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2016 DIGILAW 1857 (ALL)

AKHILESH KUMAR @ PAPPU v. STATE OF U. P.

2016-05-13

ARVIND KUMAR MISHRA I, ARVIND KUMAR TRIPATHI

body2016
JUDGMENT : (Delivered by Hon'ble Arvind Kumar Mishra-I,J) We have heard at length Sri Vishwa Ratna Dwivedi, learned counsel for the appellant Akhilesh Kumar, Sri Mahendra Singh, learned AGA for the State and perused the record. Relevant to mention that in this case two appellants namely appellant no. 2 Sarla Devi in CRIMINAL APPEAL No. - 3034 of 1982 and appellant Maheshi in CRIMINAL APPEAL No. - 3138 of 1982 have died during the pendency of aforesaid appeals, therefore, their appeals abated vide orders of this Court dated 04.03.2014 and 03.01.2014 respectively. Now, the only surviving appellant before us is Akhilesh Kumar son of Jagat Narain @ Rajjan. Therefore, this appeal (Criminal Appeal No. 3034 of 1982) is now confined to him only. However, it is observed that both the appeals arose out of same judgment dated 22.11.1981 passed by the trial court and the same are decided by a common judgment. In this case, initially appellant Akhilesh Kumar was on bail but later on he was sent to jail on 31.10.2015 and is languishing in jail ever since. By way of aforesaid appeal the appellant (Akhilesh Kumar) has challenged the judgment and order of conviction dated 22.11.1981 passed in Session Trial No. 217/M/1981 (State Vs. Akhilesh Kumar and others), Police Station Nazirabad, District Kanpur, arising out of Case Crime No. 12 of 1979, under Sections 302, 394, 411 IPC whereby the appellant has been sentenced to life imprisonment under Section 302 IPC and 10 years' rigorous imprisonment under Section 394 IPC read with Section 397 IPC. Both these sentences have been directed to run concurrently. It is noticeable that the trial court also convicted appellant Akhilesh under Section 411 IPC but did not pass any sentence for the same-perhaps inadvertently. Prosecution story as trickles out from perusal of record suggests that on 11.01.1979 a written report was lodged by one Sri Anand Kumar son of Vidya Saran Nigam resident of 109/407, Nehru Nagar, Kanpur at police station Nazirabad at about 6.50 pm stating therein that he returned home today from office around 4.00 pm when he was informed by his mother that Dadi Ji (Shyama Devi) who resides in adjoining house was not sighted today since morning, though his mother gave several calls to her in the afternoon but she did not respond. Whereupon, Anand Kumar went to Sri Brij Bihari Lal Nigam who is relative of Smt. Shyama Devi (deceased) wife of late Kanhaiya Lal and called him at the house of Smt. Shyama Devi. The informant also called some neighbours namely Lotawan, Avinash Srivastava and Hari Shanker Dubey and asked them to inquire about the whereabouts of Smt. Shyama Devi as she did not respond since morning. Informant in company with other persons entered into the house of Shyama Devi after climbing on roof of his house where he found doors of house opened and Shyama Devi lying dead on a cot. First informant suspected some foul play. Report is being lodged, proper action be taken. This information is exhibit Ka-20. Contents of this report were entered into at report no. 36 of the General Diary, copy whereof is exhibit Ka-17. Thereafter, PW-11, Sri S.D. Gupta was sent for inquiry on the spot and for preparing the inquest report which was prepared by him at the house of deceased. Preparation of inquest report commenced at 7.45 pm and completed at 9.45 pm on 11.01.1979. Inquest report is exhibit Ka-1 on record. Thereafter, relevant papers were prepared for sending the dead body (of Shyama Devi) for post-mortem examination. Post-mortem examination was conducted on 13.01.1979 at 12.00 noon by Dr. R.P. Yadav, PW-2, wherein following ante-mortem injuries were found on the body of the deceased: i. Legature mark 5 ½ cm x 1 ¼ cm over left side of neck just below lower jaw. Abrasion present around the margins of marks and neck on left side swollen. ii. Abrasion 1.5 cm x 1.00 cm in front of left ear. iii. Abrasion 1 cm x ½ cm over outer part of right eyebrow. iv. Bruise 8 cm x 5 cm over cheek below eye v. Abrasion 2.5 cm x 1 cm back of left elbow vi. Abrasion 1 cm x ¾ cm back of right elbow. vii. Four abrasions on the front of elbow left knee sige 1 cm x ½ cm to 2.5 cm x 1 cm. viii. Five abrasions over front of right knee and just below it size 1 cm x ½ cm to 2 cm x 1 cm ix. Abrasion 1 cm x ½ cm left side neck lower part. It was opined that death was due to asphyxia as a result of strangulation. viii. Five abrasions over front of right knee and just below it size 1 cm x ½ cm to 2 cm x 1 cm ix. Abrasion 1 cm x ½ cm left side neck lower part. It was opined that death was due to asphyxia as a result of strangulation. Duration of death was said to be 2 ½ days. Age of the deceased was described as 80 years. This post-mortem report has been proved as exhibit Ka-2. It was due to aforesaid post mortem report that a case was registered at Crime No. 12 of 1979, under Section 302 IPC on 13.01.1979 and entry was made in the relevant General Diary at report no. 24 at 16.40 hours and investigation was conducted by Sub Inspector Inam Chandra, PW-15 who recorded statement of several witnesses and prepared the site plan, after inspection of the spot and has proved the site plan as exhibit Ka-12. During the course of investigation it so transpired that one Suresh Chandra Nigam (PW-6) handed over a list of stolen jewellery at police station Nazirabad which report has been proved as exhibit Ka-4. As per the aforesaid witness Suresh Chandra Nigam, he had gone over to Bombay where he was informed through telegram (exhibit Ka-3) that his aunt has expired, therefore, he came back immediately on 14.01.1979 when he found certain jewellery missing from the house of the deceased. Memo of this telegram was prepared by the Investigating Officer and proved as exhibit Ka-13. As the investigation proceeded further, the Investigating Officer arrested Akhilesh Kumar on 17.01.1979 on tip off information at Tikonia Park, Nehru Nagar, Kanpur and after his arrest accused-appellant Akhilesh Kumar confessed that he can give the jewellery which was taken by him from the house of deceased Shyama Devi, whereupon recovery of certain jewellery was made from the house of Akhilesh Kumar. A recovery memo was prepared as exhibit Ka-7. Similarly, recovery was made from other accused Maheshi and Sarla Devi on 18.01.1979. Memos of recovery of jewellery are exhibit Ka-8 and Ka-9 respectively on record. Accused Akhilesh Kumar was lodged at the police station on 17.01.1979 and entries regarding the same was made in the concerned GD at report no. 34 at 22.30 hours. The said GD has been proved as exhibit Ka-14. Memos of recovery of jewellery are exhibit Ka-8 and Ka-9 respectively on record. Accused Akhilesh Kumar was lodged at the police station on 17.01.1979 and entries regarding the same was made in the concerned GD at report no. 34 at 22.30 hours. The said GD has been proved as exhibit Ka-14. As per the recovery memos, various golden/ silver ornaments were reportedly recovered from the possession of aforesaid accused persons including present appellant Akhilesh Kumar. It has also come in the investigation that certain statement of witness namely Hari Ram PW-5 was recorded (by Investigating Officer PW-15) regarding fact of presence of appellant Akhilesh Kumar @ Pappu and Maheshi on the adjoining roof of house of deceased Shyama Devi. The extract statement so recorded of witness Hari Ram PW-5 is exhibit Ka-16. After the investigation was completed, charge sheet (exhibit Ka-11) was filed against the appellant. Thereafter, case of the appellant was committed to the court of Session from where it was made over for trial to the court concerned. As a sequel to the same, the appellant was heard on the point of charge and prima-facie ground was found existing for framing charge under Sections 302, 394/397 and 411 IPC. Charges read over and explained to the accused-appellant, who denied the aforesaid charges and opted for trial. In turn, the prosecution was asked to adduce its testimony, whereupon, the prosecution produced in all 18 witnesses. A laconic reference of the same is sketched hereunder: Anand Kumar PW-1, has initially informed about the incident at police station Nazirabad. Dr. R.P. Yadav PW-2 has conducted post mortem examination on the dead body of the deceased Shyama Devi on 13.01.1979 and has proved the post mortem report (exhibit Ka-2). Kailash Chandra Srivastava PW-3 is witness of fact that he saw accused Akhilesh Kumar with Maheshi on 10.01.1979 around 7 - 7.30 pm knocking at the door of deceased Shyama Devi and they were asked by him as to why they were thumping the door, whereupon they told that they want some salt from Dadi Ji. This witness claims that he saw them inside the house of Shyama Devi at the same point of time. This witness claims that he saw them inside the house of Shyama Devi at the same point of time. It is worth mentioning that in this case first page of statement of Kailash Chandra Srivastava (regarding examination-in-chief) was missing and on the second page at the top a note in the red ink was appended "First page of PW-3 sent to Investigating Officer vide order of District Judge dated 01.12.1982 in a sealed cover." We have also made hectic efforts not only from the counsel for the appellant but also from the learned AGA and the District Judge, Kanpur to trace-out the first page of statement of Kailash Chandra Srivastava PW-3 but nothing fruitful discovered. As a measure of solution, both the sides agreed that reference of contents of examination in chief of PW-3 is very much reflected in the judgment of the trial court, therefore, they have no inconvenience and they are able to extend argument on the basis of the existing testimony of PW-3 from page 2 onwards. Shiv Kumar is PW-4, he is witness of fact that he was told by appellant's mother on the relevant date(10.01.1979) around 9.30 pm that she is going to her 'Maika' and when her husband return home he should be informed accordingly. Hari Ram Nigam PW-5, has turned hostile and has not supported the prosecution version. Suresh Chandra Nigam is PW-6, as per his testimony, deceased Shyama Devi is his aunt. On the relevant date when deceased Shyama Devi died, he had gone over to Bombay, he was informed by telegram (exhibit Ka-3), when he came back on 14.01.1979, he informed about the missing jewellery from the house of Shyama Devi at the police station and gave a list of lost jewellery (exhibit Ka-4). Dinesh Kumar is PW-7. He is son of PW-6. He has participated in the identification process of jewellery on 05.04.1979and has narrated about the same. Inayat Ullah, Head Constable PW-8 has proved receiving of written report from PW-1 Anand Kumar and entry of the same in the relevant GD and thereafter, registration of case at crime no. 12 of 1979, under Section 302 IPC on 13.01.1979 at the police station, he has proved exhibit Ka-5 and Ka-6 respectively. Inayat Ullah, Head Constable PW-8 has proved receiving of written report from PW-1 Anand Kumar and entry of the same in the relevant GD and thereafter, registration of case at crime no. 12 of 1979, under Section 302 IPC on 13.01.1979 at the police station, he has proved exhibit Ka-5 and Ka-6 respectively. Leelawati PW-9 is witness of fact of her participation in the identification process (on 05.04.1979) of jewellery and has also narrated some relevant facts, she is wife of Suresh Chandra Nigam (PW-6). Sonu @ Soni is PW-10, he is witness of fact that Akhilesh Kumar came to his shop around 2 - 2.30 pm and told him that one old lady resides in his house, she is rich, if she is killed they will get plenty of wealth. Shambhu Dayal Gupta, Sub-Inspector is PW-11, he prepared recovery memos exhibit Ka-7, Ka-8 and Ka-9 at the dictation of Sub-Inspector Inam Chandra. Ram Shankar PW-12 is witness of fact of arrest and recovery made from accused Maheshi. Durga Shankar PW-13 is also witness of fact of arrest and recovery made from present appellant Akhilesh Kumar @ Pappu. P.N. Khanna PW-14 is contractor for providing articles for conducting identification process of goods/ jewellery. Inam Chandra, Sub-Inspector, PW-15 has proved his investigation. Thereafter, evidence for the prosecution was closed and statement of the appellant Akhilesh was recorded under Section 313 Cr.P.C. wherein he has denied the incident and has claimed his implication false in the case at the instance of police. He further claimed that prosecution witnesses Durga Shankar and Ram Shankar are professional witnesses of police. Head Constable Chandra Kumar Bajpai is PW-16, he has deposed fact regarding safe custody of jewellery at the police Malkhana. G.P. Thapaliyal, Executive Magistrate is PW-17, he has proved identification process conducted by him regarding jewellery and has proved exhibit Ka-10. Constable Triyugi Narain Pandey is PW-18 who has proved safe conveyance of the sealed bundles of jewellery from Malkhana, Police Station Nazirabad to the Magistrate and then back to the police station. Thereafter, defence was asked to adduce its testimony. The defence produced in all two witnesses. Dr. V.K. Verma is DW-1, he has proved injury report of Jagat Narain as exhibit Kha-1. Jagat Narain DW-2 is father of accused Akhilesh Kumar and husband of Sarla Devi, the another co-accused. Thereafter, defence was asked to adduce its testimony. The defence produced in all two witnesses. Dr. V.K. Verma is DW-1, he has proved injury report of Jagat Narain as exhibit Kha-1. Jagat Narain DW-2 is father of accused Akhilesh Kumar and husband of Sarla Devi, the another co-accused. He has testified the fact that he along with his son and wife were taken to police station in the intervening night of 15/16.01.1979 where he was beaten up and the police also forcibly took possession of jewellery from his house. He has claimed the recovered jewellery as his own. Besides defence has also filed certain papers from exhibit Kha-2 to Kha-12 being certified copies of testimony given by Ram Shankar, Durga Shankar, S.I. Shambhu Dayal Gupta and bail application of Sarla Devi, whereby it has been tried to prove that the prosecution witnesses (witnesses in recovery of jewellery) Durga Shankar son of Shyam Sunder, Sub-Inspector Shambhu Dayal Gupta and Ram Shankar son of Kedar have given testimony on behalf of the prosecution/ police in various cases and have participated in a number of proceedings as witnesses. The trial court after hearing both the sides on merit of the case passed aforesaid impugned order of conviction and sentence. Consequently, this appeal. On behalf of appellant Akhilesh Kumar it has been claimed that there was no specific motive assigned for committing crime. The entire accusation is based solely on the recovery of alleged ornaments from the appellant on 17.01.1979 and the recovery has been linked with murder of deceased Smt. Shyama Devi, whereas, it has nowhere been established that the jewellery recovered belonged to Smt. Shyama Devi and the same was looted by the appellant. There is no evidence or circumstance establishing fact of loot. The prosecution witnesses are blowing hot and cold. If their testimony is taken to be entirely true, then certain major loopholes emerge in the testimony of prosecution witnesses which make serious dent in the prosecution case. These loopholes hit at the consistency of the prosecution case and tell about missing links in the chain of circumstance. There is no testimony, whatsoever, that the jewellery was ever looted by the appellant. These loopholes hit at the consistency of the prosecution case and tell about missing links in the chain of circumstance. There is no testimony, whatsoever, that the jewellery was ever looted by the appellant. It is admitted to the prosecution witnesses that the place of occurrence where Shyama Devi died is frequented by a number of persons and accessible to all and there are a number of persons residing adjoining to and in the neighborhood of deceased Shyama Devi. Various vital circumstances of the case have not been proved and links of chain is incomplete and no conclusion could be drawn regarding guilt or culpability of the appellant. Circumstances of the case abundantly show that Shyama Devi may be murdered by any person but there is no such testimony which may allude to inference of guilt of murder against the appellant to the exclusion of all others. The fact is that jewellery belonged to the mother of the appellant Sarla Devi but she too was imputed with recovery of jewellery by the police in order to work out the case. Fact of recovery has also not been proved by independent witnesses. The witnesses so procured by the police are professional and they have appeared in a number of cases as police witnesses. Therefore, their fairness and credibility is wholly unreliable. It has come on record that the place from where the recovery of ornaments was imputed is also inhabited by a number of other persons, but there is no independent witness to the fact of recovery. Exhibit Ka-4 is the list of jewellery given by Suresh Chand Nigam PW-6 but very perusal of the same shows that no description of ornaments has been given, but only weight of ornaments has been mentioned. This by itself clarifies the handiwork of police in working out a case after deliberation with the complainant side. If a person who is giving list of jewellery is unable to describe and recall identifying marks of jewellery in its form then how can he be expected to identify the same in identification process. This by itself clarifies the handiwork of police in working out a case after deliberation with the complainant side. If a person who is giving list of jewellery is unable to describe and recall identifying marks of jewellery in its form then how can he be expected to identify the same in identification process. More so, the jewellery was said to have been sealed in a box and the key was placed with box and the box was sealed, but no such box was ever produced before the trial court and the trial court it appears was in a hurry to conclude the case and record conviction over looking material facts of the case and circumstances existing in this case. The case is full of contradictions and it being circumstantial case, every hypothesis of innocence of the appellant is to be excluded first before any conviction is recorded. In this case, hypothesis of innocence of appellant is on the face overflowing. Sri Mahendra Singh, learned AGA appearing for the State replied to the aforesaid argument by submitting that no doubt it is a circumstantial case and all the links in the chain of circumstances have been established and proved in order to avail conviction. In this case, every link in the chain of circumstances has been proved from the beginning upto the end. The appellant was seen on 10.01.1979 at the place of occurrence and thereafter, he absconded and was arrested by the police on 17.01.1979 and after his arrest he himself told the police about the looted jewellery and facilitated its recovery and thereafter recovery of jewellery was made from his house. The recovery has been very much witnessed by the two witnesses. The presence of witnesses is natural. Conduct of appellant is a circumstance against him. The recovery of ornaments itself explains the incident and the murder of Shyama Devi by the appellant. It is obvious that the appellant in company with other co-accused Maheshi has perpetrated the crime. Every vital circumstance/ link in the chain of circumstances has been proved beyond reasonable doubt by the prosecution which excludes hypothesis of innocence of the appellant and the learned trial Judge has considered reasonably the evidence and circumstances and has rightly recorded conviction against the appellant. The judgment of trial court does not suffer from any illegality. Also considered the above submissions. The judgment of trial court does not suffer from any illegality. Also considered the above submissions. The moot point arises for determination of this appeal relates to fact whether the prosecution has been able to establish chain of circumstances which is sufficient to leave aside every hypothesis of innocence of the appellant and pointing to his guilt unmistakably that he and he alone has perpetrated the crime to the exclusion of others. Before we enter on the factual aspects and meritorial considerations of this case, qua the evidence and circumstances (appearing in this case), it would be convenient for better understanding of facts and merit that we first juxtapose the relevant facts chronologically in this case. We gather from record that in this case no formal FIR was lodged. It was on 11.01.1979 when one Anand Kumar son of Vidya Saran Nigam resident of 109/407, Nehru Nagar, Kanpur lodged a written report at police station Nazirabad, Kanpur stating therein that he returned home from office around 4.00 pm when he was told by his mother that Dadi Ji who resides in the adjoining house was not sighted by her despite several calls given by her today in the afternoon. Whereupon, Anand Kumar went to one of the relatives of Shyama Devi namely Sri Brij Bihari Lal Nigam and took him to the residence of Shyama Devi from his house, in the meanwhile a few persons from neighborhood were also called. These neighbours were Lotawan, Avinash Srivastava and Hari Shanker Dubey. Sri Anand Kumar told them that despite several calls, Dadi Ji did not respond. Then Anand Kumar in company with other persons entered into the house of Shyama Devi from roof of his house where he along with others saw the doors of house opened and Shyama Devi lying dead on a cot. They suspected death of Shyama Devi. It was requested that action be taken in the case. This written report was moved at police station at about 6.30 pm and the entry of the same was made in the concerned GD at report no. 36 at 6.30 pm on 11.01.1979. This written report/ information is exhibit Ka-20. They suspected death of Shyama Devi. It was requested that action be taken in the case. This written report was moved at police station at about 6.30 pm and the entry of the same was made in the concerned GD at report no. 36 at 6.30 pm on 11.01.1979. This written report/ information is exhibit Ka-20. Thereafter, inquest report of deceased Shyama Devi was prepared on 11.01.1979, wherein, Umesh Krishna son of Sri Brij Bihari Lal Nigam, Sri Kailash Chandra Srivastava son of late Jagdish, Sri Kishori Lal son of Mewa Lal Nigam, Sri Anand Kumar son of Vidya Saran Nigam and Sri Durga Prasad Dwivedi son of Bhagwati Prasad Dwivedi were appointed Panchan, out of whom Anand Kumar and Kailash Chandra Srivastava have been examined by the prosecution witnesses as PW-1 and PW-3 respectively. It has come in testimony of PW-1 Anand Kumar itself that from 11.01.1979 upto 13.01.1979 there was no clue as to who committed the offence. Post mortem examination on the dead body of Shyama Devi took place on 13.01.1979, conducted by Dr. R.P. Yadav, PW-2 who found several ante-mortem injuries on the dead body of Shyama Devi and opined that Shyama Devi died as a result of asphyxia due to strangulation. Duration of death was stated to be 2 ½ days. He has deposed in trial court that there may be margin of 10 to 12 hours, in this duration period. Thereafter, it so happened that Inam Chand, PW-15 Inspector and Investigating Officer of this case, arrested appellant Akhilesh Kumar on 17.01.2017 around 8.15 pm on tip off information and after his arrest, appellant confessed to have looted jewellery from the house of Shyama Devi of which he can make recovery from his house. In consequence of above information, recovery of jewellery was made from the house of appellant (recovery memo is Exhibit Ka-7) and thereafter certain other facts were also brought on record pertaining to other ancillary matters of this case relating to other co-accused and then charge sheet was filed against the appellant. In this particular background of facts, we have to look into the entirety of the case, credit worthiness of the prosecution witnesses and their testimony on record. With this objective, we may first begin with the various links/ circumstances of the case which are vital and important having deep bearing on the merit of the case. In this particular background of facts, we have to look into the entirety of the case, credit worthiness of the prosecution witnesses and their testimony on record. With this objective, we may first begin with the various links/ circumstances of the case which are vital and important having deep bearing on the merit of the case. It is admitted case that no one saw either the incident of murder or the incident of loot. Therefore, the case in hand is based on circumstantial evidence. Precisely, we have several vital circumstances, which circumstances, if taken to have been proved and established reasonably by the prosecution then alone guilt of the appellant shall be said to have been proved beyond reasonable doubt to the exclusion of others. With that objectivity, we may summarize certain relevant circumstances/ facts as important ones. Precise circumstances of the case appear to be that Shyama Devi was residing all along in her house at 109/406-A, Nehru Nagar, Kanpur with adjoining neighbours at the relevant point of time (10.01.1979) when her death might have been caused. Similarly fact of loot of jewellery or any vestige thereof from the house of Shyama Devi in the evening of 10.01.1979 at 7.30 pm or thereafter upto the time of recovery of dead body of Shyama Devi on 11.01.1979 around 6.00 - 6.30 pm. This circumstance regarding loot of jewellery should be coupled with presence of accused/ appellant in and around the house of Shyama Devi at the relevant point of time, and fortified by fact of recovered jewellery-being looted jewellery of Shyama Devi; and identification of recovered jewellery and its legal impact; and lastly whether all the aforesaid circumstances in form of various links under facts and circumstances have been established satisfactorily to the exclusion of every hypothesis of innocence of the appellant and pointing unmistakably to the guilt of the appellant that he and he alone was the culprit who committed the crime to the exclusion of others? While scrutinizing testimony of witnesses, we come across fact that Shyama Devi was residing all alone in her house at 109/406-A, Nehru Nagar, Kanpur with adjoining neighbours at the relevant point of time (10.01.1979) when her death might have been caused and jewellery looted. It comes out that no one resided with Shyama Devi in her house. While scrutinizing testimony of witnesses, we come across fact that Shyama Devi was residing all alone in her house at 109/406-A, Nehru Nagar, Kanpur with adjoining neighbours at the relevant point of time (10.01.1979) when her death might have been caused and jewellery looted. It comes out that no one resided with Shyama Devi in her house. Anand Kumar PW-1 has stated in his cross examination that Avinash Srivastava was tenant of the room lying next to the room where murder took place. Similarly Kailash Chandra Srivastava PW-3 is also residing in the neighborhood of deceased Shyama Devi and his portion of the house is separated from house of Shyama Devi by one door which remained closed and was never opened. His testimony reveals that he was tenant of Shyama Devi. It has been testified by him that prior to the incident Pappu and his mother-father used to visit at the house of Shyama Devi and Shyama Devi also used to visit their house. He has further testified that as and when any relative of Shyama Devi used to visit at her house, he did not stay at her home but he used to go away from her house. Only her nephew Suresh Chandra and his family members used to go inside her house but they too did not reside in that house. Hari Ram Nigam PW-5 has also testified that he has purchased rear portion of house of Shyama Devi and was residing in that portion of the house. Suresh Chandra Nigam PW-6 has stated in his cross examination that her Aunt (deceased) was residing (in her home) alone in the beginning but after some time this witness too resided with her. While she was ill, she used to reside with this witness. Thus, it is obvious that there were several neighbours of deceased Shyama Devi who were residing in the house and rooms adjoining to her house and Shyama Devi usually resided alone at her residence. There was no one who regularly resided with her in her house. While she was ill, she used to reside with this witness. Thus, it is obvious that there were several neighbours of deceased Shyama Devi who were residing in the house and rooms adjoining to her house and Shyama Devi usually resided alone at her residence. There was no one who regularly resided with her in her house. Since, Shyama Devi was strangulated to death (as per post-mortem report) in the evening of 10.01.1979 at and after 7.30 pm and the period/ duration may vary upto the time when her dead body was discovered on 11.01.1979 at about 6.30 pm, therefore, the relevant and perhaps important fact in this case as per prosecution version revolves around point of loot of jewellery of Shyama Devi from her house from around 7.30 pm on 10.01.1979 onwards till 6.30 pm on 11.01.1979 (when her dead body was seen). In this factual background so suggested by the prosecution, the incident of loot becomes relevant circumstance/ link of this case and assumes vital importance. Therefore, we are concerned first with fact of loot of jewellery or circumstances or facts from which either conclusion or presumption of loot can be drawn. In this regard fact of recovery of alleged jewellery from the appellant-whether the same is authenticated, reliable and legally sustainable-is to be scrutinized. Before we analyze authenticity and veracity of recovery of jewellery from appellant Akhilesh Kumar as alleged of 07.01.1979, it would be convenient for understanding the very beginning of the incident as to when the incident of loot might or could have occurred. The two accused persons in this case namely present appellant Akhilesh Kumar and another co-accused / appellant Maheshi were seen together on 10.01.1979 at the door of deceased Shyama Devi and they were knocking at the door, when they were asked by PW-3 as to why they are knocking at the door so intensively, whereupon, they told Kailash Chandra Srivastava (PW-3) that they want some salt from Dadi Ji. Thereafter, this witness went away and he did not suspect any foul play. His testimony has come on record to the magnitude that both Akhilesh Kumar and Maheshi were seen inside the house. Here starts scrutiny of such testimony. Thereafter, this witness went away and he did not suspect any foul play. His testimony has come on record to the magnitude that both Akhilesh Kumar and Maheshi were seen inside the house. Here starts scrutiny of such testimony. It has been testified by Kailash Chandra Srivastava (PW-3) that nothing is visible or can be seen from and through the door which separates house of deceased Shyama Devi with the portion of house occupied by Kailash Chandra Srivastava (PW-3). In view of this conspicuous testimonial version regarding presence of appellant along with Maheshi inside the house generates doubt and appears to be improved version because as per testimony of Kailash Chandra Srivastava (PW-3) the moment appellant told him that he wanted salt from Dadi Ji this witness went away and suspected no omen, then the chapter ended. There is no testimony on record that the door was ever opened by deceased Shyama Devi and that the appellant along with Shyama Devi entered into the house and remained there for about some time, so as to infer any conclusion based on their presence inside the house. There is no testimony on record which may establish as to from where, when and how Kailash Chandra Srivastava (PW-3) saw the appellant inside the house of Shyama Devi when he came back to his home after inquiring about appellant only at the door of the deceased Shyama Devi. Only this much of testimony has come forth that the appellant was seen knocking at the door of Shyama Devi but there is no further testimony regarding fact of appellant entering into the house of Shyama Devi. Even the entire prosecution story is silent about the presence of appellant inside the house of Shyama Devi. Therefore, testimony of presence of appellant inside the house of Shyama Devi is not direct nor inferable from circumstances and as such not established in this case. For the sake of argument assuming it to be that the appellant was seen inside the house of Shyama Devi then there is no linking evidence regarding appellant looting jewelery of Shyama Devi. Therefore, testimony of presence of appellant inside the house of Shyama Devi is not direct nor inferable from circumstances and as such not established in this case. For the sake of argument assuming it to be that the appellant was seen inside the house of Shyama Devi then there is no linking evidence regarding appellant looting jewelery of Shyama Devi. Here two reasons prop up, firstly, there is no worthy evidence on record which may prove that after the dead body of Shyama Devi was recovered on 11.01.1979 there was apparent sign of loot being made in the house because the witnesses have testified that right from 11.01.1979 up to 13.01.1979 there was no clue or whisper as to who committed the offence. Further, there was no clue leading to inference of loot of jewellery from the house of Shyama Devi. Secondly, there is no clinching testimony on record that Shyama Devi kept such jewellery with her even the description of such jewellery has not been given by PW-6 Suresh Chandra Nigam who has stated to have given a list of jewellery stolen/ looted from the house of Shyama Devi. It is beyond comprehension of an ordinary prudent man that he is describing weight of a jewellery without describing its identifying marks. In the absence of any identifying mark, mere weight of jewellery would not establish that the jewellery infact was identifiable or that it belonged to deceased Shyama Devi. Here mention may be made of testimony of DW-2 Jagat Narain who is none other than the father of appellant Akhilesh Kumar, he has claimed the jewellery so recovered from his house to be that of his own and has given straight answers in reply to every question put to him in his cross examination by the prosecution. Jagat Narain (DW-2) was in Government service and was having landed property also and has specifically stated that these jewellery which were taken away from him by the police in the intervening night of 16/17.01.1979 were made prior to 1944 and his father was owner of land measuring 80 bighas. Therefore, the proportion of probability in this case regarding ownership of the jewellery cannot be said to be tilting in favour of the prosecution rather it tilts more in favour of Jagat Narain (DW-2). Now, we may analyze the fact of recovery of jewellery and its legal consequences. Therefore, the proportion of probability in this case regarding ownership of the jewellery cannot be said to be tilting in favour of the prosecution rather it tilts more in favour of Jagat Narain (DW-2). Now, we may analyze the fact of recovery of jewellery and its legal consequences. We have before us, the testimony of PW-5 Inam Chandra, the Investigating Officer. As per his testimony while he was investigating into the case he received tip off information on 17.01.1979 that accused Akhilesh Kumar is present in Tikonia Park at Nehru Nagar. The Investigating Officer accompanied by witness Durga Shankar and Pooran arrested Akhilesh Kumar, the appellant at about 8.15 pm. Thereafter on the confession of appellant Akhilesh Kumar some recovery of jewellery was made from one of the rooms of house where appellant resided, the recovery of jewellery was made from a little box, the same was described as Kardhani, Lachchha, Chain with bracelet, Dastband, Golden bracelet and ear ring. The same have been exhibited as material exhibit 7, 8, 9, 10, 11 and 12. The recovery memo was prepared at the instance of Investigating Officer by S.D. Gupta, Sub Inspector and the same has been proved as exhibit Ka-7. To our utter surprise, there is no site-plan of the place of arrest of Akhilesh Kumar and no site plan of the place of recovery. The answer given for non preparation of such site plan are evasive and perfunctory. In the absence of any site plan from the place of recovery and the place of arrest the entire recovery stand vitiated and becomes illegal and does not carry any legal force. Further the other recovery imputed to the other co-accused persons namely Maheshi and Sarla Devi as per recovery memo exhibit Ka-8 and Ka-9 respectively, it is further strengthened that no site map has been prepared regarding place of arrest and place of recovery of aforesaid two accused persons, since their appeals have abated because of their death, no further reference need be made in that regard. We also come across testimony that the witnesses of recovery Rama Shankar (PW-12) and Durga Shankar (PW-13) are found to be pocket witnesses of police. We also come across testimony that the witnesses of recovery Rama Shankar (PW-12) and Durga Shankar (PW-13) are found to be pocket witnesses of police. Defence has placed on record a number of papers/ certified copies of their statements in a number of criminal cases wherein they have deposed on behalf of the police but in their cross examination they have specifically denied fact that they ever appeared as witnesses in police cases. Certainly, these two witnesses of recovery are arranged witnesses of police but they are denying their involvement as such for the reasons best known to them. Even the Investigating Officer, Inam Chandra has denied the fact that these witnesses ever appeared as witnesses for the police in number of cases. Further the very box from which jewellery was recovered from the house of Akhilesh Kumar and was sealed in a cloth by the Investigating Officer was not produced before the trial court. Therefore, sealing of jewellery in box by the Investigating Officer and non production of the same before the trial court exposes falsehood of fact of recovery stressed by the Investigating Officer. By perusal of testimony of PW-13 some vital facts emerges out on point of non-possession of key of his house by Akhilesh Kumar at the time of his arrest. PW-13 says in the cross examination that appellant was not possessing any key but the key was possessed by his father who was at home and Akhilesh Kumar asked for key from his father, whereas, in the testimony of Shambhu Dayal Gupta, Sub-Inspector PW-11 it emerges out that the appellant was possessing key by which the box was open. Therefore, on trivial factual aspect also the prosecution witnesses of recovery are vacillating. Perusal of exhibit Ka-4 abundantly establishes that no mark or description of jewellery was given except weight of jewellery. Thus, it cannot be said that there was any specific list of identifiable jewellery. Even in the testimony of Suresh Chandra Nigam (PW-6), Dinesh Kumar (PW-7) and Leelawati (PW-8), there appears glaring contradictions regarding use of the jewellery on several occasions and statement given to the Investigating Officer under Section 161 Cr.P.C. very much contradicts claim of above witnesses regarding identity and use of the jewellery so claimed to be belonging to Shyama Devi. Even in the testimony of Suresh Chandra Nigam (PW-6), Dinesh Kumar (PW-7) and Leelawati (PW-8), there appears glaring contradictions regarding use of the jewellery on several occasions and statement given to the Investigating Officer under Section 161 Cr.P.C. very much contradicts claim of above witnesses regarding identity and use of the jewellery so claimed to be belonging to Shyama Devi. The Investigating Officer has testified in his cross examination that name of Akhilesh Kumar emerged only on 13.01.1979 in this case and he started search for Akhilesh Kumar but his whereabout was not known. On being asked specifically by defence whether any action for issuance of process under Section 82/83 Cr.P.C. was adopted by him, this witness has answered in negative. He has also stated that he did not obtain any search warrant for house of Akhilesh Kumar nor broken lock of house of Akhilesh Kumar in order to carry out any search. We have already discussed that there was no vestige or sign of any loot of any article or jewellery, as such from the house of Shyama Devi when her body was discovered on 10.01.1979 around 6.30 pm and no witness has come forward with any specific testimony regarding any sign of loot left behind in the house of Shyama Devi. In view of above factual aspect, we are further guided by the testimony of Inam Chandra (Investigating Officer PW-15) that he, too, did not find any sign of loot in the house of Shyama Devi. Therefore, right from 10.01.1979 up to the time of arrival of Investigating Officer in the house of Shyama Devi on 13.01.1979 there is no proof or sign of any sort of loot being committed in the house of Shyama Devi. Further, the fact of recovery as discussed above is not legally proved and sustainable in view of gross anomalies appearing in the prosecution case. The recovery witnesses are tainted, procured and pocket witnesses of police and the same finds corroboration from certified copies of their statements (paper no. exhibit Kha-2 to Kha-11) and further Exhibit Kha-12 which is certified copy of bail application of Sarla Devi another co-accused who in her bail application claimed ownership of jewellery so recovered from the possession of Akhilesh Kumar. exhibit Kha-2 to Kha-11) and further Exhibit Kha-12 which is certified copy of bail application of Sarla Devi another co-accused who in her bail application claimed ownership of jewellery so recovered from the possession of Akhilesh Kumar. Further, testimonial disclosure establishes that on 10.01.1979 after the inquest report was prepared and the dead body of Shyama Devi was sent for post mortem examination, the house was locked by the police and as per version of PW-6 Suresh Chandra Nigam, he came back from Bombay on 14.01.1979 when he gave list of stolen jewellery from the house of Shyama Devi. But vital fact remained to be answered as to from where he obtained the key of the house of Shyama Devi. The entire testimony of Suresh Chandra Nigam PW-6 on this point is woefully silent. PW-15 Investigating Officer Inam Chandra was asked specific question as to when Suresh Chandra Nigam obtained key of house of Shyama Devi, he answered that he cannot tell as to when Suresh Chandra Nigam obtained key of the house. He has stated that Suresh Chandra Nigam came to him on 14.01.1979 and gave his report exhibit Ka-4 in the police station. Further one important fact deserves our consideration which relates to testimony of Dr. Kailash Chandra Srivastava PW-3, he has stated that he saw the appellant inside the house of Shyama Devi on 10.01.1979 around 7.30 pm. Surprisingly Dr. Kailash Chandra Srivastava happened to be one of the 'Panchans' appointed by the Investigating Officer for preparation of inquest report (Exhibit Ka-1) of deceased Shyama Devi and name of this witness appears at serial no. 2 of the list of such Panchans. Preparation of inquest report commenced at 7.45 pm and completed at 9.45 pm and as per testimony of Dr. Kailash Chandra Srivastava PW-3, he came from office in the evening of 11.01.1979 when he found dead body of Shyama Devi inside her house and testimony on record establishes that no whisper regarding the perpetration of the offence by the appellant was made from 11.01.1979 till 13.01.1979; then under circumstances it is almost inconceivable that PW-3 Dr. Kailash Chandra Srivastava could not spell and described about the presence of appellant in the house of Shyama Devi on 10.01.1979 at 7.30 pm. Kailash Chandra Srivastava could not spell and described about the presence of appellant in the house of Shyama Devi on 10.01.1979 at 7.30 pm. His silence on the point of presence of appellant in the house of Shyama Devi at the time of preparation of inquest report raises doubt on testimony of PW-3 itself as given in the court and the same appears to be wholly improbable and unreliable. Here we may also discuss testimony of Hari Ram Nigam PW-5, he has stated in his testimony that it was around 8 - 8.15 pm, he came back from his office, when he came to know about death of Shyama Devi. He has been declared hostile and cross examined by the prosecution wherein he has stated that Daroga Ji did not go on his roof nor did Daroga Ji make any site plan nor did he point out any such place where he saw Pappu (Appellant) standing. He has stated that he did not see the appellant on the roof. If we read conjointly testimony of PW-5 with the testimony of Investigating Officer Inam Chandra PW-15, who proved some statement of Hari Ram as Exhibit Ka-16 wherein certain statement of PW-5 Hari Ram has been described; then we discover that these statements pertain to fact that this witness (Hari Ram Nigam) had seen the appellant and the co-accused Maheshi standing on the roof of appellant which roof is adjoining to the house of Shyama Devi. But this statement in view of statement given by PW-5 (Hari Ram Nigam) before the trial court, looses significance and this fact is not established that appellant in fact was seen on the roof of adjoining house of Shyama Devi after the incident. Since, factom of recovery plays pivotal pavital role and would have assumed axiomatic value has been discovered to be erroneous and unfounded for the various reasons counted herein above, it would be in the fitness of things that testimony of other prosecution witnesses pertaining to fact of recovery particularly that of Suresh Chandra Nigam (PW-6), Dinesh Kumar (PW-7) and Leelawati (PW-9) and G.P. Thapaliyal (PW-17) and P.N. Khanna (PW-14) need no special reference and the identification process so carried out by the Executive Magistrate G.P. Thapaliyal on 05.04.1979 need no further reference by us. On vital points statement of Leelawati (PW-9) as recorded under Section 161 Cr.P.C. are contradictory and they contradict in material particulars on point of identity and use of jewellery so recovered. The Investigating Officer has himself stated about said contradictions in his cross examination. Further, it has come on record that there is no mention of any anklet or 'payjabe' in exhibit Ka-4 whereas it has been identified as such by Leelawati (PW-9). Investigating Officer has himself testified that no description of jewellery was ever stated by the aforesaid witnesses of identification process. Investigating Officer has further testified that Leelawati never stated that her mother in law used to go with her with such jewellery on her person. In such situation theory set up by defence that the jewellery in fact was taken away by police from their house in the intervening night of 16/17.01.1979 also creates doubt on the version of prosecution case regarding jewellery being exclusive jewellery of deceased Shyama Devi. PW-6, PW-7 and PW-9 who claimed to have identified the jewellery of Shyama Devi have not given any clue about the source as to from where Shyama Devi obtained/ got these jewellery, whereas, the defence has given reasonable source of obtaining jewellery which appeared to be reasonable and consistent one in comparison to rival claim laid by prosecution. Further one of the instances brought forth by the prosecution relates to fact that appellant visited shop of one Sonu @ Soni PW-10 on 10.01.1979 at about 2 - 2.30 pm and said to this witness that some old lady resides in his house, if she is killed they will get enormous wealth. This witness did not agree instead he suggested that appellant should not indulge in such acts. This testimony, it appear, has been given for laying stress on point of motive to commit murder of Shyama Devi but testimony of Sonu @ Soni PW-10 when read as a whole reflects that name of the old lady was not told by the appellant to him. In his cross examination he has specifically stated that he was threatened by Daroga Ji that in case he does not give such specific testimony in court he will not be spared and he will be implicated in false cases. This witness has gone to the extent that he has testified in court because of this threat from Daroga Ji. In his cross examination he has specifically stated that he was threatened by Daroga Ji that in case he does not give such specific testimony in court he will not be spared and he will be implicated in false cases. This witness has gone to the extent that he has testified in court because of this threat from Daroga Ji. Therefore, it is obvious that PW-10 Sonu @ Soni, PW-12 Ram Shankar, PW-13 Durga Shankar have been planted by the police as witnesses and it is obvious that the police and in particular the Investigating Officer has managed to work out a case which was based on circumstantial evidence and in matters of judicial scrutiny of such cases it is settled principle that all the links in the chain of circumstances should be so interlinked and intertwined that it leaves aside every hypothesis of innocence of accused and invariably establishes guilt of the accused to the exclusion of others that he and he alone was the perpetrator of the crime. In this case, chain of circumstances is shaky, broken and not complete in view of the wholly unreliable testimony of witnesses of fact describing various vital circumstances of the case, particularly on the point of recovery of jewellery which assumes central point of this case and has played vital role in proper scrutiny of this case. In so far as the fact that Sarla Devi went to Shiv Kumar PW-4 at about 9.30 pm on 10.01.1979 and said to him that she was going to her Maika is concerned, the same can not be taken to be fair one, for the reason that previously there was no such communication/ interaction between Sarla Devi and Shiv Kumar PW-4, then how and why Sharla Devi will indulge in such intimate communication. Certainly, there was no occasion for Sarla Devi to utter such words to Shiv Kumar PW-4. It is obvious that Investigating Officer has deliberately dragged in role of Shiv Kumar for creating a false situation, which stands ruled out by the cross-examination of this witness (PW-4) which runs in one line only "Meri Pappu ki Maa se isse pahle kabhi baat nahi hui thi". We may further observe that mere abscondance is no proof of complicity of a person in an offence. We may further observe that mere abscondance is no proof of complicity of a person in an offence. Assuming it to be that Sarla Devi and Akhilesh absconded after commission of the offence then they could have easily disposed of or concealed the looted jewellery to some other place. Why will they keep the looted jewellery in their house when they are next door neighbour to Shyama Devi and in the event of search being made in their house there was every possibility that the jewellery will be recovered. In this case, there is no such link that the appellant in fact was present inside the house of Shyama Devi on 10.01.1979 at or around 7.30 pm because PW-3 Dr. Kailash Chandra Srivastava had no occasion to see him inside the house nor has he described as to how and from where he saw the appellant inside the house of Shyama Devi. Unless he describe this particular aspect of presence of appellant in the house of Shyama Devi, mere statement that he saw the appellant inside the house would not authenticate it as such. There is no vestige or sign of loot inside the house of Shyama Devi after the dead body was recovered till the disposal of trial itself because there is no clinching testimony on record which may lead us to infer that some vestige of incident of loot was noticed by some one while dead body of Shyama Devi was recovered. It is admitted to prosecution that after the dead body was recovered, no one saw any such sign of loot and the house was locked by the police in the very night itself around 1 - 1.30 am. Then the house was unlocked perhaps only on 14.01.1979 when PW-6 Suresh Chandra Nigam returned from Bombay then how it can be anticipated and established that nothing happened during this period when the dead body was recovered and the place was very much frequented by a number of people and was locked by the police and then unlocked on 14.01.1979. Certainly there is no testimony nor circumstance on record which may give credence to prosecution version. Then again fact that jewellery in fact was owned by Shyama Devi has not been reasonably established. Certainly there is no testimony nor circumstance on record which may give credence to prosecution version. Then again fact that jewellery in fact was owned by Shyama Devi has not been reasonably established. Merely statement that the jewellery belonged to Shyama Devi by itself will not reasonably establish that it in fact belonged to Shyama Devi in the absence of any testimony regarding source of obtaining possession of such jewellery by Shyama Devi. Further, entire recovery from all the accused persons what to say, from the appellant, stands vitiated for the reason that the recovery witnesses are pocket witnesses of police as they have testified in a number of police cases on behalf of the police, and in their cross examination, all the witnesses and the investigating officer, have denied any such suggestion that they had appeared in a number of cases instituted by the police. There is no site plan or map of the place of arrest of accused and the place of recovery. The very box which was sealed by the police with the recovered jewellery from appellant, was never produced before the trial court. These aspects expose hollowness of prosecution case, and cannot be mitigated by any means, whatsoever. Once factum of recovery is vitiated, the entire case goes. Analysis of aforesaid facts circumstances and evidence on record show that factual chain of circumstances is broken and the version of the prosecution has not been established as was required of it. In the absence of complete chain, the guilt of the accused cannot be inferred and suspicion howsoever grave it may be, cannot take place of proof as that would be miscarriage of justice, which must be avoided by us. The facts and circumstances, lead us to conclude that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and the appellant should be given benefit of doubt. We have to keep in mind that reasonable doubt is not an imaginary, petty or more probable doubt but doubt becomes a fair doubt and it is based upon reasons and common sense vis-a-vis the testimony on record. Even Hon. Apex Court, in the matter of Sujit Biswas Vs. State of Assam-2013 Cri. We have to keep in mind that reasonable doubt is not an imaginary, petty or more probable doubt but doubt becomes a fair doubt and it is based upon reasons and common sense vis-a-vis the testimony on record. Even Hon. Apex Court, in the matter of Sujit Biswas Vs. State of Assam-2013 Cri. L.J. 3140 ( SC) has expressed its view on the same line that suspicion howsoever strong cannot assume form of proof and a doubt is not a trivial or mere a probable doubt but a fair doubt based upon reasons and common sense. On careful consideration of the finding recorded by the trial court we find that the trial court has failed through and through to take comprehensive view of the various vital facts and circumstances of the case vis-a-vis the testimony on record and has adopted parochial approach in the face of testimony on record. Trial court was not expected to act with blind folded eyes on bald statements of prosecution witnesses without properly scrutinizing the same. Consequently, the finding of conviction recorded by the trial court in the impugned judgment dated 22.11.1981 passed in Session Trial No. 217/M/1981, under Sections 302, 394 read with Section 397 IPC and 411 IPC arising out of Case Crime No.12 of 1979 are not sustainable in the eye of law as such and the same is set aside by us. Consequently, the sentence imposed by the trial court on the appellant is hereby set aside. In view of aforesaid analysis, we find force in the arguments extended on behalf of the appellant and the grounds urged in support of the appeal and consequently the appeal is allowed and the appellant is found not guilty for the charges under Section 302, 394 read with Section 397 IPC and Section 411 IPC and is acquitted of the same. The appellant is in jail in this case, he be set free forthwith, if he is not wanted in connection with any other case after complying with the provisions of Section 437-A Cr.P.C. A copy of this order be certified to the court concerned for information and necessary follow up action.