Research › Search › Judgment

Uttarakhand High Court · body

2017 DIGILAW 394 (UTT)

Rakesh Chandra Pardhyani v. State of Uttarakhand

2017-07-18

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Rajiv Sharma, J. This criminal appeal is preferred against the judgment dated 18.10.2011 rendered by learned District & Sessions Judge, Champawat in Sessions Trial No.17 of 2010, whereby the accused/appellant was charged with and tried for the offences punishable under Sections 302 and 201 of IPC. He was convicted under Sections 302 & 201 of IPC. The trial court has sentenced the accused/appellant to undergo rigorous imprisonment for life with fine of Rs.10,000/- under Section 302 IPC and in case of default of payment of fine, to undergo rigorous imprisonment for a further period of two years. He was also sentenced to undergo seven years rigorous imprisonment with fine of Rs.5,000/- under Section 201 IPC and in case of default of payment of fine, to undergo rigorous imprisonment for a further period of six months. Both the sentences were ordered to run concurrently. 2. The case of the prosecution, in a nutshell, is that PW-1 Navin Chandra Joshi lodged the first information report on 08.05.2010 to the effect that his nephew Brijesh Joshi was student of B.A.-I. He left his house on 28.04.2010. They searched for him. On 08.05.2010 at about 9.00 p.m. Bhuwan Chandra S/o Devidutt and Suresh Chandra S/o Madhawa Nand told them that in the west side of the village in the field of Prem Ballabh Pardhyani in a small ditch, a part of body was visible and remaining body was buried in the earth and covered with grass and bushes. According to him, it could be the dead body of Brijesh. Thereafter, first information report was registered. 3. The dead body was sent for conducting the post mortem examination. Investigation was completed and the Challan was put up after completing all the codal formalities. 4. The Prosecution, in order to prove its case examined as many as nine witnesses. 5. Thereafter, the statement of the accused/appellant was recorded under Section 313 Cr.P.C. He has denied the case of the prosecution and claimed to be tried. Accused/appellant was convicted and sentenced as noted hereinabove. Hence, the present criminal appeal. 6. Learned Advocate appearing for the accused/appellant, has vehemently argued that the prosecution has failed to prove its case against the accused/appellant. 7. Learned Senior Addl. Advocate General appearing for the State, has supported the impugned judgment dated 18.10.2011. 8. We have heard learned counsel for the parties and gone through the judgment and record carefully. 6. Learned Advocate appearing for the accused/appellant, has vehemently argued that the prosecution has failed to prove its case against the accused/appellant. 7. Learned Senior Addl. Advocate General appearing for the State, has supported the impugned judgment dated 18.10.2011. 8. We have heard learned counsel for the parties and gone through the judgment and record carefully. 9. PW-1-Navin Chandra Joshi testified that on 28.04.2010, his nephew Brijesh Joshi left his house. He went in the field for irrigation. He remained there at night. He was in the company of Ramesh Chandra Pardhyani, Suresh Chandra Pardhyani and Naresh Chand Joshi. Brijesh could not be traced on 29.04.2010. He informed his brother on 30.04.2010. On 08.05.2010 Bhuwan Pardhyani and Suresh Chand told him that they have seen a dead body in the ditch. They went there. They noticed a dead body buried in the earth. He noticed that it could be the dead body of his nephew. He informed his brother at Khatima. He also reached at the spot. Post mortem was conducted at Lohaghat. In the cross examination, he categorically admitted that from 28.04.2010 to 08.05.2010, no report was lodged. 10. PW-2 Maheshwari is the mother of the deceased Brijesh. She is the material witness. According to her, she had two sons namely Brijesh and Pradeep. Her husband was employed in Khatima. They were agriculturists. Her son Brijesh and she lived in the village. She has sent her son to Dairy at Sunar village. He came back at 08.30 a.m. Thereafter, she and Brijesh went to the field. Brijesh came back at about 11.00 a.m. in the house. Thereafter he went to jungle with cattle and came back at about 2.30 p.m. She and Brijesh ate food. Brijesh told that a pig was killed in jungle. Again, they went jungle and came back to their house at about 07.00 p.m. Thereafter, her son told her that he was going to the house of the accused namely Rakesh Pardhyani. Brijesh came back at about 10-10.30 p.m. He ate food in the house. Thereafter, bed was prepared and he went to sleep. She got up in the night to urinate, she saw that door were open. She thought that Brijesh might have left the door open. She shut the door and went to sleep. She got up at 4.00 a.m. in the morning. She milked cattle. Thereafter, bed was prepared and he went to sleep. She got up in the night to urinate, she saw that door were open. She thought that Brijesh might have left the door open. She shut the door and went to sleep. She got up at 4.00 a.m. in the morning. She milked cattle. She took tea for Brijesh but Brijesh was not present. She went to village Sunar. She asked from Suresh the whereabouts of her son. He told that he was in the house of Rakesh Pardhyani in the night. Brijesh and Naresh came back. Suresh stayed at night in the house of Rakesh Paradhyani. She searched for her son Brijesh. Bhuwan and Suresh told her after 12-13 days that they have seen a body in the field of Prem Ballabh Dhyani. She has also gone at the spot. She asked accused Rakesh the whereabouts of her son. He did not disclose anything. In her cross examination, she categorically deposed that she had not seen the accused killing her son. Brijesh used to drink. 11. PW-3 Naresh Chandra Joshi is also another material witness. He deposed that on 28.04.2010 he alongwith Suresh had gone to the house of Brijesh. Brijesh met them. His mother was busy in the field. Brijesh told them that he was coming towards temple. Brijesh also told that one Nepali has killed a pig. He purchased two kgs. meat. It was also told to the accused Rakesh on telephone. Thereafter, he went to the house of the accused Rakesh. He saw that Brijesh, Suresh & Rakesh were present. They were watching movie on television. They had taken liquor. He also took liquor. Rakesh and Suresh went to the upper storey to take food. Rakesh and Suresh started eating. Brijesh asked accused Rakesh why he has not brought vegetable for him. Rakesh told that vegetable was finished. Rakesh and Suresh were eating food. Rakesh asked for water. He went to fetch water. Brijesh told him why he was bringing water for him when he has not served vegetable. Thereafter, Rakesh came outside and enquired what happened. Brijesh told why you have not served vegetable. He told that he was going to the house. Brijesh told that you might go. He came to his house and slept. He specifically told that these persons were in the accused Rakesh’s house. Thereafter, Rakesh came outside and enquired what happened. Brijesh told why you have not served vegetable. He told that he was going to the house. Brijesh told that you might go. He came to his house and slept. He specifically told that these persons were in the accused Rakesh’s house. Next day, when he was going to field then Brijesh’s mother met him. She told that Brijesh did not come in the house in the night. He told that Brijesh was along with accused Rakesh and Suresh during the night. Thereafter, they started to search Brijesh. After 10-12 days, the dead body of Brijesh was recovered from the field. In his cross examination, he categorically admitted that he had not seen the incident. He had only seen that Rakesh and deceased entering into arguments. 12. PW-4 Suresh Chand Pardhyani deposed that on 28.04.2010 he along with accused Rakesh, Brijesh and Naresh were together. They were in the house of Rakesh. They reached in the house of Rakesh at about 07.30-8.00 p.m. Naresh Joshi reached later on. They consumed liquor. They were watching T.V. Thereafter, Rakesh and he brought food. He ate food with Rakesh. Rakesh asked water from Naresh. Thereafter, these three namely, Rakesh, Brijesh @ Vijay and Naresh went outside. Some altercation took place between them. He only heard the noise of bottle. Thereafter, Brijesh @ Vijay and Naresh went back. Rakesh had also gone up to sleep. In his cross examination, he categorically admitted that he has not seen any incident. 13. PW-5 Nainram Vishwakarma deposed that he was posted at Police Station Lohaghat District Champawat. First Information Report was lodged on 08.05.2010. Panchayatnama was prepared. The accused was interrogated. They went for recovery of weapon. He made entries in the G.D. Recoveries were made of one stone and Kassi (one agriculture instrument), bloodstained earth, simple earth, Chappal, T-shirt and clothes, which were also taken into possession. 14. PW-6 Keshav Dutt Joshi deposed that accused was brought by police on 12.05.2010 at about 04.30 p.m. Accused was in handcuffs. The accused has made extra judicial confession and he admitted that he has killed the deceased with stone. Thereafter, accused had gone to his house to take Kassi (an agriculture instrument) and he killed Brijesh with Kassi and the dead body was thrown in the ditch. The accused has made extra judicial confession and he admitted that he has killed the deceased with stone. Thereafter, accused had gone to his house to take Kassi (an agriculture instrument) and he killed Brijesh with Kassi and the dead body was thrown in the ditch. Stone and Kassi were recovered alongwith bloodstained earth, simple earth including chappal, T-shirt and clothes. In his cross examination, he admitted that similar types of stones were lying on the spot wherefrom the stone used in crime was recovered. In his cross examination, he admitted that he has not seen the incident. 15. PW-7 Dr. P.D. Pangriya has conducted post mortem examination. According to his opinion, the deceased died due to head injury & due to impact on skull by heavy and blunt object which lead to scalp bone heading to comma. In his cross examination, he admitted that dead body could not be more than 20 days old. 16. PW-8 B.C. Chandola was posted at police station Lohaghat. He deposed that dead body was recovered and panchayatnama was prepared. 17. PW-9 Pawan Kumar Jetha was the Investigating Officer in the matter. According to him, on 08.05.2010 at about 09.00 Bhuwan Chand S/o Devi Dutt and Suresh Chandra told that a dead body was lying in the ditch. He alongwith other police personnel reached at the spot. Body was smelling. The dead body was taken into possession on 09.05.2010 in the morning. The dead body was identified by the family members of the deceased. Prima facie, the cause of death was use of blunt weapon. The spot map was prepared. Accused was arrested. Recovery was effected on the basis of disclosure statement made by the accused. According to PW-9 Pawan Kumar Jetha, accused had made extra judicial confession during interrogation which was also placed on record and placed at page 14 of the paper book. 18. The case of the prosecution in precisely is that deceased was last seen in the company of the accused Rakesh in his house. He went missing from 28.04.2010. The dead body of deceased was recovered on 08.05.2010. This fact was brought to the notice to PW-1 Naveen Chandra Joshi by Bhuwan Chandra S/o Devidutt and Suresh Chandra S/o Madhawa Nand that a body was lying buried in the earth and covered with grass, and bushes. He went missing from 28.04.2010. The dead body of deceased was recovered on 08.05.2010. This fact was brought to the notice to PW-1 Naveen Chandra Joshi by Bhuwan Chandra S/o Devidutt and Suresh Chandra S/o Madhawa Nand that a body was lying buried in the earth and covered with grass, and bushes. The case of the prosecution is entirely based on circumstantial evidence and it is necessary for the prosecution to complete the entire chain to ensure that all the circumstances must exclusively indicate towards the guilt of the accused. The case of the prosecution is also based on “last seen theory”. Neither Bhuwan Chandra S/o Devidutt nor Suresh Chandra S/o Madhawa Nand has been examined by the prosecution and there is no explanation why they were not examined. They have seen the dead body in a ditch in the field of Prem Ballabh Pardhyani. 19. PW-1 Navin Chandra in his cross examination admitted that he has not seen the incident. PW-2 Maheshwari is the material witness. According to her, her son Brijesh and she lived in the village. Her son told her that he was going to the house of the accused Rakesh Pardhyani. Brijesh came back at about 10-10.30 p.m. He ate food in the house and he went to sleep. She got up in the night to urinate. She noticed that door was open. She thought that her son Brijesh might have left the door open. She shut the door and went to sleep. She got up at 4.00 a.m. in the morning. She milked cattle. She took tea for Brijesh but Brijesh was not present. She searched her son. Bhuwan and Suresh told her that a dead body was lying in the filed of Prem Ballabh Dhyani. According to PW-3 Naresh Chand Joshi, he alongwith accused Rakesh, Suresh and deceased were in the house of Rakesh. They consumed the liquor. He came back to his house. In his cross examination, he categorically stated that mother of the deceased told him that Brijesh had came back once during the night. In the morning, he was not present. Similarly, PW-4 Suresh Chand Pardhyani has also deposed that he along with accused Rakesh, Brijesh and Naresh were together. They consumed liquor. In his cross examination, he categorically admitted that he has not seen any incident. In the morning, he was not present. Similarly, PW-4 Suresh Chand Pardhyani has also deposed that he along with accused Rakesh, Brijesh and Naresh were together. They consumed liquor. In his cross examination, he categorically admitted that he has not seen any incident. Prosecution has relied on the extra judicial confession made by the accused before PW-9 S.O. Pawan Kumar Jetha. The extrajudicial confession made before the police officers was also hit by Section 26 of the Indian Evidence Act. Prosecution has also relied upon the statement of PW-6 Keshav Dutt Joshi. According to him, accused made extra judicial confession that he has killed Brijesh (deceased) with a stone. Thereafter he had gone to his house and brought a Kassi. He has categorically deposed that accused was brought before them in handcuff. The alleged extrajudicial confession was made by the accused while in the custody of the police officers. Thus, this extrajudicial confession cannot be read into evidence as per Sections 25 & 26 of the Indian Evidence Act. 20. In the instant case, prosecution has failed to prove that deceased was last seen alive in the company of accused. According to PW-2 Maheshwari, deceased Brijesh came back from the house of the accused and he had gone of to sleep. PW-3 Naresh Chand Joshi also came back. PW-4 Suresh Chand Pardhyani stayed in the house of accused. Thus, it cannot be said that deceased was last seen in the company of the accused since he had came back to his house and slept. This fact was also admitted by PW-2 Maheshwari. PW-3 Naresh Chand Joshi has also deposed that deceased’s mother told him that Brijesh had come back once during the night and gone of to sleep. In the morning, he went missing. Prosecution has also not attributed any motive to the accused. As per post mortem report, the cause of death was due to impact on skull by heavy and blunt object. The recovery of stone is also suspicious. Since similar types of stones were lying from where the alleged stone used in the crime was recovered as per the statement of witness of recovery of stone. Brijesh went missing on 28.04.2010. The dead body was recovered on 08.05.2010 after a gap of 10 days but no information report was lodged. 21. The recovery of stone is also suspicious. Since similar types of stones were lying from where the alleged stone used in the crime was recovered as per the statement of witness of recovery of stone. Brijesh went missing on 28.04.2010. The dead body was recovered on 08.05.2010 after a gap of 10 days but no information report was lodged. 21. Their Lordships of the Hon’ble Supreme Court in AIR 2006 SC 1800 , in the case of “Commissioner of Police, Delhi vs. Narender Singh”, have explained the difference between Sections 25 and 26 of the Evidence Act, 1872. Their Lordships have held that Section 26 raises a bar as regard admissibility of such confession, if made by an accused in the custody of a Police Officer, although such a confession might have been made before a person who is not a Police Officer. Their Lordships have held as under: - “30. Section 26 also speaks about confession by an accused while in custody of the police. Sections 25 and 26 of the Evidence Act although seek to achieve the same purpose but they operate in somewhat two different fields. Section 25 raises an embargo as regards proof of confession before a police officer. The same need not be in police custody; whereas Section 26 raises a bar as regards admissibility of such confession, if made by an accused in the custody of a police officer although such a confession might have been made before a person who is not a police officer. 31. The policy underlying Sections 25 and 26 is to make it a substantive rule of law that confessions whenever and wherever made to the police, or while in the custody of the police to any person whomsoever unless made in the immediate presence of a Magistrate, shall be presumed to have been obtained under the circumstances mentioned in Section 24 and, therefore, inadmissible, except so far as is provided by Section 27 of the Act.” 22. Their Lordships of the Hon’ble Supreme Court in 1984 (4) S.C.C. 116 in the case of Sharad Birdichand Sarda Vs. State of Maharashtra have laid down the following conditions, the prosecution must satisfy in a case based on circumstantial evidence. “153. Their Lordships of the Hon’ble Supreme Court in 1984 (4) S.C.C. 116 in the case of Sharad Birdichand Sarda Vs. State of Maharashtra have laid down the following conditions, the prosecution must satisfy in a case based on circumstantial evidence. “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 23. Their Lordships of the Hon’ble Supreme Court in (2014) 4 SCC 715 , in the case of Kanhaiya Lal Vs. State of Rajasthan have held that circumstance of last seen together does not by itself necessarily lead to inference that it was accused who committed crime. There must be something more establishing connection between accused and crime that if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. There must be something more establishing connection between accused and crime that if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. He must furnish an explanation which appears to the court to be probable and satisfactory. Their Lordships have held as under:- “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.” 24. Their Lordships of the Hon’ble Supreme Court in (2015) 4 SCC 393 , in the case of Ashok Vs. State of Maharashtra have held that last seen together itself is not conclusive proof but along with other circumstances surrounding the incident, like relations between accused and deceased, enmity between them, previous history of hostility, recovery of weapon from accused, etc. non-explanation of death of deceased, etc. may lead to presumption of guild of accused. Their Lordships have held as under:- “8. The “last seen together” theory has been elucidated by this Court in Trimukh Maroti Kirkan v. State of Maharashtra, in the following words: (SCC p. 694, para 22) “22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Thus, the doctrine of last seen together shifts the burden of proof onto the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him.**” 9. Thus, the doctrine of last seen together shifts the burden of proof onto the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him.**” 9. In Ram Gulam Chaudhary v. State of Bihar, the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor was his body found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. 10. In Nika Ram v. State of H.P., it was observed that the fact that the accused alone was with his wife in the house when she was murdered with a “khukhri” and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. 11. The latest judgment on the point is Kanhaiya Lal v. State of Rajasthan. In this case this Court has held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing the connectivity between the accused and the crime. Mere non-explanation on the part of the accused by itself cannot lead to the proof of guilt against the accused. 12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt. 20. From the above discussion, we conclude that the prosecution has not brought any clinching evidence in support of the last seen together theory so as to shift the burden of proof on the appellant-accused. In light of this, the prosecution has evidently failed to prove the guilt of the appellant-accused beyond doubt. Therefore, the appeal is allowed and the judgment and order passed by the High Court as also by the trial court are set aside. The appellant is directed to be released forthwith if not required in connection with any other case. 25. Their Lordships of the Hon’ble Supreme Court in (2016) 1 SCC 550 , in the case of Nizam and another Vs. State of Rajasthan have explained the principle of “last seen theory”. Their Lordships have held as under:- “14. The courts below convicted the appellants on the evidence of PWs 1 and 2 that the deceased was last seen alive with the appellants on 23-1-2001. Undoubtedly, the “last seen theory” is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The “last seen theory” holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this Court that it is not prudent to base the conviction solely on “last seen theory”. “Last seen theory” should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.” 26. In 2010 CRI. L. J. 3018, in the case of “Samir Bhowmik vs. State of Tripura”, the Division Bench of Gauhati High Court has held that when the accused made extra-judicial confession stating that he attempted to rape deceased and he killer her by strangulation while in police custody, it was hit by Sections 25 and 26 and could not be used against him. The Division Bench has held as under: - “61. With regard to the extra-judicial confession, alleged to have been made by the accused person, it is found from the evidence on record, that immediately after recovery of the dead body in the carton aforesaid the accused appellant was taken into custody by the police and the appellant made extra-judicial confession stating that he attempted to rape the deceased and as she raised alarm, he killed her by strangulation. From the evidence on record, it further appears that the said extra-judicial confession was made by the accused in the presence and custody of police. Section 25 of the Evidence Act provides that any confession made to police officer cannot be proved against a person accused of any offence. Again Section 26 of the Evidence Act provides that no confession made by any person, while in custody of police, shall be proved as against such person. The legislature was of the view that any kind of confession made by an accused, while he is under the custody of police, cannot be used as evidence against him at the time of trial of the offence charged with. Admittedly, in the present case, the said confession was made by the accused, when He was under the custody of police. In view of the above bar in the statute, the extra-judicial confession alleged to have been made by the accused appellant, being hit by Sections 25 and 26 of the Evidence Act cannot be used against him. Therefore, the learned Judge committed error of law by accepting the said extrajudicial confession.” 27. Consequently, in view of the above discussion made hereinabove, the prosecution has failed to prove its case beyond reasonable doubt. 28. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 18.10.2011 rendered by learned District & Sessions Judge, Champawat in S.T. No.17 of 2010 is set aside. Accused is acquitted of the charges framed against him. Accused/appellant is already on bail. He need not to surrender. His bail bonds and sureties are discharged. 29. Let a copy of this judgment along with lower court record be transmitted to the court below for compliance of the judgment forthwith.