State Of U.P. vs Hari Prasad & 2 Ors.
2015 Latest Caselaw 213 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
A.F.R.
 
(1) Case :- CAPITAL SENTENCE No. - 2 of 2014
 
Appellant :- State Of U.P.
 
Respondent :- Hari Prasad & 2 Ors.
 
Counsel for Appellant :- Govt. Advocate
 
(2) Case :- CRIMINAL APPEAL No. - 406 of 2014
 
Appellant :- Smt. Vishun Dei
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Shailendra Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 
(3) Case :- CRIMINAL APPEAL No. - 416 of 2014
 
Appellant :- Prakash
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Abdul Samad
 
Counsel for Respondent :- Govt. Advocate
 
(4) Case :- CRIMINAL APPEAL No. - 400 of 2014
 
Appellant :- Hari Prasad & Another
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Sultan Hasan Ibrahim,Syed Ajaz Haider Rizvi
 
Counsel for Respondent :- Govt. Advocate
 
(5) Case :- CRIMINAL APPEAL No. - 325 of 2014
 
Appellant :- Virendra Kumar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- In Person (Jail Apperal)
 
Counsel for Respondent :- Govt. Advocate
 
(6) Case :- CRIMINAL APPEAL No. - 327 of 2014
 
Appellant :- Hariprasad
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- In Person (Jail Apperal),Rajesh Bahadur Singh Rath
 
Counsel for Respondent :- Govt. Advocate
 
(7) Case :- CRIMINAL APPEAL No. - 326 of 2014
 
Appellant :- Ramchandra
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- In Person (Jail Apperal),Kapil Misra,Ram Saran Awasthi
 
Counsel for Respondent :- Govt. Advocate
 
(8) Case :- CRIMINAL APPEAL No. - 493 of 2014
 
Appellant :- Smt. Ramavati
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Ravi Dingar,Ram Saran Awasthi,Shrawan Kumar
 
Counsel for Respondent :- Govt. Advocate
 
And
 
(9) Case :- CRIMINAL APPEAL No. - 354 of 2014
 
Appellant :- Smt. Vishuna Devi
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Sultan Hasan Ibrahim,Syed Ajaz Haider Rizvi
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Anant Kumar,J.

(Per Surendra Vikram Singh Rathore, J.)

1. All the aforementioned cases arise out of a common judgment, hence these are being disposed of by a common judgment.

2. Capital Sentence 2 of 2014 is the reference sent by Ist Additional Sessions Judge, Raebareli under Section 366 Cr.PC. for the confirmation of the death sentence, which has been recorded in Sessions Trial No. 611 of 2008 vide order dated 4.3.2014 arising out of Case Crime No. 22 of 1996, Police Station Mohanganj, District Raebareli whereby the trial court has recorded capital sentence against Hari Prasad, Ram Chandra and Virendra Kumar. The other appeals have been preferred by the accused persons, who have been convicted in the instant case. The trial court has sentenced the accused persons as under:-

Appellants Hari Prasad, Ram Chandra and Virendra Kumar have been convicted under Section 302/149 I.P.C. with capital sentence and also with fine of Rs. 10,000/- each with default stipulation of two years rigorous imprisonment. They were further convicted for the offence under Section 120-B/149 I.P.C. and were awarded capital sentence and also fine of Rs. 10,000/- each with default stipulation of one year rigorous imprisonment. The accused persons were further convicted for the offence under Section 201/149 I.P.C. and were sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs. 10,000/- with default stipulation of one year rigorous imprisonment. The other appellants, namely, Vishuna Devi wife of Hari Prasad, Vishun Dei wife of Jag Prasad, Ramawati and appellant Prakash were convicted for the offence under Section 302/149 I.P.C. and were sentenced with imprisonment for life and also with fine of Rs. 10,000/- each with default stipulation of two years rigorous imprisonment. They were further convicted for the offence under Section 120-B/149 I.P.C. and were sentenced with imprisonment for life and also with fine of Rs. 10,000/- each with default stipulation of one year rigorous imprisonment. The appellants were further convicted for the offence under Section 201/149 I.P.C. and were sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs. 10,000/- each with default stipulation of one year rigorous imprisonment. In the instant case, there were two more accused persons; namely one Heeral Lal, who died during trial and the proceedings against him were abated and another accused namely Vinod Kumar son of Hari Prasad, was declared to be juvenile vide order dated 2.7.2012 as his age on the date of incident was found to be 13 years, seven months and 16 days only. His case was separated and was sent for trial to the concerned Juvenile Justice Board.

3. It is true that it is a brutal murder of an innocent boy aged about four and a half years only. His hands and legs were severed. Eyes were taken out. It is alleged that accused persons sacrificed him to please the deity for blessing accused Ramawati with a son.

4. Appellant Vishuna Devi is the wife of Hari Prasad. Appellants Virendra Kumar and Vinod Kumar (juvenile) are the sons of Hari Prasad. Appellant Ram Chandra is the cousin of Hari Prasad. Appellant Prakash is the son in law of Hari Prasad. Heera Lal is co-brother (Sarhu) of Hari Prasad. Appellants Ramawati and Vishun Dei also belong to the same family though not directly. There was one more accused Tantrik Tyagi but he could not be arrested by the police.

5. In brief the case of the prosecution is that the complainant happens to be the father of the deceased. The victim was missing from 23.3.1996 since 5:00 p.m. when he had gone to play outside his house. His family members made effort for his search but he could not be traced out. On 24.3.1996 at 8:30 p.m. information of missing of the victim was given by the complainant at the police station. Subsequently on 27.3.1996 at 2:45 p.m., the complainant lodged an F.I.R. of this case, alleging therein that on 27.3.1996, the dead body of his son namely Prashant alias Bablu was found in a mangled condition in the crop of wheat and mustered in the field of Udaybhan situated towards south west of the village. The dead body was smelling badly. The complainant recognized the dead body by a cut mark on the heel. Thereafter one Surju Lal son of Dhanau and Vishwanath Prasad son of Jagannath Vishwakarma came back to the village on the same day and told that on 23.3.1996 in the evening they had seen the victim in the company of Ram Chandra and Vinod Kumar. As stated earlier Vinod Kumar has been declared to be juvenile. On this information F.I.R. was lodged, the case was registered and investigation proceeded. Initial Investigating Officer of this case was Station House Officer G.N. Singh. Thereafter investigation was handed over to PW-8 S.I. Chandra Deep Singh, who took the investigation from 30.3.1996. On 2.4.1996 accused Ram Chandra and Vinod Kumar were arrested. On 6.4.1996, the place of incident was inspected and its site plan was prepared on the pointing out of the complainant. On 18.4.1996 on the pointing out of the complainant, a sack (Bora) having the particles of coal, and a vest with stains of Sindoor and blood were recovered by the Investigating Officer and its memo was prepared. These articles have been proved as Mat. Ex. 3 and 4. From the house of Vishun Dei wife of Jag Prasad, a bloodstained sack and bloodstained small cot was recovered and its memo Ex. Ka 14 was prepared. These articles have been proved as Mat. Ex. 1 and 2. The statement of Smt. Vishun Dei wife of Jag Prasad was also recorded. Smt Vishun Dei told the Investigating Officer that the blood on the sack and cot was the result of her bleeding due to her abortion. Therefore, the Investigating Officer referred her for medical examination to the C.M.O. as to whether she has suffered any abortion in the recent past as claimed by Vishun Dei wife of Jag Prasad. S.I. Radha Kamal Tiwari conducted inquest proceedings on 27.3.1996 and and sent the dead body for postmortem in sealed condition. The postmortem was conducted by Dr. T.N. Puri on 28.3.1996. According to postmortem report, the death of the deceased had taken place about five days ago. The dead body was decomposed and skin was peeled off at place. Hairs of head were missing and following injuries were found on his body:-

(i) Both the hands from the joint of shoulder were cut.

(ii) Both the ears were missing.

(iii) Both the legs were cut from the foot.

The medical officer has also reported in the postmortem that both the eyes were absent from the body. Sutures of skull were loose. Maggots were present all over body. In the opinion of the doctor, the cause of death was shock and hemorrhage as a result of ante-mortem injuries. Subsequently the Investigation of this case was transferred from civil police to C.B.C.I.D., Lucknow. The first Investigating Officer of C.B.C.I.D. was Raj Narayan Mishra. Thereafter it was transferred to PW-9 Trilok Chandra Joshi, who again investigated this case. He has also stated that first Investigating Officer of C.B.C.I.D. Raj Narayan Mishra has expired. PW-9 Trilok Chandra Joshi has also proved the part of investigation, which was conducted by Shri Raj Narayan Mishra. The Statement of Smt. Usha Rani, who happens to be the real sister of the complainant was also recorded, wherein she has stated that incident was narrated to her by Vishun Dei wife of Jag Prasad. She has stated as to what was told to her by Smt. Vishun Dei. This witness herself is not a witness of any fact.

6. After completing the investigation, charge sheet was filed against the appellants and two other accused persons.

7. The case of the defence was that they are innocent. They have been falsely implicated due to old enmity of the agricultural land.

8. There is no direct evidence of this offence and the prosecution case rests its case on circumstantial evidence.

9. In order to prove its case, the prosecution has examined PW-1 Ashok Kumar, complainant of the case. He is not a witness of fact as he had gone to Kanpur and came back at 6:00 p.m. and got the information that his son was missing. PW-2 Vishwanath son of Jagannath, who happens to be the real uncle of the complainant and has been produced as a witness of last seen the deceased on 23.3.1996, in the company of Ram Chandra and Vinod Kumar. PW-3 is Dr. T.N. Puri, who has conducted the postmortem. PW-4 S.I. Jai Ram Saroj, who conducted the inquest proceedings. PW-5 Radha Kamal Tiwari who has proved the information of missing, which was given on 24.3.1996. PW-6 Smt. Usha Devi, who has stated as to what Vishun Dei wife of Jag Prasad told her. PW-7 Ram Nihore Gautam Inspector, C.B.C.I.D, Lucknow, who has filed charge sheet in this case. PW-8 Chandra Deep Singh Second Investigating Officer. PW-9 Trilok Chandra Joshi, Inspector C.B.C.I.D, who has only investigated this case for a short time. No recovery was made by him. He made efforts for the arrest of Tantrik.

10. In defence, the accused persons have examined Mohd. Ifran, Pharmacist, District Jail, Raebareli to prove injury report of appellant Ram Chandra and Vinod Kumar.

11. After appreciating the evidence on record, the trial court has convicted the appellants as above, hence these criminal appeals and reference under Section 366 Cr.P.C.

12. Submission of learned counsel for the appellants is that the prosecution story mainly rests on the evidence of two witnesses i.e. PW-2 Vishwanath son of Jagannath and PW-6 Smt. Usha Devi. The evidence of PW-2 is on the point of last seen the deceased in the company of Ram Chandra and Vinod Kumar but the evidence of this witness is unreliable as he happens to be the real uncle of the complainant and the evidence of PW-6 who happens to be the real sister of the complainant was also not admissible in the eyes of law as it was only hearsay evidence but the trial court has considered her evidence as extra judicial confession of accused Vishun Dei wife of Jag Prasad.

13. It is further submitted on behalf of the appellants that the trial court has also placed undue importance to the recovery of one Kurta, which was bloodstained and the same was handed over by the Vishwanath to the police and at the time of preparation of its memo (Ex. Ka-16), the villagers informed that this is the Kurta of accused Virendra. On the strength of this recovery and opinion of the villagers, the finding of the court was that place of incident stands established and involvement of the appellants also stands established. Such conclusion was not in accordance with law because the prosecution has utterly failed to prove during trial that this Kurta was of accused Virendra. Learned counsel for the appellants have also submitted that the evidence of last seen was absolutely not reliable. It has further been submitted that the prosecution alleges that PW-2 Vishwanath had seen the deceased in the company of two named accused persons and at that time one Surju Mahra was also with him. It has further been submitted that said Surju Mahra at the time of hearing of bail application of the accused Ram Chandra had filed an affidavit before the Court that he had not seen any such incident as alleged by the prosecution and on the basis of his affidavit, the bail was granted to appellant Ram Chandra. It is further submitted that virtually there was no evidence in this case to connect the appellants with the offence but the trial court, only on the basis of presumption and on the basis of inadmissible evidence, has recorded the conviction and has awarded capital sentence to three of the appellants. It has also been submitted that Vishun Dei has been falsely implicated in this case only on the ground of recovery of one bloodstained sack and cot from her house. She has been implicated only because at the time of search she was present in the house and surprisingly her husband, who was the master of the house, has not been made accused in this case. It is further submitted that the allegation of prosecution that Sindoor, Coal, lemon and Agarbatti were put in the abdomen of the deceased after cutting it open stands falsified by the statement of the doctor wherein he has stated that his abdomen was not damaged. It has further been submitted that even on the other recovered articles neither coal particles nor any particle of Sindoor, lemon, incense sticks were reported by the Forensic Science Laboratory in its report.

14. Learned A.G.A. for the State and Mr. R.B.S. Rathore, learned counsel for the complainant have also made their valuable submissions. It is submitted that the evidence of PW-6 Smt. Usha Devi is regarding the statement, which was told to her by Vishun Dei, therefore, the same is admissible under Section 6 and under Section 8 of the Indian Evidence Act. He has also drawn the attention of this Court towards explanation (J) & (K) of Section 8 of the Indian Evidence Act. He has further submitted that Vishun Dei has taken a false defence in her statement recorded under Section 313 Cr.P.C. wherein she has replied to the question no. 9 in negative and has stated that all the documents were false and ante-timed. It is further submitted that false defence completes the missing link, therefore, the trial court has rightly convicted the appellants. He has further submitted that it is a brutal murder, therefore, capital sentence has rightly been awarded to the three of the appellants.

15. Learned counsel for the complainant has further submitted that the incident of this case pertains to the year 1996 while in this case charges were framed on 23.8.2011 and witnesses were examined in the year 2012. So their evidence was recorded after a gap of about 16 years. After such a long gap minor discrepancies in the statements of the witnesses are bound to occur. So such minor discrepancies must have been ignored and the trial court has rightly ignored such discrepancies.

16. In order to connect the appellants with the present offence, the prosecution has placed reliance on certain circumstances, which may be mentioned as under:-

(i) The evidence of last seen on 23.3.1996 by PW-2 Vishwanath.

(ii) Recovery of dead body from the field of Udaybhan and the findings of postmortem.

(iii) Recovery of cot and sack from the house of Vishun Dei.

(iv) Recovery of bloodstained Kurta, which was informed by the villagers to be of Virendra appellant.

(v) Recovery of two pieces of Vest. One claimed to be bloodstained and other claimed to be stained with Sindoor and sack stained with coal particles.

(vi) Statement of Vishun Dei, which was given to PW-6 Smt. Usha Devi.

17. It is a case of circumstantial evidence, therefore, before proceeding further, we would like to discuss the law on the point as to what are the standards, prescribed under law, for recording a conviction in a case based on circumstantial evidence.Hon'ble the Apex Court in the case of S.K. Yusuf v. State of West Bengal reported in AIR 2011 SC 2283 in para 26 has held as under:

"Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so 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."

Hon'ble the Apex Court in the aforesaid case has followed its earlier pronouncements in the following cases:

"Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, Krishnan v. State represented by Inspector of Police (2008) 15 SCC 430 and Wakkar and another v. State of Uttar Pradesh (2011) 3 SCC 306."

In the case of Haresh Mohandas Rajput v. State of Maharashtra 2011 (12) SCC 56, Hon'ble Apex Court following its earlier decision in the case of Krishnan v. State represented by Inspector of Police (2008) 15 SCC 430 observed that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be definite tendency unerringly pointing towards guilt of the accused;

(iii) 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

(iv) 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."

Though a conviction may be based solely on circumstantial evidence, however, the Court must bear in mind the aforesaid tests while deciding a case involving the commission of a serious offence in a gruesome manner.

Hon'ble the Apex Court in the case of Manthuri Laxmi Narsaiah Vs. State of A.P. reported in (2011) 14 SCC 117 has held in paragraph no. 6 as under:-

"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."

Likewise in the case of Mustkeem Vs. State of Rajasthan reported in (2011) 11 SCC 724 Hon'ble the Apex Court in paragraph no. 24 has held as under:-

"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p. 185)

The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established;

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

the circumstances should be of a conclusive nature and tendency;

they should exclude every possible hypothesis except the one to be proved; and

There must be a chain of evidence so 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."

The aforementioned judgments have been followed in a recent judgment in the case of Sangili alias Sanganathan Vs. State of Tamilnadu reported in (2014) 10 SCC 264.

18. Keeping in view the aforesaid guidelines of Hon'ble the Apex Court, firstly it is to be considered whether the circumstances, on which the prosecution relies, have been proved beyond reasonable doubt and all the circumstances taken cumulatively points only towards the conclusion i.e. the guilt of the accused persons and no other conclusion can be drawn on the strength of the chain of circumstance proved by the prosecution.

19. Now we will consider the evidence on each circumstance.

20. Evidence of last seen:-

According to the prosecution case, the complainant has mentioned in the F.I.R. that Vishwanath and Surju Mahra came back to the village on 27.3.1996 and informed him that they have seen the deceased in the company of Ram Chandra and Vinod Kumar on 23.3.1996 at about 5:00 p.m. Admittedly the other witnesses on this point namely Surju Mahra has expired, therefore, PW-2 Vishwanath, remains the only witness on this point, who has been examined. PW-2 Vishwanath in his examination in chief has admitted that he along with Surju Mahra had gone to his in-laws house on 23.3.1996 at about 5:00 p.m. when they were on Shankarganj to Gangagarh Pakki Road then they saw the victim in the company of Ram Chandra and Vinod Kumar. He came back on 25.3.1996 in the evening and came to know about missing of the victim from 23.3.1996. Then he told the father of the deceased that he had seen the deceased in the company of Ram Chandra and Vinod Kumar on 23.3.1996 in the evening. The dead body of the deceased was recovered on 27.3.1996. According to the case of the prosecution, this witness came back from his in laws house on 27.3.1996 and he told the complainant after the recovery of the dead body that he had seen the deceased in the company of Ram Chandra and Vinod Kumar on 23.3.1996, therefore, F.I.R. was accordingly lodged against the said two persons. But during trial this witness has specifically stated that he came back on 25.3.1996. He happens to be real uncle of the complainant and his house is adjacent to the house of the complainant. In his cross-examination, he has stated that he had gone to the house of the complainant and his parents asked him to search the deceased and he also told them that he will also search. The trial court has overlooked this aspect of his evidence on the ground that this witness has been cross-examined at great length and several irrelevant questions were asked to him due to which, he has given some contradictory statement. But this observation of the trial court does not appear to be correct because PW-2 in his examination in chief has stated that he came back on 25.3.1996. While giving statement in chief there was no interference from the side of the accused and only thereafter his veracity was tested by cross-examination. So the observation of the trial court that he has given contradictory statement because of lengthy cross-examination does not appear to be correct. This witness in his examination in chief has admitted that he came back on 25.3.1996. Now the statement of this witness in his cross-examination is also to be considered. He has stated that he had told the complainant on 27.3.1996 at the place where the dead body was recovered that he had seen the deceased going with Ram Chandra and Vinod Kumar on 23.3.1996. Submission of learned counsel for the appellants has force that this witness had come back on 25.3.1996. His house was adjacent to the house of complainant Ashok Kumar. He has also admitted that he got the information of this incident through his wife and thereafter he went to the house of the complainant where he met with the parents of the complainant who asked him to search, but even at that time, he has not disclosed that he had seen the deceased in the company of Ram Chandra and Vinod Kumar. These were very important aspects of this case which could not have been lightly brushed aside on the ground of lengthy cross-examination. It is true that there is long gap in recording the evidence in this trial. But as stated earlier, this witness has given some very contradictory statements on material points in his examination in chief, which are very much against the case of the prosecution.

21. Complainant PW-1 Ashok Kumar has also stated in his examination in chief that information was given to him by Vishwanath and Surju Mahra on the third day from the incident. He has specifically denied in his cross-examination that such information was given to him by these persons on 27.3.1996 after recovery of dead body. He has stated that these two persons had informed all the family members that they had seen the deceased in the company of Ram Chandra and Vinod Kumar. It has also come in the evidence that there are several houses in all the directions near the house of the complainant and the place where the victim was seen by PW-2 is at a distance of 15-20 meters from the house of the complainant. At that time, the victim was going about two meters behind Ram Chandra and Vinod Kumar. It was 5:00 p.m. It was such a time when several persons remain out of their houses. At that time there was nothing abnormal in their conduct so PW-2 Vishwanath, who happens to be the real uncle of the complainant, took no notice of it. Simply because deceased was moving behind the two accused persons, it cannot be said that he was being taken away by the accused persons in absence of any other evidence to this effect.

22. It is pertinent to mention here that PW-2 Vishwanath told the complainant the fact that he had seen the deceased in the company of Ram Chandra and Vinod Kumar at the place where the dead body was recovered on 27.3.1996. It was stated by this witness in reply to a leading question asked by the prosecuting officer. The conduct of this witness appears to be very unnatural because he is the real uncle of the complainant. His house is adjacent to the house of the complainant, therefore from 25.3.1996 till the recovery of dead body he would not disclose that he had last seen the victim alive in the company of Ram Chandra and Vinod Kumar to the complainant becomes absolutely unnatural. Had he seen the deceased in the company of Ram Chandra and Vinod Kumar then he would have definitely narrated this fact to the family members of the complainant at the very first instance when he reached in the village and came to know about the missing of the victim. In his cross-examination, he has stated that Ram Chandra and Vinod Kumar (accused declared to be juvenile) were going talking with each other and the victim was going behind them. At that time, the age of Vinod Kumar (accused) would have been about 10-12 years. He has further stated that clothes of the deceased were lying on the road, which was taken away by one Pasi saying that it is not of Prashant. There was no cloth on the body of Prashant. PW-1 Ashok Kumar has stated that he had gone to Basti to meet a Baba to know the whereabouts of his son. Basti is at a distance of 175 km. from his village. The "Dera" of baba is situated at a distance of 40 km from Basti. He had gone to the said Dera in the morning of 26.3.1996 and came back on the same evening. PW-2 Vishwanath, at one place, has stated that he had gone to meet Baba on 26.3.1996 and remained there for four days. Ashok Kumar (complainant) had not gone there. But subsequently he has stated that Ashok Kumar had gone there and he cannot say as to where Ashok Kumar remained for four days. If any one of the above two statement of this witness is relied upon, it would be against the case of the prosecution because it shows that either Ashok Kumar or this witness was not in the village for four days from 26.3.1996. In our considered opinion, the evidence of this witness does not inspire confidence. So in our view, the prosecution was not successful in proving this circumstance beyond reasonable doubt.

Recovery of dead body and findings of postmortem:

23. There is no dispute to the fact situation that the dead body was found from the field of Udaybhan in a mutilated and decomposed condition. The case of the prosecution was that his abdomen was cut open and Sindoor, Agarbatti and lemon was put into it. This fact was introduced by the complainant during trial though it does not find place in F.I.R. or in his statement under Section 161 Cr.P.C. Dr. T.N. Puri in his cross-examination has specifically stated that abdomen of the dead body was not lacerated and lemon Sindoor, Chilly etc. was not present on the abdomen. This fact has also been overlooked by the trial court on the ground that the body was in a decomposed position, so the opinion of the doctor was not very much material. In our considered view this observation of the trial court was absolutely wrong. It was not the opinion of the doctor but he himself had seen the dead body and its condition. So far as condition of dead body is concerned and presence of various materials on the dead body is concerned, the doctor was an eyewitness to that fact. He has not given any expert opinion on these points but he told it as a fact of which he himself was a witness. He has specifically stated that stomach was not lacerated nor there was presence of any particles of lemon, chilly, Agarbatti and Sindoor. Thus from the report of the doctor the only inference that can be drawn that the deceased was done to death in a very brutal manner. In a court question, this witness has replied that no sign of any presence of Sindoor, lemon, Laung, Bindi were found on the pant. As stated earlier, this witness was a witness of facts on these points. This statement has not been given by this witness as a medical expert but only as a witness of fact. Thus the observation of the trial court to ignore his evidence because it is only a medical opinion and ocular evidence cannot be disbelieved on the basis of the expert medical opinion was not in accordance with law in the peculiar facts of this case.

Recovery of sack and cot from the house of Vishun Dei

24. On 18.4.1996, the house of Vishun Dei was searched by the police. At that time, Vishun Dei was present in the house. After recovery, its memo (Ex. Ka-14) was prepared. Admittedly in this case, husband of Vishun Dei has not been arrayed as party while he was master of the house. It has come in the evidence that at the time of recovery, Vishun Dei informed the Investigating Officer that presence of blood on the sack (bora) and the cot was the result of bleeding which she suffered due to her abortion. Therefore, Investigating Officer, Chandra Deep Singh referred Smt. Vishun Dei to Chief Medical Officer Women Hospital, Raebareli to seek expert opinion on the point whether in the recent past she had undergone abortion or not. This reference letter, addressed to Chief Medical Officer, Women Hospital Raebareli, has been proved (Ex. Ka-15). But it is strange that report of the Chief Medical Officer has not been proved by the prosecution during trial. Withholding of such report by the prosecution gives rise to an adverse inference against the prosecution. Learned counsel for the complainant has admitted that in the case diary, the reference of the said report was available but in the said report, no definite opinion was given by the doctor. Apart from it, said recovered sack (bora) and pieces of bloodstained Baan were also sent to Forensic Science Laboratory. The report of Forensic Science Laboratory regarding the same is on record and it has been exhibited (Ex. Ka-21) in which it was reported that it is not possible to give any definite opinion regarding the bloodstains of abortion. Thus appellant Vishun Dei came with a definite case at the earliest possible opportunity i.e. at the time of search that bloodstains were the result of her abortion and this early stage defence, inspite of the best effort by the prosecution, could not be proved to be false.

25. Law is settled on the point that the accused has only to show the probability of his defence. While the prosecution has to prove its case beyond reasonable doubt. Thus in absence of any evidence on the point that this bloodstains were not the bloodstains of abortion, this recovery cannot be connected with the offence. Apart from it, the prosecution has come with a definite case that the deceased was taken to the house of Ramawati where he was sacrificed. It has nowhere the case of the prosecution that from the house of Ramawati, the dead body was brought to the house of Vishun Dei. Thus the recovery from the house of Vishun Dei cannot be said to be any incriminating circumstance against the appellants in absence of any link evidence that the deceased was seen going in the house of Vishun Dei or his dead body was brought to her house and does not help the prosecution to prove its case. It is really strange to note that during investigation no effort was made to search the house of appellant Ramawati. In this case several Investigating Officer have investigated the case. The investigation was transferred from civil police to C.B.C.I.D., Lucknow. All the Investigating Officers have perused the earlier investigation reports conducted by the earlier Investigating Officers. But inspite of that none of the Investigating Officer made any effort to search the house of Ramawati where the offence is alleged to have been committed. It shows that they had no information that any offence was committed in the house of Ramawati. While prosecution has come with a definite case that Ramawati had no issue and this offence has been committed to please the deity to bless Ramawati with an issue. Apart from it, it has also been stated by the Investigating Officer that sniffer dogs were used during investigation. But it is nowhere the case of the prosecution that any such dog went inside the house of Ramawati or Vishun Dei. So in our considered opinion, the recovery from the house of Vishun Dei cannot be considered to be an incriminating circumstance to connect the appellant with the present offence.

Recovery of Kurta which was informed by the villager to be of Virendra

26. The trial court has placed great reliance on the recovery of Kurta, which was informed by the villagers to be of Virendra Kumar. Its recovery memo is Ex. Ka-16. This Kurta was produced before the Investigating Officer by PW-2 Vishwanath and he told the Investigating Officer that this Kurta was found near the dead body in a torn condition. Thus this recovery was not made on the pointing out of any of the accused. In the recovery memo, it was mentioned that the villagers told that this Kurta belongs to appellant Virendra Kumar but it is really strange to note that name of not even a single person, who gave this information to the Investigating Officer, has been mentioned in the recovery memo. Apart from it, not even a single witness could be produced by the prosecution to support this fact that said Kurta belongs to appellant Virendra Kumar. The recovery memo (Ex. Ka-16) was proved by the Investigating Officer PW-8 Chandra Deep Singh but even in his statement before the court, he has not stated the name of the persons, who told him that Kurta was of appellant Virendra Kumar. The trial court has given great importance to the recovery of Kurta and has observed that such recovery has established the place of occurrence and also the involvement of appellant Virendra Kumar. But virtually there is no evidence on record to give rise to an inference that the said Kurta was of Virendra Kumar. Simply because Investigating Officer mentioned this fact in the recovery memo this by itself does not become a conclusive proof on this point. It was a fact and the prosecution was obliged to prove it as a fact. Thus the aforesaid narration in the recovery memo would be only hearsay. Apart from it, it is pertinent to mention here that PW-2 Vishwanath in his examination in chief has nowhere stated that he had given any such Kurta to the Investigating Officer during investigation nor said Kurta was produced before this witness during trial. Thus the prosecution had utterly failed to connect the recovery of Kurta with the instant offence and could not produce any evidence to show that said Kurta belongs to Virendra Kumar. The said Kurta was sent to the Forensic Science Laboratory and as per report of the Forensic Science Laboratory (Ex. Ka-23), human blood of Group A was found on it. But during investigation, the blood Group of Virendra Kumar or deceased was not examined to connect this Kurta with the crime. Thus this recovery was absolutely of no help to the prosecution.

The recovery of two pieces of vest and one sack (bora).

27. The Investigating Officer in his statement has stated that on 18.4.1996 on the pointing out of the complainant from the field of Shiv Pratap one sack (bora) and two pieces of vest were recovered and its recovery memo was prepared. The recovery memo is Ex. Ka-13. The said recovery memo reads as under:

"nkSjku foospuk eq0v0lq0 [email protected] /kkjk [email protected] vkbZ0ih0lh0 le{k xokgku loZ Jh cnzh ,[email protected] HkxkSyh [email protected] iwjs xtk/kj flag ,[email protected] es<+kSuk o Jh ¼isij QVk½ izlkn ,[email protected] txjukFk izlkn fuoklh xzke es<+kSuk [email protected] eksguxat tuin jk;cjsyh oknh eqdnek v'kksd dqekj us ,d cksjh ftl ij dks;yk ds pwjs yxs gS vkSj vanj cfu;ku ds nks VqdM+s ftuesa ls ,d ij [kwu dk /kCck o nwljs ij lsanwj yxk gS iM+k gqvk xkWo ds if'pe rjQ f/kfl;kou ekyh ds ckx ds iwjc rjQ fLFkr f'koizrki flag ds IykV esa fLFkr vke ds isM+ ds ikl ls feyk gqvk crkdj nkf[ky gqvk ftls le{k xokgku mijksDr dCtk iqfyl esa ysdj ekSds ij gh lhy loZ eksgj djds uewuk eksgj rS;kj gqvkA QnZ ekSds ij eqjRro dj i<+k lqukdj xokgku QnZ ds gLrk{kj cuok;s tk jgs gSA"

It is clear from perusal of the recovery memo that the recovery was not made on the pointing out of the appellant but the said articles were handed over by the complainant himself to the Investigating Officer on 18.4.1996 i.e. after 22 days of the recovery of the dead body. Thus the same cannot be taken to be the recovery under Section 27 of the Indian Evidence Act. It was mentioned in the recovery memo that one piece of vest was stained with Sindoor. The complainant has given statement during trial that after opening the umbilicus of the deceased Sindoor, Bindi, lemon etc. were placed on the dead body but no such sign was found on the body by the doctor nor in the inquest report as stated earlier. PW-1 Ashok Kumar, complainant has stated that he had mentioned these facts in the F.I.R. and also told to the Investigating Officer. But this fact does not find place in the F.I.R. nor in his statement recorded under Section 161 Cr.P.C., therefore, it was an improvement, which has been made by this witness to show that it was a case of ritual killing (Narbali). The said recovered articles were sent to Forensic Science Laboratory. According to the report of the Forensic Science Laboratory Ex. Ka-22, human blood was found on the pieces of vest. However, no blood was found on the sack (bori) and bloodstains were not sufficient for the classification. Neither Sindoor particles, coal, lemon nor any other material were found by the Forensic Science Laboratory on any of the articles sent for the analysis. Apart from it, one bora was also found at the place where dead body was found but it is strange to note that said bora was not taken into custody by the police. Thus in our considered opinion, this recovery was also not sufficient to complete the chain.

Statement of Vishun Dei, which was given to PW-6 Smt. Usha Devi.

28. We consider it necessary to quote the relevant portion of the examination in chief of PW-6 Usha Devi to appreciate her evidence in a better way. Relevant part of examination in chief of PW-6 Usha Devi reads is as under:-

"fo'kquknsoh iRuh txizlkn us eq>s crk;k fd fouksn vkSj ohjsUnz us tc e`rd iz'kkUr lka; 05 lk<+s 05 cts vius njokts ij [ksy jgk Fkk mls idM+ dj ys x;s mls ;g nksuks eqfYte jkekorh ds ?kj ys x;s FksA fo'kquknsoh us eq>s ;gh crkbZ Fkh rFkk dgk Fkk fd iz'kkUr dh cfy jkekorh ds ?kj esa gqvk gS rFkk ckck us cfy nsrs le; iwtk ikB djk;k Fkk fo'kquknsoh us esjs iwNus ij eq>s crk;k Fkk fd ckck yksgkju ds iqjok ds jgus okys Fks eksVj lk;fdy ls vk;s Fks ;g Hkh crk;k Fkk fd ;g cfy jkekorh dks iq= iSnk ugh gks jgk Fkk blfy, nh xbZA fo'kqunsoh us eq>s ;g crk;k fd e`rd iz'kkUr dk oky Nhy fn;k x;k vkW[k nksuks fudky yh x;h ukd vkSj thHk dkV fy;k Fkk gkWFk iSj dh vaxqfy;kW dkV yh xbZ Fkh isV QkM+ dj mlesa uhacw vkSj vxjcRrh j[kdj ihB ij gou fd;k FkkA mlus eq>s ;g ugh crk;k ;g lc dke fdl&2 us fd;kA eq>ls bl ?kVuk ds ckjs esa fdlh us iWwNrkWN ugh fd;k Fkk fQj dgk fd lh0ch0lh0vkbZ0Mh0 okyksa us iwWNrkWN fd;k Fkk mudks Hkh ;gh crk;k FkkA

fo'kqunsbZ iRuh txizlkn us eq>s ;g Hkh crk;k Fkk fd cfy nsus ds ckn e`rd dh yk'k dks mn;Hkku flag ds [ksr esa fNik fn;k FkkA eSus fo'kqunsbZ ls dqN ugh dgk eSa jksus yxhA

29. She in her cross-examination has also stated that she had not enquired to Vishun Dei as to who told her all these things. There is no dispute to the fact situation that Vishun Dei was not an accused in this case by that time and she has not made any inculpatory statement involving herself in the instant case. Therefore, by no stretch of imagination, such narration of Vishun Dei can be considered to be her extra judicial confession.

30. Learned counsel for the complainant has stated that the evidence of PW-6 Smt. Usha Devi is admissible under Section 6 and 8 of the Indian Evidence Act. He has also drawn the attention of this Court towards explanation (J) & (K) of Section 8 of the Indian Evidence Act. Section 6 of the Indian Evidence Act reads as under:-

6. Relevancy of facts forming part of same transaction.--Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Section 8 of the Indian Evidence Act reads as under:-

8. Motive, preparation and previous or subsequent conduct.--Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Illustrations

(a) ..................

(b) ....................

(c) .....................

(d) ....................

(e) ....................

(f) ....................

(g) ..................

(h) ......................

(i) ........................

(j) The question is, whether A was ravished.

The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant.

The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157.

(k) The question is, whether A was robbed.

The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the circumstances under which, and the terms in which, the complaint was made, are relevant.

The fact that he said he had been robbed, without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157.

31. Perusal of the evidence of PW-6 Usha Devi clearly show that she has not given any statement that she was present at any point of time when such an incident or any part thereof had taken place. Therefore, Section 6 of the Indian Evidence Act would not apply. So far as perusal of Section 8 and its Explanation on which learned counsel for the complainant has placed reliance also are of no help to the prosecution in the facts of this case.

32. Section 8 of the Indian Evidence Act has been considered by Hon'ble the Apex Court in the case of Vikramjit Singh alias Vicky Vs. State of Punjab reported in (2006) 12 SCC 306 wherein Hon'ble the Apex Court in paragraph no. 17 has observed as under:-

"17. .................. Conduct of an accused must have nexus with the crime committed. It must form part of the evidence as regards his conduct either preceding, during or after commission of the offence as envisaged under Section 8 of the Evidence Act. No such inference was drawn, nor in the fact situation obtaining herein such an inference could be drawn. .............................."

In the instant case Vishun Dei has not given any statement relating to her own conduct, therefore, such a statement would not be covered by Section 8 of the Indian Evidence Act.

33. Perusal of the illustration (J) shows that the raped girl herself made a complaint relating to crime and the circumstances under which and the terms in which the complaint was made. It does not apply in the instant case because Vishun Dei, at no point of time, has stated that she herself was involved in the incident either as a victim or as an accused. The next illustration is also of the similar nature and the same would not make the hearsay evidence of PW-6 to be admissible under law. Thus we have no hesitation to hold that evidence of PW-6 Smt. Usha Devi was totally a hearsay evidence and no reliance could have been placed on the same but the trial court has placed explicit reliance on the said testimony holding it to be an extra judicial confession. Such approach of the trial court has rendered its finding unsustainable.

34. Submission of learned counsel for the complainant that Vishun Dei has replied question no. 9 in negative in her statement under Section 313 Cr.P.C. and has not offered any explanation. Question No. 9 was with regard to recovery memos which were made during search of the house of this appellant. It is an admitted case of the prosecution that Vishun Dei told at the time of recovery that the bloodstains were the result of her abortion. So no adverse inference can be drawn in the facts of this case as prosecution has failed to negative this earliest stage defence by any evidence. From the very beginning her case was that such recovery has no concern with the offence so if she has replied Question No. 9 in negative it would not give rise to any inference against her.

35. Learned counsel for the complainant has submitted that in this case a very defective investigation has taken place. In this case six Investigating Officers were changed and on the complaint of the complainant himself, the investigation of this case was handed over to C.B.C.I.D., Lucknow. We think it necessary to mention here that we have not taken any adverse inference on the basis of defective investigation. The law is settled on the point that the accused cannot get any benefit of defective investigation unless and until he proves that his defence has been prejudiced because of such defective investigation. Reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Abu Thakir and Ors. Vs. State of Tamilnadu reported in (2010) 5 SCC 91 and State of Karnataka Vs. K. Yarappa Reddy reported in (1999) 8 SCC 715.

36. Mr. R.B.S. Rathore, learned counsel for the complainant has placed reliance on the pronouncement of Hon'ble the Apex Court in the case of Shamsher Singh alias Shera Vs. State of Haryana reported in (2002) 7 SCC 536. In the said case, Hon'ble the Apex Court has observed that minor discrepancies are not sufficient to disturb the concurrent finding of the courts below. We hereby make it clear that we have only considered the discrepancies, which goes to the root of the case and which were contradictory in material particulars. We have not considered any minor discrepancy in the statement of the witnesses to disturb the finding.

Learned counsel for the complainant has placed reliance upon the pronouncement of Hon'ble the Apex Court in the case of Sahadevan alias Sagadevan Vs. State represented by Inspector of Police, Chennai reported in (2003) 1 SCC 534. In the said case Hon'ble the Apex Court has observed that if prosecution on the basis of reliable evidence establishes that the missing person was last seen in the company of the accused and was never seen thereafter then it would be obligatory on the accused to explain the circumstance in which the missing person and the accused person parted company. But as discussed earlier, in the instant case, the victim was seen only going few meters behind appellant Ram Chandra and accused Vinod Kumar and the evidence of PW-2 Vishwanath on this point has been held by us to be unreliable. So this case law is also of no help to the prosecution because prosecution has failed to lead reliable evidence on the point of last seen. Apart from it, there is no evidence that deceased was taken inside the house of Ramawati nor any evidence that anyone accused person going with dead body towards the field of Udaibhan.

Reliance has also been placed on the case of Ramappa Lalappa Pujar and others Vs. State of Karnataka reported in (2007) 13 SCC 31. In the said case, Hon'ble the Apex Court has observed that minor contradictions in the evidence of witnesses, which was recorded after three and a half years should not be given undue importance. It is true that in the instant case evidence has been recorded after a very long gap of about fifteen years but we have not taken note of any minor discrepancies in the evidence and have only considered the discrepancies that goes to the root of the case.

Reliance has been placed on the case of Ajit Singh Harnam Singh Gujral Vs. State of Maharashtra reported in (2011) 14 SCC 401. This case has been relied upon to show that the accused persons have given false explanation of the circumstances particularly appellant Vishun Dei. As discussed earlier, question no. 9 to which learned counsel for the complainant has drawn our attention was only with regard to the recovery from her house and it was an admitted case of the prosecution that Vishun Dei furnished an explanation for the same and the said explanation furnished by her could not be negatived during trial. To verify her explanation she was referred to C.M.O. to give opinion as to whether she has suffered abortion in the recent past and report of C.M.O. has been withheld by the prosecution.

Learned counsel for the complainant has placed reliance on the pronouncement of Hon'ble the Apex Court in the case of Jagroop Singh Vs. State of Punjab reported in (2012) 11 SCC 768. Hon'ble the Apex Court in paragraph no. 26 has held as under:-

"26. ............................... The evidence of PW 10, Gurdev Singh, is criticised on the basis that he had stated before the police that he had seen the accused persons and no before anyone else whereas the complainant had stated that he had said so before him. The aforesaid discrepancy cannot be regarded to have created any dent in the prosecution story."

On this point, we have discussed the prosecution evidence in detail and keeping in view the different fact situation of the instant case, this case law is also of no help to the prosecution.

Lastly reliance has been placed on the case of Rumi Bora Dutta Vs. State of Assam reported in (2013) 7 SCC 417. This case law has been relied upon to show that recovery in such type of case is very material but in the facts of that case, the recovery was made on the pointing out of the accused while in the instant case no recovery on the pointing out of any of the accused could be made during investigation. This aspect has also been dealt with in detail in the earlier part of the judgment. Therefore, this case law is also of no help to the prosecution in view of the different fact situation.

37. We have based our conclusions only on the evidence, which is available on record and have not taken any adverse inference on the basis of defective investigation.

38. We are also of the opinion that investigation was defective. The prosecution story has developed during investigation that the victim was taken inside the house of Ramawati where all of them sacrificed the victim to their deity but absolutely no effort was made to search the house of Ramawati. There is no evidence that any person had seen the deceased being taken into the house of Ramawati nor accused persons were seen coming out of the house of Ramawati to screen the dead body of the victim in the field of Udaybhan. Apart from it, there is no evidence that any part of the incident had taken place in the house of Vishun Dei. On the contrary, Vishun Dei has come with a very specific defence that too at the earliest point that the bloodstains were the result of her abortion and this version of Vishun Dei could not be negatived by the prosecution during investigation or during trial. Apart from it, it has come in the evidence that sniffer dogs were also used during investigation but there is no evidence that such sniffer dogs went inside the house of Ramawati or in the house of Vishun Dei.

39. In view of the discussion made above, and keeping in view the guidelines which the prosecution has to comply in view of the aforementioned pronouncements of the Hon'ble the Apex Court, the circumstances on which the prosecution has placed reliance could not be proved beyond doubt and the chain of circumstance was also not complete. The learned trial court has placed reliance on inadmissible or unreliable evidence and had ignored several material contradictions very lightly. This Court also failed to understand as to how the trial court distinguished the case of three accused persons and sentenced them with death sentence.

40. Thus keeping in view the overall view of the matter, we are of the considered view that the reference made by the trial court under Section 366 Cr.P.C. deserves to be annulled and is hereby annulled. All the aforesaid appeals preferred by the appellants deserve to be allowed and are hereby allowed. The judgment and order dated 4.3.2014 passed by the learned Additional Sessions Judge, Court No. 1 Raebareli in Sessions Trial No. 611 of 2008 arising out of Case Crime No. 22 of 1996, Police Station Mohanganj, District Raebareli is hereby set aside. The appellants are hereby acquitted of all the charges levelled against them.. They be set at liberty. The appellants are in jail. They shall be released forthwith if not wanted in any other case.

41. Office is hereby directed to communicate this order to the court concerned for compliance forthwith and also to send back lower court record.

Order Date :- 29th April, 2015 (Anant Kumar, J.) (S.V.S. Rathore, J.)

Virendra