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2022 DIGILAW 233 (UTT)

Manish Chaudhary v. State of Uttarakhand

2022-07-28

ALOK KUMAR VERMA, SANJAYA KUMAR MISHRA

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JUDGMENT : (Alok Kumar Verma, J.) 1. These three Criminal Appeals have been filed by the appellants against a common judgment dated 16.04.2014/17.04.2014, passed by the learned District and Sessions Judge, Haridwar in Sessions Trial No. 55 of 2010, “State of Uttarakhand vs. Manish Chaudhary and Another”, Sessions Trial No. 274 of 2008, “State of Uttarakhand vs. Avinash alias Munnu”, and, in Sessions Trial No. 275 of 2008, “State of Uttarakhand vs. Avinash alias Munnu”. 2. The appellant Manish Chaudhary has been convicted and sentenced to undergo imprisonment for life along with a fine of Rs. 5,000/- for the offence punishable under Section 302 read with Section 120B of the Indian Penal Code (in short, “IPC”), and, he has been further convicted and sentenced to undergo rigorous imprisonment for a period of seven years along with a fine of Rs. 5,000/- for the offence punishable under Section 201 IPC with default imprisonment in Sessions Trial No. 55 of 2010. 3. The appellant Avinash alias Munnu has been convicted and sentenced to undergo imprisonment for life along with a fine of Rs. 5,000/- for the offence punishable under Section 302 read with Section 120B of IPC, and, he has been further convicted and sentenced to undergo rigorous imprisonment for a period of seven years along with a fine of Rs. 5,000/- for the offence punishable under Section 201 IPC with default imprisonment in Sessions Trial No. 274 of 2008. 4. The appellant Avinash alias Munnu has been convicted and sentenced to undergo rigorous imprisonment for a period of one year along with a fine of Rs. 1,000/- for the offence punishable under Section 25 of the Arms Act, 1959 with default imprisonment in Sessions Trial No. 275 of 2008. 5. These three Criminal Appeals are connected appeals, therefore, these appeals are being decided by this common judgment. 6. Briefly stated the prosecution case as it emerges from re-appreciation of the evidence on record is that, on 26.05.2007, on receipt of an information from Mahesh Kumar (PW16), the then Gram Pradhan, regarding the recovery of an unidentified dead body, Rajeev Rauthan (PW10) reached the spot and initiated the inquest proceedings. The post-mortem examination of the unknown dead body, aged about 38 years, was conducted by Dr. R.S. Chauhan (PW6) on 27.05.2007 at 3:10 p.m. 7. According to Dr. The post-mortem examination of the unknown dead body, aged about 38 years, was conducted by Dr. R.S. Chauhan (PW6) on 27.05.2007 at 3:10 p.m. 7. According to Dr. R.S. Chauhan, death was caused from the firearm and the deceased died about one and a half days before the post-mortem examination. He handed over the Kurta, Pajama, Underwear and a metallic Chain, worn by the deceased, and two bullets, recovered from the dead body, to the police. 8. On 27.05.2007, a written information (Ext.Ka-1) was given by the informant Rishi Pal (PW1) to the Police Station Bahadrabad, District Haridwar that on 25.05.2007, his twin brother Krishna Pal alias Lala (deceased) along with his four friends, namely, Pramod (PW2), Shekhar (PW7), Narendra alias Dhapa (PW14) and Anang Pal (PW3) went to Roorkee in Anang Pal’s car to meet Avinash alias Munnu (appellant). Krishna Pal had informed Avinash on his (Avinash) mobile phone no. 9759171736 that he was coming to Roorkee and asked him when he (Avinash) could meet him. After some time, Avinash reached Roorkee in a Maruti car. There were also three unknown persons in that Maruti car. There was some conversation between Krishna Pal and Avinash and after that Krishna Pal sat in Avinash’s car. Anang Pal was asked to come with his car behind his (Avinash) car. After this, they started going by car from the side of the canal on the way to Kaliyar at around 9:30 p.m. After going some distance from the car, Avinash asked Anang Pal and his (Anang Pal) other companions to stay at the farm house and took Krishna Pal and his (Avinash) companions in his car. After some time, Anang Pal was called from Krishna Pal’s phone that the Police had been raided, and he was asked to run away from the farm house. Anang Pal went to Muzaffarnagar with his friends. When Krishna Pal did not reach his house on 26.05.2007, he was searched. Rajbeer (PW4) and Kanwar Pal (PW5) told to the informant that they were going from Haridwar to their village on their motorcycle, when they reached Haridwar- Bahadarabad road at around 11 p.m., they saw that Avinash was going very fast in his car. They asked him where he was coming from, but, he did not reply and ran away with his car. They asked him where he was coming from, but, he did not reply and ran away with his car. On 27.05.2007, the informant read in Dainik Jagaran newspaper that an unidentified dead body was found from a drain in Bahadarabad area and after seeing a photo, he found that the dead body was that of his brother Krishna Pal. According to the informant, Avinash and his other three companions hid the dead body after killing him. 9. The First Information Report (Ext.Ka-3) was registered on 27.05.2007 at 17 hours against the appellant Avinash alias Munnu and three other unknown persons. 10. On 05.06.2007, the appellant Avinash had surrendered before the court. On 09.06.2007, the statement of the appellant Avinash was recorded by the Investigating Officer. In his statement, he confessed his guilt and stated that he along with the appellant Manish had shot and murdered Krishna Pal. On 15.06.2007, a Tamancha (firearm) 315 bore was recovered by B.B.D. Juyal, Investigating Officer (PW15) from the bushes at the instance of the appellant Avinash. A recovery memo (Ext.Ka-13) was prepared. A side plan (Ext.Ka-20) was prepared by the witness B.B.D. Juyal (PW15) and charge-sheet (Ext.Ka-21) against the appellant Avinash was filed by him. He stated that he had received and filed the call details of mobile phones of Krishna Pal, Avinash and Anang Pal. The investigation was transferred to the C.B.C.I.D. Iswari Dutt Joshi, Inspector C.B.C.I.D. (PW13) submitted the chargesheet (Ext.Ka-19) against the appellant Manish Chaudhary. 11. The Kurta, Pajama, Underwear and metallic Chain of the deceased, recovered two bullets from the dead body, and, recovered Tamancha (firearm) were sent to the Central Forensic Science Laboratory, Chandigarh. The report of the said Laboratory dated 13.05.2008 (Ext.Ka-16) was filed. 12. The case was committed to the Court of Session. 13. The charges under Section 302, 201, 120B of IPC and Section 25 of the Arms Act, 1959 were framed against the appellant Avinash alias Munnu. The charges under Sections 302, 201 and 120B of IPC were framed against the appellant Manish Chaudhary. The appellants pleaded not guilty and claimed to be tried. 14. In order to bring home the guilt of the appellants, the prosecution examined as many as eighteen witnesses. 15. Statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Code”. They denied all the incriminating evidence against them. 16. The appellants pleaded not guilty and claimed to be tried. 14. In order to bring home the guilt of the appellants, the prosecution examined as many as eighteen witnesses. 15. Statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Code”. They denied all the incriminating evidence against them. 16. The appellants have not adduced any defence evidence. 17. The learned trial court heard the arguments, appreciated the evidence and passed the impugned judgment. 18. Aggrieved by the judgment of conviction and sentence, awarded by the learned trial court, the appellants appealed to this Court. 19. Mr. Piyush Garg, the learned counsel appearing for the appellant Manish Chaudhary, argued that the informant Rishi Pal (PW1) has stated the name of the appellant Manish Chaudhary first time while deposing before the court, and, he also failed to give any reason why he did not mention the name of the appellant in his written report (Ext.Ka-1) as well as in his statement under Section 161 of the Code. The prosecution witness Pramod (PW2) and the witness Anang Pal (PW3) also taken the name of the appellant first time before the court and also his conduct appears to be highly improbable, hence the evidence, produced by the prosecution, do not inspire confidence. Therefore, a chain with regard to the circumstances leading to the guilt of the appellant has not at all established. 20. Mrs. Neetu Singh, the learned counsel appearing for the Avinash alias Munnu, submitted that the important witnesses Rajbeer (PW4), Kanwar Pal (PW5), Shekhar Pandit (PW7), and, Narendra Thapa (PW14) have not supported the prosecution’s case. Nothing was recovered at the instance of the appellant, but, the police had illegally planted the alleged weapon. The place from where the said country made pistol is shown to have recovered is a public place and the prosecution has also failed to examine any independent witness of the alleged recovery, which makes the entire prosecution story doubtful. The chain of the circumstances is not completed beyond reasonable doubts. She further submitted that the appellant has not been asked about the report of the Central Forensic Science Laboratory in his statement, recorded under Section 313 of the Code. 21. On the other hand, Mr. J.S. Virk, the learned Deputy Advocate General appearing for the State, has supported the impugned judgment of the conviction and sentence. She further submitted that the appellant has not been asked about the report of the Central Forensic Science Laboratory in his statement, recorded under Section 313 of the Code. 21. On the other hand, Mr. J.S. Virk, the learned Deputy Advocate General appearing for the State, has supported the impugned judgment of the conviction and sentence. 22. We heard the learned counsel for both the parties and have carefully assessed the evidence, adduced by the prosecution. 23. PW1 Rishi Pal is brother of the deceased. He proved his written report (Ext.Ka-1). 24. According to the prosecution, PW2 Pramod and PW3 Anang Pal are witness of last seen theory. According to these two witnesses, on 25.05.2007, they along with Narendra, Shekhar and Krishna Pal went from Muzaffarnagar to Roorkee to meet Avinash in the Maruti car. The said Maruti car belonged to Anang Pal. Krishna Pal had called Avinash. Avinash asked him to come to Roorkee. Avinash, Manish and two unknown persons were at Roorkee Cantonment. Krishna Pal and the persons who came with Avinash sat in Avinash’s vehicle. The car of Anang Pal was behind the Avinash’s car. They further stated that they stayed at the farm house, while Avinash went along with Krishna Pal and his (Avinash) companions. After this, they did not see Krishna Pal. 25. According to the prosecution, Rajbeer (PW4) and Kanwar Pal (PW5) saw Avinash at around 11 p.m. and that time, Avinash was going very fast in his car. But, these two witnesses did not support the prosecution’s case. 26. PW6 Dr. R.S. Chauhan had conducted the postmortem examination. 27. According to the prosecution, PW7 Shekhar Pandit is the witness of last seen. But, this witness did not support the prosecution’s case. 28. PW8 Parul is daughter of the deceased and PW11 Smt. Suman is the wife of the deceased. According to them, on 25.05.2007, the deceased got a call from Avinash, and on his call, the deceased went to meet Avinash. According to Smt. Suman (PW11), her husband had given rupees ten lakh to the appellant Avinash. 29. PW9 Mahendra Singh Pundir is the scriber of the First Information Report (Ext.Ka-3). 30. PW10 Rajeev Rauthan had conducted the inquest proceedings. According to him, a Tamancha (Material Ext-9) was recovered at the instance of the appellant Avinash. 31. PW12 Mahendra Singh Chauhan, PW13 Iswari Dutt Joshi and PW15 B.B.D. Juyal are Investigating Officers. 32. 29. PW9 Mahendra Singh Pundir is the scriber of the First Information Report (Ext.Ka-3). 30. PW10 Rajeev Rauthan had conducted the inquest proceedings. According to him, a Tamancha (Material Ext-9) was recovered at the instance of the appellant Avinash. 31. PW12 Mahendra Singh Chauhan, PW13 Iswari Dutt Joshi and PW15 B.B.D. Juyal are Investigating Officers. 32. According to the prosecution, PW14 Narendra Thapa is the witness of last seen. But, he did not support the prosecution’s case. According to him, he does not recognize appellant Avinash. 33. PW16 Mahesh Kumar and PW17 Arvind Kumar had informed the police that they had seen an unknown dead body. They are witness of inquest proceedings. 34. PW18 Constable Jayveer Singh recorded the information, given by Mahesh Kumar (PW16), in the General Diary. 35. The present case rests on circumstantial evidence. It is a well established law that in cases of the circumstantial evidence, all circumstances relied upon by the prosecution must be established by cogent and reliable evidence and all the proved circumstances must provide a complete chain. The chain of evidence should be 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. 36. In Sharad Birdhi Chand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 , the Hon’ble Supreme Court held that when a case rests on circumstantial evidence, such evidence must satisfy these tests:- (i) The circumstances from which the conclusion of guilt is to be drawn, should be fully established. (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. (v) There must be a chain of evidence to show 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 probabilities, the act must have been done by the accused. 37. The principle of circumstantial evidence has been reiterated by the Hon’ble Supreme Court in a plethora of cases. 37. The principle of circumstantial evidence has been reiterated by the Hon’ble Supreme Court in a plethora of cases. In C. Chenga Reddy vs. State of A.P., (1996) 10 SCC 193 , the Hon’ble Supreme Court observed, “In a case base 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.” The same principles were reiterated by the Hon’ble Supreme Court in Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 , Mohd. Arif alias Ashfaq vs. State (N.C.T. of Delhi), (2011) 13 SCC 621 , Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205 and a number of other decisions. 38. The circumstances, which are pressed into service to fasten the guilt on the appellants are, as follow:- (i) That the appellant Avinash alias Munnu had confessed his guilt. (ii) That the Investigating Officer had collected the Call Detail Reports of mobile phones of Krishna Pal, Avinash and Anang Pal. (iii) That a Tamancha (firearm)(Material Ext.9) was recovered at the pointing out of the appellant Avinash. (iv) That the appellant Avinash had taken Rs.10 Lakh from the deceased and he did not want to return that money to the deceased, and, this was the motive. (v) That the deceased was last seen with the appellants. 39. Section 25 of the Indian Evidence Act is broadly worded and it excludes from evidence a confession made by the accused to a police officer under any circumstances and a confession made by a person while he was in the custody of the police is also inadmissible under Section 26 of the Indian Evidence Act unless made in the immediate presence of a Magistrate. 40. According to the prosecution, B.B.D. Juyal (PW-15) had collected the printed copies of the Call Detail Reports of mobile phones of Krishna Pal, Avinash and Anang Pal. But, the prosecution has failed to adduce a certificate as required under Section 65 B (4) of the Indian Evidence Act. The evidence relating to electronic record is a special provision. 40. According to the prosecution, B.B.D. Juyal (PW-15) had collected the printed copies of the Call Detail Reports of mobile phones of Krishna Pal, Avinash and Anang Pal. But, the prosecution has failed to adduce a certificate as required under Section 65 B (4) of the Indian Evidence Act. The evidence relating to electronic record is a special provision. It is well settled that any electronic record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65 B are satisfied. The prosecution has relied upon the secondary evidence in the form of printed copies of the call details, but, in the absence of a certificate under Section 65 B (4) of the Indian Evidence Act, the same are inadmissible in evidence. 41. The prosecution case is that on 15.06.2007, the confessional statement of the appellant Avinash led to the recovery of a Tamancha (firearm) 315 bore from the bushes at his pointing out. The said place was an open place, frequently accessible to all. Therefore, exclusive knowledge of the alleged recovered Tamancha lying at the place of the alleged recovery cannot be attributed to the appellant Avinash. 42. In invoking the provisions of Section 27 of the Indian Evidence Act, the Court should be very vigilant to ensure the credibility of the evidence. The alleged recovery was made in the absence of independent witness, whereas the statements of the witnesses of police regarding the said recovery do not inspire confidence. In State of Haryana vs. Ram Singh, (2002) SCC (Cri.) 351, the Hon’ble Supreme Court observed that when disclosure, discoveries and arrest are made in the absence of independent witness, it creates a doubt or suspicion which must go to the benefit to the accused. 43. In Satpal vs. State of Haryana, 2018 (2) CCSC 1104 (SC), the Hon’ble Supreme Court held that any recovery on the basis of confession, under Section 27 of the Indian Evidence Act, cannot form the basis for conviction. 44. Mr. J.S. Virk, the learned Deputy Advocate General, submitted that report of the Central Forensic Science Laboratory supports the case of the prosecution. On the other hand, Mrs. 44. Mr. J.S. Virk, the learned Deputy Advocate General, submitted that report of the Central Forensic Science Laboratory supports the case of the prosecution. On the other hand, Mrs. Neetu Singh, the learned counsel appearing for the appellant Avinash alias Munnu submitted that the question relating to the report of the Central Forensic Science Laboratory was not put to the appellant in his examination under Section 313 of the Code. She argued that the circumstances which are not put to the accused in his examination under Section 313 of the Code must be completely excluded from consideration. 45. The purpose of examination under Section 313 of the Code is enable the accused to explain the circumstances appearing in the evidence. The intention is for the furtherance of justice. It confers a valuable right upon an accused to establish his innocence. Section 313 of the Code postulates that all incriminating circumstances must be put to an accused so that he is in position to explain the circumstances against him. 46. In Sharad Birdhi Chand Sarda (Supra), the Hon’ble Supreme Court held that when an incriminating circumstance against an accused is not put to the accused in his examination under Section 313 of the Code, he is not afforded an opportunity to submit an explanation to it, and, therefore, those circumstances must be excluded from consideration. 47. Though, motive is an important element in commission of the offence, but conviction cannot be based on the motive alone. The existence of motive is only one of the circumstances to be kept in mind while appreciating the evidence adduced by the prosecution. In the present matter, the prosecution has failed to produce any cogent and reliable evidence that the appellant Avinash had taken Rs.10 Lakh from the deceased. 48. According to the prosecution, Narendra Thapa (PW- 14) is a witness of the last seen. But, he did not support the prosecution’s case. The prosecution’s witness Pramod (PW-2) has stated that Avinash’s mobile phone came on Anang Pal’s mobile phone that the police had raided and asked them (Anang Pal and their associates) to run away from there, whereas, according to the witness Anang Pal (PW-3), this witness was called from Krishna Pal’s phone. The caller was Avinash. Avinash had said that the police had taken Krishna Pal and asked them to run away from there. The caller was Avinash. Avinash had said that the police had taken Krishna Pal and asked them to run away from there. Therefore, contradictory statements of the witnesses of the last seen have been found. 49. In Nizam and Another vs. State of Rajasthan, 2015 (4) CCSC 2247 (SC), the Hon’ble Supreme Court held that it is well settled that it is not prudent to base the conviction solely on “last seen theory”. “Last seen theory” should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. In the present matter, there are material contradictions of the witnesses of the last seen. Therefore, the statements of the witnesses of the last seen do not inspire confidence. 50. In Bhagwan Singh and Others vs. State of M.P., (2002) 4 SCC 85 , the Hon’ble Supreme Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other of his innocence, the view which is favorable to the accused should be adopted. 51. It is also a basic rule of the criminal jurisprudence that suspicion, however, strong cannot take place of proof. In Sujit Biswas vs. State of Assam, AIR 2013 SC 3817 , the Hon’ble Supreme Court held that suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be true” and “must be true”, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. 52. The large distance between “may be true” and “must be true”, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. 52. Although, gunshot injuries were found on the dead body of the deceased and the death of the deceased was homicide, the prosecution has to prove that the death of the deceased was caused by the appellants and in all human probabilities, the act must have been done by the appellants only. Even grave suspicion cannot take place of proof. There is no positive, cogent and any reliable evidence placed on record against the appellants by the prosecution to prove its case against them. 53. As a result, we accept the case of the appellants. Accordingly, the appeals are allowed. The impugned judgment of the conviction and the sentence dated 16.04.2014/ 17.04.2014, passed by the learned District and Sessions Judge, Haridwar in Sessions Trial No.55 of 2010, “State of Uttarakhand vs. Manish Chaudhary and Another”, Sessions Trial No.274 of 2008, “State of Uttarakhand vs. Avinash alias Munnu”, and, in Sessions Trial No.275 of 2008, “State of Uttarakhand vs. Avinash alias Munnu”, are set aside. The appellant Manish Chaudhary is acquitted of the charge under Section 302 read with Section 120B IPC and Section 201 IPC, and, the appellant Avinash alias Munnu is acquitted of the charge under Section 302 read with Section 120B IPC, Section 201 IPC and under Section 25 of the Arms Act, 1959.