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2019 DIGILAW 875 (ALL)

DEVENDRA v. STATE OF UTTAR PRADESH

2019-04-08

PANKAJ BHATIA, PRITINKER DIWAKER

body2019
JUDGMENT : Pritinker Diwaker, J. As these two appeals arise out of a common judgment and order dated 30.9.2010 passed by the Special Judge/Additional Sessions Judge, Fast Track Court No.1, Saharanpur in Sessions Trial No.406 of 2006 (State v. Vijay Pal and Devendra), convicting the appellants under Sections 302/34 and 201 of IPC and sentencing them to undergo imprisonment for life and a fine of Rs.5,000/- each, in default thereof, six months further imprisonment and to undergo three years Rigorous Imprisonment, with a fine of Rs.5000/- each, in default thereof, three months imprisonment and further convicting appellant Vijay Pal under Section 3 (2) (v) of the SC and ST (Prevention of Atrocities) Act 1989 and sentencing him to undergo imprisonment for life and a fine of Rs.5,000/- in default thereof, six months further imprisonment, with a direction that all sentences shall run concurrently, they are being disposed of by this common judgement. 2. In the present case, name of the deceased is Som Pal. It is said that Som Pal was having illicit relation with the wife of accused Vijay Pal and to eliminate him, on 6.3.2006, the appellants committed murder of the deceased. According to prosecution case, deceased Som Pal was working as Driver to the Regional Marketing Officer in the office of Regional Food Controller. On 6.3.2006, when he was having his dinner, he received a telephonic call allegedly from accused Vijay Pal calling him for some urgent work. Leaving his food as it is, Som Pal left his house on the Government vehicle by informing his brother that he would be coming after meeting with Vijay Pal. However, he did not return on 6.3.2006 and was searched by his family members. Ultimately, a missing report (undated) was lodged, vide Ex.Ka.-1 by Mewa Ram (PW-1), brother of the deceased informing the Police that his brother is missing since 6.3.2006. On 18.3.2006, a naked dead body of the deceased was recovered from the bank of canal at District Shamli, which was allegedly identified by Sashi Bala (PW-4), i.e. wife of the deceased. 3. Inquest on the dead body was conducted on 18.3.2006 and the body was sent for postmortem which was conducted, vide Ex.Ka-14, on 19.03.2006 by PW-8 Dr. Ajai Kumar. 4. As per Autopsy Surgeon, no injury was found on the body of the deceased and the cause of death is 'asphyxia due to drowning'. 5. 3. Inquest on the dead body was conducted on 18.3.2006 and the body was sent for postmortem which was conducted, vide Ex.Ka-14, on 19.03.2006 by PW-8 Dr. Ajai Kumar. 4. As per Autopsy Surgeon, no injury was found on the body of the deceased and the cause of death is 'asphyxia due to drowning'. 5. On 20.3.2006, First Information Report, Ex.Ka.-6 was registered at 8.30 PM against both the appellants, at the instance of Mewa Ram (PW-1) (brother of the deceased) under Sections 302, and 201 of IPC read with Section Section 3 (2) (v) of the SC and ST (Prevention of Atrocities) Act 1989. 6. Vide Ex. Ka-3, from accused appellant Devendra one wristwatch and Nokia cellphone, both allegedly belong to the deceased, were seized, whereas from accused Vijay Pal, footwear (chappal) has been seized. 7. Further case of prosecution is that on 20.3.2006 at 6.30 PM extrajudicial confession was made by accused persons before Mewa Ram (PW-1) and Manoj Kumar (PW-3) wherein they have informed that on 6.3.2006, they committed murder of the deceased and threw his dead body in the canal. 8. While framing charge, the trial Judge has framed charge against the appellants under Sections 302/34 and 201 of IPC and under Section 3 (2) (v) of the SC and ST (Prevention of Atrocities) Act 1989. 9. So as to hold accused persons guilty, prosecution has examined 12 persons, whereas one defence witness has also been examined. Statements of the accused persons were also recorded under Section 313 of Cr.P.C in which, they pleaded their innocence and false implication. 10. By the impugned judgment, the trial Judge has convicted both the appellants under Sections 302/34 and 201 of IPC, appellant No.2 Vijay Pal has also been convicted under Section 3 (2) (v) of the SC and ST (Prevention of Atrocities) Act 1989, and they have been sentenced as mentioned in paragraph 1 of this judgment. Hence these appeals. 11. Learned counsel for the appellants submits:- (i) that there is no eye-witness to the incident and the appellants have been convicted solely on the basis of circumstantial evidence, which is week in nature. (ii) that as per postmortem report dated 19.3.2006, the deceased might have died about a week before, i.e. sometime around 12.3.2006, whereas, as per prosecution, he was done to death on 6.3.2006. (ii) that as per postmortem report dated 19.3.2006, the deceased might have died about a week before, i.e. sometime around 12.3.2006, whereas, as per prosecution, he was done to death on 6.3.2006. (iii) that on 9.3.2006, a missing report was lodged by Mewa Ram (PW-1), but there is absolutely no evidence as to what was done by the investigating agency after lodging of the said report. (iv) that on 18.3.2006, the dead body of the deceased was recovered and on 20.3.2006, the so called extrajudicial confession was made by the accused persons before Mewa Ram (PW-1) and Manoj Kumar (PW-3). Learned counsel submits that there was absolutely no occasion for the accused-appellants to make the so called extrajudicial confession and the same does not appear to be voluntarily. (v) that as per the alleged extrajudicial confession of the accused persons, after committing murder of the deceased, appellants threw his dead body in the water canal, whereas, as per the postmortem report, deceased died due to drowning. Learned counsel submits that once the death of the deceased is because of drowning, question of committing his murder by the accused persons and likewise recording of the so called extrajudicial confession does not arise. (vi) that as per prosecution case, on 6.3.2006, while deceased was having his dinner, he received a telephonic call from accused Vijay Pal but no such call details have been filed and proved by the prosecution. (vii) that seizure of various articles is not in accordance with law and most of the seizure witnesses are relatives of the deceased. (viii) that chain of circumstantial evidence is not complete and many links are missing and, therefore, on the basis of evidence available on record, accused-appellants could not have been convicted. (ix) Learned counsel submits that even otherwise the evidence of extrajudicial confession is being considered as a weak evidence and unless the same is corroborative with other evidence, conviction can not be made. (x) that motive part has been developed by the witnesses in the Court only, otherwise, the same does not figure either in the first information report or in the diary statement of the witnesses. (xi) that the conviction of appellant No.2 Vijay Pal under Section 3 (2) (v) of the SC/ST Act is not in accordance with law, because the basic ingredients of the said Section are missing in the present case. (xi) that the conviction of appellant No.2 Vijay Pal under Section 3 (2) (v) of the SC/ST Act is not in accordance with law, because the basic ingredients of the said Section are missing in the present case. (xi) Lastly, it has been argued that both the appellants are presently in jail. Appellant Vijay Pal has already served jail sentence for about nine years, whereas appellant Devendra has served jail sentence for about seven years. 12. On the other hand, supporting the impugned judgment, it has been argued by the State counsel that the conviction of the appellants is in accordance with law and there is no infirmity in the same. 13. (Pw-1) Mewa Ram, is a brother of the deceased and the informant. He states that the deceased was working as a driver in the Government Department. On 6.3.2006, at about 6.30 PM when the deceased was having his dinner, he received a telephonic call from Vijay Pal asking him to meet at a particular place. He left the food as it is and then had gone to meet Vijay Pal but did not return. He further states that on 20.3.2006, near the bank of canal, the accused-appellants met him and confessed that they have committed blunder by killing the deceased. They have further confessed before him that after committing murder of the deceased, they threw his dead body in the canal and requested him not to disclose this incident to anyone. They have further stated before him that they would take care of the widow of the deceased and would help the family. He further states that the accused persons were arrested by the Police and during interrogation, at the instance of accused Vijay Pal, one footwear (Chappal) was recovered which was of the deceased. He further states that the deceased left his house on bicycle which was recovered from a cycle-stand, which was near the Railway Station. It is relevant to note here that as per prosecution case, deceased had left his house taking the Government vehicle along with him and there is no explanation as to how it has come in the prosecution story that deceased had taken his bicycle. It is further relevant to note that seizure witnesses Mahendra Singh, Mewa Ram (PW-1) and Jagdish (PW-4) are all closely related to the deceased. It is further relevant to note that seizure witnesses Mahendra Singh, Mewa Ram (PW-1) and Jagdish (PW-4) are all closely related to the deceased. This witness (PW-1 Mewa Ram) was subjected to lengthy cross-examination by the defence but he has simply repeated his version in several places. From his cross-examination, it appears that certain unnecessary questions were also put to this witness which are not required to be dealt elaborately. He could not point out any specific identification mark on the seized articles, and from the evidence, it appears that wristwatch and cellphone allegedly seized from the accused persons, were common articles and were available in the market easily. 14. (Pw-2) Jagdish is a seizure witness of Ex.Ka-3 (i.e. wristwatch and cellphone), Ex.Ka-4 (i.e. chappal) and Ex. Ka-5 (i.e. Hero Bicycle). It is relevant to note that though one cycle allegedly of the deceased was seized but prosecution has failed to connect the same from the occurrence. 15. (Pw-3) Manoj Kumar, is a brother of the deceased, has been examined as witness of extrajudicial confession allegedly made by the accused persons. He states that on 20.3.2006, accused-appellants met him and his brother (PW-1) Mewa Ram. They stopped them and confessed the crime one after another. He states that accused persons informed him and his brother that after committing the murder of the deceased, they threw his dead body in the canal. They told them that they have committed blunder and they be pardoned for the same, they assured that they would take care of the widow and requested them not to disclose the incident to anyone. There are material contradictions in the statement of this witness from that of his diary statement. 16. (Pw-4) Shashi Bala, is a wife of the deceased, has stated that on 6.3.2006, deceased returned to his house along with one four wheeler of which he was the Driver. While he was taking the dinner, he was called by accused Vijay Pal and immediately her husband left the house. However, when the deceased did not return for three days, a missing report was lodged by her brother-in-law and then he was also informed by PW-1 that extrajudicial confession was made by the accused persons. It is relevant to note that as per prosecution case, dead body of the deceased was recovered on 18.3.2006 and the extrajudicial confession was made by the accused persons on 20.3.2006. It is relevant to note that as per prosecution case, dead body of the deceased was recovered on 18.3.2006 and the extrajudicial confession was made by the accused persons on 20.3.2006. This witness was also subjected to certain unnecessary questions by the defence. She has also identified the dead body on the basis of photograph. 17. (Pw-5) Rishi Pal, is a Police Constable, registered the FIR. (PW-6) Shyam Veer Singh, Constable assisted during investigation. 18. (Pw-7) Yogendra Pal Singh, Sub Inspector, conducted inquest of the dead body and according to him, it was difficult to identify the dead body of the deceased and the same was in a naked condition. 19. (Pw-8) Dr. Ajai Kumar is the Autopsy Surgeon who conducted postmortem on the body of the deceased. He opined that cause of death was 'asphyxia due to drowning', and death might have taken place at least one week prior to the date of postmortem. 20. (Pw-9) Sudheer Kumar and (PW-10) Satyaveer Singh have assisted during investigation. (PW-11) Subhash Chand Tomar is the first Investigating Officer and (PW-12) Nagendra Singh also assisted during investigation. 21. (Dw-1) Chhote Singh is the father of Sarita, i.e. wife of Vijay Pal (accused) has stated that his daughter was living happily with Vijay Pal and that she died normal death and not unnatural death due to consumption of poisonous substance, as alleged. He further states that his daughter was not having illicit relation with the deceased. 22. Close scrutiny of the evidence makes it clear that the main piece of evidence against the accused appellants is so called extrajudicial confessions made by them before Mewa Ram (PW-1) and Manoj Kumar (PW-3). As per the prosecution case, on 18.03.2006, dead body of the deceased was recovered, it was cremated and on 20.3.2006, all of a sudden the accused-appellants met Mewa Ram (PW-1) and Manoj Kumar (PW-3) on the way, they stopped them and made extrajudicial confession. According to P.W.1 and P.W.3, accused persons confessed before them that they have committed blunder by killing the deceased and after committing his murder, they threw his dead body in the canal. Thus, if the contentions of the extrajudicial confession are taken to be correct, the deceased was first killed by the accused-appellants and then his body was thrown in the canal whereas as per postmortem report, deceased died because of asphyxia due to drowning. Thus, if the contentions of the extrajudicial confession are taken to be correct, the deceased was first killed by the accused-appellants and then his body was thrown in the canal whereas as per postmortem report, deceased died because of asphyxia due to drowning. As per postmortem report, which was conducted on 19.03.2006, the deceased died sometime around 12.3.2006 whereas as per extrajudicial concession allegedly made by accused-appellants, they killed the deceased on 6.3.2006, itself i.e. the date from which he went missing. Thus the contents of extrajudicial confession are not corroborated by the postmortem report of the Autopsy Surgeon. 23. Since the conviction of the accused appellant is mainly based on the extra judicial confession made by him, we wish to bring out the law relating to extra-judicial confession by referring to some judgements of the Hon'ble Supreme Court. In State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 , the Supreme Court observed in para 15, which reads as under: "15...........................It thus appears that extra judicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra judicial confession comes from the mouth of witness/ witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra judicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon." In Sahadevan and another v. State of Tamil Nadu, (2012) 6 SCC 403 , the Apex Court has held as under: "16. If the evidence of extra judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon." In Sahadevan and another v. State of Tamil Nadu, (2012) 6 SCC 403 , the Apex Court has held as under: "16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused: (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 the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law." The Supreme Court in Vijay Shankar vs. State of Haryana, (2016) 1 SCC(Cri) 151 has reiterated the principles laid down in Sahadevan (supra). 24. From the facts of the case, it appears but unnatural that the accused persons stopped Mewa Ram (PW-1) and Manoj Kumar (PW-3) and made extra judicial confession before them. There was no occasion for the accused persons to make such extrajudicial confession and to admit that it is they who committed murder of the deceased. 25. The other piece of evidence against accused persons are seizure of articles Ex.Ka-3, 4 and 5 i.e. wristwatch & cellphone, chappal and bicycle. Here all the seizure witnesses are closely related with the deceased. There is no independent witness which has been examined by the prosecution. True it is that it is not necessary for the prosecution to have independent witness in respect of a recovery memo, but considering the facts and circumstances of the case, statement of Mewa Ram (PW-1) and Jagdish (PW-2) does not appear to be trustworthy. There is no independent witness which has been examined by the prosecution. True it is that it is not necessary for the prosecution to have independent witness in respect of a recovery memo, but considering the facts and circumstances of the case, statement of Mewa Ram (PW-1) and Jagdish (PW-2) does not appear to be trustworthy. Moreover, seized articles are common in nature and are available in the market easily and this fact has also been admitted by the witnesses. The prosecution has not bothered to even collect call details and to prove the same, otherwise, it would have been easier for the prosecution to connect the accused persons with the death of the deceased. 26. The law on circumstantial evidence is well settled. In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 3 SCC 210 , the Supreme Court, while dealing with circumstantial evidence, observed as under: "11. In Hanumant Govind Nargundkar v. State of M.P., (1952) AIR SC 343, which is one of the earliest decisions on the subject, this court observed as under: "10.........It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 12. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 12. In Padala Veera Reddy v. State of A.P., (1989) Supp2 SCC 706, this court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: "(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 within all human probability the crime was committed by the accused and none else." 13. In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (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." 27. Recently, in Devi Lal vs. State of Rajasthan, Criminal Appeal No.148 of 2010, decided on 08.01.2019, the Supreme Court, while dealing with circumstantial evidence, observed as under: 14. Recently, in Devi Lal vs. State of Rajasthan, Criminal Appeal No.148 of 2010, decided on 08.01.2019, the Supreme Court, while dealing with circumstantial evidence, observed as under: 14. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 . The relevant excerpts from para 153 of the decision is assuredly apposite: 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 & Anr. Vs. State of Maharashtra, (1973) 2 SCC 793 where the observations were made: "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." 15. It has further been considered by this Court in Sujit Biswas Vs. State of Assam, (2013) 12 SCC 406 and Raja alias Rajinder Vs. State of Haryana, (2015) 11 SCC 43 . It has further been considered by this Court in Sujit Biswas Vs. State of Assam, (2013) 12 SCC 406 and Raja alias Rajinder Vs. State of Haryana, (2015) 11 SCC 43 . It has been propounded that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused." 28. Taking cumulative effect of the evidence, we are of the considered view that it will not be safe for this Court to convict the appellants on the basis of circumstantial evidence collected by the prosecution. 29. The appellants are entitled for the benefit of doubt. The appeal is, accordingly, allowed. The impugned judgment and order of the trial Court, is set aside. The appellants are reported to be in jail, they be set free forthwith, if not required in any other case.