Purushottam Lal vs State Of U.P.
2011 Latest Caselaw 5108 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
 
 
Criminal Appeal No.145 of 2010
 
		       Purshottam Lal    Vs.  State of U.P. 
 
Connected with 
 
Criminal Appeal No.247 of 2010 
 
Ashok Singh vs. State of U.P.
 
and 
 
Criminal Appeal No.336 of 2010
 
Raj Kumar vs. State of U.P.
 

 
Hon.Imtiyaz Murtaza,J.

Hon.(Mrs.) Jayashree Tiwari,J.

(Delivered by Hon. Imtiyaz Murtaza,J.)

These appeals have been preferred assailing the judgement and order dated 7.1.2010 passed by Additional Sessions Judge, court no.1 in S.T. No.810 of 2006 whereby the court below recorded verdict of conviction against the appellants under Section 302/34 I.P.C. and each of them were sentenced to undergo imprisonment for life together with a fine of Rs.10,000/- with default stipulation to suffer further imprisonment for one year. The appellants have further been convicted under Section 201/34 I.P.C and sentenced to undergo imprisonment for two years R.I.. together with a fine of Rs.5,000/- with default stipulation to suffer further imprisonment for six months.

Since all the above appeals stems from a common judgement rendered in ST No 810 of 2006, they were lumped together and heard as a composite case and the same are being decided by a common judgement.

Filtering out unnecessary details, the prosecution case is that on 9.5.2005, a marriage function of the daughter of first informant's uncle was being held at Khushhal Ka Pura Mohari within the circle of PS Soraon. After the ceremony of Dwarchar was over, marriage feast was served at about 10.00 P.M. At that time, informant's son aged about 12 years was seen outside the main gate of the house. However, at about 11.00 P.M when he was not nowhere to be seen, the family members grew anxious and a thorough and assiduous search was launched all around in the area but he was nowhere traceable. Next morning when the villagers had gone to answer the call of nature near the brook, they noticed the dead body of a boy in the field. A hue and cry was raised which attracted several persons and the body was identified to be that of his son Vishal aged about 12 years. In the report he gave currency to the suspicion that whatever had happened with his son had happened as a vengeance and motivated by jealousy and that he could not clearly mention names of the culprits at this stage. He also expressed apprehension that he could also meet the same fate at the hands of the culprits.

The report of the incident was registered at case crime no.105 of 2005, under Sections 302, 201 and 120-B I.P.C against unknown persons. Sri Vivekanand, S.H.O., P.S. Soraon embarked upon investigation. He prepared the inquest report, which is Ext.Ka-7. He also processed relevant papers for the post mortem examination, namely-sample seal, letter to C.M.O., letter to R.I., photo nash, chalan nash( Ext.Ka 9 - 13). Dead body was duly sealed and handed over to constables Chhotelal and Naresh Kumar for being escorted to mortuary. He had also prepared recovery memo of one shoe and two socks (Ext.14). Thereafter, on the same day, first informant had given a written application, (Ext.Ka-2). He recorded the statement of first informant Ravi Prakash Patel, Rajendra Patel, Mahesh Kumar and Makrand Lal Patel. On 11.5.2005, he recorded the statement of Kanti Devi. On 13.5.2005 he recorded the statement of Purshottam alias Bachai. On 17.5.2005, he recorded the statement of Raj Kumar, Ashok Singh Patel, Vikram Singh Patel and Raj Bahadur Patel.

On 10.5.2005 Dr.A.K.Gupta conducted autopsy on the dead body of Vishal Patel. He noted one contusion on front of the neck measuring 7 x 2 cm. The Doctor opined the causative factor of death tobe Asphyxia as a result of pressing of neck (strangulation).

During investigation, complicity of accused appellants transpired. After completion of investigation, charge sheet has been submitted against them and case was committed to the court of Sessions Judge. The Sessions Judge framed charges under Section 302/34,120-B/34 and 201/34 I.P.C..

The case of the defence was one of denial and false implication and they claimed to be tried.

To prop up its case, the prosecution examined in all 8 witnesses out of which P.W.1 is Km. Kanti Vishwakarma, P.W.2 is Purshottam s/o Nand Lal, P.W.3 is Ravi Prakash Patel, P.W.4 is Dr. A.K.Gupta, P.W.5 is Makrand Kumar, P.W.6 is S.I.Rakesh Kumar Singh, P.W.7 is constable Krishna Dev, and P.W.8 is Investigating Officer Vivekanand Tiwari. The defence examined D.W.1 Dwarika Prasad and D.W.2 Suraj Pal Patel .

The Sessions Judge relying upon the prosecution witnesses and considering the circumstantial evidence brought on record by the prosecution rendered verdict of conviction and sentences as aforesaid.

We have heard Shri V.P. Srivastava, learned Sr. Counsel assisted by Shri Rajul Bhargava for the appellants, and Shri Usha Kiran, learned A.G.A. for the State.

Learned counsel for the appellants mounted onslaught on the findings of the trial court inter-alia urging that the evidence in the case is not adequate and convincing to warrant the conviction He also challenged the findings recorded by the trial court submitting that the prosecution has miserably failed to prove its case attended with submission that there was no clinching and admissible evidence adduced against the appellants; that the appellant was not said to be imbued with any powerful motive for committing the murder of the deceased; that the chain of circumstantial evidence could not be said to be complete; and that the Sessions Judge had wrongly placed reliance on the testimony of P.W. 5 Makrand Kumar who had been introduced in the case to buttress the failing case of the prosecution.

Per contra, learned A.G.A. has canvassed for the correctness of the view taken by the trial judge attended with the submission that sufficient evidence was adduced by the prosecution and the Sessions Judge rightly convicted the appellants relying on the prosecution evidence.

In order to appreciate the aforesaid rival contentions of learned counsel for the parties, we have to independently scrutinise the oral as well as documentary evidence brought on record by the prosecution as well as defence version.

P.W.1 Km. Kanti Vishwakarma and P.W.2 Purshottam did not support the prosecution case. They were declared hostile having been gained over.

P.W.3 Ravi Prakash Patel is the first informant of the case and father of the deceased. He deposed that Vishal was his only son and he was murdered on 10.5.2005. The marriage party of daughter of his uncle had arrived in the village from Chhatargarh, district Pratapgarh in the evening on 9.5.2005. He and his uncle are neighbours and his brother-in-law Makrand Kumar Patel had also arrived on invitation. Ceremony of dwarchar followed by feast was over by 10.00 P.M. He also deposed that his son was seen in the company of other boys at about 9.30 P.M outside the house. After the feast was over, he went to sleep as he was feeling fatigued due to function. After 10.00 P.M. when his son was not traceable, his mother, wife, brother and uncle launched a search for him but he could not be found anywhere. His brother-in-law Makrand kept awake whole night. Next day at about 6.00 a.m, there was hue and cry about a dead body lying in the field near a grove and the dead body was identified to be that of his son. There were noticeable injury marks on his neck. He also deposed that on his dictation, the report was scribed by Shiv Murat and thereafter he had affixed his signatures on the report. The inquest was prepared and dead body was sealed and sent to mortuary. After post mortem examination dead body was handed over to him and cremation took place in Phaphamau. After cremation his brother-in-law Makrand confided to him that in the night, when he was going to sleep in nearby village sarai, Purshottam, Raj Kumar, Ashok Chandra along with Vishal met him. He asked him that where they were going along with Vishal upon which, the accused persons told that they were searching for missing shoes of Vishal. He was also informed by Kanti Devi that in the same night after marriage ceremony at about 11.30 P.M. she had seen Purshottam, Rajkumar and Ashok coming from the side of Gora garden. At that time, Raj Kumar was wearing only underwear and baniyan. He had identified all the accused persons. He had proved second report, which is ( Ext.ka12).

In the cross examination, the substance of what he stated is that that Vishun Dev who was his uncle was embroiled in a criminal case in which Ram Kishun was a witness and that in that case, his brother Ganesh Prasad, Mahadev, Sitaram, Shiv Murat and Vishun Dev were accused and Ram Bahadur was a witness. He however, stated that there is only one case pending against him under Sections 147,148,149,323,504 and 506 I.P.C.,P.S. Soraon, in which he was arrayed as accused along with others and denied that there was any other case pending against him under Section 147,323 and 435 I.P.C in the same police station. Suresh Chandra, Ram Sunder, Nand Kishore, Ram Naresh etc. who are accused in the said case are his distant relatives. Prior to the incident, relations had frayed to the point of enmity between him and the accused persons. He also stated that Raj Kumar was also a witness of the inquest and that Brahma Dev was elder brother of Purshottam. By the time of inquest was conducted, he was not aware who were the culprits. He also stated that Ram Adhar and others were his collaterals and enmity between them related back to the 1992. He explained that the enmity with Ram Adhar had its genesis in land related dispute. He further explained that the dispute had escalated into frayed tempers and scuffle as a consequence of which cross cases were registered and both sides were arrayed as accused in cross cases. He also stated that the criminal case is yet to be decided and that Ram Bahadur is a witness in that case against him. Ram Bahadur, he further explained, is father of accused Ashok. His father had three brothers and Shiv Murat, advocate was his cousin and he practised law in Soraon. His brother Ganesh runs a ration shop. He had only one son and two daughters. Presently, he has three daughters and a son. He also stated that the police had arrived at the scene before he could reach. At the time of inquest, Shiv Murat Patel, Ganesh Prasad Patel and others were present and after the inquest, he had left for mortuary. He could not recollect whether after receiving the dead body, he had gone to the police station or not. He further deposed that he had received education upto intermediate. The date of marriage was 9/10 and marriage procession had arrived from Chhatargarh in district Pratapgarh and that there were about 100-150 people from the side of bride groom. He did not know their names. There were about 25-50 guests in the house of his uncle, who had arrived from various places including Pratapgarh, Baharya, Titihariyapur and Penti Ka Pura etc. Makrand Kumar Patel had arrived from Pratapgarh. Indrapal Patel from Baharia, Bachau Patel, Tulsiram Patel from Titihariay had arrived to attend the marriage. Ram Murat Patel had arrived from village Sarsan and he could not recollect the names of other persons. After the inquest proceeding, the police had arrived around 6-7 P.M. He also stated that the Investigating officer used to come to the village occasionally and he had met him 1-4 times. He used to talk about the incident. Whenever police sub inspector arrived in his village, he had a talk with his family members and also Makrand. He had interrogated his elder brother Ganesh Prasad Patel, mother and his cousin Mahesh. He had also enquired about the incident from Shiv Murat and his wife. In his presence he did not enquire about the incident from any outsider.

At the time of inquest, there was discernible mark of injury on the neck of his son and there was no other injury on any other part of his body. He identified his signature on the inquest report. After the inquest he had accompanied the dead body for post mortem examination. At that time he did not know whereabouts of the Sub Inspector. His son was cremated at the cremation ground of Phaphamau, which entail one hour or so and after cremation they had returned before 6.00 p.m. At the mortuary and at the time of cremation his brother Shiv Murat was present and after cremation, he returned along with him.

Shiv Murat is an advocate and manager of Sitaram Inter College. He could not describe the area of this school but dwelling on topography he deposed that on the western side of the school is the field of accused Ashok. On the eastern side of the school there are fields of Raj Kumar, Raj Bahadur and litigation is pending regarding the possession of land and a scuffle had also taken place in respect of which a case is pending. On the western side of road there are houses of his uncles Ram Kishan and Shiv Murat and his house is also on the western side of the road. The disputed land is situated on the eastern side of his house. They have another house in the village, which is situated 150 metres on the eastern side of the school. For the last about three years they are living in this house and at present his uncle Vishundev resides in the house. Ram Kishun does not reside in that house. They do not have any other third house. He could not tell the population of village Khush Hal. He could not tell the number of persons of the village present in the marriage. Shiv Murat are four brothers and they are Shiv Pujan Patel,Shiv Murat Patel, Shiv Kumar Patel and Satya Prakash Patel. Shiv Pujan Patel is District Inspector of School. Shiv Murat is lawyer by profession and Ex Block Pramukh. Shiv Kumar is P.A. in Secretariat. Satya Prakash is S.D.M. He could not tell the place of service of accused Purshottam. He could not tell whether Purshottam was prosecuting the case on behalf of Ram Adhar and Raj Kumar or not. He had no enmity with Purshottam. He denied knowledge whether marriage was vediographed or not. The dead-body of his son was recovered from the field of Santoshi Patel. He also denied knowledge whether any case was lodged regarding the field of Sekai. He further denied knowledge whether any litigation was pending regarding Gora Bag. He also denied knowledge whether Sita Ram had taken possession of the field of Dhekai. He further deposed that whereabouts of Sita Ram was not known for about six years. He did not know that after missing of Sita Ram, his son is in possession or not over his land. He expressed ignorance about any case Moti Lal Vs. Sitaram in the court of S.O.C. regarding incident. He stated that he did not know whether blood was found near the dead body or not. Again he stated that he did not know blood had fallen at the place of occurrence or not. He had not seen any stool and blood on the place of occurrence. He had not seen whether these things were present on his cloths or not. He explained that dead body was seen at the time of inquest from a distance. He could not tell blood was present on the cloth or not. He could not tell the exact time when sniffer dog had arrived at the place of occurrence. At that time several persons of village were present but he could not tell their names on account of the fact that he was in a distraught state. He could not tell how long sniffer dog remained at the place of occurrence. He could not tell that Kanti Devi was witness in this case. He admitted that she was teacher in the school of Shiv Murat and she was expelled from the school. He denied knowledge whether she is still teaching in this school or not. He expressed ignorance whether Kanti Devi has given evidence submitting that he had not met her after occurrence. Several children of the school of Shiv Murat were admitted in the hospital on account of poisoning. This incident took place prior to the occurrence of his son but he did not remember when this occurrence had taken place. He did not know when accused was arrested after the recovery of the dead body of his son. He had not told the investigating officer that report had been scribed by Shiv Murat but at the same time, he stated that this fact was not enquired from him. He also stated that he had not asked Shiv Murat to mention his name as scribe. He had only asked him to prepare the report. He could not tell whether he had mentioned in the report that Makrand had been invited in the marriage function or not. He could not tell whether he had told this fact to the Investigating officer or not. Again he told that he had mentioned in the report that Makrand Patel had come on invitation and wrote report and also told this fact to the Investigating officer but at the same time, he clarified that this fact was not enquired from him. He admitted that in his first report he did not mention about the invitation but he mentioned this fact in his second report or in the first report he had no knowledge. He further clarified that he mentioned the name of Makrand Patel in his second report but he could not tell the reason why he did not mention that Makrand had come on invitation. After the occurrence, he did not talk to anybody about the incident. After the recovery of dead-body, he had a talk with Shiv Murat. After dictation of report, he had asked Shiv Murat to mention his own name as scribe and if his name did not find mention, he could not tell any reason. He also stated that at the time of the preparation of second report, he was not quite upto himself. Both the reports were prepared by Shiv Murat on his dictation. He had not told the Investigating officer that report was prepared by Shiv Murat on his dictation because he was distraught and distracted at that time and had not regained the usual placidity. He denied the suggestion that Shiv Murat had prepared the report on his own. He could not tell any reason as to why the Investigating Officer did not mention the fact that Makrand had come in the morning on his invitation.

In his examination-in-chief, he had mentioned for the first time in Court that on the date of incident, Makrand had not stayed at his house for night long rest. This fact was neither been mentioned in the report nor was told to investigating officer and he could not tell any reason. He deposed that he had disclosed to investigating officer that Makrand had confided to him that in the night while he was on way to village Sarai, he stumbled across Purshottam, Raj Kumar, Ashok Chandra in the way. He had mentioned this fact to investigating officer but why this fact was not mentioned in his statement, he could not explain. He denied the suggestion that he had been tutored and that he was deposing for the first time in the court. He denied knowledge whether Raj Kumar Patel was propelled by Purshottam and Ashok Chandra for opening shop near the school. The shop was already in existence and running prior to the occurrence. He did not know whether both the persons used to propel Raj Kumar for brewing liquor there. He denied that He had told the investigating officer that he and his Pattidar Vakil Sahab, who was Block Pramukh used to ask him to wind up the shop. He could not tell any reason how these things were mentioned in his statement. He further deposed that his son had been murdered as part of larger conspiracy against him.

After the arrival of marriage party and after taking meal, he had gone to sleep and woke up only in the morning and it was then that he came to know about the recovery of dead body of his son. Purshottam was teacher. He denied that he had falsely implicated the accused because of enmity. He also denied that whole story was nothing but a concoction woven by Shiv Murat.

P.W. 4 Dr.A.K.Gupta deposed that on 10.5.2005 he was posted as Medical Officer, C.S.C. Chaka, Allahabad and was on duty in Swaroop Rani Nehru Hospital. At 2.30 p.m. he conducted autopsy on the dead body of deceased Vishal Patel s/o Ravi Prakash aged about 12 years resident of Gohari, P.S. Soraon, District Allahabad,who was brought by C.P.1202 Chhotey Lal and C.P.1008 Naresh Kumar,P.S. Soraon, District Allahabad in a sealed condition. The duration of death was ¾ days. The child was of average built. Rigour mortise was well developed and present on both upper and both lower, limbs, nails and face had turned pale and blue stained fluid was coming out from the both posterior. The deceased had passed out stool which was found stuck

He noted following ante mortem injuries:-

(1) Abraded contusion on front of neck on left side immediate part of size 7" X 2".

The doctor opined that the cause of death was due to Asphyxia as a result of pressing of neck (strangulation). The post mortem examination report is Ex.Ka-3. In cross examination he stated that there can be variation of three hours either way in time of death. He also opined that the deceased might have taken some meal 2-2, ½ hours before.

P.W.5, Makrand Kumar deposed that his brother-in-law, Ravi Prakash resides in village Gohari. His son was murdered on 9.5.2005. He had attended the marriage of daughter of Vishundev, uncle of Ravi Prakash in village Gohari. After attending the marriage, he and his companions decided to go to the neighbouring village Bahar Sarai for night long rest in the house of one of his relatives. Thereafter, he, accompanied by Shiv Prasad Patel, left for village Bahar Sarai. When they arrived near a school at about 10.45 p.m he saw his nephew Vishal in the company of accused persons and on enquiry, they told that they were searching for his shoes, which were lost somewhere. Accused persons Raj Kumar, Ashok Kumar and Purshottam were present there along with Vishal. He proceeded ahead instructing his nephew to go back as it was already very late. Village Bahar Sarai lies at a distance of one kilometre from the place of marriage. He returned to his house Gokula at about 5.00 A.M. and thereafter went to his school. At about 8.00 a.m, he received information that Vishal has been murdered. He returned at 12 O'clock after finishing his work in school. After arrival at his house, he found that all his family members had already left for the village Khushhal Ka Pura and thereafter, he also left for the place. When he arrived there, he came to know that the dead body of Vishal had already been sent for post mortem examination and also received information that cremation would take place at Phaphamau around 3-4 p.m. He set out for cremation place and participated in the cremation. He informed his brother-in-law that in the preceding night, he had seen the deceased along with accused.

In cross examination, he stated that he had used his motorcycle for performing journey for attending marriage, for visiting house of Vishal on the next day and for going to cremation ground. However, he corrected himself saying that he had gone to cremation ground on his motorcycle and there Ganesh had borrowed his motorcycle. He left from cremation ground along-with other persons on a tractor trolley. Ganesh Prasad stayed for cremation for about 1-1 ½ hours but there was no discussion about the occurrence on this melancholy occasion. He also stated that he did not have talk with anyone about the incident. He returned from cremation on a tractor and Ganesh Prasad had returned by his motorcycle. He stated that there were about 40-50 people in the tractor trolley. Shiv Murat, advocate, cousin of Ravi Prakash was also sitting along with him in the tractor. The timings of his school were at that time between 7.00 a.m. to 12 O'clock and he was present in the school throughout. He used to take classes upto 5th standard. On that date, schedule of examination was being prepared. He did not talk about the incident with any one in the school. He had gone to attend the marriage along with Shiv Prasad, who belonged to his village. He had informed Investigating Officer about these facts but he could not explain the reason why he did not mention these facts in his statement.

The place where he had gone to sleep in the night was not his relative's house. That house was the house of son of aunt of his sister's sister-in-law, whose name was Malkhan. He stated that he did not know the name of younger brother of Malkhan who probably resided in Delhi. He had been to the house of Malkhan earlier also. He had also informed investigating officer that he along with Shiv Prasad had gone to the house of Malkhan in village Bahar Sarai for night long rest. Malkhan has probably two sons and three daughters. Her two sons and two daughters were married but he did not know to whom they were married. He had returned from village Bahar Sarai and thereafter he went to his school. He had informed Investigating officer that he had received information about the murder of Vishal on telephone at 8.00 A.M. After finishing his school work, he returned to his house at 12 noon. He could not explain the reason why these facts had not been mentioned by investigating officer. He arrived at the house of Vishal at about 1 ½ p.m. where he was informed that his brother in law along-with others had gone to mortuary for the post mortem examination. He deposed that in his presence Ravi Prakash had not got prepared any report by Shiv Murat.

He further deposed that after cremation he came to the house of his sister and stayed for about 2-2 ½ hours and returned next day to his house. He did not know that on the date of marriage i.e. 9.5.2005 after 10.00 P.M. when the marriage feast was over, his nephew Vishal was missing and people were searching for him but in vain. He could not explain how these facts have been mentioned by the Investigating officer in his statement. When his attention was drawn to his statement under Section 161 Cr.P.C. in which he is said to have stated that on 10th May, in the morning when he had gone to answer the call of nature towards drain he saw dead body of Vishal, he could not explain the reason how these facts have been mentioned in his statement. He denied knowledge that any litigation was going on between his brother-in-law and accused. He also denied knowledge that there was enmity between accused and Ravi Prakash. He could not explain how Investigating officer had mentioned that there was enmity between his brother-in-law Ravi Prakash and accused. On 9th May in the marriage he had taken dinner along with Ganesh Prasad, his uncle Kishundev and Shiv Prasad. He had not gone to house of his brother-in-law. Dwarpuja had taken place at 6.30 p.m. About 100-150 people had attended the marriage and total number of persons including villagers and people of marriage party were about 500. The marriage party had stayed in a grove, which lay at a distance of one bigha from the house of his brother-in-law. Members of marriage party had stayed in the school of Shiv Murat, which was a double storied building. There were 8-9 rooms. Main gate of the school was towards southern side and small gate was towards northern side. There was no entry on eastern side. There was a pakka road on eastern side of school and kharanja on southern side. After having dinner he had met several persons including Vakeel Sahab, Ganesh, Vishundev and Lallu.

He further deposed that he did not go to the post mortem house. He had reached cremation ground at about 3.00 p.m. After about 10-15 minutes dead body of Vishal had reached there. The body was buried. After returning from cremation ground he reached his house at about 6.00 p.m. Thereafter, he returned to his house next day morning. After 5-6 days he had gone to the house of his brother-in-law Ravi Prakash. After three days of the recovery of dead body, investigating officer had called him and interrogated him but did not record his statement. Thereafter he visited the house of his brother-in-law and investigating officer interrogated him in detail and his statement was recorded by investigating officer. Thereafter, he came to village Gohari and after 10-15 days his statement was again recorded by investigating officer. After about 2-3 months investigating officer had again interrogated him and statement was recorded. Name of his school is Primary School, Shivgarh, Pratapgarh. Jagdish Prasad Mishra was principal, who had since retired. At present Ramakant is principal. The population of Gohari is 4-5 thousands.

He further deposed that inquest was not prepared in his presence. He had arrived at village Bahar Sarai at about 10.45 p.m and by that time everybody had fallen asleep. Chhedi Lal was his collateral, who happened to be the grandson of his elder grand father. He denied knowledge that the marriage of daughter of Chhedi Lal was fixed on the date of occurrence. He explained that he was not speaking terms with him. He did not know that marriage party had come from Mauaima. After reaching Baharsarai he had awakened Malkhan. He denied knowledge whether any sniffer dog was called at the place of occurrence because at that time he was in his school. He denied the suggestion that he was not present in the marriage. He denied the suggestion that he did not see occurrence and on account of his kinship, he had falsely deposed. He denied the suggestion that he had not participated in the marriage party and he was deposing falsely on account of tutoring.

P.W. 6, Rakesh Kumar Singh, Head Constable deposed that on 25.7.2005 he was posted as Station House Officer in village Soraon and on that day case crime no.105 of 2005, under Sections 302,201 and 120-B I.P.C was entrusted to him. On 31.7.2005 he recorded the statement of accused Purshottam Lal Patel and submitted charge-sheet against him, which is Ext.-4. He further deposed that S.I. Abdul Jalar Khan was also posted along with him and that he had since retired. He had filed charge-sheet in his own handwriting against Rajkumar, Ashok Singh, Raj Bahadur and Vikram Bahadur, which is Ext-Ka 5.

In the cross examination, he deposed that he did not mention specifically that he had perused the entire case diary. Thereafter, he had submitted charge-sheet against Purshottam. He again stated that he had referred the charge-sheet and investigation of previous Investigating Officer. He denied the suggestion that charge-sheet against Purshottam was submitted without any investigation .

P.W.7, Constable Krishna Dev Mishra deposed that on 10.5.2005 he was posted as constable Moharir reporting out post Phaphamau of police station Soraon. He further deposed that on the application of Ravi Prakash at 6.30 a.m. he had prepared chik F.I.R., which is Ext.Ka-6. He entered the report in the general diary. Copy of general diary is Ext.Ka 7.

In the cross examination, he stated that he had mentioned in the report that Ext Ka 1 is in the handwriting of Ravi Prakash. He admitted that in Ex. Ka 7, no date has been mentioned and there is no date mentioned under his signature. He admitted that on the chik F.I.R. Ext.Ka-7 Ravi Prakash has not signed. He admitted that Ravi Prakash did not mention that Ext.1 is in the handwriting of Shiv Murat.

P.W.8 Vivekanand Tiwari, Station House Officer, Hamirpur deposed that on 10.5.2005 he was posted as Station House Officer, P.S. Soraon. He commenced investigation of case crime no.105 of 2005. He reached at the place of occurrence. He prepared inquest report of the dead body of Vishal Patel. The inquest report is Ext. K7. He prepared sample seal, letter to C.M.O, letter to R.I., photo lash, chalan lash in the handwriting of H.C.P. Hariom, Ext.Ka 9 to Ka 13. Deadbody was duly sealed and handed over to constable Chhotelal and Naresh Kumar for escorting to the mortuary. Prior to the inquest proceedings dog squad was called and they failed to trace out the accused. He had seized one shoe and one sock of the deceased. Recovery memo is Ext. Ka 14. Thereafter, he recorded the statement of witnesses and in-charge of dog squad. Thereafter, informant has given an application,which is Ext. ka 2. He recorded statement of Ravi Prakash and on his pointing out he inspected the place of occurrence and prepared site plan, which is in the handwriting of Prabhat Pandey, which is Ext. Ka 15. He recorded statement of Rajendra Patel, Makesh Kumar and Makrand. On 11.5.2005 he recorded statement of Kanti Devi. On 13.5.2005 he recorded the statement of Purshottam Lal alias Bachai. On 17.5.2005 he arrested the accused Raj Kumar, Ashok Shingh Patel, Vikram Singh Patel and Raj Bahadur Patel.

In the cross examination he admitted that entire case diary was in the handwriting of Subhash Pandey. Inquest Ext. Ka15 is also in the handwriting of Subhash Pandey. Ext. ka 8 and its related paper Ext ka-9 to, Ext. ka 14 were in the hand writing of Hari Om Verma. He admitted that inquest report is Ext. Ka 8 and there is overwriting in time 8 and 11 and also admitted overwriting of time 10 and 0. He admitted that he did not collect any blood stained earth from the place of occurrence. He did not find any blood on the place of occurrence. In Ext. 10-11 only section 302 I.P.C. has been mentioned and in other papers Section 302 along with 201 I.P.C. has been mentioned. Dead-body was despatched for post mortem examination at 12 O'clock The time of depositing the recovered article is not mentioned. One shoe and two socks were also not mentioned in the case diary. After recollecting he stated that Ravi Prakash had given him an application at 4 p.m. but he did not mention the time of application in the case diary. Nothing was recovered from the possession of accused. In the site plan Ext.Ka15 he mentioned only place of dead body and nothing else has been mentioned in the site plan. He did not mention the place where from witnesses and Makrand had witnessed the occurrence. During investigation he did not receive any information that Ext.ka-1 and Ext.Ka-2 are in handwriting of Shiv Murat Patel. Informant Ravi Prakash did not tell him that both the applications are in the handwriting of Shiv Murat. He did not interrogate Shiv Murat. He further deposed that he reached the place of occurrence at 7.30 a.m. He stayed till 8-9 p.m. He admitted that Makrand did not tell him the place where he stayed in the night and how he reached the house of his brother-in-law Ravi Prakash. He did not record the statement of Ram Kishun, in whose house marriage party had stayed. Ravi Prakash did not inform him that Makrand had attended the marriage on invitation. Ravi Prakash did not mention in his statement that Makrand told him that when he was on way to Sarai for night long rest and on his way he came across Purshottam, Raj Kumar, Ashok Chandra. He did not tell him that he had attended the marriage along with Shiv Prasad. He did not tell him that from Bahar Sarai he went to his village in the morning and thereafter he had gone to attend his school. Makrand did not tell him that about 8.00 a.m. he received information about the death of Vishal and after finishing work of school, he returned at 12'O clock. He further deposed that Makrand had told him that after cremation he had gone to the house of his sister and stayed there for about 2-2 ½ hours and on the date of marriage 9.5.2005 at about 10.00 p.m. after feast was over his nephew was missing and they were searching but could not trace him. He further deposed that he did not know that Makrand told him in his statement that on 10th May when he was going to answer call of nature towards the brook he saw a deadbody lying. He further stated that he did not call Makrand after three days of the occurrence. No one has interrogated him. He recorded the statement of Makrand after 10-12 days of the occurrence in village Gohari.. After 2-3 days he did not interrogate Makrand nor recorded his statement. He denied the suggestion that he completed the formalities at the instance of complainant and Shiv Murat.

During trial, defence has examined two witnesses in all who Dwarika Prasad arrayed as DW 1 and Suraj Pal Patel arrayed as DW 2 in the trial.

D.W.1 Dwarika Prasad deposed that he had kinship with Purshottam Lal Patel. He also deposed that marriage of his daughter Sushma Patel was solemnized on 9.5.2005 and marriage party had arrived at 9.00 p.m. from Pasiapur, P.S. Soraon Allahabad. Name of groom was Susheel Kumar Patel s/o Muni Patel. Send-off ceremony took place on 10.5.2005 at about 10.00 A.M. In this marriage Purshottam Patel, Suraj Pal Patel and Amar Singh came to his house on 9.5.2005 at 8.30 p.m and he offered them break fast and they returned at 8.30 a.m. He further deposed that Purshottam Patel, Surajpal Patel and Amar Singh Yadav stayed at his house from 9.5.2005 at 8.30 p.m. to 10.5.2005 at 8.30 a.m. He has proved marriage card of his daughter, which is Ext.Kha-1.

In the cross examination, he stated that he knew Purshottam Lal since 1998. His daughter Kusum Patel and sister of Purshottam Patel are married in the same house. The distance between his village and Purshottam's village is thirty five kilometres. Purshottam, Surajpal and Amar Singh had come to his village on two motorcycles. Approximately 600-615 people had participated in the marriage. Separate arrangement was made for lodging of members of the marriage party. Purshottam Patel and others were busy in managing the affairs of marriage party. He admitted that he was very busy in marriage of his daughter and he did not know about arrival and departure of anyone. He denied the suggestion that on account of kinship, he was deposing falsely in order to screen the accused.

D.W.2 Suraj Pal Patel deposed that he is practising law in district court since 2004 and his enrolment number was 9393 of 2004. He deposed that he had kinship with Purshottam Lal Patel, accused. He knows Dwarika Prasad Patel, who is also his relation. On 9.5.2005, marriage of Sushma Patel, daughter of Dwarika Prasad Patel was solemnized. He attended the marriage of Sushma. At the time of incident, he was working as steno in treasury office, Allahabad. On 9.5.2005 at 6.30 p.m, he had gone to the house of Dwarika Prasad Patel with Purshottam Patel accompanying him on his motorcycle for attending marriage and they arrived there at about 8.30 p.m. and stayed up till night at the house of Dwarika Prasad Patel. Both of them left the house of Dwarika Prasad Patel at 8.30 a.m. During this period, both had stayed together.

In the cross examination he denied the suggestion that he was deposing falsely on account of his kinship with the accused.

The instant case hinges on circumstantial evidence and there is no ocular witness to prop up the prosecution. The settled preposition of law regarding the circumstantial evidence crystallises from the various decisions of the Apex Court including the decidion in the case of Padala Veera Reddy v. State of A.P.reported in AIR1990 SC, 79 wherein it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

''(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; and
 
(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.'
 
  
 
	Reverting to the instant case, it would transpire that the Sessions Judge has relied upon following incriminating circumstances for recording verdict of conviction against the appellants-
 

 
	1. 	Marriage of daughter of uncle of the first informant was being 			solemnized on 9.5.2005.  The marriage party had arrived at 6 			p.m. and informant had last seen his son playing alongwith other 		children at 9.30 p.m. 
 
	2. 	On 9.5.2005 P.W. 5 Makrand Kumar had seen Vishal aged about 		12 years while going to neighbouring village Gohari alongwith 			accused persons who were searching for his shoes and he 			instructed his nephew to go home as it was already very late;
 
	3. 	On 9.5.2005 around 11.30 p.m. near village Gohari Vishal was 			murdered by strangulation.;
 
	4. 	There was enmity between first informant and accused relating to 		land;
 
	5. 	In the post mortem report of Vishal only one injury of pressing of 		neck was found.
 

 
	The sessions judge jettisoned the testimony of defence witnesses D.W. 1 Dwarka Prasad and D.W.2 Suraj Pal Patel relating to plea of alibi of Purshottam Lal.  
 

 

The first circumstance relied upon by the trial court is about the fact that marriage of daughter of uncle of the first informant was solemnized on 9.5.2005 and the first informant had seen his son alive alongwith other children outside the house at about 9.30 p.m. On a careful analysis of the evidence of the prosecution, we find that this circumstance cannot be highlighted as being one incriminating to any of the accused persons as this circumstance does not probabilise the guilt against the accused. It is not alleged that any of the accused were present outside the house or were seen by any of the witnesses in and around the area.

The second circumstance which is highlighted by the trial court is of last seen of the deceased Vishal alongwith the accused persons by P.W. 4 Markand Kumar. In connection with this circumstance of last seen, a careful scrutiny of the testimony of P.W. 5 is called for. He candidly deposed that he has kinshp with Ravi Prakash who is related to him as his brother-in-law. He also deposed that he was not a native of village Gohari where the incident took place. Although this witness is not a native of Village Gohari but merely on the ground of his kinship with the first informant and also on the ground that he happened to be native of another village, his testimony cannot be jettisoned. All that the law enjoins is that his testimony should be scrutinized carefully. Coming to the finding of the trial court, it would transpire that the Sessions Judge has placed full reliance on his testimony and converged to a definite opinion that deceased was last seen along with appellants on 9.5.2005 at 11.30 pm. In this connection, depiction of what P.W. 5 Markand Kumar stated in his statement is necessary. His statement quintessentially is that on 9.5.2005, marriage of the daughter of uncle of his brother-in-law Ravi Prakash was being solemnized. He reached village Gohari to attend the marriage. After the ceremony and dinner was over, he and his companion decided to go to the neighbouring village Bahar Sarai for night long rest as the place was overcrowded. As they proceeded ahead from the village Gohari, at about 11.30 P.M. when they arrived near a school, he came across his nephew Vishal who was seen in the company of the accused persons namely, Purshottam, Raj Kumar and Ashok Kumar. On being enquired, deceased Vishal told that his shoes had gone missing and he was searching for his shoes upon which he proceeded ahead asking his nephew to go back as it was already very late. He further deposed that next morning, he went to his village Gokula from village Bahar Sarai and then from his house, he went to his school and that it was at about 8 a.m when he received the information about the murder of Vishal. After finishing the school work, he returned to his house and found that other family members had already left for his brother-in-law's house. He also left for village Gokula and when he arrived at the house of Vishal he came to know that the dead body has been sent for the post mortem examination and cremation will take place at about 3-4 p.m. at Phaphamau. He also deposed that it was after the cremation was over, he communicated with his brother-in-law at the cremation ground informing that in the night he had seen Vishal accused persons alongwith the deceased. In the cross examination, when he was confronted with his statement under section 161 Cr.P.C, he could not give any reason as to how Investigating Officer mentioned that on 9.5.2005 at about 10 P.M. his nephew Vishal was missing and people had started searching for him. Again when he was confronted with his statement under section 161 Cr.P.C. he again could not give any convincing reply how the investigating officer had mentioned in his statement that on 10th May, 2005 when he was going to answer the call of nature he saw the dead body of Vishal. It is significant to mention at this stage that according to his deposition in court he had not seen the dead body of his nephew and he stated that when he came to the house on 10th May, 2005 by that time, the dead body had already been sent for the post mortem examination and thereafter he left for the cremation ground. When he was again confronted with his statement under section 161 Cr.P.C, he again could not give any convincing reply as to how the investigating officer had mentioned him saying that accused persons were inimical to his brother-in-law Ravi Prakash. The investigating officer P.W. 8 Vivekanand Tiwari did mention in his deposition that Makrand did not tell him where he had stayed during night and further he did not tell him that he had gone to attend the marriage alongwith Shiv Prasad. He did not tell him that he stayed in village Bahar Sarai during night and thereafter he had gone to his house at about 5 a.m. in the morning and thereafter he went to attend his school. He also did not tell him that at about 8 a.m. he received telephonic information about the murder of Vishal. On the contrary, Investigating Officer in his deposition has stated that Makrand had told him that on 9.5.2005 after 10 p.m. his nephew was missing and people were searching for him. Further Makrand told him that on 10.5.2005 when he was going to answer the call of nature, he had seen the dead body of Vishal lying in the field near the drain. He admitted that he had recorded the statement after 10-12 days of the occurrence.

Upon a close scrutiny of the testimonies of the Makrand PW 5 in juxtaposition of the testimony of the Investigating Officer, it would crystallize that it was for the first time that Makrand PW 5 had deposed about the circumstance of last seen. There is no corroboration to his testimony by any of the witnesses examined by the prosecution. It brooks no dispute that Makrand PW 5 is closely related to the first informant and in the facts and circumstances and regard being had to the fact that his testimony does not find corroboration we feel called to converge to the view that he has been set up as a got up witness to shore up the incriminating circumstance of last seen.

Another circumstance which shows fragile nature of the testimony remains the fact that last seen circumstance surfaced much after the occurrence and it would be borne out from the deposition of Makrand itself and also from the deposition of the investigating officer that the statement of Makrand under section 161 Cr.P.C was recorded after 10-12 days of the occurrence and further that the fact of last seen was not mentioned therein.

In our considered view, P.W. 5 Makrand had introduced himself as being in his village on 10.5.2005 ostensibly to make good the deficiency, inasmuch as in the first information report, there was no whisper about last seen of the accused alongwith the deceased. It cannot ruled out that in order to overcome difficulty, he excluded his presence on 10.5.2005 in village Gohari. In this connection, if we look back into the testimony of P.W. 8 Viveka Nand Tiwari the investigating officer of the case, he has clearly deposed that Makrand P.W. 5 had told him that on 10.5.2005 in the morning when he went to answer the call of nature, he had seen the dead body of Vishal. He also stated that he recorded the statement of Makrand after 12 days of the occurrence even then this witness had not deposed about the last seen theory. In this view of the matter, we are afraid to say that the Sessions Judge slurred over the obvious infirmities discernible in the statement of Makrand that he had deliberately suppressed his presence in the village on 10.5.2005. If he was at all present in the village on 10.5.2005, he should have stated in his statement he had seen the deceased alongwith the accused persons. Therefore, it appears that the evidence of last seen was embroidered and concocted subsequently to foist the charge of murder on the appellants. Had it been so, it must have found mentioned in the first information report. From a careful examination of his entire deposition it leaves no manner of doubt that whatever he had deposed about the last seen evidence, he had deposed for the first time in court. He did not mention these facts to the Investigating Officer. By this reckoning, his testimony does not inspire confidence to prop up the circumstance of last seen.

In connection with the above, we would like to advert to few of the decision on the point and one of the decisions on the point is Bodhraj v. State of J&K SCC p. 63, para 31 in which the Apex Court has held as under:

"31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."

 In the case of Ramreddy Rajesh Khanna Reddy v. State of A.P. (SCC Para 27    the Apex Court held that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.
 

 
 In Jaswant Gir v. State of Punjab  SCCp. 441 para 5 it was observed by the Apex Court  as under:  
 

 
"5. ... In the absence of any other links in the chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of the ''last seen' evidence, even if the version of PW 14 in this regard is believed."
 
  
 

The circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.

The Apex Court in the case of Niranjan Panja v. State of W.B.,(2010) 6 SCC 525, at page 532 has held as under:

"The evidence of this witness would be of no consequence, particularly, because the prosecution in this case has not fixed the time of death and there is no evidence led to that effect. Where the prosecution depends upon the theory of "last seen together", it is always necessary that the prosecution should establish the time of death, which the prosecution has failed to do in this case."

Reverting to the facts of the present case, it brooks no dispute that the prosecution witness P.W. 5 is not an eye witness and he is deposing against the appellants for the first time in court and he did not narrate this story of last seen to the investigating officer while his statement was recorded by the investigating officer. It is in this perspective that we feel called to converge to the view that the prosecution has not convincingly and satisfactorily brought home the guilt to any of the accused persons beyond all reasonable doubt by letting in reliable and cogent evidence. The sessions Judge slurred over the infirmities in the testimony of P.W. 5 Makrand and erroneously placed reliance on his testimony.

The third incriminating circumstances considered by the Sessions Judge is that on 9.5.2005 at about 11.30 p.m. near village Gohari, Vishal aged about 12 years was murdered by strangulation. On a careful scrutiny of the evidence brought on record by the prosecution we are of the view that this circumstance also cannot be reckoned with as incriminating to the appellants in any manner.

Fourth circumstance relied upon by the trial court is enmity between the first informant P.W. 3 and accused relating to land. It has been held by the Apex Court in a catena of decisions that the enmity is a double edged weapon which cuts both ways and that it could be used by either party as a weapon against each other.

In the case of State of U.P. Vs. Moti Ram, (1990) 4 SCC 389 the Apex Court has held that the motive is a double-edged weapon and the key question for consideration is whether the prosecution had convincingly and satisfactorily established the guilt of all or any of the accused beyond reasonable doubt by letting in reliable and cogent evidence. Very often, a motive is alleged to indicate the high degree of probability that the offence was committed by the person who was prompted by the motive. In our opinion, in a case when motive alleged against the accused is fully established, it provides a foundational material to connect the chain of circumstances. We hold that if the motive is proved or established, it affords a key or pointer, to scan the evidence in the case, in that perspective and as a satisfactory circumstance of corroboration. It is a very relevant and important aspect -- (a) to highlight the intention of the accused and (b) the approach to be made in appreciating the totality of the circumstances including the evidence disclosed in the case. The relevance of motive and the importance or value to be given to it are tersely stated by Shamsul Huda in delivering the Tagore Law Lectures (1902) -- The Principles of the Law of Crimes in British India, at page 176, as follows:

"But proof of the existence of a motive is not necessary for a conviction for any offence. But where the motive is proved it is evidence of the evil intent and is also relevant to show that the person who had the motive to commit a crime actually committed it, although such evidence alone would not ordinarily be sufficient. Under Section 8 of the Evidence Act any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.(emphasis supplied)

Therefore, we are of the opinion that this circumstance of enmity between the parties is not strong enough to hold the accused persons guilty of the crime in the absence of any clinching circumstance against them.

The last and fifth circumstance relied upon by the Sessions Judge to the effect that in the post mortem report of Vishal only one injury of pressing of neck was found, in our considered opinion. also cannot be reckoned as incriminating to any of the appellants.

In the light of the above and considering the facts and circumstances of the present case, we are of the opinion that prosecution has failed to prove its case by reliable, cogent and satisfactory evidence and the accused persons are entitled to be given the benefit of doubt.

For the aforesaid reasons, we find that the prosecution case, which is purely based on circumstantial evidence, has not been established beyond all reasonable doubts. Once we discard the evidence of the prosecution in regard to its theory of last seen together, identification of the dead body, the links in the chain of circumstances get broken, hence the chain of circumstances will not be completed.

Accordingly, all the above appeals are allowed. The judgement and order dated 7.1.2010 passed by Additional Sessions Judge, court no.1 in S.T. no.810 of 2006 convicting the appellants under Section 302/34 I.P.C. is set aside. The appellants are acquitted of the charges. They are on bail. They need not surrender and their sureties are discharged.

Dated: Oct 14, 2011

o.k./MH