State Of U.P. vs Rakesh
2014 Latest Caselaw 616 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

COURT NO. 46
 

 
GOVERNMENT APPEAL NO. 112 OF 2006
 

 
APPELLANT :  	STATE OF U.P.
 

 
VERSUS
 

 
RESPONDENT: 	RAKESH 
 

 
COUNSEL FOR THE APPELLANT: GOVT.  ADVOCATE
 

 
CORAM:
 
HON'BLE AMAR SARAN, J
 
HON'BLE ANIL KUMAR SHARMA, J
 
(by Hon. Anil Kumar Sharma, J.)
 
The appellant - State of U. P. has challenged the acquittal of the sole respondent recorded by the Sessions Judge, Saharanpur vide judgment and order dated 3.10.2005 in S. T. No. 20 of 2005 u/s 302, 201 IPC P. S. Kotwali Dehat, Saharanpur.
 
We have heard the learned AGA and perused the original record of the case carefully.
 
Facts

germane to the appeal are that on 3.10.2004 complainant Rishipal submitted a missing report of his brother Pala s/o Kalu Ram aged about 50 years since 26.9.2004. His nephew Johny met Pala in the bus who told him that he is going to the house of Rakesh situated at Dera Satpal Singh Raja Nagpal. His brother Pala has not returned since 26.9.2004 and during search he came to know that accused Rakesh has told some one that he along with Brahman Sukesh s/o Baru Lal had strangulated Pala to death. On 5.10.2004 the complainant lodged another report with the police on the basis whereof case was registered and investigation started. The same day, the investigating officer arrested accused Rakesh at about 2:45 p.m. and after interrogation he got the cadaver of the deceased recovered from a pond of village Ismailpur. Recovery memo was prepared. Thereafter, inquest and post-mortem examination of the corpse of the deceased were done. It was alleged by the complainant that there is a dispute between the brahmans and harijans in respect of Gram Samaj land. The investigation ended in a charge sheet against the accused which was submitted on 30.10.2004.

During trial charge for the offence punishable u/s 302/201 IPC was framed against the respondent, who abjured his guilt and claimed trial. In order to establish the charges, the prosecution had examined Ram Pal Singh PW-1, Rishipal PW-2, Johny PW-3, Dharam Veer PW-5, Dr. A. K. Verma PW-5, Brijesh PW-6, SO Jagat Kumar Singh PW-7, HC Sunil Kumar PW-8 and Constable Pramod Kumar. In his statement u/s 313 Cr. P. C., the accused-respondent had again denied the entire prosecution story and claimed false implication. The learned trial Court after hearing the parties' counsel has acquitted the accused-respondent through impugned judgment. Aggrieved, the State has come up in appeal.

Castigating the impugned judgment learned AGA has argued that the learned trial Court has erred in not appreciating the evidence adduced by the prosecution in correct perspective; that the findings are based on conjectures and surmises; that learned trial court has drawn wrong inferences with regard to delay in the FIR and motive for the crime, therefore, the acquittal of the respondent is bad in law and leave to appeal be granted.

On perusal of the record we find that there is no direct evidence of the crime and the case is based on circumstantial evidence. Three circumstances have been alleged against the respondent, namely the motive, as accused-respondent wanted to install a charkhi on Gram Samaj land, which was being objected by the deceased; secondly, he was last seen in the company of the deceased on 26.9.2004 by witness Dharam Veer and lastly on 5.10.2004 the respondent got the dead body of the deceased recovered from a pond under the bushes of besharm.

In our country, law with regard to circumstantial evidence in a criminal trial is quite consistent for more than thirty years since the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 till a quite recent decision of the Apex Court in the case of Shyamal Saha & Anr. vs State Of West Bengal decided on 24 February, 2014, which state that the chain of events must be so complete as to leave no room for any other hypothesis except that the accused were responsible for the death of the victim.

The learned Sessions Judge after appreciating evidence adduced by the prosecution has held that the prosecution has miserably failed to prove motive against the accused-respondent. Two fold motive was attributed to the accused to eliminate the deceased along with one Sukesh, not charge-sheeted by the police. It was alleged that accused wanted to install sugar-cane charkhi over Gram Samaj land which was opposed by the deceased and the other is that there was enmity between brahmins and harijans of the village. It has come in evidence of Rishi Pal PW-2 (complainant and brother of the deceased) that both the deceased and accused Rakesh are harijans. He has specifically stated in cross-examination that there was no land dispute between brahmins and harijans of the village. The deceased had never filed any complaint against the accused-respondent before any revenue authority. Thus, the alleged motive could not be proved by the prosecution. In the case of Bipin Kumar Mondal Vs. State of West Bengal (2010) 12 SCC 91 the Apex Court has held that absence of motive in a case relating to circumstantial evidence, dislodges the entire prosecution story.

The other circumstance alleged against the accused respondent is that about 9-10 months ago, Johny PW-3 has told the complainant that deceased Pala met him in the bus at about 6:30-6:45 p.m. and on his enquiry he told him that he is going to the place of Rakesh (respondent) where he has arranged a feast and he got down at the culvert of Ismailpur. This witness has not seen the respondent in the company of the deceased. The other limb of last seen theory is that the deceased and accused-respondent were seen together on 26.9.2004 by witness Dharam Veer at about 7:00 p.m. near dera of Satpal Nagpal, where the accused was employed as chaukidar. However, this witness has admitted in his cross-examination that he informed the police about his having seen the accused and the deceased together about a month after the incident. He has also not stated to the family members of the deceased about the above incident and has given contradictory statements in his cross-examination, which makes him an unreliable witness. All the witnesses of fact examined in the case are residents of same village i.e. Brahman Majra where the deceased and accused resided. The investigating officer PW-7 has stated in his examination-in-chief itself that he has interrogated witness Johny on 24.10.2004 and Dharam Veer on 28.10.2004. He has submitted charge-sheet against the accused-respondent on 30.10.2004. Thus, it appears that the evidence of last seen has been cooked up by the prosecution to unfold the mystery of murder of the deceased.

The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen 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. The Apex Court in the case of S. K Yusuf Vs. State of West Bengal reported in (2011) 11 SCC 754, more particularly, paragraph 21 thereof, which reads as under:

"21. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen 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."

In the instant case if for the sake of argument we believe the testimony of Dharam Veer PW-3 about having seen the accused-respondent and the deceased together in the evening of 26.9.2004, even then this circumstance alone does not point a finger of guilt towards the respondent, as it is not supported by medical evidence. In the post-mortem notes of the deceased Dr. Verma PW-5 has noted that the estimated time of death of the deceased is about one week. The autopsy on the cadaver of the deceased was conducted on 6.10.2004. Thus, the date of death of the deceased comes to on or about 29th or 30th September, 2004, whereas the deceased was not seen alive from 26.9.2004. The statement of Dr. Verma that the deceased could have suffered death between 26.9.2004 and 5.10.2004 given in examination-in-chief cannot be believed.

Now as regards the recovery of the dead body of the deceased at the pointing out of accused-respondent on 5.10.2004, this too is not proved beyond reasonable doubt. Admittedly no disclosure statement of the accused-respondent leading to the discovery in question had been recorded by the investigating officer. The recovery had been attested by alleged public witnesses Vijendra Singh and Brajesh Kumar sons of Ram Swarup residents of village Brahmin Majra and both of them are related with the deceased, as has been admitted by Brajesh Kumar PW-6 in the first sentence of his cross-examination. The close scrutiny of the testimony of this witness shows that he has not even seen the place of recovery of the dead body of the deceased. In his cross-examination he has stated that there is chak road on the eastern side of the place from where the dead body was recovered and the pond is surrounded by bushes of beshram. Site-plan Ex. Ka-12 shows that the place of recovery of the dead body of the deceased is eastern side of Gram Samaj pond and there is no chak road in the eastern side of the pond. No beshram bushes around the pond have been shown by the investigating officer. Brajesh Kumar PW-6 has stated in his cross-examination that he along with his brother Vijendra Singh was sitting on the culvert while they were searching for the deceased. In the facts and circumstances of the case, this statement of Brajesh Kumar PW-6 cannot be believed because the deceased was not traceable since 26.9.2004 and both these persons are distant relatives of the deceased. It is noteworthy that the complainant Rishi Pal, real brother of the deceased has lodged the first missing report of the deceased on 3.10.2004, i. e. more than a week after his alleged disappearance. The family members of the deceased have not explained the delay in informing the police about disappearance of the deceased especially when they were suspecting some foul play on account of enmity between the two communities of the villages.

In view of what has been said and done above, we find that the learned Sessions Judge has correctly appreciated the evidence adduced by the prosecution in support of the charges framed against the accused-respondent and has not committed any illegality either factual or legal in acquitting him. The application for leave to appeal lacks merits, and is accordingly rejected. As a consequence, the appeal u/s 372 Cr. P. C. also stands dismissed.

		(Anil Kumar Sharma, J)                  (Amar Saran, J)
 

 
April 07, 2014
 
LBY/-