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2022 DIGILAW 23 (UTT)

Jayendra Singh Morya v. State of Uttarakhand

2022-02-24

N.S.DHANIK, S.K.MISHRA

body2022
JUDGMENT : S.K. Mishra, J. 1. The appellants Jayendra Singh Maurya and Mukesh Kumar have been convicted for the offences under Sections 302 read with Sections 34, 394 and 411 IPC, (hereinafter referred to as ‘the Penal Code’, for brevity), and sentenced them to imprisonment for life along with fine of Rs. 2000/- with default stipulation; five years rigorous imprisonment for the offence under Section 394 IPC with default stipulation; one year’s rigorous imprisonment for the offence under Section 411 IPC with default stipulation. 2. The appellants Jayendra Singh Maurya and Mukesh Kumar having been convicted under Sections 302, 394 and 411 of the Indian Penal Code, 1860 have challenged their conviction and sentence of imprisonment for offence under Sections 302/34, 394 and 411 IPC by the learned 2nd Additional Sessions Judge, Rudrapur, District Udham Singh Nagar in Sessions Trial No. 188 of 2006. 3. The prosecution case, in brief, is that on 28.04.2006, the complainant Vishal Anand S/o Shri Preetam Singh, R/o of Vindsar Academy, Bhadaeepura, Kichha Road, Rudrapur, District Udham Singh Nagar submitted a written FIR before the Police Station Kichha that the applicant’s school ‘The Archard Awas Vikas’ is in Kichha’. On 19.07.2006, the complainant Vishal Anand had given work of chowkidar (Guard) to one Arjun Kumar S/o late Sohan Lal in the school as his old chowkidar had gone to his home on leave. On 28.04.2006 morning at 7:00, the complainant’s Driver Veerpal S/o Ram Bharose went to the school in order to bring a Maruti Van, then he found the school gate to be locked. He called the deceased and knocked the door but did not get any answer. Out of suspicion, he called the complainant. The complainant arrived at the school and found that the school gate was locked from outside. Then he asked to driver to scale over and inter in the school wherefrom he found that the deceased has been murdered. On the basis of such FIR (Ext.A-12) was registered. After registration of the FIR, the investigating officer took up investigation of the case. In course of investigation, he held inquest of the dead body of the deceased, seized material objects from the spot, sent the dead body for post mortem examination, recorded statements of the material witnesses, arrested the accused and on their discovery statements he recovered one mobile phone and one inverter battery. In course of investigation, he held inquest of the dead body of the deceased, seized material objects from the spot, sent the dead body for post mortem examination, recorded statements of the material witnesses, arrested the accused and on their discovery statements he recovered one mobile phone and one inverter battery. Finding a prima facie case, the Investigating Officer submitted charge-sheet against the appellants under Section 302/34, 394 and 411 of the penal code. The appellants took the plea of simple denial and false implication by the prosecution. In order to prove its case, the prosecution examined 11 witnesses including the Investigating Officer and the Medical Officer, who conducted the post-mortem of the deceased. The prosecution also relied upon several documents. The defence taking the plea of alibi and two witnesses were examined on its behalf. 4. The prosecution in this case relied only on circumstantial evidences. The three circumstances that have been argued to have been relied and accepted as such by the learned Additional Sessions Judge are follows : (i) The homicidal death of the deceased. (ii) The recovery of the mobile phone on the recovery statement of the appellant no.1 Jayendra Singh Maurya and, (iii) The recovery of inverter battery from the joint statements of both the appellants Jayendra Singh Maurya and Mukesh Kumar. 5. In assailing the conviction of the appellants, Mr. Nandan Arya, learned counsel for the appellants would argue that in this case, the circumstances have not established fully and a chain of circumstances is not forming to come to the conclusion that the prosecution has established its case beyond all reasonable doubts. He also submitted that the recovery statements and the recovery of the mobile-phone as well as the battery are also not fully established to make it admissible under Section 27 of the Indian Evidence Act, 1872 (for short, hereinafter referred to as the Act). However, Mr. Nandan Arya has not disputed the medical evidence available of this case and the conclusion of the learned Additional Sessions Judge that the death of the deceased was homicidal in nature. 6. Mr. J.S.Virk, learned Deputy Advocate General, on the other hand, submits that the recoveries of the mobile-phone and the battery are sufficient to prove the case of the prosecution. According to learned Deputy Advocate General, the prosecution has proved its case beyond all reasonable doubts. 6. Mr. J.S.Virk, learned Deputy Advocate General, on the other hand, submits that the recoveries of the mobile-phone and the battery are sufficient to prove the case of the prosecution. According to learned Deputy Advocate General, the prosecution has proved its case beyond all reasonable doubts. So, there is no need to interfere in judgement and conviction order of the sentence. 7. Admittedly, the death of the deceased was homicidal in nature. There is no dispute to the same from the side of the appellant. There is no need to have a detailed analysis of the evidence available on record as far as this aspect is concerned. 8. As far as the proof of guilt of the appellants are concerned, the prosecution relies upon the circumstantial evidence and Hon’ble the Supreme Court has time and again has laid down consistent rules of evidence for appreciation of evidence in a case based entirely on the circumstantial evidence. The most of quoted judgement is Sharad Birdhichand Sarda vs. State, (1984) 4 SCC 116 , wherein the Hon’ble Supreme Court has laid down the 5 golden principals in appreciation of circumstantial evidence. It is appropriate on our part to take note of the exact words used by the Hon’ble Apex Court in the aforesaid case, which are as follows : (i) 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. It may be noted here that this Court indicated that the circumstances concerned “must of should” and not “bay 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 and another vs. State of Maharastra 1973 2 SCC 793 where the observations were made. (ii) 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. (iii) The circumstances should be of a conclusive nature and tendency. (iv) They should exclude every possible hypothesis except the one to be proved. (iii) The circumstances should be of a conclusive nature and tendency. (iv) They should exclude every possible hypothesis except the one to be proved. (v) 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. 9. Analyzing this case, in the light of the observations made by the Hon’ble Supreme Court in Sharad Birdhichand Sarda (supra), this Court is of the opinion that only one circumstance that is recovery of two articles has been sought to be established by the prosecution it this case, so there is no chain of circumstances un-erringly pointing towards the guilt of the appellants. 10. Moreover, in the locus classicuss judgement of the Privy Council in the case of Pulukuri Kottaya and others vs. King Emperor, A.I.R. (34) 1947 Privy Council 67, the Hon’ble Privy Council held that Section 27 provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. It further laid down that the condition necessary to bring the section into operation is that the discovery of a fact in consequence of the information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The Privy Council further held the sections seems to be based on a view that if a fact is actually discovered in consequence of the information given, some guaranty is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the facts discovered to which such information is required to relate. Privy counsel further held that normally the section is brought into operation when a person in police custody produces from some place of concealment, some object, such as a dead body, a weapon or ornament, said to be connected with the crime of which the informant is accused, is said to be connected with the crime with this information is received. 11. 11. Thus, three apparent essential conditions are required to be satisfied in order to hold that the statement made by the accused in police custody that led to discovery of an object as admissible under Section 27 of the of the Indian Evidence Act they are : (i) The person making the statement is accused of an offence and is in police custody. (ii) On his disclosure a fact is recovered (such fact may be an object). (iii) The (fact) object so recovered is connected to the crime. 12. The prosecution has not led any evidence that the battery was involved in the crime or that it belonged to the deceased just before his death or that he guarding it just before this death. Recovered battery has never been connected with the crime of murder of the deceased. 13. As far as the recovery of the mobile phone is concerned, it was not established by the prosecution that the SIM card that was being used in that mobile phone was allotted to the deceased. The Investigating Officer also did not determine the IMEI number of the mobile phone to connect with the deceased. These two aspects could have been taken by the Investigating Officer and it could have been conclusively established that the mobile phone recovered at the instance of appellant no.1 was being used by the deceased. So there is singular lack of evidence in this case to connect the mobile phone with the crime by establishing that it was owned, possessed and used by the deceased immediately before the before the crime was committed. It is also argued by Mr. Virk, learned counsel for the State that there was tracking of the mobile call and in consequence thereof, the appellant no.1 was arrested and the mobile was seized. 14. However, it is seen that there is non-compliance of sub-section (4) of Section 65B of the Indian Evidence Act. For the purpose of proper appreciation, the relevant portion of Section 65B of the Evidence Act is quoted below : 65B. Admissibility of electronic records.- (1).......................... (2).......................... (3).......................... 14. However, it is seen that there is non-compliance of sub-section (4) of Section 65B of the Indian Evidence Act. For the purpose of proper appreciation, the relevant portion of Section 65B of the Evidence Act is quoted below : 65B. Admissibility of electronic records.- (1).......................... (2).......................... (3).......................... (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,— (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5).............................” 15. Thus, it is apparent from the aforesaid provision that in order to introduce any statement relating to electronic evidence a certificate of any of the following are to be produced by the party relying on it. They are : (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, 16. Thus, there is singular lack of evidence in this case connecting both the recovered articles i.e. the battery used in the inverter and the mobile phone allegedly belonging to the deceased from the possession of the appellants and the prosecution has failed to establish the recoveries as one of the circumstance. Thus, there is singular lack of evidence in this case connecting both the recovered articles i.e. the battery used in the inverter and the mobile phone allegedly belonging to the deceased from the possession of the appellants and the prosecution has failed to establish the recoveries as one of the circumstance. In that view of the matter, as there is no other circumstance, this Court is of the opinion that the learned Additional Sessions Judge committed error of record by convicting the appellant for the offence under Sections 302/34, 395 and 411 IPC. Therefore, the appeal is allowed. The judgment of conviction and order of sentence are hereby set aside. The appellants are acquitted of the offences, for which, they have been convicted. They are on bail. They be set at liberty forthwith by cancelling their bail bonds.