Munna Rajbhar vs State Of U.P.
2015 Latest Caselaw 1966 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                               AFR
 
Court No. - 45                                                                   
 

 
Case :- CAPITAL CASES No. - 2090 of 2015
 

 
Appellant :- Munna Rajbhar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,P.K. Chaurasia,R.K.Singh
 
Counsel for Respondent :- A.G.A.
 
With
 
Case :- CRIMINAL APPEAL No. - 2120 of 2015
 

 
Appellant :- Ramjeet Yadav And 2 Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Gyanendra Kumar Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
With 
 
Case :- CRIMINAL APPEAL No. - 3400 of 2015
 

 
Appellant :- Smt. Hoshila Devi
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Gyanendra Kumar Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Vikram Nath,J.

Hon'ble Pratyush Kumar,J.

(Delivered by Vikram Nath, J.)

The aforementioned criminal appeals have been preferred by the accused assailing the correctness of the judgment and orders dated 29.04.2015 and 6.5.2015 passed by the Additional District and Sessions Judge, Court No.3, Ballia, in Sessions Trial No.24 of 2007, State vs. Smt. Hoshila Devi and 4 others, arising out of Case Crime No.116 of 2006, under sections 147, 148, 302/149, 201 IPC, P.S. Rasra, District Ballia and Sessions Trial No.242 of 2007, State vs. Munna Rajbhar, arising out of Case Crime No.117 of 2006, under section 4/25 Arms Act, P.S. Rasra, District Ballia, whereby all the five accused have been convicted under sections 302/149, 201 IPC and accused appellant Munna Rajbhar has been convicted under section 4/25 Arms Act and further trial Judge awarded life sentence to accused-appellant Smt. Hoshila Devi, Ramjit Yadav, Awadhesh Yadav and Dinesh Yadav and also imposed fine of Rs.50,000/- to each and further awarded 3 years rigorous imprisonment to each of the four accused alongwith fine of Rs.3,000/- to each whereas accused appellant Munna Rajbhar has been awarded death sentence alongwith fine of Rs.1,00,000/- (one lakh) and further sentence of 7 years rigorous imprisonment alongwith fine of Rs.10,000/-, under section 201 IPC and also one year's rigorous imprisonment alongwith fine of Rs.1,000/- under section 25 Arms Act.

One Shatrughan Yadav (PW-1) gave a written complaint at Police Station, Rasra, District Ballia, on 15.08.2006 at 11.00 a.m. stating that he was resident of Village Azizpur Khadasra, Police Station Rasra, District Ballia. His uncle Ramdhyan was married to Smt. Hoshila Yadav, daughter of Ramjit Yadav, resident of Siswar Kalan, Police Station Nagra, District Ballia. His Chachi (Aunt) Smt. Hoshila was frequently visited by one Munna Rajbhar, son of Mahesh Rajbhar of her village and she also used to keep in constant touch with him on telephone. His Chacha (Uncle) kept on objecting to her relations and association with Munna Rajbhar and this was a continuing issue of argument between them. A couple of days before Rakshabandhan, his Chachi (Aunt) was talking on the telephone with Munna Rajbhar when his Chacha (Uncle) scolded her. Annoyed she left for her parents house saying that she would not discontinue her association with Munna and would prefer leaving his Chacha. On 10.08.2006 which was Thursday, on the request of his Chachi, his Chacha left for his in-laws place that is Village Siswar Kala and since then he has not returned. On 14.08.2006 he learnt that his Chacha Ramdhyan had been done to death and his dead body was lying near Village Katahura since the night of 10/11-08-2006. His Chachi Hoshila Devi, her father Ramjit Yadav, her brothers Awadhesh Yadav and Dinesh Yadav and Munna Rajbhar are involved in the murder of his Chacha. He prayed that his complaint be registered and appropriate action be taken against the aforesaid persons. On the basis of the said written complaint (Ex. Ka-1) Chik FIR was prepared (Ex. Ka-6) by Constable 716 Mahendra Kumar registered as Case Crime No.116 of 2006, under sections 302/201/34 IPC.

It appears that a dead body of an unknown person was recovered by the police upon intimation given by one Uma Shankar Yadav and was sent for post-mortem which was conducted on 11.08.2006 at 4.30 p.m. by Dr. B. Narayan, Medical Officer, District Hospital, Ballia. The post-mortem-report Ex. Ka-3 recorded the following ante-mortem injuries on the body of the deceased:

1. Incised wound 8 cm x 4cm up to tracheal depth on front of left neck. Trachea cut through and through of level of 4th and 5th rings Rt. Carotid & Jugular vesicles cut through & through.

2. Incised wound 4 cm x 2 cm on Rt. Side of Abdomen 2 cm above at 10 O' clock position omentum & small intestine protruding out of wound.

After lodging of the FIR on 15.08.2006 the Investigating Officer arrested Munna Rajbhar on 16.08.2006 at about 8.30 a.m. On his pointing out he recovered a knife which was taken into custody. A fard was prepared Ex. Ka-2. Munna Rajbhar also stated before the Investigating officer that he had used the said knife in the commission of the crime of murdering Ram Dhyan. The Investigating Officer had also collected blood stained earth and plain earth from the place where the dead body of Ramdhyan was recovered on 15.08.2006. Both the samples were kept in different containers and sealed and fard prepared Ex. Ka-5. After completing the investigation the Investigating Officer submitted charge sheet. The trial Judge read out the charges to the accused on 28.04.2007 to which they denied and claimed to be tried.

The prosecution in addition to filing number of papers produced the following witnesses:

PW-1 Satrughan Yadav the informant.

PW-2 Vivekanand Yadav resident of the Village of the deceased who proved the extra judicial confession.

PW-3 Vijay Shankar Yadav resident of the village of deceased and eye witness of last seen.

PW-4 Ramjit Giri resident of the village of the deceased and witness of last seen.

PW-5 Dr. B. Narayan, Medical Officer, District Hospital, Ballia who had conducted the autopsy on the body of the deceased.

PW-6 Sub Inspector Ram Manorath the Investigating Officer who had filed the charge sheet (Ex. Ka-4).

PW-7 Nand Kumar Ojha, Circle Officer, Lalganj, District Azamgarh who had conducted the initial part of the investigation and had made recoveries of the knife said to have been used in the crime.

PW-8 Constable Moharrir Mahendra Kumar who proved the Chik FIR (Ex. Ka-6) and also the G.D. entries made by Head Moharrir Satya Narayan Mandal (Ex. Ka-7).

The accused were examined under section 313 Cr.P.C. They all stated that they had been falsely implicated. Smt. Hoshila Devi stated that being member of the family she has been falsely implicated. Accused Awadhesh Yadav stated that village Pradhan in collusion with the police had falsely implicated him. Accused Dinesh Yadav, Ramjeet Yadav also made similar statements. Accused Munna Rajbhar stated that at the instance of Pradhan of his village police had falsely implicated him. The defence produced Pramod Kumar Singh as DW 1. He stated that Munna Rajbhar was in the custody of the police from 12.00 noon on 15.08.2006.

The trial Judge after considering the material evidence on record arrived at conclusion of conviction against all the five accused and accordingly convicted them and awarded sentence as mentioned in the earlier part of this judgment. The trial Court in arriving at conclusion of conviction had relied upon the recovery at the pointing out of accused Munna Rajbhar and also relied upon the extra judicial confession of the accused made before the PW-2.

We have heard Sri Rakesh Kumar Singh, learned Amicus Curia for the accused appellant Munna Rajbhar, Sri P.K. Chaurasia and Sri Gyanedra Kumar Singh, Advocates appearing for the remaining four accused namely Ramjeet Yadav, Awadhesh Yadav, Dinesh Yadav and Smt. Hoshila Devi and Sri Akhilesh Kumar Singh, learned Government Advocate assisted by Sri Narendra Kumar Singh Yadav, learned Additional Government Advocate appearing for the State in all the Criminal Appeals.

In a case of circumstantial evidence the evidence must satisfy the following tests before the Court may proceed to arrive at conclusion of conviction as laid down in the case of Krishnan versus State represented by Inspector of Police reported in (2008) 15 SCC 430:-

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 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 with 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.

In the present case no one has seen the manner in which deceased Ramdhyan was done to death. His dead body was first seen by one Akhilesh Kumar /Uma Shankar Yadav and intimation was given to the police at 8.30 a.m. on 11.08.2006. Preparation of the inquest, the post-mortem and other formalities had been carried out before lodging of the complaint by Shatrughan Yadav, the informant on 15.08.2006. Even the cremation of the dead body had been done on 11.08.2006 at 4.30 pm prior to the lodging of the FIR. According to the post-mort-report the death had taken place about one and half day before and the cause was ascertained to be Asphyxia as a result of ante-mortem neck injuries. The post-mortem-report also specifically mentioned that Rigor Mortis had passed off from both extremities which is is indicative of the death having taken place at least 36 hours before the time when the post-mortem was conducted.

In the above background we now proceed to deal with the evidence led by the prosecution and then test whether the chain of events in the case of present circumstantial evidence is complete and if it leads to the only conclusion that the crime had been committed by the accused and no part of the evidence is inconsistent with the innocence of the accused.

The prosecution has nominated five accused, Smt. Hoshila Devi wife of the deceased, her acquaintance /friend /lover /paramour Munna Rajbhar who is said to have executed the job by inflicting knife injuries, Ramjit Yadav father of Smt. Hoshila Devi and two brothers of Smt. Hoshila Devi viz. Awadhesh Yadav and Dinesh Yadav. The prosecution further set up a case that Smt. Hoshila Devi even after her marriage was in constant contact and continued to maintain her relations with Munna Rajbhar which was obviously disapproved by her husband Ram Dhyan the deceased and it is for this reason that she alongwith her four associates which included her friend, father and two brothers caused the death of her husband Ram Dhyan. This is the motive set up by the prosecution for committing the crime. To prove the motive the prosecution examined Shatrughan Yadav (PW-1) nephew of the deceased Ram Dhyan. Shatrughan Yadav (PW-1) is the son of Ram Bachan Yadav brother of the deceased Ram Dhyan.

PW-1 Shatrughan Yadav in his cross-examination has stated that his father and deceased were brothers, his father is alive. Cultivation was being jointly done. He also stated that his uncle the deceased was separately living and had separate cooking from six moths before he was murdered. PW-1 has stated that 2-3 days prior to Rakshabandhan, soon before the incident took place, his aunt Smt. Hoshila Devi was talking to Munna Rajbhar on phone which was not approved by his uncle Ram Dhyan and he had scolded her. In his cross examination he has stated that he recognised Munna Rajbhar. He did not remember when Munna Rajbhar had last left the village. He also stated that there was a public telephone/mobile PCO in his village which belongs to one Kashi Teli and it is from that phone that his Chachi Smt. Hoshila Devi used to talk to Munna Rajbhar. He also stated that PCO remained open from 6 am. to 9 pm. He further stated that he did not know the time when his Chachi used to talk Munna Rajbhar. He however stated that he has seen his Chachi talking on the phone. He also stated that 2-3 days prior to Rakshabandhan in 2006 he had seen his Chachi talking on phone and 2-3 days thereafter she went to her parents home.

PW-2 Vivekanand Yadav has not stated anything about the friendship of Hoshila Devi with Munna Rajbhar. He is the only witness of extra judicial confession by the accused and he has also stated about the preparation of the complaint as he was the scribe.

PW-3 Vijay Shankar Yadav has also not stated anything about the friendship between Hoshila Devi and Munna Rajbhar. He is also witness of last seen and also witness of the recovery of the knife.

PW-4 Ramjit Giri has also not stated anything about the friendship and is also the witness of last seen.

All other witnesses are formal witnesses.

Thus, we are left with sole testimony of PW1 Shatrughan Yadav with regard to the motive. We have to test whether the testimony of PW-1 who is nephew of the deceased and falls in the category of the interested witness is safe enough to be relied upon. We will deal with this aspect in the later part of the judgment when we discuss the evidence of PW-1 with regard to other facts as narrated by other witnesses regarding facts inter related to them.

The submission advanced by Sri Rakesh Kumar Singh, learned Amicus Curiae with regard to the credibility and truthfulness of the testimony of PW-1 and PW-2 both being unreliable appears to have some substance as they are not able to corroborate each others' statement with regard to the place of preparation of the complaint and the date, time and place of PW-2 informing PW-1 about the death of Ram Dhyan and extra judicial confession rather thy are inconsistent.

PW-2 Vivekanand Yadav is said to be scribe of the FIR. He also happened to be Pradhan of the Village. He has specifically stated in his cross-examination that the complaint Ex. Ka-1 was written at his residence and handed over to Shatrughan. He has also stated that it was written on the dictation of Shatrughan. He also stated that Shatrughan had himself taken the complaint Ex. Ka-1 to the police station. He also stated that he went to the police station on the next day. He also stated that Shatrughan had not accompanied him to the police station. He also specifically stated that he and Shatrughan did not go together to the police station. He further stated that he met Shatrughan at the police station and that he had gone to the police station of his own will. The relevant extract of his statement is reproduced below-

"Shatrughan Ke Dwara Jo Prarthanpatra Pradarsh Ka-1 Likhwaya Gaya Wah Mere Ghar Likha Gaya Tatha Likh Kar Use De Diye. Uske Bolne Par Likha Gaya Tha. Shatrughan Prathnapatra Pradarsh Ka-1 Khud Lekar Thane Par Gaya Tha. Prarthana Likhne Ke Dusare Din Thane Par Gaye The. Shatrughan Mere Sath Nahi Gaye The. Mai Va Shatrughan Thane Par Ek Sath Nahi Gaye The. Thane Par Jane Par Mile The. Kis Tarikh Ko Mile the Yad Nahi Hai. Thane Par Apne Man Se Gaya Tha."

With regard to the preparation and handing over the FIR Shatrughan Yadav PW-1 in his statement had stated that after identifying the photographs of the dead body at the Gulshan Studio where he was sent by the police he got the FIR prepared by the Pradhan at the Bazar and after putting his signature handed it over at the police station. Relevant extract of his examination-in-chief is reproduced below-

"Maine Bazar Me Hi Pradhan Ji Se Bolkar Yek Tahrir (Darkhast) Likhwakar Padhkar Us Par Apna Hastachhar Banaya Aur Use Le Jakar Thana Rasra Me Diya."

Then in the cross-examination PW-1 states that the written complaint was prepared at a place adjoining the police station and it was written by Vivekanand on his dictation. Relevant extract is reproduced below-

"Darkhast Thane Ke Bagal Me Kagaj Lekar Likha Gaya. Mere Bolne Par Vivekanand Ne Likha Tha."

At another place PW-1 had stated that after identifying the photographs he went straight to the police station. Thereafter he went to a shop from where he collected a plain paper and at this stage he met village Pradhan Vivekanand who wrote the FIR, that he had only put his signatures on the FIR. The exact statement is reproduced below-

"5 Minute Tak Ruka Tha. Uske Bad Seedhe Thane Par Gaye. Uske Bad Sada Panna Lene Ke Liye Dukan Par Gaya. Sada Panna Lene Ke Bad Mujhse Mere Gram Pradhan Vivekanand Yadav Se Mulakat Ho Gai Phir Maine Unse FIR Likhwaya Us Samay Mere Pas Kalam Kagaj Nahi Tha Mai FIR Me Kewal Apna Hastachhar Kiya Hoo"

From the above we find that the statement of PW-1 and PW-2 with regard to the place of the preparation of the FIR is inconsistent. Pradhan Vivekanand PW-2 has specifically stated that it was prepared at his residence whereas PW-1 Satrughan Yadav the informant has stated that it was prepared in the Bazar or at the place neighbouring the police station. PW-1 does not state anywhere that it was prepared at the residence of scribe PW-2 the village Pradhan.

Further Shatrughan Yadav PW-1 in his statement stated that in the evening of 14.08.2006 Pradhan Vivekanand Yadav PW-2 informed him that Ramjeet, Hoshila Devi, Awadhesh, Dinesh and Munna Rajbhar had come to his house and had stated that under the influence of Hoshila Devi they had murdered Ramdhyan and further that as he had close connections with the police, they may be saved, for which they would be ever obliged. The exact statement is reproduced below-

"Dinank 14.8.06 Ko Sayankal Mere Gaon Ke Pradhan Vivekanand Yadav Ne Mujhe Bataya Ki Ramjeet, Hoshila Devi, Awadesh, Dinesh Putragan Ramjeet Wa Munna Rajbhar Mere Yaha Aye The Aur Kah Rahe The Ki Pradhan Ji Hum Log Hoshila Devi Ke Bahkawe Me Aakar Ramdhyan Ke Hatya Kar Diye Hai. Police Walo Se Aapka Uthna Baithana Hai Kisi Tarah Hum Logo Ko Bacha Lijiye, Aapka Rindi Rahunga."

In his cross-examination Shatrughan Yadav PW-1 stated that the information was given by Vivekanand Yadav PW-2 at his residence. Exact statement is reproduced below-

"Chacha Ke Mrityu Ka Samachar Mujhe Dinank 14.08.6 Ko Ratri 7-8 Bajhe Mere Ghar par Gram Pradhan Vivekanand Yadav Ke Dwara Bataya Gaya. Us Samay Mere Alawa Meri Maa Thi. Iske Alawa Koi Nahi Tha. Hum Logon Ke Jankari Hone Pashchat Poore Gaon Ke Log Jan Gaye. Us Samay Ratri Ka Samay Tha Isliye Hum Log Chacha Ka Pata Lagane Nahi Gaye."

On the other hand Vivekanand Yadav (PW-2) in his statement has stated that after confession of the accused persons he called Shatrughan Yadav (PW-1) and narrated to him the confession of the accused. His exact statement in this regard is reproduced below-

"Uprokt Baat Ki Jankari Hone Par Mai Unke Pariwar Ke Shatrughan Yadav Ko Bulwaye Aur Uprokt Sari Bate Bataye Usne Kaha Ki Ek Darkhast Likh Dijiye."

From the above statement we again find that the place at which the information regarding murder of Ramdhyan was given to the informant is inconsistent. PW-1 in his statement has narrated the place to be his residence where PW-2 Vivekanand had come and had informed him about the confession whereas PW-2 has stated that he had called Shatrughan to his residence and had informed him about the confession.

PW-2 in his cross-examination has also stated that he learnt about the murder of Ramdhyan on 15.08.2006 in the morning at 6.00 a.m. He further states that he informed Shatrughan about it and that Shatrughan had come to his house at 6.30 a.m. His exact statement in this regard is reproduced below-

"Mujhe Ramdhyan Ki Hatya Ki Jankari 15 Tareekh Ko Hui. Savere Lagbhag 6 Baje Hui. Maine Is Bare Me Shatrughan Ko Bataya Tha. Shatrughan Hamare Yaha Sadhe 6 Baje Aye The."

He further states that he went to the police station on the next day i.e. 16.08.2006. The above statement of PW-2 further is inconsistent with the statement given by PW-1 with regard to the date and time when the information of murder of his uncle Ramdhyan was given to him. According to PW-1 he learnt about the murder of his uncle in the evening of 14.08.2006 whereas according to the PW-2 he himself came to know on 15th morning at about 6.00 a.m. and within half an hour informed Shatrughan after calling him.

The above inconsistency in the evidence of PW-1 and PW-2 makes both the witnesses unsafe for reliance. For the same reason the motive which has been sought to be proved by PW-1 only also loses its credibility. It is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. [See Sukhram v. State of Maharashtra (2007) 7 SCC 502, Sunil Clifford Damiel (Dr.) V. State of Punjab (2012) 8 SCALE 670. Absence of strong motive is something that cannot be lightly brushed aside. The absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (vide: Pannayar v. State of Tamil Nadu by Inspector of police, (2009) 9 SCC 152. IV).

Now coming to the extra judicial confession by all the accused to PW-2 Vivekanand who is the Pradhan of the village of the deceased and the informant. The accused are residents of different village Siswar Kalan which is about 18 miles from the village of the deceased. It has not come in the evidence that the accused were very close to PW-2 or that they were related to him which would give them confidence of receiving some help from PW-2. Further PW-2 himself in his statement had admitted that he has no close relations or was very well known to the local police. In such a background we are unable to believe the statement of PW-2 that the accused would come to him for help and confess the crime.

Supreme Court expressed the view that extra judicial confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused. (State of Rajasthan vs. Kashi Ram (2006 (11) SCALE 440).

In the case of Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230], the Supreme Court, while holding the placing of reliance on 10 extra-judicial confession by the lower courts in absence of other corroborating material, as unjustified, observed: a detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof.

In Balwinder Singh vs. State of Punjab {1995 Supp (4) SCC 259}, Apex Court stated the principle that an extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.

In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], Supreme Court held that it is well settled that it is a rule of caution where the Court would generally look for an independent reliable corroboration before placing any reliance upon such extrajudicial confession.

In Balbir Singh v. State of Punjab AIR 1999 SC 3227 the Supreme Court held that an extra-judicial confession even if believed is considering a very weak piece of evidence and ordinarily is not accepted without independent corroboration.

In Sahadevan and Anr. V. Stae of Tamil Nadu, (2012) 6 SCC 403 Supreme Court observed that it is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra- judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.

In the present case we find that the extra judicial confession made before Vivikanand Yadav PW-2 is not corroborated by any other evidence. PW-2 was not the confidant or otherwise related or acquainted to the accused to give them the confidence of confessing before him. He was not very well connected to the local police either. Even the other evidence relating to recovery has also not been found to be reliable as discussed later in the judgment. Thus in accordance to the settled law on the point as narrated above we do not find that the extra judicial confession reliable enough to record conviction.

In so far as the recovery is concerned the recovery of the knife said to have been used in the crime, we find that such recovery is not reliable for the reason that according to the Investigating Officer the fard memo (Ex. Ka-2) was prepared at the spot whereas PW-2 Vivekanand has specifically stated that at the time when recovery was made only Munna Rajbhar was present and that papers relating to the recovery (Ex. Ka-2) was written at the police station and that they had signed the recovery memo. To be exact the statement of PW-2 in this regard is reproduced below-

"Chaku Baramad Ke Samay Mauke Par Kewal Munna Rajbhar Hi Tha Chaku Baramadgi Ka Kagjat Thane Par Pradarsh Ka-2 Likh Gaya Tha. Police Ke Alawe Mera Wa Vijay Shanker Tatha Kai Longo Ka Hastacchhar Banwaya Gaya Tha.

The recovery of knife is also not worth reliance as the witness of recovery PW-3 was not shown the recovered knife.

Further the recovery of knife does not appear to be reliable as it contained the signatures of accused Ramjit Yadav and Smt. Hoshila Devi whereas PW-2 Vivekanand Yadav specifically stated that only Munna Rajbhar was present.

With regard to the evidence of last seen PW-3 and PW-4 Vijay Shankar Yadav and Ramjit Giri have stated that they saw the deceased Ram Dhyan alongwith five accused in the night of 10.08.2006. PW-3 stated that on 10.08.2006 at about 11.00 pm he was going to Siswar Kala his Nanihal (mother's parental house) on a bike when near Kalachatti he saw Ramjeet, Ramdhyan, Dinesh, Munna Rajbhar and Awadhesh and Hoshila Devi lying on a cot. Further according to him he asked them "what are you people doing so late in the night", to which they replied that a snake had bitten Hoshila Devi and they were taking her to Satimai for treatment. 4-5 days later he learnt about the murder of Ramdhyan. He further states that as he had seen all of them together in the night of 10.08.2006 he thought they may have murdered him. In his cross-examination he has stated that his mama Ramnath lives in village Siswar Kalan village of the accused persons. His mama does farming work. He did not remember his other Mama's name. He did not even know where his mama was married. He also did not know his Nana's name. He further stated that his Mama Ramnath had two sons but he did not know how many daughters he had. He also did not know the names of the children of the other Mama Samu. He further states that he spent the night in his Mama Ramnath's residence and in the morning at 6.00 am he returned to village. He has also stated in his cross-examination that he did not narrate to anyone at his Mama's house that Hoshila Devi was bitten by snake. Lastly he stated that in the morning he did not meet anyone.

PW-4 Ramjit Giri has stated that he had seen the deceased Ramdhyan at about quarter to 12 in the night at Rasra Kasimabad Crossing before he was murdered. He does not give the date on which he had seen the deceased alongwith accused Ramjeet Yadav, Dinesh, Awadhesh Munna Rajbhar and Hoshila Devi who was lying on a cot and was covered with a sheet with her face open. A lantern was placed there on the floor. He asked the accused persons and also Ramdhyan what they were doing so late in the night upon which the accused persons informed him that Hoshila Devi had suffered a snake bite and they were taking her to Satimai. He further states that after he had seen the deceased alongwith the accused persons, 4-5 days later he heard that Ramdhyan had been murdered whereupon he went to the house of the deceased and tried to find out from his nephew Shatrughan. He was informed that Shatrughan had gone to the police station. He further stated that the Sub Inspector had recorded his statement. In his cross examination he had stated that he did not remember the date when his statement was recorded, which was taken after two months from the date of incident.

In State of Karnataka v. M.V. Mahesh [(2003) 3 SCC 353], Supreme Court held that merely being last seen together is not enough. What has to be established in a case of this nature is definite evidence to indicate that the deceased had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together.

In State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755 Supreme Court held that in the absence of any other corroborative piece of evidence to complete the chain of circumstances it is not possible to fasten the guilt on the accused on the solitary circumstance of the two being seen together.

Reference may also be made to Bodh Raj alias Bodha and Ors.v. State of Jammu and Kashmir (2002)8 SCC 45 where the Supreme Court held:

"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 authority 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......".

The evidence of last seen by PW-3 and PW-4 is not corroborated by the medical evidence. PW-3 has stated that on the night of 10/11-08.2006 he had seen the deceased alongwith the accused persons at 11.00 p.m. in the night whereas PW-4 stated that he had seen the deceased at 11.45 pm. If the deceased Ram Dhyan was alive at 11.00 p.m. on the night of 10/11.08.2006, post-mortem-report which took place at 4.30 p.m. on 11.08.2006 which mentioned that Ramdhyan had died about one and half day before would mean that Ramdhyan had died sometime in the night of 9/10.08.2006 or in the early hours of 10.08.2006. The post-mortem-report also mentions that Rigor Mortis had passed off from both the extremities. This again means that Ramdhyan had died at least 36 hours before the time when the post-mortem was conducted. Thus, the evidence of last seen is not supported or corroborated by the medical evidence.

In the case of Godabarish Mishra v. Kuntala Mishra and Another (1996) 11 SCC 264, Apex Court declared that the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless supported by other links in the chain of circumstances.

PW-5 Dr. B. Narayan, the Medical Officer who conducted the post-mortem is an independent person and no motive could be attributed to him for giving incorrect statement. He is also a witness of the prosecution. Thus, inconsistent evidence has been led by the prosecution with regard to the date and time of murder of the deceased. PW-5 in his cross-examination has stated that the death of the deceased could have taken place at 4.00 am on 10.08.2006.

The above discussion is enough to record a finding that the complete chain of events are not interlinked. As already recorded above in the earlier part of this judgment that in a case of circumstantial evidence each link of the chain of events should be fully established and there should be no inconsistency in the evidence in order to record a finding of guilt. In the present case we find that neither the motive was fully proved. The only witness of motive PW-1 Shatrughan Yadav is an interested witness and the suggestion given by the defence that in order to oust the claim of his Chachi (accused Smt. Hoshila Devi) she had been falsely implicated so that entire share of the deceased Ram Dhyan would come to the informant and his father who was still alive. Surprisingly father of the informant i.e. brother of the deceased Rambachan Yadav had not come forward as a witness to support the prosecution case. The evidence of extra judicial confession is also not worth reliance. The evidence of last seen is inconsistent with the medical evidence. In Swaran Singh Rattan Singh v. State of Punjab [AIR 1957 SC 637], Supreme Court observed;

"Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence before an accused can be convicted."

There are other discrepancies in the prosecution evidence which would further weaken its case but we are not inclined to go further as, in our opinion, the discussion made above is enough to hold that the prosecution has failed to prove the charges against the accused.

We accordingly reject the death reference and allow all the appeals and set aside the judgment of the trial Judge dated 29.04.2015 and 6.5.2015 and acquit all the accused appellants. The accused appellants are set at liberty forthwith. The bail bonds of such of the accused who are on bail, are cancelled and the sureties are discharged.

Sri Rakesh Kumar Singh, Advocate, was appointed as Amicus Curiae on behalf of the appellant Munna Rajbhar to assist the Court in hearing the Capital Case No.2090 of 2015. Sri Rakesh Kumar Singh, Advocate, rendered valuable assistance to the Court. The Court quantifies Rs. 15,000/- to be paid to Sri Rakesh Kumar Singh, Advocate towards fee in lieu of the assistance provided by him in hearing the Capital Case referred to above. The above amount be paid to Sri Rakesh Kumar Singh, Advocate by the Registry of the Court within two months.

Order Date :- 25.8.2015

RPS