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2020 DIGILAW 819 (ALL)

Rajman v. State of U. P.

2020-04-29

PANKAJ NAQVI, SAURABH SHYAM SHAMSHERY

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JUDGMENT : Pankaj Naqvi, J. This criminal appeal is preferred against the judgment / order dated 9.12.2008, passed by the Addl. Sessions Judge (Court No.4), Gorakhpur in S.T. No.213/1999, P.S. Cantt., Gorakhpur, convicting / sentencing the appellant under Section 302 IPC with life and other ancillary conviction / sentences. 1. The prosecution case:- (A) A missing report (Ext. Ka-1) came to be lodged on 17.11.1997 by P.W.-1 / Ram Chandra, alleging that his son Jitendra @ Mantu aged about 16 years went missing on 15.11.1997 at about 5.30 PM after he had gone to ease himself. (B) P.W.-1 while searching the articles/goods belonging to his son (victim) came across a joint photograph of his son (victim) and that of the niece of the appellant, which led him to believe that the duo was in a relationship. He apprised the I.O.(P.W.5) of the said fact on 19.11.1997. P.W.-5 / the I.O. inquired from the appellant about the victim and on the basis of statement of appellant Rajman as also of accused Bablu, Saroj and Suggan and at their pointing out the dead body of victim which was wrapped in a plastic bag and hidden 2-3 feet deep inside the earth was recovered on 19.11.1997 at about 4.15 PM from the fields of one Bhagelu. All the 4 accused present at the scene, confirmed the identity of the body being that of the victim. A recovery memo (Ext. Ka-3) of the dead body was prepared which was signed by the police witnesses present as also P.W.-3 / Deo Murat Singh. (C) On the basis of recovery of the dead body of the victim, an FIR as Case Crime No.2058/1997, under Sections 147/302/201 IPC was registered on 19.11.1997 at P.S. Cantt., Gorakhpur against 5 accused i.e. appellant – Rajman, Suggan, Lal Chand, Saroj and Bablu. (D) The inquest (Ext. Ka-3) of the victim commenced on 19.11.1997 at 17.00 hours which concluded at 18.30 hours at the fields of Bhagelu Chaudhary in the presence of P.W.-3 and other witnesses. The inquest witnesses also identified the dead body as that of the victim. (E) P.W.-7 / the medico at District Hospital, Gorakhpur conducted the autopsy of the victim on 20.11.1997 at 3.05 PM. The inquest witnesses also identified the dead body as that of the victim. (E) P.W.-7 / the medico at District Hospital, Gorakhpur conducted the autopsy of the victim on 20.11.1997 at 3.05 PM. Body condition of the victim and injuries are as under:- Body Condition: Average built, eyes closed, mouth closed, rigor mortis passed off, skin peeled off, abdomen distended, postmortem staining present, skin hair peeled off, foul smell present. Injury (i) Contusion 24 cm x 23 cm, on the front of the right side of the chest underlying right 7th ribs is fractured. (ii) Contusion 20 cm x 19 cm on the left side of the chest on the front underlying left 8th and 9th ribs are fractured. (iii) Contusion 10 cm x 15 cm on the left thigh on the front. (iv) Contusion 9 cm x 8 cm on the right thigh on the front. (v) Contusion 22 cm x 6 cm on the front of the neck underlying tracheal muscles are extended. The tracheal ring is broken, Trachea is extended. The right cornuae of the hyoidbone is fractured. (F) P.W.-6, another I.O. after conducting other investigational formalities, such as obtaining the statements of the witnesses, including P.W.-3 (witness to the recovery of dead body and inquest), prepared the site plan (Ext. Ka-10) of the scene of recovery of the dead body of the victim and other relevant police papers, submitted a charge-sheet (Ext. Ka-11) against all above accused. (G) Accused Saroj and Bablu were found to be juveniles, their trial segregated. The other 3 accused including appellant Rajman were charged under Sections 147/302/201 IPC, appellant Rajman was also charged under Section 302 IPC. All the 3 accused denied the charges and claimed to be tried. (H) The prosecution examined P.W.-1, father of the victim, P.W.-2, cousin of the victim, a witness of last seen; P.W.-3 witness to the recovery of the dead body of the victim; P.W.-4, also a last seen witness who turned hostile; P.W.-9 / Buddhi Ram before whom the accused Lal Chand is alleged to have made an extra judicial confession; rest are formal witnesses. (I) All the accused claimed false implication on account of previous animosity. (I) All the accused claimed false implication on account of previous animosity. (J) The trial court finding the motive to be that of an illicit affair between the victim and the niece of the appellant, not being palatable to the appellant, who eliminated the victim, followed by the recovery of his dead body which was dug out from the fields to which the appellant only had knowledge, while acquitting co-accused Suggan and Lal Chand, convicted the appellant as above. 2. We have heard Sri Vinay Kumar Singh Chandel and Sri Kunwar Bikram Suryabansh, learned counsel for the appellant and Sri A.N. Mulla, the learned A.G.A. 3. Learned counsel for the appellant assailed the conviction of the appellant on the following grounds: (i) No motive established as at no point of time the accused – appellant ever complained to the family of the victim that they desist the victim from continuing the relationship with the niece of the appellant, as also the fact that the niece was already married, a year prior to the occurrence. (ii) Link of last seen evidence is not established as P.W.-2, cousion of the victim shared the last seen information with P.W.-1 only on 19.11.1997 i.e. after 4 days of the victim going missing. (iii) Recovery of the dead body of the victim at the pointing out of 4 accused is not admissible in evidence as on the same recovery evidence, co-accused Suggan and Lal Chand stood acquitted, therefore, same benefit is liable to be enured to the appellant as the recovery is manipulated. (iv) It's a case of circumstantial evidence in which vital incriminating links are missing, thus, prosecution miserably failed to establish that it was none other than the appellant, who committed the murder of the victim. 4. The learned A.G.A. controverting the above submissions, argued that motive is not only established but also authenticated by the joint photograph of the victim along with the niece of the appellant, all the links in the chain of circumstances are complete including additional link in the form of recovery of the dead body at the pointing out of appellant under Section 27 of the Evidence Act which rules out every hypothesis towards the innocence of the accused. 5. This is a case based on circumstantial evidence as there are no eye witnesses. 5. This is a case based on circumstantial evidence as there are no eye witnesses. The Apex Court in a recent decision i.e., Criminal Appeal No.1193 of 2011 Chandru @ Chandrasekaran vs. State Represented by Deputy Superintendent of Police CBCID and another, (2019) 15 SCC 666 summarised the law on circumstantial evidence as under: "9. The law with regard to appreciation of circumstantial evidence has been clearly enunciated in the case of Hanumant v. State of Madhya Pradesh AIR 1952 SC 343 , wherein this Court held as follows: "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 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." 10. This law has been consistently followed and has been repeated in catena of authorities. It is not necessary to refer to all the authorities. However, we may refer to Sir Alfred Wills book Wills on Circumstantial Evidence (Chapter VI) Butterworths, Seventh Edition, Pp 296-329, in which he has laid down the following Rules specially to be observed in the case of circumstantial evidence: "RULE 1. -The facts alleged as the basis of any legal inference must be clearly proved, and beyond reasonable doubt connected with the factum probandum............ RULE 2. -The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability................ RULE 3. -In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits......... RULE 4. -In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.................. RULE 5. -In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits......... RULE 4. -In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.................. RULE 5. -If there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." 11. The law can be summarised in the following terms: 11.1. The circumstances relied upon by the prosecution which lead to an inference to the guilt of the accused must be proved beyond doubt; 11.2. The circumstances should unerringly point towards the guilt of the accused; 11.3. The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused; 11.4. That there should be no probability of the crime having been committed by a person other than the accused. 12. It is in the light of the aforesaid law that we have to consider the evidence and the circumstances relied upon by the courts below. 13. In a case based on circumstantial evidence it is always better for the courts to deal with each circumstance separately and then link the circumstances which have been proved to arrive at a conclusion.” 6. Motive alleged is a promiscuous relationship between the niece of the appellant and the victim. The knowledge of this promiscuous relationship surfaced for the first time after the victim went missing on 15.11.1997 and searches were made to the belongings of the victim. P.W.-1 on or after 17.11.1997 came across a joint photograph of the duo which suggested a relationship between his son (victim) and the niece of the appellant. The prosecution does not allege that appellant Rajman had knowledge of the alleged relationship prior to the recovery of the said photograph. Assuming that the joint photograph of the duo was recovered by P.W.-1 on 17.11.1997 after lodging the missing report as the said fact did not find mention in the missing report. The prosecution does not allege that appellant Rajman had knowledge of the alleged relationship prior to the recovery of the said photograph. Assuming that the joint photograph of the duo was recovered by P.W.-1 on 17.11.1997 after lodging the missing report as the said fact did not find mention in the missing report. The said disclosure was also shared with appellant which at the earliest could not be prior to 17.11.1997 coupled with the fact that it is the consistent prosecution case that appellant after disclosure of this photograph only became aware of the alleged relationship which had infuriated him while the victim had already gone missing on 15.11.1997 ie, prior to the recovery of the said photograph. Thus, the appellant has no reason to suspect the infidel relationship between his niece and the victim. It has also come in evidence of P.W.-1 that the niece was already married a year prior to the occurrence and it is not the case of prosecution that she was present in the village around the time of occurrence. In view of above, the alleged illicit relationship cannot be the motive for the appellant to commit the murder of the victim. 7. P.W.-2, a cousin of the victim on 15.11.1997 was dancing with him in his house at about 4 PM. Meanwhile, accused Saroj came to his house and after some time he left for the fields of Bablu. After 10 minutes, accused Saroj came again and suggested that they should go towards the pond, west to the house of P.W.-2. P.W.-2 along with victim and Saroj went to the fields wherein at the ridge they came across Bablu and the appellant. The victim, Saroj and Bablu consumed marijuana (ganja) (narcotic). Saroj suggested that all of them should do some physical exercise beneath the mango tree of one Shyam Dev. All of them again consumed ganja thereafter, while they were going towards the pond to carry out physical exercise, the victim suggested that P.W.-2 being a weakling, would not be able to bear the strain after which P.W.-2 returned to his house. P.W.-2 finally saw the victim in the company of Saroj, Bablu and appellant Rajman near the jack-fruit tree of Ramsamujh moving towards the pond and since then the victim went missing whose body came to be recovered on 19.11.1997. 8. P.W.-2 finally saw the victim in the company of Saroj, Bablu and appellant Rajman near the jack-fruit tree of Ramsamujh moving towards the pond and since then the victim went missing whose body came to be recovered on 19.11.1997. 8. P.W.-2 was establishing himself as a witness of last-seen but the fact that he had shared the details of the persons in whose company the victim was last seen with P.W.-1 (uncle), does not find mention in his statement under Section 161 Cr.P.C. P.W.-1 denied that P.W.-2 ever shared this information with him till the arrival of police on 19.11.1997. P.W.-2 is not a witness to the recovery of the dead body. He also claims to have acquired knowledge that his cousin was murdered by appellant Rajman, Suggan and Lal Chand and his body recovered at their pointing out but the said fact was disclosed for the first time in the court. He admitted that there was animosity with the appellant Rajman as his father (Narayan) was an accused in a case under Section 436 IPC, lodged by appellant Rajman. Thus from above evidence P.W.2 cannot be said to be a reliable witness to last seen evidence. 9. A recovery under Section 27 of the Evidence Act cannot be the sole basis for conviction as the said provision makes admissible only the discovery of fact pursuant to information from a person, accused of an offence, in police custody. If conviction is made only on the basis of recovery evidence under Section 27 of the Evidence Act, then the statement of accused would partake the character of confession before police which is explicitly prohibited under Section 25 & 26 of the Evidence Act. 10. We now proceed to examine as to whether the alleged recovery of the dead body of the victim is valid or manipulated. 11. 10. We now proceed to examine as to whether the alleged recovery of the dead body of the victim is valid or manipulated. 11. In the above background, it was highly improbable that the I.O. would reach the scene at about 12 noon on 19.11.197, record the statement of P.W.-1 and 2, acquired knowledge about the involvement of the appellant, proceeded to him to inquire about the occurrence, recorded his alleged confessional statement at 3.30 PM and got recovered the dead body of the victim within 45 minutes i.e. 4.15 PM and the appellant never attempted to hide himself or run away from the village coupled with the fact that the two co-accused namely Lal Chand and Suggan who were equally related as maternal uncle of the girl whom the victim was alleged to be in a relationship stand acquitted on the basis of same evidence. 12. We, on above evidence, are of the considered view that the above recovery of the dead body at the alleged pointing out of appellant is manipulated. Thus, it was a case of false implication as the informant side were accused in a case lodged by appellant under Section 436 IPC. 13. We in the ultimate analysis, are of the view that it being a case of circumstantial evidence, the prosecution failed to establish motive and the last seen evidence of P.W.-2 as also could not establish the recovery of the dead body at the pointing out of appellant, entitling the appellant to an acquittal. The appeal is allowed. The conviction/sentence dated 9.12.2008 is set aside. Appellant is acquitted of all the charges. He is in jail. He shall be released forthwith unless wanted in any other case. Let a copy of this order be sent to the Judgeship concerned in order to submit a compliance report within 2 months.