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2017 DIGILAW 1175 (ALL)

BUTA SINGH v. STATE OF U. P.

2017-05-03

RAJUL BHARGAVA, TARUN AGARWALA

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JUDGTMENT : Rajul Bhargava, J. 1. Heard Sri J.K. Chakraborty and Sri M.P. Yadav, learned counsels for the appellants and Sri Syed Ali Murtaza, learned AGA for the State. 2. The present criminal appeal has been filed by appellants-Buta Singh and Iqrar Ahmad alias Lalla, under Section 374 (2) Cr.P.C. against the impugned judgment and order dated 31.1.2006, passed by Sri R.K. Jain, Special Judge/E.C. Act District Pilibhit, in Sessions Trial No.509 of 2003, (State Vs. Buta Singh and another) arising out of Case Crime No.110 of 2003, Police Station Amaria District Pilibhit, convicting and sentencing the appellants under Section 302/34 IPC to undergo rigorous imprisonment for life and a fine of Rs.2000/- each, in default of fine the appellants to further undergo six months additional imprisonment. 3. The case of prosecution, in brief, is that the informant Avtar Singh (P.W.1) gave an application at Police Station Amaria District Pilibhit stating therein that he is resident of Sitarganj District Udham Singh Nagar and his agricultural farm is situated under Police Station Amaria District Pilibhit. He had employed one Rambali as a servant who used to keep vigil of Mango grove, Engine and Motor etc. On 15.6.2003 at about 6 A.M. he received an information from P.W.3 Sukh Lal that Rambali is lying dead in the field. This information was reported at the Police Station by Avtar Singh on 15.6.2003 at 8.30 A.M., which was recorded vide G.D. No.16. On the basis of the said information, P.W.6 Rakesh Kumar Pandey proceeded to the spot and after conducting inquest Exhibit Ka-2 and collecting blood stained earth from the spot and also after preparation of the site plan, the dead body of the deceased was dispatched for Postmortem. Further the prosecution case is that during investigation the son of deceased Rambali namely Sugreev (P.W.2) gave an application to the Investigating Officer and also a copy of non cognizable report lodged by deceased Rambali against appellant Buta Singh. In the said application, Sugreev narrated the enmity of his father with both the appellants. The said application has been proved as Exhibit Ka-3 and it appears that solely on the basis of earlier enmity P.W.2 suspected the hand of appellants in the murder of his father. In the said application, Sugreev narrated the enmity of his father with both the appellants. The said application has been proved as Exhibit Ka-3 and it appears that solely on the basis of earlier enmity P.W.2 suspected the hand of appellants in the murder of his father. Thereafter during investigation, P.W.6 stated to have arrested the appellants on 1.7.2003 and at the instance of appellant Buta Singh, the alleged Banka used by him in the commission of murder, was also recovered near a culvert in village Badepura. The said recovery is said to have effected at 5.35 A.M. It is recorded in the recovery memo that on account of early morning no public witness could be procured. 4. After investigation, charge sheet was submitted against the appellants under Sections 302/34 IPC. They were charged for this offence which they denied and demanded for trial. To substantiate the charges, prosecution has examined six witnesses and no witness was examined from the defence side. Upon consideration of the defence, the trial Court has held that the prosecution has established the guilt of accused beyond reasonable doubt and convicted the appellants as noted above. 5. Learned counsel for the appellants submitted that there is no direct evidence involving the appellants in respect of commission of the murder of Rambali. It is further submitted that the trial Court has recorded conviction even when the circumstances alleged against them have not been proved by the prosecution beyond reasonable doubt. It is next submitted that the Court below grossly erred in placing reliance upon the evidence of P.W.2 Sugreev son of the deceased who is a highly inimical partisan witness and he has simply proved the alleged motive against the appellants and he had introduced a story that a day prior when the dead body of the deceased was recovered, he had seen the accused Buta Singh coming out from the hut of Iqrar Ahmad and he had overheard that the accused will not spare even if they have to spent Rs. One or two lakhs. He argued that the Court below has also committed gross illegality by placing reliance on the evidence of P.W.3 Sukh Lal of alleged extra judicial confession made by appellant Buta Singh to him after about 13 days of the incident. One or two lakhs. He argued that the Court below has also committed gross illegality by placing reliance on the evidence of P.W.3 Sukh Lal of alleged extra judicial confession made by appellant Buta Singh to him after about 13 days of the incident. Learned counsel for the appellants lastly urged that the recovery of Banka at the instance of appellant Buta Singh could not in any way connect him with the crime. 6. Per contra, learned AGA submitted that the circumstantial evidence relied upon by the prosecution namely, motive, extra judicial confession, recovery of axe has been proved by cogent evidence and the Court below rightly convicted the appellants and the conviction does not warrant any interference. 7. In order to prove its case, the prosecution examined six witnesses namely, P.W.1 Avtar Singh; P.W.2 Sugreev; P.W.3 Sukh Lal; P.W.4 Dr. M.L. Agarwal; P.W.5 Constable Panna Lal Yadav and P.W.6 S.I. Rakesh Kumar Pandey in defence during trial. 8. The statements of appellants Buta Singh and Iqrar Ahmad were recorded under Section 313 Cr.P.C. in which they denied the prosecution story and submitted that the allegations levelled against them are false and fabricated and stated that the evidence of witnesses is totally false and concocted. Appellant Buta Singh stated that on account of dispute with P.W.1 Avtar Singh, he has been falsely implicated whereas Iqrar Ahmad stated that he has been implicated on account of village party fraction. 9. Now we will proceed to consider the evidence of witnesses appearing against the appellants. P.W.1 Avtar Singh is admittedly not a witness of any circumstance, direct or circumstantial, he has merely stated that he had employed the deceased and P.W.3 Sukh Lal to look-after the Mango grove and the field etc. He has stated that he received an information about the murder of Rambali and thereafter gave an information to the Police. P.W.2 Sugreev is the son of deceased Rambali. According to prosecution, on receiving information about his father's death, he had reached the spot on 15.6.2003 itself and after cremation, he had moved an application Exhibit Ka-3 to S.H.O. Police Station Amaria District Pilibhit stating that prior to the incident the appellants had altercation and fight with his father several times and on account of this enmity he had full belief and faith that it is the appellants Buta Singh and Iqrar Ahmad have murdered his father. He also stated about the previous enmity regarding other issues in his statement which does not warrant detailing in this judgment. He has also stated that the hut of appellant Iqrar Ahmad is adjoining and divided by a partition. A day before the incident at about 5-6 P.M., he heard a conversation in the hut of Iqrar Ahmad and a person sitting in the hut who seem to be an intoxicated state and they were saying that even if they have to spent Rs. one or two lakhs, they will not spare. Thereafter the appellants came out from the hut and he recognized them, next day his father was found murdered in the field of Avtar Singh. Assailing the testimony of P.W.2 Sugreev. Learned counsel for the appellants have submitted that this witness is highly inimical partisan interested and no reliance can be placed on his testimony. Firstly, that regarding the alleged conversation which he overheard a day before, there is no allegation of this fact in the complaint given to the Police by him on 17.6.2003 and besides it, we may record that this circumstance relied upon by the trial Court has no credibility as it was not clear as to whom the appellants wanted to eliminate. 10. We may record that the testimony of P.W.2 Sugreev is only to the extent of existing animosity to be the motive for the appellants to murder his father and further his statement regarding the alleged conversation a day before the murder, has no legal worth and the reliance by the trial Court on this circumstance is wholly perverse. 11. P.W.3 Sukh Lal is admittedly the servant of Avtar Singh and was employed along with the deceased at the farm. He is a witness of alleged extra judicial confession made by appellant Buta Singh after 12-13 days of the incident. He has stated that after 12-13 days of the incident he was coming back from his field, in the way he met appellants Buta Singh along with Iqrar Ahmad and the appellant Buta Singh fell on his feet and is stated to have confessed his guilt of murder of Rambali by Banka and requested him to save him since he was working with Avtar Singh who had good contacts with Police and other influential persons. 12. P.W.4 Dr. 12. P.W.4 Dr. M.L. Agarwal has stated that on 15.6.2003, he was on Postmortem duty in District Hospital, Pilibhit and he had conducted Postmortem examination on the autopsy of deceased Rambali at 4.30 P.M. He has noted six ante-mortem sharp edged injuries on various parts of the dead body of the deceased and he opined that the duration of the death was 3/4th day. 13. P.W.5 Constable Panna Lal stated that he was posted as Constable-Clerk at Police Station Amaria, Pilibhit and he had noted the information given by Avtar Singh vide G.D. No.16 on 15.6.2003 at 8.30 A.M. He has also proved Jild Panchayatnama as Exhibit Ka-4 by him. 14. P.W.6 S.I. Rakesh Kumar Pandey who is Investigating Officer of this case who after reaching at the spot prepared the inquest of deceased Rambali and collected blood stained articles on the bed on which the deceased was sleeping. He has stated that he recorded the statement of P.W.2 Sugreev on 17.6.2003 and of P.W.3 Sukh Lal on 29.6.2003, thereafter on 1.7.2003, stated to have arrested the appellants and recorded the statement of appellant Buta Singh wherein he expressed his willingness to get Banka used in the commission of murder. Thereafter it is stated that the appellant Buta Singh took the Police party near a culvert and got a Banka recovered from the nearby bushes. No independent witness could be procured in the early morning. After investigation, he had submitted the charge sheet against the appellants. 15. We have carefully considered the rival contention and perused the evidence on record as well as impugned judgment and order of the Court below. 16. There is no eye-witness to the occurrence and the entire case is based on circumstantial evidence. The normal principle is that in a case based on circumstantial evidence, the circumstance from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulative should form a chain so complete; that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than the guilt of the accused and inconsistently with their innocence. These principles have been laid down by the Apex Court Vide Sharad Birdihi Chand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 . The same view has been consistently reiterated by the Apex Court and this Court in various judgments. 17. The prosecution mainly based its case on the circumstances: (i) Motive; (ii) Extra judicial concession; (iii) Recovery of Banka. In the light of the above principles, let us examine whether the prosecution has proved the circumstances by convincing evidence and whether those circumstances unerringly pointed towards guilt of the accused. So far as the motive is concerned, we find that P.W.2 Sugreev son of the deceased has narrated many instances prior to the murder indicating that there was existing animosity between the appellants and the deceased. We may record that the alleged motive was not of such a nature which would have prompted the appellants to murder the deceased. The alleged motive has not been proved by any credible and reliable evidence rather we may record that this alleged animosity was the main reason for the P.W.2 to falsely implicate the appellants in this case as the said animosity had raised strong suspicion of appellants involvement in the murder which led to their false implication. Extra judicial confession : Yet another circumstance relied upon by the prosecution is the extra judicial confession allegedly made by the appellant Buta Singh to P.W.3 Sukh Lal. P.W.3 Sukh Lal has stated that he is working as servant at the field of Avtar Singh for the past six years along with the deceased. It is submitted by learned counsel for the appellants that there was no reason or any occasion for the accused to have made an extra judicial confession before P.W.3 Sukh Lal who is merely a servant and not a person of influence having contacts with the Police or any big shot thus, it is doubtful that the appellants Buta Singh would have approached him and making extra judicial confession and requested to save him. The Court below has grossly erred in placing reliance on the extra judicial confession as the same make to P.W.3 Sukh Lal does not inspire offence and cannot form the basis of conviction. 18. Principles in respect of evidentiary value and reliability of extra judicial confession has been laid down by the Apex Court in Sahdevan Vs. The Court below has grossly erred in placing reliance on the extra judicial confession as the same make to P.W.3 Sukh Lal does not inspire offence and cannot form the basis of conviction. 18. Principles in respect of evidentiary value and reliability of extra judicial confession has been laid down by the Apex Court in Sahdevan Vs. State of Tamil Nadu (2012)6 SCC 403 , (Para-16). (i) The extra judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution. (ii) It should be made voluntarily and should be truthful. iii) It should inspire confidence. (iv) An extra judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra judicial confession to be based on conviction, it should not suffer from any material discrepancy and inherent improbabilities. (vi)Such statement essentially has to be proved like any other fact with law. 19. In the light of the aforesaid principles enunciated by the Supreme Court regarding reliability of extra judicial confession, we may record that the statement of P.W.3 Sukh Lal, in this behalf is full of absurdity and improbability. In his statement he has not disclosed the time on which the appellant Buta Singh had confessed before him. Besides this, we find that P.W.3 Sukh Lal was an ordinary person and there could have been no rhyme or reason for the accused to have made confession before him and, thus, the reliance placed by the Court below on the testimony of P.W.3 Sukh Lal is wholly unfounded and cannot form the basis of conviction. Recovery : According to prosecution, another circumstance for convicting the appellants is the recovery of Banka at the instance of appellant Buta Singh on 1.7.2003 at 5.35 A.M. by P.W.6 S.I. Rakesh Kumar Pandey, we find from the record that the said Banka was not sent to the Forensic Science Laboratory for ascertaining the presence or absence of blood on it. Besides it, the discloser statement as mandated under Section 27 of the Indian Evidence Act has not been proved by P.W.6. There is also no corroboration by any independent witness of the said recovery from an open place after about 15-16 days of the murder, as discussed earlier. Besides it, the discloser statement as mandated under Section 27 of the Indian Evidence Act has not been proved by P.W.6. There is also no corroboration by any independent witness of the said recovery from an open place after about 15-16 days of the murder, as discussed earlier. Extra judicial confession made to P.W.3 Sukh Lal by appellant Buta Singh is highly doubtful and in these circumstances much weight cannot be attached to the alleged recovery of Banka which could also not be connected with the crime. It may be noted that there is no recovery from appellant Iqrar. 20. Considering the totality of the facts in evidence, in our view the circumstances relied upon by the prosecution are not established by convincing evidence and they do not form the complete chain pointing towards the guilt of the appellants. We may record that the evidence adduced by prosecution falls short of reliability and unsafe to base conviction. The conviction recorded by the Court below is not supported by any credible evidence and the prosecution has failed to establish the guilt of appellants beyond reasonable doubt and, thus, the benefit of doubt is to the appellants. 21. In view of the aforesaid, the judgment and order of the trial Court convicting the accused-appellants cannot be sustained and charge has not been proved beyond shadow of reasonable doubt. The appeal is hereby allowed. Judgment and order dated 31.1.2006, passed by Special Judge/E.C. Act District Pilibhit, in Sessions Trial No.509 of 2003 (State Vs. Buta Singh & another) arising out of case Crime No.110 of 2003, under Section 302/34 IPC, is hereby set aside. The appellants are in jail. They shall be released forthwith, unless otherwise wanted in some other case.