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2022 DIGILAW 300 (UTT)

Sonu S/o. Pitamber v. State of Uttarakhand

2022-09-14

ALOK KUMAR VERMA, SANJAYA KUMAR MISHRA

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JUDGMENT : Alok Kumar Verma, J. The present Appeal has been filed by the appellant against the judgment dated 17.09.2014, passed by the learned Additional District and Sessions Judge, Laksar, District Haridwar in Sessions Trial No.212 of 2009, “State vs. Sonu and Others”, by which, the appellant has been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, ‘IPC’) and has been sentenced to undergo imprisonment for life along with a fine of Rs.10,000/- in default of payment of fine, the defaulter convict is directed to undergo further simple imprisonment for a period of six months. 2. Briefly stated the prosecution story as it emerges from re-appreciation of the evidence on record is that the informant Satya Pal (PW1) had lodged an FIR (Ext.Ka.3) through his written information (Ext.Ka.1) that on 26.04.2009, his father Amar Singh was doing his duty of gate keeper at the railway gate of Village Kudi Bhagwanpur from 06:00 p.m. to 06:00 a.m. At around 10:30 p.m., he (informant) was going with his uncle Kaliya to give tea to his father. He saw Pitamber and his sons Shravan Kumar, Saurav Kumar and Sonu (appellant) coming from the Railway gate. When he and his uncle Kaliya reached the gate, he saw that his father was lying dead. At that time, blood was oozing from his head. It has also been stated in the written information that there was a dispute with Pitamber regarding the way. His father was threatened several times by Pitamber and his sons, and, Pitamber and his sons have committed the murder of his father. 3. The First Information Report (Ext. Ka.3) was registered on 27.04.2009 at 00.30 hrs. against Pitamber, Sharavan Kumar, Saurav Kumar and Sonu (appellant). 4. Bhuvnesh Kumar Sharma(PW 11) reached the spot and prepared an inquest report (Ext. Ka.10). The dead body of the deceased was sent to the Government Hospital, Roorkee for post-mortem. The post-mortem examination of the dead body of the deceased was conducted by Dr. S.N. Singh (PW 8) at 1.30 p.m. on 27.04.2009. 5. The matter was investigated. On 30.5.2009, a Panchayat was held in the house of Kharak Singh (PW 7). In the said Panchayat, Sonu (appellant) had confessed that he had made a mistake. The appellant was arrested on 11.06.2009 from his house. S.N. Singh (PW 8) at 1.30 p.m. on 27.04.2009. 5. The matter was investigated. On 30.5.2009, a Panchayat was held in the house of Kharak Singh (PW 7). In the said Panchayat, Sonu (appellant) had confessed that he had made a mistake. The appellant was arrested on 11.06.2009 from his house. On 11.06.2009, in his statement, the appellant confessed his guilt before the police. The confessional statement of the appellant led to the recovery of a Patal (material Ext.9), used in the crime. The said Patal was recovered from the sugarcane field in the presence of the informant Satyapal (PW 1) and Aman Kumar (PW 3). A recovery memo (Ext. Ka.7) was prepared. 6. After completion of the investigation, the chargesheet (Ext. Ka.9) was submitted by the Investigating Officer Sub-Inspector Shanti Kumar (PW10) against Sonu (appellant), Shishpal, Anand and Satish. 7. The case was committed to the Court of Session. 8. The charge under Section 302 read with Section 34 IPC was framed. The appellant and co-accused persons pleaded not guilty and claimed to be tried. 9. The learned Trial Court recorded the statements of 12 prosecution’s witnesses. 10. The appellant pleaded innocence and false implication in his statement under Section 313 of the Code of Criminal Procedure, 1973. 11. Defence witness Ravi Kumar (DW 1) and the witness Bablesh (DW 2) were examined. 12. The learned Trial Court heard arguments, appreciated the evidence and held that the prosecution has successfully proved its case against the appellant under Section 302 read with Section 34 IPC. At the same time, the learned Trial Court acquitted the co-accused Shishpal, Anand and Satish from the charge under Section 302 read with Section 34 IPC. 13. Aggrieved by the judgment and order of conviction and sentence, awarded by the learned Trial Court, the appellant appealed to this Court. 14. Mr. At the same time, the learned Trial Court acquitted the co-accused Shishpal, Anand and Satish from the charge under Section 302 read with Section 34 IPC. 13. Aggrieved by the judgment and order of conviction and sentence, awarded by the learned Trial Court, the appellant appealed to this Court. 14. Mr. Parikshit Saini, learned counsel for the appellant, would submit that there was no eye-witness of the alleged offence; the appellant was not present at the scene of the crime; nothing was recovered at the instance of the appellant; the prosecution’s witness Aman Kumar (PW 3), a witness of the alleged recovery of Patal, did not support the prosecution story and he has been declared hostile by the prosecution; the said confession of the appellant was planted; there are material contradictions in the statements of the prosecution’s witnesses; the prosecution has failed to assign any motive for the alleged commission of offence by the appellant, and, the chain of the circumstances of the incident is broken and not so complete as to infer the involvement of the appellant with the alleged offence. 15. On the other hand, Mr. Amit Bhatt, learned Deputy Advocate General for the State, has supported the impugned judgment and submitted that the prosecution has proved its case beyond all reasonable doubt against the appellant. 16. This case rests on circumstantial evidence. No one had seen the assault by the appellant on the deceased. 17. 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. 18. 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. 18. 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 consisted only with the hypothesis of the guilt of the accused, that it 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. 19. 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. 20. On the basis of the above well-settled principles, we proceed to examine whether the appellant can be held to be guilty. 21. PW1 Satya Pal is an informant of the case. PW4 Ganga Sagar is the uncle of the informant. According to these two witnesses, there was a dispute between Pitamber, his sons and the deceased regarding the way. The deceased was threatened by Pitamber and his sons. 21. PW1 Satya Pal is an informant of the case. PW4 Ganga Sagar is the uncle of the informant. According to these two witnesses, there was a dispute between Pitamber, his sons and the deceased regarding the way. The deceased was threatened by Pitamber and his sons. They stated that on 26.04.2009 at around 10.30 p.m., they were going to give tea to the deceased. They saw Pitamber and his sons coming from the railway gate. When they (these witnesses) reached at the spot, they saw that the deceased was lying dead. 22. PW2 Smt. Shankuntala Devi is the wife of the deceased and PW5 Jony alias Sahdev Kumar is the son of the deceased. According to these witnesses, Gaffar (PW 6) had come to their house and informed that the deceased was lying dead at the gate. 23. According to the prosecution, a Patal was recovered in the presence of Aman Kumar (PW 3). But, Aman Kumar did not support the said recovery. 24. PW 6 Gaffar stated that he was going to his house on 26.04.2009 at around 11.00 p.m. He had seen Amar Singh lying dead near the railway gate. He went to the house of the deceased and informed the deceased’s wife and his son. They had reached the gate with him. Then, they informed the police. 25. PW 7 Kharak Singh stated that on 30.05.2009, at his house, Sonu and his father came to him for the Panchayat and told that a mistake has been made. They have been implicated by the family members of Amar Singh. Sonu had said that neither Amar Singh had given him the way nor did he return his money. According to this witness, Sonu and his father did not say anything else. 26. PW 8 S.N. Singh had conducted the post-mortem examination of the dead body of the deceased. He proved the post-mortem report (Ext. Ka.2). According to this witness, the cause of death was shock and hemorrhage due to the internal and external head injuries. 27. PW 9 Constable Gopal Ram is a scriber of the Chick FIR (Ext.Ka.3). 28. PW 10 Shanti Kumar is Investigating Officer. According to this witness, the recovered articles were sent to the Forensic Science Laboratory on 26.07.2009, but, he admitted that report of the Forensic Science Laboratory is not on record. 29. PW 11 Bhuvnesh Kumar Sharma had conducted the inquest proceedings. 28. PW 10 Shanti Kumar is Investigating Officer. According to this witness, the recovered articles were sent to the Forensic Science Laboratory on 26.07.2009, but, he admitted that report of the Forensic Science Laboratory is not on record. 29. PW 11 Bhuvnesh Kumar Sharma had conducted the inquest proceedings. 30. PW 12 Harpal Singh is a witness of inquest proceedings. 31. The circumstances, which are pressed into service to fasten the guilt on the appellant are, as follow :- (i) PW1 Satya Pal and PW 4 Ganga Sagar saw the appellant coming from the railway gate. (ii) The appellant had confessed his guilt. (iii) A Patal was recovered at the instance of the appellant. 32. According to the informant Satya Pal (PW1) and the witness Ganga Sagar (PW4), on 26.04.2009 at around 10.30 p.m., they were going to give tea to the deceased. They saw Pitamber and his sons coming from the railway gate. When they reached at the spot, they saw that the deceased was lying dead. On the other hand, the prosecution’s witness Gaffar (PW 6) stated that he was going to his house on 26.04.2009 at around 11.00 p.m. He had seen Amar Singh lying dead near the railway gate. He went to the house of the deceased and informed the deceased’s wife and his son. Then, they had reached the gate with him. Smt. Shakuntala Devi (PW2) has stated in her cross-examination that she was at her house with Satya Pal (PW1) and Kaliya and after getting information from Gaffar (PW6), she reached the railway gate with Satya Pal and Kaliya. According to Jony alias Sahdev Kumar (PW5), the prosecution’s witness Ganga Sagar (PW4) is also called Kaliya. Therefore, in the light of these evidence, the statement of Satya Pal (PW1) and statement of Ganga Sagar (PW4) become doubtful that on 26.04.2009 at around 10.30 p.m., they were going to give tea to the deceased and they saw the appellant coming from the railway gate. 33. 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. 34. An extra-judicial confession is a weak kind of evidence and unless it inspires confidence, conviction for the offence of murder should not be made only on the evidence of extra-judicial confession. 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. 34. An extra-judicial confession is a weak kind of evidence and unless it inspires confidence, conviction for the offence of murder should not be made only on the evidence of extra-judicial confession. It may also be mentioned here that no such statement was made by Kharak Singh (PW7) that the appellant had confessed his guilt to the effect that he had committed murder of Amar Singh. 35. According to the prosecution, a Patal, used in the crime, was recovered at the instance of the appellant. The prosecution’s witness Aman Kumar (PW3), witness of the said recovery, did not support the prosecution case. Though, it is well settled that merely because a witness is declared hostile, the other set of evidence of the prosecution, if truthful, convincing and wholly reliable, cannot be ignored. But, it is also true that it is a basic rule that in a criminal case, the burden is on the prosecution to prove that the accused was present at the scene and had participated in the crime. 36. 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. According to the Investigating Officer Shanti Kumar (PW 10), the recovered articles were sent to the Forensic Science Laboratory on 26.07.2009, but, he has not explained why the report of the Forensic Science Laboratory has not been filed. The independent witness Aman Kumar (PW3) did not support the prosecution case, whereas, the statements of the witness Satya Pal (PW1) and the witness of police regarding the said recovery do not inspire confidence. 37. 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. 38. 37. 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. 38. 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. 39. 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. 40. Although, injuries were found on the dead body of the deceased, the prosecution has to prove that the death of the deceased was caused by the appellant and in all human probabilities, the act must have been done by the appellant only. Even grave suspicion cannot take place of proof. There is no positive, cogent and any reliable evidence placed on record against the appellant by the prosecution to prove its case against him. 41. As a result, we accept the case of the appellant. Accordingly, the appeal is allowed. Even grave suspicion cannot take place of proof. There is no positive, cogent and any reliable evidence placed on record against the appellant by the prosecution to prove its case against him. 41. As a result, we accept the case of the appellant. Accordingly, the appeal is allowed. The impugned judgment of the conviction and the sentence dated 17.09.2014, passed by the learned Additional District and Sessions Judge, Laksar, District Haridwar in Sessions Trial No.212 of 2009, “State vs. Sonu and Others”, is set aside. The appellant is acquitted of the charge under Section 302 read with Section 34 IPC. Since the appellant happens to be on bail, his bail bonds shall stand discharge.