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2022 DIGILAW 1409 (ALL)

Suresh @ Laxmi v. State of U. P.

2022-09-06

PRITINKER DIWAKER, SURENDRA SINGH-I

body2022
JUDGMENT : Pritinker Diwaker, J. 1. This jail appeal arises out of impugned judgment and order dated 27.03.2017 passed by Additional Sessions Judge/Court No. 1, Pilibhit in Sessions Trial No. 341 of 2014 arising out of Crime No. 473 of 2014 convicting the accused appellant under Section 302 of I.P.C. and sentencing him to undergo imprisonment for life with a fine of Rs. 20,000/-, in default thereof, to further undergo six months additional imprisonment; under Section 201 of I.P.C. to undergo five years imprisonment with a fine of Rs. 5000/-, in default thereof, to undergo two months additional imprisonment, with a direction that all the sentences shall run concurrently. 2. As per prosecution case, on 15.06.2014, one unknown dead body was found in a sugar-cane field and later, on the basis of clothes, the same was identified to be that of the deceased Ram Kishore. Further case of the prosecution is that on 13.06.2014, the deceased informed his family members that he would be returning on 13.06.2014. He further informed that he is in the company of the appellant. FIR was registered against the appellant under Sections 302 and 201 of IPC. 3. Inquest on the dead body of the deceased was conducted, vide Ex. Ka-7/3 on 15.06.2014 and the body was sent for postmortem, which was conducted vide Ex.Ka.-5 on 15.06.2014 by Dr. Rajesh Kumar (PW-4) and the cause of death was strangulation as a result of anti mortem injuries. The following injuries have been found on the body of the deceased: “1. A ligature mark with ligature on all around neck horizontally in two round, Ligature 42 cm long 4 cm width, Ligature tied on neck 4 cm below each side horizontally from right & left ear, 4 cm below from chin in 5 cm width. 2. Contusion on chest upto nipple of both sides starting from upper back of neck and shoulder.” 4. After investigation charge-sheet, Ex.Ka.-20 was filed and the appellant was tried for the offences under Sections 302, 201 & 404 of IPC. 5. So as to hold the accused appellant guilty, prosecution has examined 9 prosecution witnesses. The statement of the accused appellant was recorded under Section 313 Cr.P.C. in which, he pleaded his innocence and false implication. 6. By the impugned judgment, the Trial Judge has convicted the appellant as mentioned in paragraph no. 5. So as to hold the accused appellant guilty, prosecution has examined 9 prosecution witnesses. The statement of the accused appellant was recorded under Section 313 Cr.P.C. in which, he pleaded his innocence and false implication. 6. By the impugned judgment, the Trial Judge has convicted the appellant as mentioned in paragraph no. 1 of this judgement, however, has acquitted him under Section 404 of I.P.C. Hence, this appeal. 7. Learned counsel for the appellant submits: (i) that there is no eye witness account of the incident and the appellant has been convicted solely on the basis of weak circumstantial evidence. (ii) that even the dead body of the deceased has not been properly identified and the same has been identified only on the basis of his clothes. (iii) that one bag and slipper of the deceased are alleged to have been seized at the instance of the appellant and even wife of the deceased, Ram Pyari (PW-3) has not supported the prosecution case, so far as it relates to the seizure. (iv) that the appellant is in jail since 22.06.2014. 8. On the other hand, supporting the impugned judgment, it has been argued by the State counsel that conviction of the appellant is strictly in accordance with law and there is no infirmity in the same. 9. We have heard learned counsel for the parties and perused the record. 10. From the evidence as adduced by the prosecution, it is apparent that but for the so-called evidence of last seen, there is no other evidence against the appellant. Even the evidence of last seen has not been proved by the prosecution as required under the law. 11. Circumstantial evidence available on record is not good enough to hold the conviction of the accused-appellants. Law in respect of circumstantial evidence is very clear. 12. 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. [ AIR 1952 SC 343 ], which is one of the earliest decisions on the subject, this court observed as under: “10. …... 12. 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. [ AIR 1952 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 Padala Veera Reddy v. State of AP [(1989) Supp (2) 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 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.” 13. In S. Govindaraju v State of Karnataka, (2013) 15 SCC 315 , the Apex Court, while dealing with circumstantial evidence, observed as under: “29. It is obligatory on the part of the accused while being examined under Section 313 of Cr PC to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide: Munish Mabar v. State of Haryana, AIR 2013 SC 912 ). 31. The prosecution successfully proved its case and, therefore, provisions of Section 113 of the Evidence Act, 1872 come into play. The appellant/accused did not make any attempt, whatsoever, to rebut the said presumption contained therein. More so, Shanthi, deceased died in the house of the appellant. He did not disclose as where he had been at the time of incident. The prosecution successfully proved its case and, therefore, provisions of Section 113 of the Evidence Act, 1872 come into play. The appellant/accused did not make any attempt, whatsoever, to rebut the said presumption contained therein. More so, Shanthi, deceased died in the house of the appellant. He did not disclose as where he had been at the time of incident. In such a fact situation, the provisions of Section 106 of the Evidence Act may also be made applicable as the appellant/accused had special knowledge regarding such facts, though he failed to furnish any explanation thus, the court could draw an adverse inference against him.” 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. 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 Apex Court in Sujit Biswas Vs. State of Assam 2013(12) SCC 406 and Raja alias Rajinder Vs. State of Haryana 2015(11) SCC 43 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." 16. In the case of Ram Niwas Vs. 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." 16. In the case of Ram Niwas Vs. State of Haryana; 2022 Law Suit (SC) 942, the Supreme Court has laid down the following principles/conditions with regard to the offence, which is said to be covered under circumstantial evidence. “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 [ (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] 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.” 17. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 17. Supreme Court has further held that: “19. This Court has held that there has to be a chain of evidence so complete so as not to leave any reasonable ground for a 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. It has been held that the circumstances should be of a conclusive nature and tendency. This Court has held that the circumstances should exclude every possible hypothesis except the one to be proved. It has been held that the accused ‘must be’ and not merely ‘may be’ guilty before a Court can convict. 20. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.” 18. Applying the above principles as laid down by the Supreme Court, we find that the prosecution has utterly failed to establish its case beyond all reasonable doubts and the chain of events, which can be said to exclusively lead to the one and only one conclusion i.e. the guilt of the accused, is not complete. 19. Taking the cumulative effect of the evidence, we are of the view that the Trial Court has erred in law in convicting the appellant. He is entitled to get the benefit of doubt. 20. Accordingly, the jail appeal succeeds and is allowed. 21. Appellant Suresh alias Laxmi is in jail, he be set free forthwith, if not required in any other case. 22. As Sri C.L. Chaudhary, learned Amicus has assisted the Court in this case, State Government is directed to pay a sum of Rs. 10,000/-to him towards his remuneration.