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2022 DIGILAW 1013 (ALL)

Baru v. State of U. P.

2022-07-06

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT : Ajai Tyagi, J. 1. Heard Sri Noor Mohammad, learned counsel for the appellant and Sri N.K. Srivastava, learned A.G.A. for the State. 2. This appeal challenges the judgment and order dated 25.10.2008 passed by the Additional District & Sessions Judge, Saharanpur in Sessions Trial No.56 of 2008 convicting & sentencing Baru, appellant, for commission of offence under Sections 302 of Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') to undergo rigorous imprisonment for life with fine of Rs.10,000/- and in case of default of payment of fine, further to undergo two years' imprisonment. The accused has undergone more than 14 years of incarceration. He is the sole convict of the above offence. 3. Brief facts of the case are that a first information report was lodged by complainant - Ashok Kumar, brother of the deceased Brahm Dutt, averring that on 30.07.2007 deceased was siting in his village with his brother Mage Ram and complainant Ashok Kumar. At about 9:00 pm, Titu son of Pandit Om Prakash came there and asked Brahm Dutt that Baru and Vinod are calling him on the roof of Baru because he wants settlement with him, in this way Titu took away Bhram Dutt on the roof of Baru. After five minutes complainant and his brother Mage Ram heard the voice of Brahm Dutt, who was crying to save him. Complainant and his brother Mage Ram went on to the roof of Baru by having torch in their hands and in the light of torch they saw that Titu S/o Om Prakash, Baru S/o Thakur Ram Singh and Vinod were beating the deceased Brahm Dutt with iron rods in their hands by hitting on the head of the deceased. When these persons saw the complainant and his brother they ran away by jumping east wall. It is also averred that the dead body of the deceased is lying on the roof of Baru and in his murder Ex-Pradhan Pandit Ramesh was also conspirator. 4. On the basis of the aforesaid written report, a first information report was lodged and investigation was taken up by the I.O. During the course of investigation post mortem of deceased was conducted. I.O. recovered three iron rods on the pointing out of accused Baru, Titu and Vinod. Accused Titu, Baru and Vinod were charged under Section 302 read with Section 34 IPC. I.O. recovered three iron rods on the pointing out of accused Baru, Titu and Vinod. Accused Titu, Baru and Vinod were charged under Section 302 read with Section 34 IPC. Accused Ramesh Pandit was charged of offence under Section 120B IPC. After the trial learned court below acquitted accused Titu, Vinod and Ramesh and convicted Baru for the offence under Section 302 of IPC. 5. This F.I.R. culminated into recording of statements of the witnesses and charge-sheet was laid against four accused-persons. The accused was alleged to have committed murder, hence, he was committed to the Court of Sessions. The accused being summoned, pleaded not guilty and wanted to be tried. 6. The accused denied the charge and claimed to be tried. The prosecution so as to bring home the charge, examined seven witnesses, who are as under:- 1 Ashok Kumar PW1 2 Mage Ram PW2 3 Brahma Singh PW3 4 Dr. Krishna Kumar PW4 5 Shravan Kumar PW5 6 Satya Prakash Tyagi PW6 7. In support of ocular version following documents were filed: 1 First Information Report Ex.Ka.3 2 Written Report Ex.Ka.1 3 Recovery Memo of blood-stained & plain earth Ex. Ka. 16 4 Recovery Memo of Iron 'Bariya' Ex. Ka. 13 5 Postmortem Report Ex.Ka.6 6 Site Plan Ex.Ka.12 & 13 8. On the witnesses being examined and the prosecution having concluded its evidence, the accused was put to questions under Section 313 Cr.P.C. On hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused-appellant only and acquitted the other three accused as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal. 9. Learned counsel for the appellant has placed heavy reliance on the decision of the Apex Court in Daulat Ram & Daulati vs. State of Haryana, 2015 (2) AII JIC 446 and has contended that in similar facts, three named accused in the F.I.R. have been acquitted. Same role has been ascribed to the present appellant also. There is conviction only based on incriminating evidence given by the accused himself. There is no specific role ascribed to the appellant. The main two eyewitnesses, who according to the prosecution have witnessed the incident have not supported the prosecution case. P.W.1 and P.W.2 have not supported the prosecution case. Same role has been ascribed to the present appellant also. There is conviction only based on incriminating evidence given by the accused himself. There is no specific role ascribed to the appellant. The main two eyewitnesses, who according to the prosecution have witnessed the incident have not supported the prosecution case. P.W.1 and P.W.2 have not supported the prosecution case. P.W.5 has also not supported the prosecution case and has been declared person not supporting prosecution and has been cross examined by the learned counsel for the State. 10. Learned A.G.A. for the State has contended that the accused has been named in the F.I.R., the weapon of crime has been recovered at his instance and P.W.1 before declared hostile, has supported the prosecution case. Moreover, it is submitted by learned A.G.A. that the judgment of the Apex Court in Daulat Ram & Daulati (Supra) will not apply to the facts of this case. 11. Having considered the facts and submissions, three things emerges. One, there are three injuries as per postmortem report but none of the witnesses has deposed as to which injuries has been caused by the accused-appellant. Two, weapon (iron rods) have been used by three accused persons who got them required but the judgement is silent on the role of other two accused. Post mortem report has three ante mortem injuries. If all the three injuries are inflicted by Baru, then what was done by other two with iron rods which were recovered on their pointing out? Three, the impugned judgment of the Court below of Section 106 of Indian Evidence Act, 1872, which cannot be made applicable in the facts and circumstances of this case. The burden cannot be shifted on the accused to prove his innocence. This is a case of direct evidence that PW1 and PW2 are eyewitness and they saw the occurrence. Hence, this is not the fact which was in special knowledge of accused Baru. Hence, Section 106 of Indian Evidence Act has no applicability in this case. If the evidence of this case is analysed with the angle of circumstantial evidence then the chain of circumstances should be completed while in this case, the only circumstance against the accused Baru is that the dead body of the deceased was found on the roof of his house. If the evidence of this case is analysed with the angle of circumstantial evidence then the chain of circumstances should be completed while in this case, the only circumstance against the accused Baru is that the dead body of the deceased was found on the roof of his house. Learned trial court has stated in the judgement that the dead body of the deceased was found on the roof of the house of the accused Baru because the deceased was called upon by co-accused Titu to the roof of the house of Baru for some settlement, but this observation does not hold good because the contents of first information report were denied by PW2 as well as complainant and they have not supported the prosecution case. Hence, the first information report has itself become highly suspicious. This finding itself is perverse. We find that the judgment is based on what can be said to be moral conviction. 12. Recently the Apex Court has held that where there are no credible witnesses who deposed and the chain of circumstances is not complete to prove the offence of the accused, the accused cannot be convicted. Hence, if we analyse the evidence from the angle of circumstance also then following settled law is to be kept in mind. Three Judge Bench in the case of Sharad Vs. State of Maharashtra, [ AIR 1984 SC 1622 ] held as under: "152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions up-todate, for instance, the cases of Tufail (alias) Simmi v. State of Uttar Pradesh and Ramgopal v. State of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant case: "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." 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. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 13. In this case, motive is not proved by the prosecution. Recovery of so called weapon i.e. iron rod is also very doubtful and makes the prosecution case highly suspicious. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 13. In this case, motive is not proved by the prosecution. Recovery of so called weapon i.e. iron rod is also very doubtful and makes the prosecution case highly suspicious. Hence, chain of circumstances is not complete in a way which could point out that the offence is committed by the appellant only and none else. 14. Moreover, learned trial court has also stated that the so called eye-witness, namely, PW1 and PW2 had turned hostile. Hence, in such a situation the recovery of iron rods on the pointing out of the accused persons lost importance. We have failed to understand if the trial court has disbelieved the recovery of iron rods on the pointing out of the accused persons, it has also broken the chain of circumstances because the prosecution based its case on the fact that the three accused persons inflicted blows to the deceased by iron rods. Learned trial court has committed gross error and illegality by convicting the Baru on the same set of evidence on which the other accused persons were acquitted. The case of the prosecution is shattered by the eye-witnesses PW1 and PW2 with regard to all the accused persons. Hence, it cannot be altogether ignored by us that the other co-accused persons, with the similar role on the basis of the same evidence, have been acquitted from the charges of murder. The other witnesses are formal witnesses and their evidence is not incriminating against the appellant. 15. For the reasons, as discussed above, we are of the opinion that although this is the case of direct evidence and the case is not proved against the accused-appellant by the evidence led by prosecution and even if as we have analysed the evidence from the angle from circumstantial evidence also, we are of the view that the chain of circumstances is not at all completed to prove the charges levelled against the accused-appellant. 16. In view of the above, we have no other option but to reverse the conviction. The accused is acquitted. Judgment and order passed by the learned Sessions Judge is set aside. This appeal is allowed. 16. In view of the above, we have no other option but to reverse the conviction. The accused is acquitted. Judgment and order passed by the learned Sessions Judge is set aside. This appeal is allowed. As he has been already enlarged on bail, he need not surrender and if the fine has been paid by him, the State shall refund the amount of fine. 17. Record and proceedings be sent back to the Court below forthwith. 18. This Court is thankful to both the learned Advocates for ably assisting the Court.