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2014 DIGILAW 3116 (ALL)

RAMWATI v. STATE OF U. P.

2014-10-10

RAKESH TIWARI, VIJAY LAKSHMI

body2014
JUDGMENT : Rakesh Tiwari, J. Heard the learned Counsel for the parties and perused the record. This criminal misc. leave application has been filed under section 372 Cr.P.C. by Smt. Ramwati, W/o. Late Tyiyan (Smt. Ramwati v. State of U.P. and three others) challenging the validity and correctness of the impugned order dated 1.2.2013 passed by the Addl. District & Sessions Judge, Chandausi, district Moradabad in Session Trial No. 386 of 2007 (State v. Kanhai and others) arising out of Case Crime No. 1167 of 2006 under section 364 read with section 120-B, 302 read with section 120-B and 201 read with section 120-B IPC, police station Chandausi, district Moradabad. 2. By the aforesaid impugned order, the Court below has acquitted Kanhai Lal, Ashoka Devi and Priyanka @ Bhuri from the aforesaid case crime and sections. 3. An F.I.R. was lodged on 9.12.2006 against opposite parties namely Kanhai Lal, S/o. Itwari Lal (Opp. party No. 2), Ashoka Devi, W/o. Kanhai Lal (Opp. party No. 3) and Priyanka @ Bhuri, W/o. of Late Ajay Pa (Opp. party No. 3), all residents of Railway Quarter, Bahjoi Road, Kasba, Police Station Chandausi, district Moradabad alleging therein that Ajay Pal, S/o. Ramwati (the appellant) was married to Priyanka @ Bhuri, but she was not living with her husband and was in love-in-relationship with opposite party No. 2 (Kanhai Lal - her brother-in-law). On 1.12.2006, Kanhai Lal came to the house of the complainant and went away with her son Ajay Pal, aged about 25 years, who since then is untraceable and has not return and as such a report of missing person was registered. It was registered as case crime. 4. After investigation, the charge-sheet was submitted by the Investigation Officer against Kanahi Lal and others. On committal it was registered as ST No. 386 of 2007. After evaluation of the evidence and hearing the arguments, the Court of session Chandaus by the impugned order and judgment aforesaid has acquitted opposite parties No. 2 to 4. 5. The aforesaid judgment of the Session Court, passed in Session Trial No. 386 of 2007 (State v. Kanhai and others) has been challenged by the complainant on the ground that the order impugned is illegal, arbitrary, perverse and against the evidence on record as the prosecution has fully proved the case beyond reasonable doubt before the Court below. 6. 5. The aforesaid judgment of the Session Court, passed in Session Trial No. 386 of 2007 (State v. Kanhai and others) has been challenged by the complainant on the ground that the order impugned is illegal, arbitrary, perverse and against the evidence on record as the prosecution has fully proved the case beyond reasonable doubt before the Court below. 6. It is argued that Trial Court below has not assigned any cogent reason in acquittal of the aforesaid persons though statement of independent witnesses and documentary evidence such as injury report and the medical report support the prosecution case, hence there being no material contradiction in the testimonies of the witnesses there was credibility in prosecution case for conviction of accused persons rather than their acquittal. 7. From perusal of the record, it appears that Mukesh Balmiki (PW-1) is not an eye-witness. He in his statement before the Court has stated that he came to know that deceased Ajay Pal, R/o Khurja Gate had been murdered by someone. Smt. Ramwati, wife of Tuiyan (PW-2) witness for the prosecution, is the mother of the deceased Ajay Pal She stated that Priyanka @ Bhuri was married to him but she often used to go to the house of Kanhai Lal (Opp. Party No. 2). Sometimes Kanhai Lal used to stay at the house of the complainant for the night. When Ajay asked her wife not to go to the house of Kanhai Lal, she left the house of her husband and started to live with Kanhai Lal and still living with him for the last about 3-years. She had not come back to live with her husband though the efforts were made by her son Ajay Pal (since deceased). On 4.12.2006 Kanhai Lal told her in a drunken state that Ajay Pal has been murdered by him with aid of Ashoka Devi and Priyanka @ Bhuri. PW-2 has further stated that later on she came to know that dead body of an unknown person was found in the area of police station - Bhusauli. She went there with Chandra Pal (PW-3) and Indrapal (PW-4) but she could not see the dead body. On being shown the photograph and the clothes - underwear etc worn by the deceased, she identified the body as that of Ajay Pal. Chandra-pal, (PW-3) and Indrapal (PW-4), both sons of Late Tuiyan were examined by the prosecution. She went there with Chandra Pal (PW-3) and Indrapal (PW-4) but she could not see the dead body. On being shown the photograph and the clothes - underwear etc worn by the deceased, she identified the body as that of Ajay Pal. Chandra-pal, (PW-3) and Indrapal (PW-4), both sons of Late Tuiyan were examined by the prosecution. Both of them, in their statements, have said that deceased Ajay Pal was their younger brother married to Priyanka @ Bhuri, who was living with Kanhai Lal for the last more than 3-years. 8. Mukesh Balmiki, S/o. Sukhram (PW-5) is the witness of the Panchayatnama. He deposed that he had heard that a dead body of an unknown person has been found in the Jungle of village Ratanpur, and he had gone there to see that. There was a crowed and the police was also on the spot. After the dead body was sealed, his signature was taken by the police on the Panchayatnama. Gyan Babu @ Jaan Babu, S/o. Jag-dish (PW-6) stated that he has no information regarding the murder of Ajay Pal, who he had known in his life time. He clearly stated that he could not say as to whether the dead body of Ajay Pal was found or not. Similarly Amar Pal, son of Jangi (PW-7), Jaswant, son of Babu Lal (PW-8) and Brijendra @ Virendra, S/o. Ganga Sahay (PW-9) also stated that they are residents of village Ratanpur where a dead body of an unknown person was found. A crowed had assembled there. They could not recognize whose dead body it was nor it was sealed in their presence though the police had taken his thumb impression on plain paper but no report was prepared in his presence. 9. Lastly Dhanpal, S/o. Charan Singh (PW-10) has been produced by the prosecution in support of its case. He in his statement on oath said that he is resident of village Ratanpur. He came to know from villagers that a dead body of an unknown person is lying on the road between the agricultural field of Jhamman and Madan. He has further stated that he had seen the body of the deceased but the face of the deceased was eaten away by wild animals and was unrecognisable. The dead body was sealed by the police and taken away in his presence. 10. He has further stated that he had seen the body of the deceased but the face of the deceased was eaten away by wild animals and was unrecognisable. The dead body was sealed by the police and taken away in his presence. 10. Thus from the aforesaid, it is clear that none of the prosecution witness of the incident has stated that Kanhai Lal was arrested by the police for murder of Ajay Pal. Only on the basis of extra-judicial confession made before PW-1 Mukesh Balmiki, that too, in the state of intoxication, his name has been implicated in this case. PW-1 has turned hostile. 11. The witnesses Gyan Babu @ Jaan Babu (PW-6), Amar Pal, son of Jangi (PW-7), Jaswant, son of Babu Lal (PW-8) and Brijendra @ Virendra, S/o. Ganga Sahay (PW-9) have denied about any knowledge of the incident, as such on the request of the prosecution, (PW-6) has been declared hostile. 12. The accused in their statements under section 313 have denied the charges and had have claimed false implication. 13. In the aforesaid facts and circumstances, the Court below came to the conclusion that the prosecution had failed to establish that the dead body of the unknown person was that of Ajay Pal. It concluded that witnesses have turned hostile and that the dead body of unknown person found in the jungle of Ratanpur was neither identifiable nor could be identified as that of Ajay Pal. Whatever little identification has been made in the normal course were on the basis of clothes-underwear etc which were found on the body of the deceased. 14. The fact of the case show that it is a case of circumstantial evidence on which links constituting the chain are not complete to lead to irresistible conclusion that the accused and none other would have committed offence. 14. The fact of the case show that it is a case of circumstantial evidence on which links constituting the chain are not complete to lead to irresistible conclusion that the accused and none other would have committed offence. "In the case of circumstantial evidence the Court relying upon the judgment rendered in Baba Ram Das alias Tarlok Singh v. State of Punjab, 11/1998 C.C.R. page-16 (P & H), Shyam Lal Shah and others v. State of West Bengal, 2014 ACR 444 (SC), Shyodan v. State of U.P., (2014) (1) AAR 337 (Alld.), State of Gujarat v. Ratan Singh alias Chini Bhai, 2014 (85) ACC 670 (SC), Padala Veera Reddy v. State of A.P. and others, 1990 (27) ACC 32 (SC) and State of U.P. v. Ashok Kumar Srivastava, 1991 (Suppl.) ACC 325 (SC) has held that the chain of circumstantial evidence is to be completed for holding that the accused and none other would have committed offence. The chain should be unbroken and point out to the guilt of the accused persons only. The law firmly entrenched by the Apex Court is that there can be no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence in view of the decision rendered in Hanumant Vs. The State of Madhya Pradesh, and Mula Devi v. State of Uttarakhand 2008 (63) ACC 948 (SC) : 2008 (72) AIC 229 (SC). In the case of Ram Singh Vs. Sonia and Others, AIR 2007 SC 1218 the Apex Court has held that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances to proved must from a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible." 15. In our considered view and for all the reasons stated above, we are of the opinion that no illegality has been committed by the Court below in acquitting the accused persons, particularly, when the dead body of the unknown person was not identifiable as his face was eaten away by the wild animals. The witnesses have turned hostile. Therefore, there was no evidence on the basis of which the accused could be linked with the offence of committing the murder of Ajay Pal. The witnesses have turned hostile. Therefore, there was no evidence on the basis of which the accused could be linked with the offence of committing the murder of Ajay Pal. The links of circumstantial evidence in the instant case are incomplete and do not point towards the guilt of the accused only and towards no other hypothesis. Hence, it was neither safe nor proper to convict the accused only on the basis of an story of the extra-judicial confession made by the accused Kanhai Lal to Mukesh Balmiki in an intoxicated state under the influence of liquor. Extra-judicial confession is very weak type of evidence and the Courts are time and again directed by the Apex Court not to rely on it, unless it is corroborated by some other reliable evidence. The learned Trial Court has rightly found the prosecution case as unworthy of credence. The conclusion drawn by learned Trial Court does not require any interfere by this Court. We find no merit in the appeal. The Criminal Misc. Application under section 372 Cr.P.C. (Leave to appeal) is therefore dismissed and as a consequence the appeal is also dismissed.