement made by the appellant to the son of one of the deceased. The conviction is recorded on the ground of motive last seen and conduct of the appellant after the occurrence. The Apex Court had set aside the judgment of conviction on all counts. The conviction is recorded on the ground of motive last seen and conduct of the appellant after the occurrence. The Apex Court had set aside the judgment of conviction on all counts. It was held that the principle in a case which depends wholly upon the circumstantial evidence, the circumstances must be of such a nature as to be capable to lead to an inference that the accused is guilty of the crime and the circumstances must clinch the issue of guilt. Similar view has been expressed by the Hon'ble Supreme Court in the case of Sukhram v. State of Maharashtra.2 The Apex Court ruled that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused. All the established circumstances should be complete and there should be no gap in the chain of evidence. 18. In view of these decisions, we have scrutinized the evidence on record an inevitable conclusion is obvious that the prosecution has not been able to establish any of the circumstance conclusively which points towards the guilt of the accused. The link between the individual circumstances are completely missing as well. So far the prosecution has laid great emphasis on the confession and the subsequent recovery of the dead body beside the popular tree can not be said to be 'hidden place' of which the accused alone had knowledge of the fact and not an open place like in the instant case. In the case of State of Maharashtra v. Raju Bhaskar Potphode, Bombay High Court acquitted the accused setting aside the judgment of the Session Judge. The State had challenged the judgment of the High Court and the Apex Court stated in paragraph 10 of the said judgment. "10. It will be noticed that the Trial Court placed reliance on the socalled discovery of alleged weapon pursuant to the disclosure by the accused. The High Court has rightly noticed that the knife was found in an open space and was clearly visible. Investigating Officer admitted that anybody could have seen the knife even without much effort. " 19. "10. It will be noticed that the Trial Court placed reliance on the socalled discovery of alleged weapon pursuant to the disclosure by the accused. The High Court has rightly noticed that the knife was found in an open space and was clearly visible. Investigating Officer admitted that anybody could have seen the knife even without much effort. " 19. In the present case, the dead body and Chappal both were lying in an open place next to the popular tree and, therefore, it could not be said that it is a discovery pursuant to the discloser by the accused and therefore, this factor cannot be sufficient to hold the appellant guilty. The recovery looses its significance as the dead body and Chappal recovered was from the open field and was visible to all and sundry and therefore not sufficient to conclude as a recovery under section 27 Evidence Act. The only other circumstances which has weighed before the Court below is an extra-judicial confession made before the police. There are a number of decisions by the Apex Court as well as this Court that such a confession without there being any supportive evidence besides being inadmissible is not sufficient to record a judgment of guilt against an accused. In. the case of Keshav v. State of Maharashtra/ an extra-judicial confession made by the accused to the wife of the deceased coupled with recovery under section 27 Evidence Act was held to be insufficient evidence to convict an accused. In the-said case, there was evidence of last seen as well but the Apex Court refused to accept the prosecution version. 20. In the present case, the accused was seen along with deceased on the previous evening by one of the villager who had disclosed this fact to PW-2. He admits that he has not sent anyone to the police station giving this information, though the police had arrived in the evening of 31.8.2001 itself but the report was registered only on 1.9.2001 at 4.00 a.m. The accused is alleged to have been arrested at 8.00 a.m. and the recovery was made on the basis of his confessional statement from an open place. The motive assigned by the prosecution is a far-fetched one. We have already expressed our doubt in the investigation while introducing a motive for commission of the crime. The motive assigned by the prosecution is a far-fetched one. We have already expressed our doubt in the investigation while introducing a motive for commission of the crime. The prosecution has not been able to establish as to at what point of time the offence under section 377 read with 511 I.P.C. was introduced in the case diary and why it was not added at the time when the offence under sections 302 and 201 I.P.C. was entered in the General Diary. Admittedly the confession and recovery was already made much before on the same day, why the motive has been introduced only in the last Parcha of the case diary. The addition of the word "Koshish" in every documents and at every place is eloquent of the fact that it was added subsequently. The motive is also not established by the medical evidence and, therefore, in a case of circumstantial evidence, the conviction cannot be upheld only on the basis of confession under section 25 of the Evidence Act and the recovery of the said Act. The unexplained injuries of the accused which were examined by the police itself is also a factor which cannot be overlooked and there being a complete silence on the part of the prosecution. The confession must be a voluntary one and in order to make confession and the consequent recovery admissible, the onus no doubt on the accused to prove that it was forced and not independent. In the present case the accused has stated in his statement under section 313 Cr.P.C. that he was taken away by the police on 31.8.2001 itself and the injuries which were got examined by the police is also sufficient to establish or at least raise reasonable doubt that the recovery and confession was extracted by use of threat and induced after inflcting some injuries. 21. At the cost of repeatation, we are compelled to say that the confessional statement was not signed by the accused. No-disclosure statement was recorded before the recovery was made and also the so called recovery was from an open place. We can also not loose sight of the 'fact that if the confessional statement is to be believed then the admission pf the accused was he killed the deceased by drowning in the Kali Nadi. According to the doctor, the death is not due to drowning. We can also not loose sight of the 'fact that if the confessional statement is to be believed then the admission pf the accused was he killed the deceased by drowning in the Kali Nadi. According to the doctor, the death is not due to drowning. No explanation has come forward to corroborate the fracture of 2nd and 3rd cervical. A complete analysis of the circumstances relied upon by the prosecution on the face of it appears to be far-fetched one. None of the circumstances could be established beyond doubt independently least to say the link or chain of the said circumstances have been proved at all. The casual investigation, off hand motive and the perfunctory confession which has cumulatively resulted in a judgment of conviction cannot be upheld. The very pattern of the crime, as placed before us by the prosecution, belies its conclusion. We are unable to share the view of the Trial Court. The prosecution has failed to prove the guilt of the accused beyond reasonable doubt in the light of the observations and assessment of evidence. 22. In the circumstances, the judgment dated 14.8.2003 passed by Additional Session Judge, Court No.2, Saharanpur is set aside. The appeal is allowed. The appellant is acquitted from the charges under sections 364, 377/511, 302 and 201 I.P.C., Police Station Deoband, District Saharanpur granting him benefit of doubt as the prosecution has not been able to establish its case beyond doubt. The appellant is in jail. He shall be released forthwith.