Kunwar Pal Singh vs The State Of U.P. And 2 Others
2014 Latest Caselaw 9545 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 36
 

 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 4637 of 2014
 
Appellant :- Kunwar Pal Singh
 
Respondent :- The State Of U.P. And 2 Others
 
Counsel for Appellant :- Aklank Jain
 
Counsel for Respondent :- Govt.Advocate
 
	
 
Hon'ble Rakesh Tiwari, J.

Hon'ble Naheed Ara Moonis, J.

(By Justice Rakesh Tiwari)

Heard Sri Aklank Jain, learned counsel for the appellant, learned Additional Government Advocate for the State-Respondent no. 1 and perused the record.

This criminal appeal is preferred challenging the judgment and order dated 18.10.2014 passed by Additional District & Sessions Judge, Court No. 8, Agra in Sessions Trial No. 176 of 2012: State Vs. Biri Singh and another as Case Crime No. 892 of 2011 under Section 364, 120 IPC, P.S. Etmadaulla, District-Agra, acquitting opposite party nos. 2 and 3. The aforesaid impugned order has been assailed by contending that acquittal is against the evidence on record and contrary to law; that the trial court has not applied its judicious mind to the facts and circumstances of the case and had not made any endeavour to summon constable Narendra Singh and the Investigating Officer Mool Chand, mentioned in the charge sheet as witnesses; that the trial court has passed the impugned judgment and order in a very hurried manner without considering the evidence adduced by P.W. 1, P.W. 2 and P.W. 3 in which these witnesses have clearly stated that the victim was last seen with the opposite party no. 2 and this completes link in the chain of circumstances. Learned counsel for the appellant has also assailed the impugned judgment saying that P.W. 3-Kunwar Pal Singh in his examination-in-chief has stated that Biri Singh himself made an extra judicial confession to P.W. 1 that he has committed the murder of Shyam Singh.

Per contra, learned A.G.A. has stated that it is a case of circumstantial evidence and the chain of circumstantial evidence is incomplete which does not prove that murder has been committed by the accused-respondent no. 2 who cannot be held guilty only on solitary evidence of last seen in the absence of any further evidence.

After hearing learned counsel for the parties and on perusal of record, we find that the trial court has dealt with the aforesaid aspect of the matter of last seen in detail. Shanker Pal- P.W. 1 in his statement has stated that on 22.10.2011 as usual he along with Chet Ram, Mahesh, Lakhpat and Shyam Singh accompanying with Hari Singh went to search for work as labourer. When they were standing at Highway near Syd. Laxmi Vatika for work, Biri Singh came on auto rickshaw and after talking with Shyam Singh took him for work at the rate of Rs.250/- per day. As there was need of only one labour, Shyam Singh accompanied to Biri Singh for work and since then whereabouts of Shyam Singh is not known.

P.W. 2-Constable Raghuvir Singh in his statement has stated that on 22.11.2011 he had registered the first information report as Case Crime No. 892/11 under Section 364, 120B IPC on the basis of written report of complainant Kunwar Pal Singh- P.W.3.

P.W. 3- Kunwar Pal Singh has stated in his evidence that his son Shyam Singh had gone in search for work as labourer, on 22.10.2011. When he had not come back in the evening search was made for him, but he was not found. He further deposed that Biri Singh had accompanied his son Shyam Singh (since deceased) towards Chhalaser for work as labourer on daily wages @ Rs.300/- per day, but thereafter whereabout of his son was not known.

Appreciating the aforesaid evidence, the court of Session came to conclusion that the P.W. 1 had only stated that Shyam Singh had gone along with Biri Singh for work in the morning, but this is not sufficient evidence of last seen for proving the guilt of the accused. The trial court in support of its conclusion has relied upon a judgment rendered in the case of Trilochan Panika Vs. State of Orissa, 1989 C.R.L.J.N.O.C.168 in which the court has held that no body can be convicted on the basis of mere last seen evidence without any supporting evidence. In case of circumstantial evidence all is required is that the chain to be completed towards pointing out the guilt of accused only and nothing else. From a perusal of the evidence on record, it is crystal clear that Shyam Singh was also seen in the evening, therefore, evidence of his last seen by P.W. 1 would be insufficient to prove the guilt of accused respondent, particularly when statement of P.W. 3 is only on hearsay.

Before a case against an accused, resting on circumstantial evidence, can be said to be fully established, the following conditions must be fulfilled as held by the Apex Court.

1."The circumstances from which the conclusion of guilt is to be drawn should be fully established;

2.The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3.The circumstances should be of a conclusive nature and tendency;

4.The circumstances should actually exclude every possible hypothesis except the one proposed to be proved; and

5.There must be a chain of evidence so complete so 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."

These five golden principles constitute the panchsheel of the proof in a case based on circumstantial evidence in the absence of a corpus delicti.

In the cases of circumstantial evidence rendered in Baba Ram Das alias Tarlok Singh versus State of Punjab (11/1998 C.C.R. page-16, Punjab and Haryana), Shyamal Shah and others versuns State of West Bengal (2014 ACR-444 (SC), Shyodan versus State of U.P. (2014)(1) A.A.R. 337, Alld. High Court), State of Gujrat versus Ratan Singh alias Chini Bhai (2014(1) A.A.R. 272, SC), Padala Veera Reddy versus State of A.P. and others, AIR 1990, SC-79 and State of U.P. versus Ashok Kumar Srivastava, 1992 Crl. L.J. 1104, it has been held that the chain of circumstantial evidence is to be complete for holding that the accused and none other would have committed offence and it should be unbroken to point out to the guilt of the accused persons only and no other.

The law firmly entrenched by the Apex Court is that there can be no doubt that conviction can be based solely on circumstantial evidence but it should be rested on the touchstone of law relating to circumstantial evidence in view of the decision rendered in Hanumant Govind Nargundhkar versus State of M.P. AIR 1952 SC 243 & Mula Devi versus State of Uttarakhand, AIR 2009 SC 655.

In the case of Ram Singh versus Sonia, AIR 2007 SC 1218, the Apex Court has held that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a complete chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis regarding the guilt is possible.

Further more, it is not the duty of the court to summon the witnesses. In case, the court had not summoned the formal witnesses mentioned in the charge sheet, rather it is the duty of appellant to move the court by an application for summoning those witnesses, if according to him, they were reliable witnesses. On a query made by the court, learned counsel for the appellant is unable to reply the Court as to why he had not moved application for summoning the reliable witnesses.

As regards, extra judicial confession is concerned, the trial court has dealt with as under:

** mlds ckn mls vius yMds dks dkQh ryk'k fd;k fQj Hkh ugh feyk rks mlus fnukad 31-10-11 dks Fkkuk ,ReknnkSyk esa xqe'kqnxh dh rgjhj nh Fkh vkSj mlh fnu ';ke flag dh xqe'kqnxh dh ryk'k ds ipsZ QksVks lfgr Niok;s Fks rFkk ftl ij izn'kZ d&3 Mkyk x;kA blds ckn og ohjh flag ds ikl tkdj vius yMds ds ckjs esa iwNrk jgk rFkk ohjh flag mls Hkjkslk nsrk jgk fd og yMds ds dks yk nsxkA og vk tk;sxkA vUr esa tc mlus ohjh flag ls dM+kbZ ls iwNk rks mlus dgk fd mlus rks ';ke flag dks ekj fn;kA ml ij tks fd;k tk; og dj ysukA **

From the perusal of record, it appears that the FIR has been lodged against Biri Singh after about one month of the incident. Even missing report has been lodged on 31.10.2011 whereas incident is said to have been happened on 22.10.2011. An extra judicial confession alleged to have been also was only related to Shyam Singh being his "Sadhu" i.e. husband of the sister of his wife, but it looses significance particularly when there is an allegation made against the accused 'Biri Singh' that he was having relationship with the wife of Shyam Singh. All these circumstances raise a serious doubt as to whether the accused is not being falsely implicated in the 'disappearance' of Shyam Singh when body has not been found. Neither partisan witnesses nor any other independent witnesses have been produced.

For all the reasons stated above, we are of the view that there is no illegality or infirmity in the order impugned in this appeal and accordingly uphold the said order.

The appeal is, accordingly, dismissed.

Dated: 04.12.2014

RCT/-