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2022 DIGILAW 1058 (ALL)

Molai Prasad v. State of U. P.

2022-07-11

VIKAS BUDHWAR, VIVEK KUMAR BIRLA

body2022
JUDGMENT : Vikas Budhwar, J. 1. This is an appeal u/s 372 Cr.P.C. preferred by the appellant/informant challenging the judgment and order dated 03.08.2010 passed by Special Judge (SC/ST) Act, Court No. 03, Deoria inSpecial Sessions Trial No. 14 of 2007 (State Vs. Shailendra Pandey @ Babloo S/o Shrikant Pandey) u/s 394, 302 IPC read with section 3(2)5 SC/ST Act, P.S. Ekauna, District Deoria, acquitting the accused respondent no. 2. 2. The present appeal was presented before this Court on 08.09.2010 and thereafter the following orders were passed:- Order dated:- 13.09.2010 "Admit. Summon the L.C.R. Issue bailable warrant to C.J.M. List on 08.11.2010." Order dated:-19.07.2012 "Heard learned counsel for the appellant, learned A.G.A. for the State of U.P. and Sri Ravindra Prasad appearing on behalf of accused respondent No. 2. It is submitted by Sri Ravindra Prasad that accused respondent No. 2 Shailendra Pandey @ Babloo has furnished the bail bonds before the court of learned C.J.M. Deoria, but learned C.J.M. Deoria has not sent such report. Office is directed to summon such report from learned C.J.M. Deoria. List on September 17, 2012." Order dated:- 17.09.2012 "Heard learned counsel for the appellant, learned AGA and Sri Ravindra Prasad appearing on behalf of accused respondent.. Report submitted by C.J.M. Deoria, shows that the accused respondent no. 2 Shailendra Pandey @ Babloo has appeared before him and he has furnished his bail bonds. The order sheet shows that the lower court record has been received. On behalf of accused respondent appearance has been made by his counsel. Office is directed to proceed further for hearing of the appeal." Order dated:- 29.08.2018 On the request of K.K. Kanojiya, counsel for the appellant, the case is passed over as he wants to prepare the case. List in the week commencing 22.10.2018. Order dated:- 22.10.2018 "Passed over on the illness slip of Sri B.L. Yadav, learned counsel for the appellant." Order dated:- 23.10.2021 "Case called out. None appears to press this appeal. List on 3.12.2021. It is clarified that no further adjournment will be granted." Order dated:- 19.04.2022 "When the matter was taken up, none present for the appellant. However, Shri Shailendra Pratap Singh, learned counsel for the accused-respondent no. 2 as well as learned AGA for the State are present. Considering the absence of counsel for the appellant, in the interest of justice, an opportunity is being given. However, Shri Shailendra Pratap Singh, learned counsel for the accused-respondent no. 2 as well as learned AGA for the State are present. Considering the absence of counsel for the appellant, in the interest of justice, an opportunity is being given. List the matter in the week commencing 11.07.2022 alongwith fresh office report. It is made clear that if learned counsel appearing for the appellant will not appear on the next date fixed in the matter, the Court will proceed to appoint Amicus Curiae on behalf of appellant or decide the issue involved in the matter at this stage with the help of learned A.G.A." 3. Perusal of the order dated 29.08.2018, 22.10.2018, 23.10.2021 and 19.04.2022 it will reveal that the appellant is avoiding disposal of the appeal despite the fact that as per the order sheet dated 03.07.2017, paper book was ready. Ultimately, on 19.04.2022 this Court precoded to pass an order noticing the absence on the appellant/informant side while not getting the appeal heard and disposed of while observing that in case, the counsel appearing for the appellant does not appear on the date so fixed, the Court will proceeded to appoint amicus curiae on behalf of the appellant or to decide the issue involved in the matter with the help of the learned A.G.A. 4. Even after passing of the order dated 19.04.2022 today when the matter has been taken up in the revised list also nobody appears to press the present appeal on behalf of the appellant thus, this appeal is being decided with the assistance of learned A.G.A. 5. Briefly stated facts as apparent from record are that the appellant/informant, Molai Prasad S/o Khedan Prasad, R/o Village-Lilapur, Police Station Ekauna, Deoria and he had sent a written complaint on 14.05.2007 before the Station House Oficer, P.S. Ekauna with a allegation that his mother Pyari Devi (since deceased) at that relevant point of time was 75 years of age and on 13.05.2007 at 7 in the evening she had gone for certain work and so far as the appellant/informant is concerned he was not in his house as he was occupied while being physically present in a marriage occasion. It has been alleged that when the appellant/informant came back to his house then he was apprised about the fact that the dead body of his mother was found from a place Lilapur Siwan towards Anusa Marg. It has been alleged that when the appellant/informant came back to his house then he was apprised about the fact that the dead body of his mother was found from a place Lilapur Siwan towards Anusa Marg. Accordingly, when the appellant/informant went at the place of occurrence of the alleged commission of offence then he discovered that there was certain injuries near the left eye and scratch over the navel portion and he suspected that she was physically assaulted and molested as even otherwise injury was found on the nose and the nose pin which she was wearing on her nostril was missing. It was thus apprehended by the appellant/informant that his mother had been disposed of and the same was an unnatural death. On the basis of the information so reported by the appellant/informant an FIR No. 18 of 2007 being Case Crime No. 139/2007 u/s 394, 302 IPC was lodged against unknown persons and the said FIR got itself found its presence in G.D. report no. 11 at 08:45 pm. 6. Pursuant to the lodging of the above mentioned FIR investigation was put to motion and then the S.H.O. Sri Basant Lal was nominated to conduct the investigation which according to the appellant/informant was proceeded while taking the dead body of the deceased in their custody, preparation of Panchnama. It has been further referred that the saari which the deceased was wearing showed the presence of blood and thereafter the deady body of the deceased was put in the custody of the Constable Harish Chand Singh and Udai Bhan Singh who were assigned the duty for the purposes of postmortem. Site plan was also prepared and on the basis of statement of witnesses were taken which concluded in submission of a charge sheet against the accused-respondent no. 2 u/s 394, 302 IPC read with section 3(2)5 SC/ST Act. 7. The case was committed for trial before the Sessions on 05.09.2007. Charges were read over to the accused-respondent, he denied the charge and claimed to the trial while pleading innocence. 8. In order to bring home the charges the following witness were produced:- 1. Molai Prasad P.W.-1 2. Constable Harish Chand Singh P.W.-2 3. Badami Devi P.W.-3 4. Bhrighunath P.W.-4 5. Asha Devi P.W.-5 6. Bechai Prasad Nayak P.W.-6 7. S.I. Basant Lal P.W.-7 8. S.H.O. Baijnath Singh P.W.-8 9. Sri Ram Gupta, Senior Clerk C.M.O., Deoria P.W.-9 9. 8. In order to bring home the charges the following witness were produced:- 1. Molai Prasad P.W.-1 2. Constable Harish Chand Singh P.W.-2 3. Badami Devi P.W.-3 4. Bhrighunath P.W.-4 5. Asha Devi P.W.-5 6. Bechai Prasad Nayak P.W.-6 7. S.I. Basant Lal P.W.-7 8. S.H.O. Baijnath Singh P.W.-8 9. Sri Ram Gupta, Senior Clerk C.M.O., Deoria P.W.-9 9. The following documents were also produced by the prosecution in order to give support to their stand:- 1. Written Report Ex.A-1 2. Panchayatnama Ex.A-2 3. Chik FIR Ex.A-3 4. G.D. Ex.A-4 5. Blood Stained Saari Ex.A-5 6. Police Letter Ex.A-6 7. Photo Ex.A-7 8. Letter addressed to C.M.O. Ex.A-8 9. Letter addressed to C.M.O. Ex.A-9 10. Letter addressed to Inspector Ex.A-10 11. Samples Ex.A-11 12. Site Plan Ex.A-12 13. Certificate Ex.A-13 14. G.D. Ex.A-14 15. G.D. Ex.A-15 16. G.D. Ex.A-16 17. F.I.R. Ex.A-17 18. Post-mortem Report Ex.A-18 10. We have heard Sri Ratan Singh, learned A.G.A. who appears for the State and with his assistance the present appeal is being decided. 11. Being mindful of the proposition of law so culled out by the Hon'ble Apex Court in the catena of decisions that the appellate court hearing an appeal filed against the judgment of acquittal, should not overrule or otherwise disturb the trial court judgment of acquittal if the appellate court does not finds any substantial and compelling reasons for doing so. The appellate court must also keep in mind the fact that presumption of double innocence is already available with the accused and in case, the judgment of acquittal proceeds on a wrong footing and direction of law and skips material evidences which would act as a game changer in deciding whether the accused is entitled for the benefit of acquittal or conviction and the view taken by the trial court is palpably erroneous and wrong then in those eventualities the appellate court should exercise its jurisdiction in overturning the judgment of acquittal. 12. In the light of the law so laid down by the Hon'ble Apex court in the above noted decisions, the present controversy is to be decided. 13. As per the prosecution the fateful incident took place on 13.05.2007 when the mother of the informant being Pyari Devi aged about 75 years had proceeded from her house at 7 in the evening for discharging social obligation. 13. As per the prosecution the fateful incident took place on 13.05.2007 when the mother of the informant being Pyari Devi aged about 75 years had proceeded from her house at 7 in the evening for discharging social obligation. It has come on record that the informant was not present in his house at the relevant point of time, however, he was made aware about the demise of his mother and she sustained injuries coupled with the suspicion towards molestation. Record further reveals that the FIR was also lodged by the appellant/informant against unknown persons and thereafter, pursuant to the investigation so sought to be conducted by the I.O., charge sheet was submitted against the accused-respondent herein u/s 394, 302 IPC read with section 3(2)5 SC/ST Act. 14. While proceeding to unfold the prosecution theory so propagated by them the deposition of the prosecution witness is to be first analysed. 15. P.W.1 himself is the son of the deceased and informant also. According to him on 14.05.2007 the dead body of his mother was found near a small bridge (pulia) on the road going to Asana. As per P.W.1 Molai Prasad, the dead body of the deceased was discovered by one Babloo @ Harendra who is the resident of the same village and the dead body of the deceased was covered with the saari. After removing the sari, the injuries were discovered on several parts of the body and there were swelling on the face of the deceased. P.W.1 has further deposed that he belongs to Dhobi Caste and on 13.05.2007 his mother had gone to attend a marriage and he was made aware about the death of his mother on 14.05.2007 at 7 in the morning and accordingly, he had given a written complaint also. So far as the issue of motive is concerned, P.W.1 in his statement had deposed that the accused herein had about 3 times quarrelled with the informant and the accused herein belongs to Brahmin Community and during the course of the quarrel the accused had threatened to kill him and thereafter, the threatening so administered by the accused herein took the shape of the death of his mother. P.W. 1 has also stated that the accused herein had erected a wall near the madhai and the boundary wall of the accused is just adjacent to the house of the informant. P.W. 1 has also stated that the accused herein had erected a wall near the madhai and the boundary wall of the accused is just adjacent to the house of the informant. P.W. 1 has further deposed that one Badami Devi W/o Keshav Prasad who is P.W.3 had overheard the conversation which was entered into between the accused herein with his family members wherein the accused had stated that he has disposed of the mother of the informant. It has been further deposed that Bhrigunath who happens to be the P.W. 4 who is the uncle of P.W. 1 and is an old age person. P.W. 1 has also stated that when the dead body of the deceased was recovered and when the informant went to see the body then P.W. 3 Badami Devi and P.W. 4 Bhrigunath were also present. In the statement of P.W.1 it has come on record that he has not got narrated in the FIR regarding the fact that the accused herein at one point of time put flames in the hut of the informant and abused him, however, P.W.1 has further stated that the aforesaid allegations had been put on surface only after one month of lodging of the FIR while pointing the fact the accused herein had committed crime. 16. So far as P.W.3 Badami Devi is concerned, she has presented herself as a prosecution witness wherein she has come up with a stand that on 13.05.2007 she had gone to the informant's house in connection with recovering certain amount which she had given as a financial assistance to the informant and at that point of time the informant was not present, however, his wife Smt. Asha Devi P.W. 5 was in the house and she had apprised the P.W. 3 Badami Devi that the informant had gone to attend the marriage and when he will come back, he would tender the said amount. P.W. 3 Badami Devi has also stated that she sat in the house of the informant and made certain conversations with P.W. 5 Asha Devi and when P..W. 3 was returning back to her house, P.W. 3 being Badami Devi while crossing the house of the accused herein, she overheard the accused saying that the accused had finished the day today altercation and he has killed the deceased. P.W.3 Badami Devi had further deposed that she had heard the voice of the accused herein but she did not see the accused. 17. P.W. 4 Bhrigunath in his statement has deposed that at 08:00 pm on 13.05.2007 he had gone to the field and at that point of time he saw that the accused was coming from the road going from Panchrukha to Anusa and the accused was walking speedly and when he switched on the torch then he found the accused herein and thereafter, P.W. 4 went to his house and after taking his meals, he went to sleep. 18. P.W. 5 Smt. Asha Devi also got herself examined as a prosecution witness and according to her statement, her mother-in-law had gone to attend the marriage, however, she did not return back. 19. P.W. 6 Bechai Prasad Nayak is a witness to the Pancnama. 20. P.W. 2 Constable Harish Chand Singh who got the Panchnama done and had drawn the blood stained articles. 21. P.W. 7 Basant Lal claims to be an S.H.O. of Police Station Ekauna and he had witnessed the issue relating to Chik FIR. 22. P.W. 8 being Baijnath Singh has also deposed regarding the manner in which the investigation was done. 23. P.W. 9 being Sri Ram Gupta is Senior Clerk, C.M.O., Deoria proved the postmortem. 24. Records reveals that there is no eye witness who could see the commission of the crime and the entire case (if any) stands on circumstantial evidence. In order to hold the accused herein guilty of crime while putting the last nail on coffin for conviction the entire chain of events is to be linked in such a manner that there is no other probability than the fact that the accused herein had committed the said offence. To put it otherwise, the complete chain of events and the sequence had to be linked so as to up hold the conviction. 25. Admittedly, as per the statement of P.W. 1 Molai Prasad he was not an eye witness and rather not present in the house when the said occurrence occasioned. This much has been stated in the statement of P.W. 1 that the accused herein bore enmity and rivalry with the informant fraction and that become the basis for commission of the crime as the informant belongs to Dhobi Community as well as the accused belongs to Brahmin Community. This much has been stated in the statement of P.W. 1 that the accused herein bore enmity and rivalry with the informant fraction and that become the basis for commission of the crime as the informant belongs to Dhobi Community as well as the accused belongs to Brahmin Community. As per the prosecution, the boundary wall and the madhai were also demolished by the accused and abuses were also hurled. Even otherwise P.W. 5 Asha Devi who happens to be the wife of the informant had stated in the deposition that the accused herein used to hurl abuses in Hindi vernacular and also threatened to stripped off her clothes. Record further reveals that the said issues relating to commission of crime in the back drop of motive, was never made part and the parcel of the FIR nor there was any complaint so lodged by the informant and his fraction before any authority. Further P.W.7 being the Investigating Officer has deposed that P.W. 1 and P.W. 5 did not give any statement regarding adminsitering beating and hurling of abuses and further regarding the demollition of medhai. Had the said act and omission of the accused herein being there then obviously proceedings either civil or criminal ought to have instituted by the informant's fraction but the same was at no point of time done. The learned trial court has analysed the said aspect of the matter and has recorded categorical finding that conduct and the manner in which the allegations have been put forward does not constitute motive as a basis for commission of crime. 26. Additional aspects also need to be noticed at the stage is with regard to the fact that P.W. 3 Badami Devi had deposed in her statement that she overheard the accused herein while making conversation with his family members that the accused had disposed of the deceased herein. It has also come on record that as per the statement of P.W. 3 Badami Devi that she had just overheard the said utterance but did not see the accused making the said statement as she was passing by the house of the accused wherein she heard the same. P.W. 3 in her statement has further deposed that on 13.05.2007 in the night she had gone to P.W. 1 Molai's house for receiving an amount of Rs. P.W. 3 in her statement has further deposed that on 13.05.2007 in the night she had gone to P.W. 1 Molai's house for receiving an amount of Rs. 1000/- which she had given to P.W. 1 and at that point of time P.W. 1 was not present in his house and his wife P.W. 5 being Asha Devi has apprised that P.W. 1 was not in his house and when he will return, he will give back the money and P.W. 3 Badami Devi had proceeded and then she overheard the accused narrating the fact that he had disposed the deceased. In the cross-examination P.W. 3 has further deposed that she has commenced her journey from her new house to the house of P.W. 1 Molai Prasad. According to her statement she had deposed that in case she commences her journey from a new house to P.W. 1 Molai's house then the house of the accused does not find its presence in the said way. She further deposed that after having conversation with the wife of P.W. 1 at 9 in the night she proceeded from P.W. 1 Molai's house towards her old house to see the appertinent land which she possess and in the said way the house of P.W. 1 came in between. The entire deposition of P.W. 3 Badami Devi does not inspire the confidence particularly in view of the fact that without seeing how can she gauge the identity of with somebody across the wall in his house was making conversation regarding the deceased being disposed of by the accused. On being specifically asked in the deposition P.W. 3 was not sure as to whether the deceased was uttering the said words loudly or murmuring. Thus the trial court has rightly held that deposition of P.W. 3 Badami Devi does not inspire the confidence. 27. So far as P.W. 4 being Bhrigunath is concerned he has this much deposed that he had witnessed the accused running speedly when he was going from Panchrukha to Anusa village and when he switched on the torch he could see the accused and thereafter, he took his meals and went to sleep. P.W. 4 in his deposition has further stated that the I.O. had come to the house of P.W. 1 Molai Prasad 3 or 4 times and he was also called, he got recorded his statement. P.W. 4 in his deposition has further stated that the I.O. had come to the house of P.W. 1 Molai Prasad 3 or 4 times and he was also called, he got recorded his statement. Apart from the same as per the deposition of P.W. 4 when the body of the deceased was discovered then he was also present over there but his statement was not recorded and after 20-25 days the Investigating Office took his statement, however, he had not shown the place of occurrence to the Investigating Officer. According to P.W. 4 even the site plan was not prepared and no proceeding in that regard was also initiated. 28. Nonetheless, no recovery of any offending article or weapon which could have been used for the purpose of commission of crime and marking the presence of the accused, was recovered. 29. Analysing the deposition of the prosecution witness and the material exhibits which are shown to the basis for supporting the prosecution theory while putting the wheels of conviction upon the accused, this Court finds that firstly there is no eye witness testimony. Secondly, even circumstantial evidence itself does not link the accused with respect to commission of the crime. Thirdly, investigation appears to be highly defective as from the perusal of the statement of P.W. 4 Bhrigunath, site plan was also not prepared and necessary requirement for conduction of investigation was not properly adhered to. Fourthly, the testimony of P.W. 3 Badami Devi also does not hold the accused guilty though suspicion can be said to find its presence particularly when P.W. 3 Badami Devi did not see the accused uttering the commission of the crime. Fifthly, the theory of the motive so engineered by the prosecution is not proved particularly in view of the fact that though it has been stated that abuses were also hurled upon P.W. 5 Asha Devi and she was threatened to have stripped off her clothes and act of constructing boundary and medhai were illegally proceeded with but no protest either before any authority or civil or criminal proceedings was undertaken. Sixthly, no recovery of any offending articles were made from the place of occurrence or the accused so as to link the accused for commission of crime even there are material contradictions in the statements of the prosecution witness which can be pressed in service (if according to the prosecution) could be a matter of suspicion but the prosecution has failed to prove the commission of offence by the accused beyond doubt. 30. The Hon'ble Apex Court in the case of Ashok Kumar Chatterjee Vs. State of M.P. reported in 1989 Supp (1) SCC 560 in paragraph no. 30 has observed as under:- "30. This appeal arises against the concurrent findings of facts except for the modification of the sentence made by the High Court. There is no direct evidence to prove this case and the conviction is founded solely on circumstantial evidence. This Court in a line of decisions has consistently 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 from o 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, 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 the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra)." 31. The Hon'ble Apex Court in the case of C. Chenga Reddy and Others Vs. State of Andhra Pradesh reported in (1996) 10 SCC 193 in paragraph no. 21 has observed as under:- "20. in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. 21 has observed as under:- "20. in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence." 32. The Hon'ble Apex Court in the recent judgment in the case of Shailendra Rajdev Pasvan and Others Vs. State of Gujarat Etc. Criminal Appeal Nos. 333-334 of 2017 decided on 13.12.2019 in paragraph no. 12 has observed as under:- "12. Thus the entire case of the prosecution is based on circumstantial evidence. It is well settled that in a case which rests on circumstantial evidence, law postulates two fold requirements:- (i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt. (ii) All the circumstances must be consistent pointing only towards the guilt of the accused." 33. This Court after giving anxious consideration to the fact of the case in the factual back ground of law existing on land comes to the irresistible conclusion with the judgment of acquittal passed by learned trial court does not warrant any interference as the view taken by the learned trial court is possible view and according to this Court it is not a case wherein in other view is liable to be taken other than the view so arrived by the learned trial court. The learned trial court has meticulously analysed the fact of the case and has formed an opinion that the accused is liable to be acquitted. Notably, double presumption of innocence is available with the accused. Absence of any perversity accompanied with the fact that the judgment of acquittal does not suffer from any misreading of the evidence, we find no option but to concur with the judgment of acquittal. 34. Resultantly, the present criminal appeal is dismissed. 35. Record of the present case be sent back to the concerned court below.