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2022 DIGILAW 1848 (ALL)

Akloo Chauhan v. State of Uttar Pradesh

2022-11-23

NALIN KUMAR SRIVASTAVA, PRITINKER DIWAKER

body2022
JUDGMENT : Pritinker Diwaker, J. 1. This death reference was made to this Court under Section 366 of the Criminal Procedure Code, 1973 (in short 'Cr PC') for confirmation of death sentence passed against the appellants. The appeal of accused preferred under Section 374 (2) Cr.P.C and the death reference are heard together and this judgment will govern the disposal of both the death reference and the appeal preferred by the appellants. 2. This death reference and the capital case arise out of the judgment and order dated 06.12.2021 passed by the Court of Additional District & Sessions Judge/FTC, Court No.1, Mau in Sessions Trial No. 209/2009 arising out of Crime No. 437 of 2009 & Sessions Trial No. 210 of 2009 arising out of Crime No. 485 of 2009 in which, accused/appellants herein were tried, found guilty, convicted and sentenced to undergo death sentence with a fine of Rs.10,000/-, in default of payment of fine, the same was to be recovered as arrears of land revenue. 3. As per prosecution case, on or about 17.03.2009, some goats belonging to accused appellant Akloo Chauhan, entered the agricultural field of complainant Tulsi Gupta and damaged his crops. Those goats were driven out by the complainant by throwing some stones towards them. It is said that some of the goats got injured and out of them, one died as a result of which accused Akloo Chauhan and his son Jai Chand got annoyed with the complainant and he was held responsible for the death of the said goat. That apart, there was some land dispute also between the two families. On 17.03.2009 in the evening, when Ram Sanehi father of the was sleeping near the village tube well and the second deceased Pabbar Maurya was also sleeping near his tube well, accused appellant Akloo Chauhan, Jai Chand, Befu Chauhan (since deceased) and Ram Saran Chauhan, who were relatives amongst each others, reached there and caused the death of his father Ram Sanehi and Pabbar Maurya by causing gun shot injuries. A strong suspicion has been shown by the complainant upon accused persons and when he reached to the place of occurrence, he found two dead bodies lying there. Based on this offence, FIR under Sections 302 & 404 of I.P.C. was registered against the accused Akloo Chauhan, Jai Chand, Befu Chauhan and Ram Saran Chauhan. 4. A strong suspicion has been shown by the complainant upon accused persons and when he reached to the place of occurrence, he found two dead bodies lying there. Based on this offence, FIR under Sections 302 & 404 of I.P.C. was registered against the accused Akloo Chauhan, Jai Chand, Befu Chauhan and Ram Saran Chauhan. 4. Inquest on the dead body of the deceased was conducted, vide Ex.Ka.6 & Ex.Ka.11 on 18.03.2009 and the bodies were sent for postmortem, which was conducted on the same day, vide Ex.Ka.2 & Ex.Ka.3 by PW-5 Dr. S.P. Yadav. As per Autopsy Surgeon, deceased Ram Sanehi suffered four injuries vide Ex.Ka.2, whereas other deceased Pabbar Maurya suffered ten injuries vide Ex.Ka.3. As per Autopsy Surgeon, cause of death of the two deceased was coma as a result of ante mortem injuries. 5. While framing charge, trial Judge has framed charge against the accused-appellants under Sections 302/34 & 404 of IPC, whereas separate charge under Section 4/25 of Arms Act has also been framed against the accused Jai Chand. 6. During trial, accused Befu Chauhan had expired and the trial court proceeded with the trial in respect of appellants Akloo Chauhan, Jai Chand and Ram Saran Chauhan. 7. So as to hold accused appellants guilty, prosecution has examined seven witnesses, whereas one Court witness has also been examined. Statement of the accused-appellants were recorded under Section 313 of Cr.P.C. in which, they pleaded their innocence and false implication. 8. By the impugned judgment and order, the trial Judge has convicted the appellants under Sections 302/34 of I.P.C. and has awarded death sentence, as mentioned in paragraph-2 of this judgment, whereas accused appellant Jai Chand has been acquitted of the offence under Section 4/25 of Arms Act. Hence this appeal. 9. Counsel for the appellants submits : (i) that there is no eyewitness account to the incident and the appellants have been convicted solely on the basis of so called evidence of last seen. (ii) that disbelieving the recovery part, accused-appellant Jaichand has already been acquitted by the trial court of the offence under Section 4/25 of the Arms Act. (iii) that there is material contradictions between the ocular evidence and the postmortem reports of the deceased. (ii) that disbelieving the recovery part, accused-appellant Jaichand has already been acquitted by the trial court of the offence under Section 4/25 of the Arms Act. (iii) that there is material contradictions between the ocular evidence and the postmortem reports of the deceased. (iii) that, at least, no case for death sentence has been made out by the prosecution and the trial court has erred in law in awarding the death sentence to the appellants. (iv) that the basic principles governing the law of awarding death sentence have been completely ignored by the trial judge. (v) that during trial, the appellants were on bail and now they are in jail since the date of judgment. 10. On the other hand, supporting the impugned judgment and order of the trial Court, it has been argued by the State Counsel:- (i) that the conviction of the appellants is in accordance with law and there is no infirmity in the same. (ii) that the evidence of last seen by PW-2 Kanhaiya Gupta and PW-3 Sanjay Gupta is good enough to uphold the conviction of the appellants as has been done by the trial Judge. (iii) that after seeing the murder of first deceased Ram Sanehi but for no fault of other deceased Pabbar Maurya, he has been killed. (iv) that the trial court was justified in awarding the death sentence to the accused persons. 11. We have heard learned counsel for the parties and perused the record. 12. PW-1 Tulsi Gupta, is the son of deceased Ram Sanehi and he is also the informant. He has stated that about a week prior to the date of incident, goat of accused Akloo Chauhan had entered his agricultural field and damaged the crop. He threw sand stones towards the said goat, resulting its death. On account of this incident, accused Akloo Chauhan and his son Jai Chand were making allegations against him that it is because of his beating, the said goat has died. He states that even prior to this incident also, there was land dispute between his family and accused Akloo, Befu and Ram Saran. He states that it is he who lodged the FIR Ex.Ka.-4. In the cross examination, this witness remained firm and nothing could be elicited from him, which may be of any help to the accused persons. 13. He states that even prior to this incident also, there was land dispute between his family and accused Akloo, Befu and Ram Saran. He states that it is he who lodged the FIR Ex.Ka.-4. In the cross examination, this witness remained firm and nothing could be elicited from him, which may be of any help to the accused persons. 13. PW-2 Kanhaiya Gupta, is a chance witness, has seen the accused persons near the place of occurrence. However, he had not seen the appellants killing the two deceased. 14. P.W-3 Sanjay Gupta, has stated that when he was returning from his field near tube well, he heard scream and in the light of tube well, he saw the accused persons beating the deceased by knife, club and, rod. He states that on account of fear, he did not interfere and that he was subjected to threat by the accused persons. In the cross examination, this witness has, however, stated that he had not seen the appellants killing the two deceased and merely saw them coming out from the tube well. 15. P.W-4 Indu, wife of the first informant, is a hearsay witness and has admitted the fact that she had not seen anything. 16. P.W-5 Dr. S.P. Yadav, conducted the post mortem on the body of the two deceased vide Ex.Ka-2 and Ex. Ka-3. As per Autopsy Surgeon, cause of death of the two deceased was coma as a result of ante mortem injuries. 17. P.W.6 Dhurendhar Prasad is a scribe of the FIR and G.D. P.W.7 Yashpal Singh, is the Investigating Officer, who has duly supported the prosecution. 18. It is relevant to note that recovery part has been disbelieved by the trial Judge. 19. Court witness No.1 Aadesh Srivastava has been examined to confirm the death of accused Befu Chauhan. 20. Close scrutiny of the evidence makes it clear that in the night invervening 17/18.3.2009, Ram Sanehi and Pabbar Maurya were done to death by some persons, causing various injuries on their body. Though an attempt has been made by the prosecution to establish a case against the appellants for committing the said offence, but except the evidence of alleged last seen of P.W.2 Kanhaiya Gupta and P.W.3 Sanjay Gupta, there is no other legally admissible evidence showing the involvement of the appellants in committing the offence. Though an attempt has been made by the prosecution to establish a case against the appellants for committing the said offence, but except the evidence of alleged last seen of P.W.2 Kanhaiya Gupta and P.W.3 Sanjay Gupta, there is no other legally admissible evidence showing the involvement of the appellants in committing the offence. Even the statement of P.W.2 and P.W.3 does not make it very clear as to the involvement of the appellants in committing the offence. 21. P.W.2 Kanhaiya Gupta, has been examined as chance witness and his presence at the place of occurrence has not been established by the prosecution beyond all reasonable doubt, whereas P.W.3 Sanjay Gupta, who is said to be an eye witness account to the incident, has categorically denied the fact that he saw the accused persons killing the two deceased, namely, Ram Sanehi and Pabbar Maurya. He says that he merely saw the accused persons coming out from the tube well. He further states that he never informed the family members of Pabbar Maurya that it is the accused appellants, who killed him. Even the seizer of sabbal and knife has not been proved by the prosecution as per law. This apart, there is no FSL report supporting the case of the prosecution that those weapons have been used for causing injuries to the deceased. 22. Taking cumulative effect of the evidence, we are of the view that the prosecution has failed to prove its case beyond all reasonable doubt that it is the appellants, who committed the murder of Ram Sanehi and Pabbar Maurya. 23. The law in respect of conviction, based on circumstantial evidence, is very clear. 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. …... 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 A.P. [(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.” 24. In Devi Lal vs. State of Rajasthan, (2019) 19 SCC 447 the Supreme Court, while dealing with circumstantial evidence, observed as under : 16. 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: (SC p.807, para 19) "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." 17. It has further been considered by this Court in Sujit Biswas Vs. State of Assam 2013 (12) SCC 406 and Raja alias Rajinder Vs. State of Haryana 2015(11) SCC 43 . It has been propounded 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. 18. 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. 18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof. 19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same." 25. Recently, the Supreme Court in Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh, 2022 SCC OnLine SC 1396, decided on 13.10.2022. while referring to the previous judgements on the question of circumstantial evidence, observed in paras 105, 106 and 117 as under:- “105. Addressing this aspect, however, is the following extract also from the same treatise “The Law of Evidence” fifth edition by Ian Dennis at page 483: “Where the case against the accused depends wholly or partly on inferences from circumstantial evidence, fact-finders cannot logically convict unless they are sure that inferences of guilt are the only ones that can reasonably be drawn. If they think that there are possible innocent explanations for circumstantial evidence that are not “merely fanciful”, it must follow that there is a reasonable doubt about guilt. If they think that there are possible innocent explanations for circumstantial evidence that are not “merely fanciful”, it must follow that there is a reasonable doubt about guilt. There is no rule, however, that judges must direct juries in terms not to convict unless they are sure that the evidence bears no other explanation than guilt. It is sufficient to direct simply that the burden on the prosecution is to satisfy the jury beyond reasonable doubt, or so that they are sure. The very high standard of proof required in criminal cases minimises the risk of a wrongful conviction. It means that someone whom, on the evidence, the fact-finder believes is “probably” guilty, or “likely” to be guilty will be acquitted, since these judgments of probability necessarily admit that the fact-finder is not “sure”. It is generally accepted that some at least of these acquittals will be of persons who are in fact guilty of the offences charged, and who would be convicted if the standard of proof were the lower civil standard of the balance of probabilities. Such acquittals are the price paid for the safeguard provided by the “beyond reasonable doubt” standard against wrongful conviction.” [Emphasis supplied] 106. We must remind ourselves of what this Court observed in the case of Shankarlal Gyarasilal Dixit v. State of Maharashtra reported in (1981) 2 SCC 35 . We quote as under: “32. …..But, while formulating its own view the High Court, with respect, fell into an error in stating the true legal position by saying that what the court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond the “shadow of doubt”. In the first place, “shadow of doubt”, even in cases which depend on direct evidence is shadow of “reasonable” doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypotheses is far more rigorous than the test of proof beyond reasonable doubt.” [Emphasis supplied] xxx xxx xxx 117. Thus, none of the pieces of evidence relied on as incriminating by the courts below, can be treated as incriminating pieces of circumstantial evidence against the accused. Secondly, in its practical application, the test which requires the exclusion of other alternative hypotheses is far more rigorous than the test of proof beyond reasonable doubt.” [Emphasis supplied] xxx xxx xxx 117. Thus, none of the pieces of evidence relied on as incriminating by the courts below, can be treated as incriminating pieces of circumstantial evidence against the accused. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. In Shankarlal Gyarasilal (supra), this Court cautioned -“human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions”. This Court has held time and again that between “may be true” and “must be true” there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict. [See Ashish Batham v. State of M.P., (2002) 7 SCC 317 ].” 26. Likewise, law in respect of suspicion is also clear. In Ram Niwas Vs. State of Haryana, 2022 SCC OnLine SC 1007, decided on 11.08.2022., it has been held by the Supreme Court that suspicion, howsoever strong it may be, cannot take the place of proof beyond reasonable doubt and 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. 27. In Jaikam Khan Vs. State of Uttar Pradesh, 2021 SCC OnLine SC 1256, decided on 15.12.2021, the Supreme Court observed as under : “85. ... ... ... The law, however, that is fully settled, is that, it is the duty of the prosecution to prove the case beyond reasonable doubt. 86. 27. In Jaikam Khan Vs. State of Uttar Pradesh, 2021 SCC OnLine SC 1256, decided on 15.12.2021, the Supreme Court observed as under : “85. ... ... ... The law, however, that is fully settled, is that, it is the duty of the prosecution to prove the case beyond reasonable doubt. 86. We may gainfully refer to the following observations of this Court in the case of Anand Ramchandra Chougule v Sidarai Laxman Chougala (2019) 8 SCC 50 : “10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt. 11. The fact that a defence may not have been taken by an accused under Section 313 CrPC again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422 : (2013) 2 SCC (Cri) 427, this Court observed: (SCC pp. 433-34, para 28) “28. … When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt.”” 87. We, therefore, find that the prosecution has utterly failed to prove the case beyond reasonable doubt. The conviction and death sentence imposed on the accused is totally unsustainable in law.” 28. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt.”” 87. We, therefore, find that the prosecution has utterly failed to prove the case beyond reasonable doubt. The conviction and death sentence imposed on the accused is totally unsustainable in law.” 28. Considering the above proposition of law and in the facts and circumstances of the present case, we are of the view that the appellants are entitled for the benefit of doubt and, therefore, they are acquitted of all the charges. 29. For the foregoing reasons, we have no hesitation in holding that the prosecution has failed to prove the charges beyond reasonable doubt for which the accused-appellants was tried and, therefore, the judgment and order of the court below is liable to be set aside. As a result whereof, the reference to affirm the death penalty is rejected. The appeal of the appellants is allowed. The judgment and order of the trial court is set aside. The appellants are acquitted of all the charges for which he has been tried and convicted. The appellants shall be released from jail forthwith, unless wanted in any other case, subject to compliance of the provisions of 437-A Cr.P.C. to the satisfaction of the trial court below. 30. Let a copy of this order along with the record be sent to the court below for information and compliance.