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2013 DIGILAW 488 (ALL)

State of U. P. v. Narendra and Another

2013-02-08

AMAR SARAN, S.C.AGARWAL

body2013
S. C. Agarwal, J.— This Government Appeal alongwith an application under Section 378 (3) of the Code of Criminal Procedure for grant of permission to file appeal has been preferred against the judgment and order dated 16.12.2010 passed by Addl. Sessions Judge, court No. 2, Bijnor in S.T. No. 723 of 2006 under Section 302/34 IPC and S.T. No. 724 of 2006 under Section 4/25 Arms Act pertaining to P.S. Kotwali Dehat, Bijnor, whereby the respondents Narendra and Sukhram were acquitted for the offence under Section 302/34 IPC and respondent no. 1 was also acquitted in respect of offence under Section 4/25 Arms Act. An unknown dead body was found in the field of one Babu Ram, resident of Jalalpur Sultan, P.S. Kotwali Dehat, District- Bijnor regarding which information was given to the police of P.S. Kotwali Dehat on 8.6.2006 at 12.30 hours by Babu Ram. Autopsy was performed on 9.6.2006. On 27.7.2006, from the clothes and photographs, the dead body was found to be belonging to Satendra Gaur by his wife and others. On the same day i.e. 27.7.2006, wife of the deceased gave a written application to the police stating therein that she was married with Satendra Gaur on 17.7.2004 and was living in a rented accommodation in Yaqubpur. P.S. Phase-II, District- Gautam Budh Nagar. The accused- Narendra was living in a neighbouring house and on 7.6.2006, Narendra had taken the deceased with him for a visit to his village. On 8.6.2006, Narendra returned to his house in Yaqubpur but the deceased was not with him. He disclosed that deceased had gone to his own village but on enquiry, it was found that the deceased had not visited his village. The wife of the deceased got suspicious and due to fear, started living in the house of one Satveer Singh in village- Naglacharan Das in the same police station area. On 26.7.2006, Narendra came to the house of the landlord- Satya Veer Singh and told him to convince Smt. Preeti not to take any action against him promising to pay a sum of Rs. 50,000/-. He also stated that the deceased had an evil eye on his daughter. Narendra was arrested on 28.7.2006 and from his confessional statement, name of the respondent no. 2- Sukhram came to light. A knife was also recovered from the possession of the accused. Accordingly, charge-sheets were filed. 50,000/-. He also stated that the deceased had an evil eye on his daughter. Narendra was arrested on 28.7.2006 and from his confessional statement, name of the respondent no. 2- Sukhram came to light. A knife was also recovered from the possession of the accused. Accordingly, charge-sheets were filed. Charge in respect of offence under Section 302/34 IPC was framed against both the respondents whereas charge under Section 4/25 Arms Act was framed against respondent no. 1. Both the respondents denied the charge and claimed to be tried. During trial, as many as 12 witnesses were examined by the prosecution. Babu Ram (P.W.-1) is a formal witness, who had informed the police regarding finding of the dead body. Mool Chand Sharma (P.W.-2) is a witness of extra judicial confession of Narendra. Head Moharrir-Vijai Veer Singh (P.W.-3) is a formal witness. He stated that the case property i.e. clothes of the deceased, plain and blood stained earth had been destroyed due to termite infestation. Satya Veer Singh (P.W.-4) is the landlord of the deceased. He is also witness of extra judicial confession. Constable- Ajay Kumar (P.W.-5) had taken the dead body to mortuary for post-mortem examination. Dr. V.K. Gupta (P.W.-6) had performed autopsy on the dead body of Satendra Gaur on 9.6.2006 and found three incised wounds on the dead body. Death was caused about two days prior to the post-mortem examination. S.S.I.-Yatendra Singh (P.W.-7) is the Investigating Officer. Head constable- Vijai Veer Singh (P.W.-8) had registered the crime on 28.7.2006 under Section 4/25 Arms Act. Constable- Jitendra Singh (P.W.-9) is a witness of arrest of Narendra Singh and recovery of knife. Smt. Preeti (P.W.-10) is the wife of the deceased. Constable- Lakhmi Chand (P.W.-11) had proved the G.D. dated 8.6.2006. S.I. Prem Singh Malik (P.W.-12) is the Investigating Officer of the case under Section 4/25 Arms Act. The accused persons in their statements under Section 313 Cr.P.C. denied the prosecution allegations and stated that Smt. Preeti Sharma had left her earlier husband Ram Autar and had started living with the deceased and her husband Ram Autar had lodged the FIR against the deceased but no oral evidence was produced. After hearing both the accused and prosecution, the trial court came to the conclusion that the prosecution case is not proved beyond doubt and the respondents were acquitted of all the charges framed against them. Hence, this appeal. After hearing both the accused and prosecution, the trial court came to the conclusion that the prosecution case is not proved beyond doubt and the respondents were acquitted of all the charges framed against them. Hence, this appeal. We have heard learned AGA at length and perused the trial court records carefully. It was contended on behalf of the State that learned trial court has ignored the evidence available on record and the judgment of acquittal is bad in law. There was sufficient evidence against the respondents to prove the charge of murder against them. There is no direct evidence of murder and the case is based on circumstantial evidence. There are only three circumstances against the respondent no. 1- Narendra. Firstly, on 7.6.2006, he had taken the deceased with him and, thereafter, the deceased was not seen alive and the second circumstance is that Narendra made extra judicial confession in presence of P.W-2 and P.W.-4 on 26.7.2006. The 3rd circumstance is the recovery of knife at the instance of Narendra. However, there is no incriminating circumstance against the respondent no. 2- Sukhram except the confessional statement of respondent no. 1- Narendra recorded by police that he had committed murder of the deceased with the help of respondent no. 2. Smt. Preeti (P.W.-10) is the wife of the deceased and is the sole witness of story of last seen. According to her, the deceased went with the respondent no.1- Narendra on 7.6.2006. Narendra returned on 8.6.2006 but the deceased was not with him. On enquiry, Narendra told her that the deceased had gone to his village, which was not found to be correct but, surprisingly, she did not lodged any FIR or complaint for more than one month and 20 days. The dead body was found on 27.7.2006 and only thereafter, she gave an application to the police stating therein that the deceased had gone with Narendra. Her silence for about 50 days is highly suspicious. In cross-examination, she admitted that she was earlier married with Ram Autar and had three children from him and the fourth child is from Satendra but she stated that she was not married with Ram Autar. She remained with Ram Autar for about eight years. Ram Autar used to mal-treat her. Her silence for about 50 days is highly suspicious. In cross-examination, she admitted that she was earlier married with Ram Autar and had three children from him and the fourth child is from Satendra but she stated that she was not married with Ram Autar. She remained with Ram Autar for about eight years. Ram Autar used to mal-treat her. The trial court has laid emphasis on the fact that the clothes and photographs of the dead body had not been produced in Court and, therefore, there was no proper evidence of identification of the dead body. The trial court did not believe the explanation that the clothes and the photographs have been destroyed due to termite. We agree as in our opinion, photographs of the deceased should have been part of case diary and should not have been kept in the Malkhana of the police station. Learned trial court rightly held that P.W.-10 remained with Ram Autar for about eight years and bore him three children and, therefore, there is a presumption that she was was married with Ram Autar and her conduct was highly doubtful. If the deceased had gone with respondent no. 1 on 7.6.2006 and did not return home, Smt. Preeti (P.W.-10) could have informed the police immediately thereafter and there was no reason as to why she should wait for about 50 days for making any allegation against Narendra. In our considered opinion, learned trial court has not committed any error in disbelieving the statement of P.W.-10. As far as the alleged extra judicial confession is concerned, the statements of Mool Chand (P.W.-2) and Satya Veer Simngh (P.W.-4) were also not found reliable by the trial court. The alleged confession was made on 26.7.2006 whereas till 26.7.2006, there was not even a suspicion against Narendra and there was no FIR against him. In these circumstances, there was no occasion for the respondent no. 1 to make any extra judicial confession before Satya Veer Singh and Mool Chand. Besides this, extra judicial confession is a weak piece of evidence and in the absence of any other incriminating circumstance, mere extra judicial confession cannot be the sole basis of conviction. It is established law that in a case of circumstantial evidence, it is essential that the chain of circumstances must be complete. Besides this, extra judicial confession is a weak piece of evidence and in the absence of any other incriminating circumstance, mere extra judicial confession cannot be the sole basis of conviction. It is established law that in a case of circumstantial evidence, it is essential that the chain of circumstances must be complete. Each circumstance must be fully established and must point towards the guilt of the accused and the cumulative effect of all the circumstances must unerringly point towards the guilt of the accused and the court must be satisfied that no other inference except the guilt of the accused can be inferred. In the instant case, the chain of circumstance is incomplete. Story of last seen is highly doubtful. The wife of the deceased maintained silence for about 50 days and there was no occasion for the respondent no. 1 to make any extra judicial confession before the witnesses. Regarding recovery of knife also the evidence is contradictory. The police claimed to have arrested Narendra from Jungle of Village Hazipura whereas according to Smt. Priti (P.W.-10), Narendra was arrested from his house. In these circumstances, we agree with the findings recorded by learned trial court that the charge against respondent no.1- Narendra is not proved. There is no evidence against respondent no. 2- Sukhram. In these circumstances, the judgment of acquittal recorded by learned trial court cannot be said to be perverse or unjustified and no ground for interference is made out. Leave to appeal is accordingly refused and the Government Appeal is dismissed. Office is directed to transmit the lower court records alongwith a copy of this judgment to the trial court within a week. _____________