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2022 DIGILAW 1828 (ALL)

Jagdish v. State of U. P.

2022-11-22

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT : AJAI TYAGI, J. 1. This appeal has been preferred against the judgment and order dated 23.01.2013 passed by Additional Sessions Judge, Court No. 1 in Session Trial No. 102 of 2010 (State vs. Jagdish and Others), arising out of Case Crime No. 1734 of 2009, under Section 302, 201, 120B IPC, Police Station-Tirva, District-Kannauj, whereby the appellants were convicted and sentenced under Section 302 IPC for life imprisonment along with fine of Rs.5,000/-, under Section 120B IPC for 10 years imprisonment along with fine of Rs. 2,000/- and under Section 201 IPC for 7 years simple imprisonment along with fine of Rs. 2,000/-. 2. The brief facts of the case as culled out from the record are that written report was submitted to Police Station-Tirva, District-Kannauj by informant Ram Kumar on 17.11.2009 with the averments that his brother Ram Bahadur aged about 40 years was missing since 15.11.2009. His missing report was submitted at police station on 17.11.2009. While searching, his brother-in-law Shri Ganga Ram and Feran Singh, who used to reside in the vicinity, told him that they had seen Ram Bahadar with Jagdish son of Rameshwar, Prem Chandra son of Jagdish, Raja Ram and Sarvesh on 15.11.2009, who had taken Ram Bahadur from his house. His brother Ram Bahadur and wife of Jagdish namely Desh Rani were having illicit relationship. On the basis of suspicion, the informant Ram Kumar went to the house of Jagdish along with Om Pratap, Dayanand and Babu Ram etc. In the courtyard of the house of Jagdish, they saw some digging earth. They dug the earth on that point at 3:00 pm and the body of deceased Ram Bahadur was recovered from there covered in a jute bag. The body was identified by all the people present there. It is further stated in the report that Jagdish, Prem Chandra, Raja Ram, Sarvesh, Desh Rani and Priyanka had committed the murder of Ram Bahadur and had hidden the dead body under the ground. 3. On the basis of aforesaid written report a Case Crime No. 1734 of 2009 was registered at police station on 17.11.2009 u/s 302, 201, 120B IPC against aforesaid accused persons. 4. The investigation was taken up by SHO Shri Karan Singh, who visited the spot and prepared the site-plan, jute bag covering the body, was taken into custody for which recovery memo was prepared. 4. The investigation was taken up by SHO Shri Karan Singh, who visited the spot and prepared the site-plan, jute bag covering the body, was taken into custody for which recovery memo was prepared. Blood stained axe and stick was recovered on the pointing out of accused Jagdish from the heap of straw from his house. Inquest report was prepared and the dead body was sent for post mortem. Doctor conducted the post mortem on the body of the deceased and prepared post mortem report. The statements of witnesses were recorded by the investigating officer. After completion of investigation, charge sheet was submitted by I.O. against Jagdish, Prem Chandra, Desh Rani, Priyanka and Raja Ram u/s 302, 201 and 120B IPC. Magistrate took the cognizance and committed it to the Court of Sessions because the case was triable exclusively by Court of Sessions. 5. Learned trial court framed charges against all the accused persons u/s 302, 201 and 120B IPC. Accused persons denied the charges and claimed to be tried. 6. The prosecution so as to bring home the charges, framed against the accused, examined the following witnesses: 1. Ram Kumar PW-1 2. Ganga Ram PW-2 3. Dr. Devendra Singh Chauhan PW-3 4. Maheshwar Dayal PW-4 5. Karan Singh PW-5 6. Tribhuvan Singh PW-6 7. Following documentary evidence was filed by prosecution, which was proved by leading evidence: 1. FIR Ex.Ka-5 2. Written Report Ex.Ka-1 3. Application Ex.Ka-3 4. Recovery memo of Bora Ex.Ka-6 5. Recovery memo of blood stained Axe and Stick Ex.Ka 6. P.M. Report Ex.Ka-4 7. Vidhi Vigyan Pryogshala Report Ex.Ka-10 8. Panchayatnama Ex.Ka-2 9. Charge-sheet Ex.Ka-9 9. Site Plan with index Ex.Ka-8 10. Site Plan with index Ex.Ka-5 8. After completion of prosecution evidence, statements of accused u/s 313 of Cr.P.C. were recorded, in which they told that false evidence has led against them. Accused persons produced DW-1 Vinod Kumar and DW-2 Siya Ram in their defense. After hearing the argument of both the parties, learned trial court convicted only appellant accused Jagdish, Prem Chandra and Desh Rani u/s 302, 201, 120B of IPC and awarded sentence accordingly. Rest of accused persons were acquitted by the trial court. Hence, this appeal by the appellants. 9. Heard Shri J.N. Singh, learned Senior Advocate and Shri Ravindra Balkrishna Kanhere, learned counsel for the appellants and Shri N.K. Srivastava, learned AGA appearing on behalf of the State. 10. Rest of accused persons were acquitted by the trial court. Hence, this appeal by the appellants. 9. Heard Shri J.N. Singh, learned Senior Advocate and Shri Ravindra Balkrishna Kanhere, learned counsel for the appellants and Shri N.K. Srivastava, learned AGA appearing on behalf of the State. 10. Learned counsel for the appellants submitted that appellants have been falsely implicated in this case and learned trial court has not made correct appreciation of evidence and on the basis of presumption convicted the appellants, which is contrary to the law. It is further submitted that the alleged incident is said to have taken place as per prosecution case on 15.11.2009, but the missing report was lodged after two days i.e. 17.11.2009 by the informant. But no explanation for delay was mentioned. It is next submitted that mainly this case is based on the last seen. As per prosecution story, Ganga Ram and Feran Singh had seen the deceased in the company of accused persons, namely, Sarvesh, Rajaram, Prem Chandra and Jagdish on 15.11.2009 but this fact is not disclosed by Ganga Ram and Feran Singh to the informant, whose deceased brother was missing while they reside in the vicinity of the house of the informant. 11. Learned counsel for the appellants vehemently submitted that the recovery of dead body of the deceased is said to be made from the house of the accused Jagdish. Another appellant Desh Rani is wife of Jagdish and Prem Chandra is son of Jagdish. Admittedly, at the time of alleged recovery of dead body, the house of the appellants was lying vacant. It is not told by any prosecution witness as to how they did get access in the house of the appellants. In fact, the dead body was recovered somewhere else but it is shown from the house. There is no independent witness of recovery of the dead body. There is no incriminating evidence against them. There is no eye-witness of this case and this case is based purely on circumstantial evidence, but the chain of circumstances is not complete. There was no motive with the accused to commit the murder of the deceased and if somebody will do so why he will bury the dead body in his own courtyard. There is no eye-witness of this case and this case is based purely on circumstantial evidence, but the chain of circumstances is not complete. There was no motive with the accused to commit the murder of the deceased and if somebody will do so why he will bury the dead body in his own courtyard. The house of the appellants said to be visited by PW-1, brother of the deceased and other villagers on the basis of suspicion and they suspected the place by seeing some disturbed earth. This story does not inspire confidence and the villagers in whose presence the place was dug out were not produced as witnesses, who were the best witness to prove the factum of recovery. Hence, the appellants could not get opportunity to cross-examine them. Hence, the story of prosecution with regard to the recovery of dead body from the house of the appellants is concocted. 12. Learned counsel for the appellants also submitted that according to the prosecution case, the weapons i.e. stick and axe, by which the offence was committed, were recovered from the house of the appellants at the instance of appellants Jagdish and Prem Chandra but there is no independent witness of this recovery. 13. Lastly, the submission made by learned counsel for the appellants is that learned trial court has taken the help of Section 106 of Indian Evidence Act for convicting the appellants but the prosecution has not discharged its burden to prove the case first. Absolute burden cannot be put on the shoulder of accused for proving his innocence. Hence, learned trial court has convicted the appellants on the basis of presumptions and without completion of chain of circumstances, which is bad in the eye of law and liable to be set aside. 14. Learned counsel for the appellants placed reliance on the judgment of Apex Court in Joydeb Patra and Others vs. State of West Bengal, (2014) 12 SCC 444 and Murlidhar vs. State of Rajasthan, 2005 Law Suit (SC) 884. 15. Learned AGA opposed the contentions made by the learned counsel for the appellants and submitted that PW-2 Ganga Ram has seen the deceased in the company of accused persons and after that he was not seen alive in the company of anybody else. PW-2 Ganga Ram and Feran Singh had seen the deceased with them last time. 15. Learned AGA opposed the contentions made by the learned counsel for the appellants and submitted that PW-2 Ganga Ram has seen the deceased in the company of accused persons and after that he was not seen alive in the company of anybody else. PW-2 Ganga Ram and Feran Singh had seen the deceased with them last time. It is not necessary for prosecution to produce all the witnesses for the same fact. It is further submitted that the deceased was having illicit relations with the wife of appellant-Jagdish, who is co-accused, namely, Desh Rani. Hence, with this motive in mind, the offence was committed. Moreover, the dead body of the deceased was recovered from the courtyard of the house of the appellants, hence, the burden of proof was on the appellants to prove the fact if they had not committed the offence, how the dead body was found buried in their courtyard. But they had not proved this fact by any evidence. They have simply stated in their statement u/s 313 Cr.P.C. that at the time of recovery, they were not in the house. This is not sufficient explanation. 16. Lastly, it is submitted by learned AGA that the weapons, stick and axe, were recovered at the instance of appellants, hence, chain of circumstances is complete, which indicated that the offence has been committed by the appellants only and learned trial court has not committed any error in convicting the appellants. There is no illegality or infirmity in the impugned judgment, which calls for any interference by this Court. 17. Admittedly, there is no eye-witness of this case. This case is solely based on circumstantial evidence. Prosecution has set up the last seen theory as the informant Ram Kumar had lodged a report in the police station-Tirva, District-Kannauj on 17.11.2009 stating that he had lodged the missing report in the police station on 17.11.2009. After that his brother Ganga Ram and Feran Singh has told him that on 15.11.2009 at about 9:00 pm they had seen the deceased Ram Bahadur in the company of accused Jagdish, Prem Chandra, Rajaram and Sarvesh, who had taken him from his house. Apart from it, motive is also mentioned in the aforesaid report by stating that his deceased brother Ram Bahadur and wife of Jagdish, namely, Desh Rani were in illicit relationship. 18. First of all, we come to the motive. Apart from it, motive is also mentioned in the aforesaid report by stating that his deceased brother Ram Bahadur and wife of Jagdish, namely, Desh Rani were in illicit relationship. 18. First of all, we come to the motive. Prosecution has set up the motive that the co-accused Desh Rani, who is wife of Jagdish, was having illicit relationship with the deceased Ram Bahadur. To prove this fact PW-1 Ram Kumar and PW-2 Ganga Ram have deposed in their respective statements. PW-1 Ram Kumar has deposed in his testimony that deceased Ram Bahadur and Desh Rani were having illicit relationship since last 4-5 years but further he says that this fact was not in his knowledge and later on he admitted that this is true that he was giving this statement on telling by others. It means he was not having personal knowledge that accused Desh Rani and deceased Ram Bahadur were in illicit relationship. PW-2 Ganga Ram has stated in his examination-in-chief that accused persons murdered Ram Bahadur because he was having illicit relations with Desh Rani but in his cross-examination he has specifically deposed that Ram Bahadur used to go to the house of the Desh Rani but he has no personal knowledge that he was having illicit relations with Desh Rani. No other witness of fact is produced by the prosecution. Hence, only two witnesses PW-1 and PW-2 are produced and both have stated categorically that they were not having personal knowledge with regard to the fact that Desh Rani and deceased were having any illicit relations. Hence, the motive, as set up by the prosecution, fails and when the motive is failed then it creates a great dent in the prosecution case and doubt emerges as to why the person would commit offence like murder without any motive and thus, the averment made in the report to the police regarding motive, is not proved by the prosecution and first of all chain of circumstances breaks here. 19. Now comes the theory of “last seen” according to the prosecution case, two persons, namely, Ganga Ram and Feran Singh had seen last time the deceased in the company of accused persons on 15.11.2009 at 9:00 pm. Feran Singh is not examined by the prosecution. Only Ganga Ram is examined as PW-2. He has supported the fact of last seen in his examination-in-chief. Feran Singh is not examined by the prosecution. Only Ganga Ram is examined as PW-2. He has supported the fact of last seen in his examination-in-chief. But in his cross-examination, he has admitted the fact that from 15.11.2019 to 18.11.2009, he continuously lived in the village but went no where in search of deceased and not even he had gone to his house. While in his cross-examination, PW-1 Ram Kumar has admitted that PW-2 Ganga Ram was his real brother-in-law and his house is just 10 metres away from the house of the Ganga Ram. It is further stated by PW-1 Ram Kumar that in the night of 15.11.2009 itself this matter was in the air that Ram Bahadur is missing and on 16.11.2009 (next day) this news was in the air in the entire village. In such circumstances and situation, the fact of last seen is not told by PW-2 Ganga Ram to informant or anybody else in the entire village, while he was real brother-in-law of the informant and everybody in the village was knowing that deceased was missing. Hence, the theory of last seen cannot be believed. This theory of last seen does not inspire confidence because it is not worth believing that a real brother-in-law will not tell the fact of last seen to the informant when he resides just 10 metres away from the house of the informant and the search of missing Ram Bahadur was going on. In this way, the chain of circumstances breaks here also. 20. Learned trial court has taken the recourse of Section 106 of Indian Evidence Act and held that since the dead body was recovered from the court yard of the appellants, the burden shifts on them to prove the factum of murder but this is not the legal position. 21. Section 106 of Indian Evidence Act read as under: 106. Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations: (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. 22. Illustrations: (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. 22. The aforesaid provision of Section 106 of Indian Evidence Act does not absolve the prosecution from his burden to prove its case. The burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution. It is only when this burden is discharged, the accused could be called on to prove any fact within his special knowledge u/s 106 Indian Evidence Act to establish that he was not guilty of the offence. In the case in hand, it is admitted fact by the prosecution that when the dead body of the deceased was dug out and recovered from the courtyard of appellants, appellants were not in the house. Although, the PW-1 has stated in his second statement when he was cross-examined by co-accused Sarvesh that at the time of recovery of dead body, accused Desh Rani and Priyanka were present there. But this statement was not given by him in his first statement when he was cross-examined by other co-accused persons and this fact cannot be believed that also due to reason that if they both were present there, they must have been arrested or apprehended. But they were not arrested from their house. This fact supported by the PW-2. It is not disputed that the house of appellants was vacant when the dead body was recovered. Hence, the prosecution could not discharge its burden as to how the dead body of the deceased was buried in the house of the appellants and when the house of appellants was vacant, they could not be called on to prove their innocence or to establish any fact, which could have been in their special knowledge. Hence, Section 106 of Indian Evidence Act has no applicability in this case. 23. The recovery of weapons, i.e. stick and axe is said to be made at the instance of appellants Jagdish and Prem Chandra. Hence, Section 106 of Indian Evidence Act has no applicability in this case. 23. The recovery of weapons, i.e. stick and axe is said to be made at the instance of appellants Jagdish and Prem Chandra. It is a case of prosecution that the stick was recovered on the pointing out of appellant Jagdish and axe was recovered at the pointing out of appellant Prem Chandra from the heap of straw in their house. Recovery memo of aforesaid weapons is Ext. Ka7, which has no independent witness. The recovery officer has stated in his statement during trial that no independent person was ready to become the witness of recovery. If this statement is believed even then the police personnel who were the witnesses of recovery, were also not examined during trial. Hence, the aforesaid recovery is very much doubted. 24. Learned trial court has convicted the appellants on the basis of circumstantial evidence. 25. There is no doubt that conviction can be based solely on the circumstantial evidence. But it should be tested on the touchstone of the law relating to circumstantial evidence. Apex Court in C. Chenga Reddy and Others vs. State of A.P. (1996) 10 SCC 193 , held as under: “21. 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 [pic] 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.” 26. After referring to a catena of cases based on circumstantial evidence in Shivu and Another vs. Registrar General, High Court of Karnataka and Another, (2007) 4 SCC 713 , Apex Court held as under: “12. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. [See: Hukam Singh vs. State of Rajasthan, (1977) 2 SCC 99 , Eradu vs. State of Hyderabad, AIR 1956 SC 316 , Earabhadrappa vs. State of Karnataka, (1983) 2 SCC 330 , State of U.P. vs. Sukhbasi, 1985 (Supp.) SCC 79, Balwinder Singh vs. State of Punjab, (1987) 1 SCC 16 and Ashok Kumar Chatterjee vs. State of M.P. 1989 Supp. (1) SCC 560] The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab, AIR 1954 SC 621 , it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.” 27. In Padala Veera Reddy vs. State of A.P. and Others, 1989 Supp. (2) SCC 706, it was laid down that in a case of circumstantial evidence such evidence must satisfy the following test: “(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. (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 vs. State of Maharashtra, (1982) 2 SCC 351 ].” 28. In our case, prosecution has failed to prove the motive. The factum of last seen is also not proved by any cogent evidence. [See: Gambhir vs. State of Maharashtra, (1982) 2 SCC 351 ].” 28. In our case, prosecution has failed to prove the motive. The factum of last seen is also not proved by any cogent evidence. Recovery of weapons alleged to be used in commission of crime, is also not proved. Hence, the chain of circumstances could not be formed and so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the appellants and none else. Hence, learned trial court has committed a grave error in convicting the appellants on the basis of circumstantial evidence. 29. As far as the concept of Section 106 of Indian Evidence Act is concerned, that is misread by the learned trial Judge because when the offence like murder is committed in secrecy inside the house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 Indian Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quite and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty challenge on the accused to offer. Then the initial burden of proving that, as on the date of the alleged incident, the accused was present in the house of lastly seen with the deceased or that he was lastly in the company of the deceased at the time of the incident would be primarily upon the prosecution but in our case, prosecution has failed to prove the factum of last seen and as held above prosecution could not also prove the fact that after the deceased went missing, the appellants were in their house because it is proved on record that the house of appellants was vacant. Otherwise it was not possible for informant and other villagers to dig out the courtyard of the appellants and it is also not prosecution case that appellants were present in their house. 30. Otherwise it was not possible for informant and other villagers to dig out the courtyard of the appellants and it is also not prosecution case that appellants were present in their house. 30. In view of aforesaid discussion, we are of the considered view that in this case there is no applicability of Section 106 Indian Evidence Act and the chain of circumstances is not so complete as to indicate that offence was committed by the appellants only and none else. Chain of circumstances is broken on several stages with regard to motive, factum of last seen and recovery of alleged weapons. 31. Hence, learned trial Judge has committed error in convicting and sentencing the appellants for the offences u/s 302, 201, 120B IPC. Hence, we upturn the impugned judgment and appeal is liable to be allowed. 32. Appeal is allowed accordingly. 33. Conviction and sentence of appellants Jagdish, Prem Chandra and Desh Rani is set aside and they are acquitted of all the charges framed against them. Jagdish is in jail. He be set free forthwith if not wanted in any other case. Appellants-Prem Chandra and Desh Rani are on bail. Their personal bonds are cancelled and sureties are discharged. 34. Record and proceedings be sent back to the court below.