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2018 DIGILAW 168 (ALL)

CHANDRA BHAN v. STATE OF U. P.

2018-01-19

P.K.S.BAGHEL, RAJIV GUPTA

body2018
JUDGMENT Hon’ble Rajiv Gupta, J.—The present criminal appeal has been filed against the judgment and order dated 15.2.1989 passed by 3rd Additional Sessions Judge, Aligarh in Session Trial No. 925 of 1987, State v. Chandra Bhan and another, by which, the appellant has been convicted under Sections 302/34 IPC and awarded the sentence of life imprisonment and further convicted under Section 411 IPC and awarded sentence of two years’ R.I. Both the sentences to run concurrently. 2. The prosecution case in nutshell is that one Dharmendra Kumar has lodged a written report alleging therein that in the village Dhanipur, he is getting a house constructed near Deepak Enterprises. His mother Smt. Shanti Devi used to stay in the said house, where construction is still in progress. 3. It is further alleged that about four days back, Chandra Bhan S/o Gangadhar, brother of his aunt Smt. Shakuntala had come at the aforesaid under construction house and sometime in the night between 16-17th October, 1987, he has killed his mother by tightening a rope round her neck and had taken away his goat and a sum of Rs. 150/-. 4. On the basis of the said allegations, the FIR was registered at Police Station Gangiri, District Aligarh on 17.10.1987 at 12:30 p.m. and necessary entries were made in the GD vide GD Report No. 24 dated 17.10.1987. The case was registered in the presence of Station Officer Chandrapal Singh, who was entrusted the investigation. The Investigating Officer started the process of investigation and reached the place of incident and recorded the statement of first informant and thereafter, panchayatnama proceedings were drawn by Sub-Inspector Suresh Chandra Yadav, who also prepared the necessary police papers and thereafter, dead body was sealed and handed over to constables Chhote Lal and Moti Lal for carrying it to the mortuary for conducting the post-mortem. The post-mortem was conducted by Dr. The post-mortem was conducted by Dr. A.K. Gupta, who found following injuries on the person of deceased: 1- e`R;q ls iwoZ vkbZ fuEufyf[kr pksV ikbZ FkhA xnZu ds mij uhyxw fu'kku 26 lsŒehŒ xq.k 2 lsŒehŒ pkSM+k pkjks rjQ Fkk tks lhŒ,eŒ txg xnZu ds ckbZ rjQ VwVh Fkh tks fd QUns dh xkaWB dks n'kkZrh gSA 2- vkarfjd ijh{k.k ij ik;k fd efLr"d dh f>fYy;ka dUtsLVsM Fkh rFkk xys esa FkkbZjsM dkVhZyst [kkyh xzUFkh rFkk 'okal uyh dh Åij dh nks fjax VwVh gqbZ ikbZ xbZA ,ihXyksfVl Fkk nksuks QsQMs+ Hkh dUtsLVsM FksA g`n; esa [kwu Hkjk Fkk g`n; dk otu 9 vkSal Fkk vkek'k; [kkyh Fkk yhoj o fdM+uh fLifyu dUtsLVsM ikbZ xbZ FkhA The Investigating Officer thereafter arrested the accused on 18.10.1987 at 1:15 p.m. alongwith goat, in respect of which, a fard recovery memo was drawn, which has been marked as Exhibit Ka-2. The Investigating Officer, after collecting the relevant material, concluded the investigation and submitted the charge-sheet against the appellant under Sections 460 and 411 IPC before the Magistrate, who committed the case to the Court of sessions for trial on 18.12.1987. The Trial Court framed the charges against the appellant on 10.2.1988 under Sections 302/34 and 404 IPC. The accused did not plead guilty and claimed to be tried. During the course of trial, the prosecution in order to bring home the guilt against the appellant produced as many as ten witnesses. PW-1 Shahdeo Sharma is the witness of last seen and prior to the incident of murder of deceased Shanti Devi, in the evening he had seen her in company of the accused at his house. PW-2 Dharmendra Kumar is the son of victim Shanti Devi and is also the first informant of the case. PW-3 Bhagwan Singh is another witness and he has stated that in the evening on the date of incident, victim Shanti Devi alongwith the accused was sitting at his shop and at about 8:00 p.m., both of them left together and went towards their house. PW-4 Suresh Chandra Yadav is the Investigating Officer of the case and had drawn the panchayatnama and the recovery memos. PW-4 Suresh Chandra Yadav is the Investigating Officer of the case and had drawn the panchayatnama and the recovery memos. PW-5 Narendra Kumar was running a hotel and has stated that on 19.10.1987, the police had come alongwith a goat at his hotel and Investigating Officer had left the goat at his hotel, who on her own had reached the house of Shanti Devi. The hotel is said to be at a distance of 250 yards from the house of Shanti Devi and fard recovery memo was prepared in this respect before him, which is marked as Exhibit Ka-12. PW-6 Constable Chhote Lal had taken the dead body of the deceased to the mortuary for conducting the post-mortem and handed over to the relevant police papers to the Doctor. PW-7 Dr. A.K. Gupta had conducted the post-mortem on the person of the deceased. PW-8 Sub-Inspector Chandrapal Singh has investigated the matter and had arrested the accused alongwith goat on 18.10.1987. He has also prepared the site plan, which is marked as Exhibit Ka-15 and recorded the statements of witnesses and submitted the charge-sheet, which is marked as Exhibit Ka-16. PW-9 Anokhey Lal is the resident of village Dhanipur and he has stated that one year prior to the recording of his statement (on 3.10.1988), in the night of 16-17th October, 1987 at about 10:30 p.m., while he had gone near Dhanipur Rajbaha (Canal) on the GT Road, then he had seen the accused Chandra Bhan and one another person going towards Dhanipur and they were holding a spotted black colour goat. PW-10 Rajendra Prasad is the constable, who had prepared the chik, Exhibit Ka-18 and GD report No. 24 dated 17.10.1987, Exhibit Ka-17. 5. After concluding the prosecution evidence, the statement of the accused Chandra Bhan was recorded under Section 313 CrPC, in which, he has stated that there was some quarrel between his sister Shakuntala Devi and Shanti Devi over a piece of land due to which he has been falsely implicated. 6. 5. After concluding the prosecution evidence, the statement of the accused Chandra Bhan was recorded under Section 313 CrPC, in which, he has stated that there was some quarrel between his sister Shakuntala Devi and Shanti Devi over a piece of land due to which he has been falsely implicated. 6. During the course of trial, prosecution has produced PW-1 Shahdeo Sharma, who in his statement, has stated that the deceased Shanti Devi was acquainted to him and her house was situate at a distance of 60 yards from his house and prior to the incident of murder of Shanti Devi, a person Chandra Bhan had stayed with her, who used to leave in the day time and return back in the evening. 7. He has further stated that in the evening on the day of incident of murder of the deceased, she was sitting at his house and the accused Chandra Bhan came to call her. On being asked about his identity, she disclosed that he is the brother of her sister-in-law (devrani). 8. He has further stated that in the night of 17th October, 1987 at about 9:00 p.m., he had gone out to answer the call of nature and had seen Chandra Bhan alongwith one another person going towards the house of deceased and on the next morning, it was revealed that Shanti Devi had died. 9. He has further stated that he came to know that a sum of Rs. 150/- and spotted a black colour goat has also been stolen from her house. 10. In his cross-examination, he has stated that information about the death of Shanti Devi was revealed to him at about 9:30 a.m. when he was going to his school, as such he did not visit the house of Shanti Devi and went to his school. He returned from the school at 2:30 p.m. and then, had gone to the house of Shanti Devi, where the Station Officer alongwith police personnel were present. 11. He has further stated that in the evening on the day of the incident, Shanti Devi had visited his house and this fact was narrated to the IO, however, the said fact was not written in his statement by the IO for which no reasons can be assigned. 12. 11. He has further stated that in the evening on the day of the incident, Shanti Devi had visited his house and this fact was narrated to the IO, however, the said fact was not written in his statement by the IO for which no reasons can be assigned. 12. He has further stated that on the day of the incident, the deceased had no specific reason to come to his house but she, without any reason, used to visit his house. 13. PW-2 Dharmendra Kumar Sharma is the son of the deceased Shanti Devi. He, in his statement, has stated that he was getting his house constructed ahead of Dhanipur Mandi alongwith G.T. Road and for looking after the said house, her mother Shanti Devi alone used to stay there. 14. He has further stated that in the morning and evening, he also used to go at his house to supervise the construction and look after his mother. Chandra Bhan was staying with his mother for the last 3-4 days. On 17.10.1987 at about 10:00 a.m., he reached at his house and saw that a large crowd has gathered there and his mother was lying on the cot in a dead condition and households goods were lying helter skelter and his goat was not there and a sum of Rs. 150/-, which he had given to his mother in the last evening, was also not found. 15. It is further stated by him that in the night of 16.10.1987, when he had gone to see his mother, then she told him that Chandra Bhan has left after informing her that he is going for some work and will certainly return back in the night. In the morning of 16.10.1987 also, he had seen Chandra Bhan coming towards his house. On 18.10.1987, the police had arrested the accused alongwith goat and prepared its fard, on which, he had put his signature. 16. In the cross-examination, he has stated that the Investigating Officer has interrogated him. He has categorically denied the factum of preparing the fard recovery memo of goat at the Police Station. 17. He has further stated that in the evening at about 6:30 p.m., he used to go his new house and for the last two days, Chandra Bhan used to meet him at his house. 18. He has categorically denied the factum of preparing the fard recovery memo of goat at the Police Station. 17. He has further stated that in the evening at about 6:30 p.m., he used to go his new house and for the last two days, Chandra Bhan used to meet him at his house. 18. He has further stated that on 16.10.1987, he had gone to his house and stayed for 10-15 minutes. When he asked his mother regarding his maternal uncle, then his mother informed him that today Chandra Bhan had come early and while he was going informed her that he will certainly return in the night. Her mother used to keep her clothes and money in the tin box (canister), which was locked. However, on the next day, its lock was found broken and the household articles were found lying helter skelter. 19. He has categorically denied the fact that Chandra Bhan was not staying at his house during the said period and because of his enmity with his aunt and his family members, he has falsely implicated Chandra Bhan in the said case. 20. During the course of trial, prosecution has produced PW-3 Bhagwan Singh, who in his statement, has stated that near his shop, Shanti Devi was getting her house constructed and the accused Chandra Bhan, who is the brother of his sister-in-law (devrani) used to visit him. 21. About 7-8 months back, from 4-5 p.m. till 7-8 p.m. in the evening, Shanti Devi remained at his shop and when he went to cook his food, then both of them went towards their house and thereafter, none of them were seen by him. In the morning, he alongwith contractor, who was constructing the house of Shanti Devi, went at the house of Shanti Devi and saw that Shanti Devi was lying in a dead condition and rope was tightened round her neck. Later, it was revealed that a goat and a sum of Rs. 150/- has also been taken away. 22. In his cross-examination, he has stated that Chandra Bhan had been coming at his shop for the last 2-3 days and he used to come at his shop in the afternoon. 23. He has further denied the fact that on account of his friendship with Dharmendra, he is falsely deposing. 150/- has also been taken away. 22. In his cross-examination, he has stated that Chandra Bhan had been coming at his shop for the last 2-3 days and he used to come at his shop in the afternoon. 23. He has further denied the fact that on account of his friendship with Dharmendra, he is falsely deposing. He has also denied the fact that he had not seen Chandra Bhan nor he is acquainted with him. 24. We have heard learned counsel for the appellant, learned AGA and perused the record. 25. In the instant case, there are no eye-witnesses to the occurrence and the whole case of the prosecution hinges on circumstantial evidence. Now let us consider whether the prosecution placed acceptable materials to substantiate the charges levelled against the appellant. 26. The settled proposition of law regarding the circumstantial evidence is clear as in the case of Padala Veera Reddy v. State of A.P., AIR 1990 SC 79 , in which it was held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with guilt of the accused but should be inconsistent with his innocence. 27. Learned counsel for the appellant has challenged the findings of the trial Court on various grounds. To begin with, learned counsel for the appellant argued that chain of circumstances is not complete and that the evidence of last seen is not proved by the prosecution, as PW-1 Shahdeo, in his testimony, has stated that in the evening on the day of incident when Smt. Shanti Devi has been done to death, she was sitting at his house and accused Chandra Bhan had come to call her. For the sake of convenience, the exact statement is being quoted herein-below: ^^ftl jkr esa e`rdk dk dRy gqvk mlh 'kke dks e`rdk gekjs ?kj ij cSBh Fkh rc vfHk;qDr pUnzHkku e`rdk dks cqykus vk;kA** However, the said statement of PW-1 regarding the presence of the victim Shanti Devi alongwith the accused at his house is in sharp contrast to the statement of PW-3, who, in his statement, has clearly stated that in the evening between 4-5 p.m. to 7-8 p.m., Shanti Devi alongwith the accused was present at his shop and when he went to cook his food, then both of them went to their houses and thereafter, he had not seen either of them and on the next morning, the dead body of Shanti Devi was found in her house. For the sake of convenience, the exact statement is being quoted herein-below: ^^vkt ls djhc 7&8 ekg igys djhc 4&5 cts 'kke ls 7&8 cts rd esjh nqdku ij jgsA 'kkfUr nsoh Hkh esjh nqdku ij jghaA ge [kkus cukus yxs rc nksuksa vius ?kj dh vksj pys x;sA blds ckn eSaus nksuksa esa ls fdlh dks ugha ns[kk FkkA** 28. Thus, as per the statement of PW-1 in the evening of the date of the incident, when Smt. Shanti Devi was murdered, she was present at the house of PW-1. However, as per the statement of PW-3 almost at the same time in the evening, he had seen Shanti Devi alongwith the accused sitting at his shop till 7-8 p.m. 29. This circumstance creates serious doubt about the presence of the accused in company of the deceased in the evening of the day of incident, when she was murdered. Therefore, the testimony of PW-1 and PW-3 in this regard does not inspire confidence and in our opinion, the factum of presence of the accused with the deceased in the evening of the day of incident is highly doubtful. 30. The factum of presence of Shanti Devi alongwith the accused Chandra Bhan at his house is further doubted from the circumstance that PW-1 has not disclosed this fact to the IO and for the first time in the Court, he is stating the said fact, which is evident from his cross-examination. 30. The factum of presence of Shanti Devi alongwith the accused Chandra Bhan at his house is further doubted from the circumstance that PW-1 has not disclosed this fact to the IO and for the first time in the Court, he is stating the said fact, which is evident from his cross-examination. For the sake of convenience, the exact statement is being quoted herein-below: ^^eSaus njksxkth dks crk;k Fkk fd ?kVuk okyh 'kke dks 'kkUrh nsoh gekjs ?kj vkbZ FkhA mUgksaus ;g ckr esjs C;ku esa D;ksa ugha fy[kh eSa bldh otg ugha crk ldrkA** 31. Moreover, from the perusal of the evidence on record, it is evident that the aforesaid fact of Shanti Devi being seen in the company of the accused Chandra Bhan was also not disclosed to the first informant PW-2, which again creates serious doubt about the veracity of the said statement. 32. Learned counsel for the appellant has further submitted that the evidence of PW-1 to the extent of seeing the accused in the night at 9:00 p.m. on 16-17th October, 1987, going near the house of victim alongwith another person when he was urinating, also does not seems to be trustworthy as the said factum does not find corroboration from any other evidence on record. 33. We find force in the aforesaid argument of learned counsel for the appellant particularly in view of the fact that PW-1 is not a wholly reliable witness and his evidence needs corroboration on material particulars. 34. In the backdrop of said circumstance, we are of the opinion that implicit reliance cannot be placed upon the testimony of PW-1 regarding the factum of last seen of the accused near the house of Shanti Devi alongwith another person. 35. Learned counsel for the appellant has next submitted that from the evidence adduced by PW-2, who is the son of the deceased, the factum of accused being present with Shanti Devi during night hours when she was murdered, also becomes doubtful as PW-2 in his statement has categorically stated that when in the night on 16.10.1987, he had gone to meet his mother, then she told him that Chandra Bhan had left by informing her that he was going out for some work and will certainly return in the night. 36. 36. Even in the cross-examination, he has stated that when on 16.10.1987, he was leaving his house, then he had inquired about his maternal uncle and her mother told him that today he had come early and while leaving had said that he would certainly return back in the night. For the sake of convenience, the exact statement is being quoted herein below: ^^16-10-1987 dks eSa ?kj ij yxHkx 10&15 feuV :dk FkkA pyrs le; eSaus iwNk Fkk fd ekek dgka gS rc esjh ek¡ us crk;k Fkk fd vkt tYnh vk x;s gSA vkSj tkrs le; dg x;s gS fd eSa jkr dks t:j vk tkÅaxkA** 37. However, in the entire evidence adduced before the Trial Court, there is absolutely no evidence to show that during night hours, Chandra Bhan was present in her house, when Shanti Devi was murdered, in the absence of such evidence, the chain of circumstances is not complete so as to hold the appellant guilty for the offence. 38. We find force in the arguments of learned counsel for the appellant and we are of the opinion that the prosecution has not been able to establish the fact that the appellant was present at the house of Shanti Devi, when she was murdered. 39. Learned counsel for the appellant has further submitted that the motive for commission of offence in the present case has also not been established by the prosecution. As per the evidence adduced Shanti Devi has been done to death for the purposes of stealing a goat and removing a sum of Rs. 150/-, which was allegedly kept in a tin box (canister). 40. As per the prosecution case, no recovery of alleged money of Rs. 150/-, said to be stolen, has been made by the police. Even the manner in which the recovery of goat is said to be made by the police does not satisfactorily connect the appellant with the same. In the absence of which also, the case of prosecution becomes doubtful. 41. We find force in the said argument of learned counsel for the appellant. Even the manner in which the recovery of goat is said to be made by the police does not satisfactorily connect the appellant with the same. In the absence of which also, the case of prosecution becomes doubtful. 41. We find force in the said argument of learned counsel for the appellant. As per the recovery memo, the appellant was not in possession of goat at the time of his arrest but was walking a foot behind the goat and under the said circumstance even the recovery of goat cannot be said to be made from the appellant and the recovery itself appears to be highly doubtful. This circumstance also creates serious dent in the prosecution story and is a missing link in establishing the guilt of the accused. 42. Learned counsel for the appellant has further submitted that as per the statement of PW-9 Anokhey Lal, the chain of circumstance pointing towards the guilt of the appellant is not complete. PW-9, in his statement, has stated that on the date of incident, he was returning back to his village on a cycle and when he reached near Dhanipur Rajbaha, then he had seen Chandra Bhan and one another person coming from Dhanipur holding a white spot black colour goat. 43. He has further stated that he recognized Chandra Bhan, who was staying at the house of Shanti Devi for the last 3-4 days and in the morning at about 10-12 a.m., the fact of the murder of Shanti Devi has been disclosed. 44. In his cross-examination, he has further stated that except two accused persons and the goat, none was present there and the goat was following the accused persons. Again, he has stated that Chandra Bhan was holding the goat and he alone was going on a cycle but did not inquire anything about the goat. 45. Even from his evidence except the fact that in the night before the death of victim Shanti Devi, two accused including Chandra Bhan were seen coming from Dhanipur alongwith the goat and in the next morning said Shanti Devi was found murdered and goat belonging to her was stolen which the accused appellant was said to be following in the previous night nothing more is elicited. 46. 46. From the said evidence it cannot be clinchingly established that Chandra Bhan was responsible for causing the death of Shanti Devi and at the most by the said evidence, Chandra Bhan can be suspected for having committed the murder of deceased. 47. It is well established principle of law that suspicion howsoever strong, it may be, cannot take the place of legal proof as held by the Hon’ble Apex Court in the case of Anjan Kumar Sharma and others v. State of Assam, 2017 SCC Online SC 622. 48. Furthermore, it is no more res integra that suspicion cannot take place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and the legal proof. It may be a case “may be true” and “must be true” and the same divides conjunctures from sure conclusions as referred in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27 . 49. Thus, in view of the above, from the evidence of PW-9 Anokhey Lal also, the factum of the appellant causing the death of Shanti Devi is not established and the chain of circumstance get snapped and as such in our opinion the appellant cannot be held guilty for the offence of murder of Shanti Devi. 50. Moreover, the aforesaid facts and circumstances could not be disputed even by the learned counsel for the State Sri N.K.S. Yadav. Sri Yadav has not been able to point out any evidence which may unerringly point out towards the guilt of the accused. 51. For the foregoing reasons, we are of the opinion that the prosecution has not been able to establish its case beyond all reasonable doubt against the appellant. The circumstance of last seen together as tried to establish by the prosecution by means of evidence brought on record, does not lead to the inference that it was the accused who committed the crime. 52. We are also of the view that the chain of circumstances by all accounts, is not complete, and the same leaves reasonable ground for the conclusion consistent with the innocence of the appellant. 52. We are also of the view that the chain of circumstances by all accounts, is not complete, and the same leaves reasonable ground for the conclusion consistent with the innocence of the appellant. To re-phrase, it does show that the facts disclosed are not consistent with the hypothesis of the guilt of the accused and the learned Sessions Judge has erroneously convicted the appellant relying upon the evidence adduced by the prosecution, which do not inspire confidence on account of inconsistencies and contradictions permeating it. 53. The appeal is accordingly allowed. The order dated 15.2.1989 in Session Trial No. 925 of 1987 passed by 3rd Additional Sessions Judge, Aligarh is hereby set aside and the appellant is acquitted of the charges. The appellant is on the bail. He need not to surrender and his sureties are discharged. 54. A copy of this judgment alongwith the trial Court record be sent back to the Sessions Judge/CJM, Aligarh for necessary compliance. 55. Judgment be certified and placed on record.