Surendra Kumar Verma vs State U.P.
2015 Latest Caselaw 5045 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Judgment reserved on 18.11.2015
 
Judgment delivered on 04.12.2015
 
Court No. - 28
 
Case :- CRIMINAL APPEAL No. - 510 of 1999
 
Appellant :- Surendra Kumar Verma
 
Respondent :- State U.P.
 
Counsel for Appellant :- Hemant Kumar Mishra,Arti Ganguli
 
Counsel for Respondent :- Ram Prakash Verma,A.R. Khan,Nagendra Mohan,R U Verma
 
And
 
Criminal Revision No. 391 of 1999
 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Pratyush Kumar,J.

(Per Hon'ble Pratyush Kumar,J.)

The instant Criminal Appeal has been filed by accused-appellant challenging the correctness of judgment and order dated 30th September, 1999 passed by Sri C.N. Singh, the then IVth Additional Sessions Judge, Faizabad in Sessions Trial No. 757 of 1996 whereby the appellant was convicted under sections 302, 201 IPC and sentenced to undergo imprisonment for life and three years rigorous imprisonment respectively.

Smt. Kamla Devi wife of deceased Tej Nath Verma has filed the instant Criminal Revision questioning the correctness of the said impugned judgment and order whereby respondent Nos. 1 to 3 were acquitted from the charges under sections 302 and 201 IPC and only co-accused Surendra Kumar Verma, the appellant in Criminal Appeal No. 510 of 1999 was convicted and sentenced. Since these two arise out of the same judgment and order, we find it expedient to dispose of them by a common judgment and order.

On 6th January, 1995 at 10 A.M. Ram Lot, Chaukidar gave a written report at P.S. Ibrahimpur stating therein that he was informed by some persons that body of one person bearing injuries from sharp edged weapon was lying near Shivalaya on the bank of river Saryu. He had gone there and found the dead body, necessary action be taken on this information. At that chick FIR was scribed, Case Crime No. 5 of 1995 under section 302 IPC was registered at P.S. Ibrahimpur and requisite entry was made in the report of general diary. Investigation was started, inquest proceedings were held. Near the scene of occurrence one blood stained knife was recovered. Postmortem was conducted.

Sri Jai Ram Verma accompanied by his relatives residents of village Mamrejpur, P.S. Tanda reached mortuary and informed that their nephew was missing since 5th January, 1995. After postmortem they identified him. After proper identification dead body was handed over to them. During investigation the investigating officer collected the evidence of last seen and extra judicial confession by accused-Virendra Kumar respondent no.1 in the Criminal Revision. After completion of the investigation charge sheet was submitted against appellant in Criminal Appeal No. 510 of 1999 and respondent nos.1 to 3 in the above Criminal Revision. The Magistrate took cognizance of the offence and committed the case to the Court of Session where appellant in the said appeal was charged with offence punishable under section 302 IPC and separately he and respondent nos. 1,2 and 3 in the said revision were charged under section 302 read with 34 and 201 IPC. All of them pleaded not guilty and claimed to be tried.

Besides the documentary evidence on behalf of the prosecution 10 witnesses were examined during oral evidence. Thereafter statements of the accused were recorded under section 313 Cr.P.C. No defence evidence was led on behalf of the accused persons. After hearing the arguments, the learned trial judge convicted and sentenced Surendra Kumar Verma, appellant in the said Criminal Appeal. However, he acquitted respondent nos. 1 to 3 from the charges framed against them. In the impugned judgment he has recorded the findings that against the present appellant motive is proved, evidence of last seen consists of statement of Som Nath Verma P.W.2, Rajendra Prasad P.W. 3, Khushi Ram P.W. 4, Ram Sundar P.W. 5. All these four witnesses deposed to have seen the deceased in the company of the present appellant at various points of time. However, only two witnesses Khushi Ram (P.W.4) and Ram Sundar (P.W. 5) have claimed to have seen respondent No.1 in the said Revision to be in company with the deceased and the present appellant on the fateful day. The learned trial judge further has opined that motive was alleged only against the present appellant. Respondent No.1 Virendra had no motive to commit murder. He found the evidence of extra judicial confession in the form of statement of Vijay Kumar Verma, P.W. 7 not worthy of reliance. He has also not placed reliance on the evidence of Rampati Verma, (P.W.8) a witness of hearing the conversation about the intended murder of deceased. Thereafter he came to the conclusion that against Surendra Kumar Verma charges stood proved and against other co-accused Respondent Nos. 1 to 3 in the said revision charges were not proved.

Feeling aggrieved the convicted accused preferred the instant appeal and widow of the deceased filed the present revision.

Heard Sri Hemant Kumar Mishra, learned counsel for the appellant, Sri R.U. Verma, learned counsel for the complainant and the learned AGA and perused the record.

Sri Hemant Kumar Mishra, learned counsel for the present appellant in the criminal appeal and counsel for respondent nos. 1,2 and 3 in the said revision has submitted that acquittal of respondent nos. 1 to 3 is fully justified against them. There is no reliable evidence against all of them. According to him against the present appellant also no reliable evidence could be produced and the learned trial judge has wrongly placed reliance on the testimonies of witnesses of last seen. He has further submitted that statement of Kamla Devi (P.W.6) on the point of motive is also not reliable. In the last he has submitted that motive and evidence of last seen alone are not sufficient to record finding of guilt against the accused appellant. In support of his argument he has referred the case of Ramesh Babulal Doshi Vs. State of Gujarat 1996 SCC (Crl.) 972.

On behalf of the State and the revisionist these arguments have been repelled. Conviction of Surendra Kumar Verma has been justified and acquittal of respondent nos. 1 to 3 has been criticized on the ground that Vijay Kumar Verma (P.W.7) has been erroneously disbelieved and it has been further argued that learned trial judge has failed to appreciate the evidence in a legal perspective. In support of the argument the case of N.S. Nagendra Vs. State of Karnataka (2014) 3 SCC 193 has been referred. To substantiate the argument that in case motive is established and reliable evidence of last seen is adduced, that would complete all links in the chain of circumstantial evidence to prove the guilt of the accused.

There is no dispute regarding identification of the dead body of the deceased. Genuineness of the postmortem report has been admitted by the defence during the trial. Therein probable time since death has been recorded 1-1/2 day on 7th January, 1995 at 9.30 A.M. In the postmortem report Ext. Ka-4 cause of death has been opined to be shock and haemorrhage as a result of ante mortem injuries. The doctor has recorded the ante mortem injuries found on the dead body of the deceased, identified subsequently. These injuries are as under:

1.a. Incised wound on (Rt) side of head 4.5 cm x 2 cm x skull depth with Haematoma 12 cm x 4 cm.

b. Multiple Incised wound on (Rt) ear, (Rt) side face, chin 16 cm. x 5 cm. x bone ear to poral eyes (Rt) Mandible.

c. Multiple Incised wound on (Rt) side of neck just below (Rt) ear with cutting of alvessls on (Rt) side of neck (illegible) 9 cm x 8 cm x 6 cm vessels.

d. Incised wound from (Rt) side of neck in front of neck 5 cm. x 1 cm. x skin depth.

e. Incised wound 1.5 cm x 1 cm x Muscle depth on middle part of (LT) Arm.

f. Incised would 5 cm. x 2 cm. x 3 cm. on 4th Illegible of (LT) hand with bones of (LT) hand.

g. Incised wound 2 cm. x 1 cm. x 1.5 cm. on 4th wake of (RT) hand.

Cause of death has been recorded to be due to ante Mortem Injuries Haemorrhage, shock.

Kamla Devi (P.W.6) is the widow of the deceased. She has stated that her late husband did the business of general store. He was close friend of Surendra Verma and Virendra Verma. According to her on 22nd December, 1994 deceased had lent Rs. 30,000/- to Surendra Verma and 7-8 days after also gave him Rs. 10,000/- for purchase of a jeep. On 3rd January, 1995 he realised that Surendra was neither purchasing jeep nor returning money. When he was asked to return money he used to quarrel. On 4th January, 1995 her husband was depressed and wept during the night. On 5th January, 1995 after taking his food he went to the shop saying that Surendra had said that in Iltifatganj money would be arranged and he would pay him there. When in the evening his husband did not come back, he was searched for. On 6th January, 1995 at about 2.30-3.00 p.m. his father-in-law (uncle of the husband) Ram Adhin said one dead body on the bank of Saryu near Iltifatganj was found. She has further stated that she has identified the dead body to be of her husband.

Vipin Kumar (P.W.1) has turned hostile.

Som Nath Verma (P.W.2) cousin of the deceased has stated that when he was getting tuition in front of the shop of the deceased Surendra Kumar Verma came there and conversed with the deceased and after 10-15 minutes a boy came there and talked with the deceased. After he left the deceased closed his shop and went away.

Rajendra Prasad (P.W.3) is a mechanic who conducted business of repairing bicycles in town Tanda. He is co-resident of village where the deceased resided. According to him on the fatal day at about 4-5 p.m. deceased left his bicycle on his shop and did not come back.

Khushi Ram (P.W.4) has seen the deceased in the company of Surendra and Virendra while sitting in a jeep coming from Tanda and going towards Iftifatganj. According to him time was 5-5.30 p.m. Place was market of Makdoompur.

Ram Sundar (P.W.5) claims to see the deceased going towards a jeep wherein Virendra and Surendra were sitting. The deceased also boarded the jeep and left towards Tanda.

Vijay Kumar Verma (P.W.7) cousin of the wife of the deceased has stated that next day after the incident respondent no.1 Virendra Kumar confessed that he along with other co-accused murdered the deceased on account of greed for money.

Ram Pati Verma (P.W. 8) on the fatal day has heard in tea stall at Iltifatganj at 5 p.m. conversing respondent nos. 2 and 3 that Surendra and Mahendra would be bringing the deceased.

Ram Lot (P.W. 9) is the first informant and he proved the first information report and reiterated the version contained therein.

Lal Bahadur (P.W.10) is the scribe of written report Ext Ka-1.

From the medical evidence homicidal death of the deceased Tejnath Verma is established and according to the medical opinion his death could have occurred at the time alleged by the prosecution. In order to systematically consider and examine the arguments advanced on behalf of the respective parties we propose to proceed with the motive thereafter all links in chain of circumstantial evidence in order to find out whether from cogent evidence prosecution has succeeded in establishing the guilt of the accused persons or partly succeeded or failed in respect of all the accused persons.

Motive:

According to learned counsel for the appellant and respondent nos. 1,2 and 3 the prosecution has failed to prove the motive. Basis of his argument is that statement of Kamla Devi (P.W.6) is not trustworthy and she was not well conversant with the business of her late husband. Smt. Kamla Devi has not been suggested any reason to depose falsely against any of the accused persons. During cross-examination her testimony remains unshaken. We are satisfied that she is deposing truthfully the facts which were within her knowledge. She has admitted that shop of her husband was financed from the joint funds of the family. She has admitted that she was informed about this by her in-laws two months after the shop was opened. We find that business activities of the husband and the account from which the deceased had drawn money to give to Surendra Verma are two different things. The account from which money was drawn was a joint account operated by Smt. Kamla Devi and her deceased husband. In this account her cash forming her stridhan was also deposited, therefore, she had interest in the account and her knowledge about any withdrawal from the account at least necessitated her knowledge is not consent. Her depiction of the mental state of her husband when he found that Surendra Kumar Verma was not appropriating the money advanced by him in the manner promised to him appears to be truthful. It was natural for a small shop keeper to have anxiety to recover the given amount in such situation. Thus we find that on the point of motive, argument advance on behalf of the appellant no.1 is not substantiated from the record and the learned trial judge has rightly held that loan of Rs. 40,000/- to be a sufficient motive to murder the deceased Tejnath Verma. Here we would like to clarify that this motive is clearly attributable to the appellant Surendra Kumar Verma, it did not indicate that respondent nos.1 to 3 were under any financial obligation from the deceased, therefore, against them this motive has no bearing.

Evidence of last seen:

Somnath (P.W.2) has seen deceased talking with Surendra Kumar Verma at his shop at about 3.45 p.m. when the witness was getting tuition in front of the shop and the deceased was approached by one boy with whom he went away taking his bicycle without telling where he was going. The witness was not suggested that on that day he did not receive his tuition in front of the shop. It is worth mentioning that shop was situated in the house where the deceased and Som Nath (P.W. 2) resided. Presence of the witness is natural. He has given his reason to have seen the facts deposed by him. We find him to be trustworthy.

In chronological order Rajendra Prasad (P.W.3) is the second witness who had seen Tej Nath Verma alone when he came to leave his bicycle between the period 4-5 p.m. in Tanda market and did not come back on that day.

Ram Sundar (P.W.5) is the third witness who had gone to Tanda market to purchase cloths at 4.50 p.m. Near railway station he had seen Tej Nath going towards and boarding a jeep wherein Sunder Kumar Verma, appellant no.1 and Virendra Kumar, respondent no. 1 were sitting. According to this witness this jeep had proceeded towards Tanda.

Khushi Ram (P.W. 4) had seen deceased in the company of Surendra and Virendra at Makdoompur market at 5-5.30 p.m. At that time this witness was waiting outside the door of Gopi Nath Verma, sitting MLA for getting his application for issue of arm licence recommended. This witness has claimed that he and Tejnath exchanged ''Namaste'. In his testimony it has come out that where the witness was waiting on the road there was a speed breaker and speed breaker had reduced the speed of jeep to enable him to identify the deceased and these two persons. Though this witness is a relative of the deceased and he has admitted that he cannot get application recommended from Gopi Nath Verma, however, there was no reason for him to depose against the accused persons. During cross-examination his testimony remains unshaken.

In this case first the investigating officer had submitted final report. After filing of the final report four affidavits were filed on behalf of the victim family. Out of these Ram Sundar, Rampati Verma, Vijay Kumar Verma are notable. On behalf of the accused persons, testimonies of witnesses not examined by the first Investigating Officer have been criticized on the ground that their disclosure is belated hence liable to be discarded. In view of the peculiar fact of the case that investigation by first investigating officer was not found to be fair even by the superior police officer, we think that late examination of the witnesses would not result into rejection of their testimonies. Statements of these witnesses inspire our confidence. We find all these four witnesses to be worthy of reliance. In this way the prosecution has succeeded to prove that on 5th January in the after noon deceased Tej Nath Verma conversed with the deceased. Thereafter he left his shop with bicycle. After some time he left his bicycle. In the shop of Khushiram who was a co-resident of the village and from there he board a jeep wherein already accused Surendra Kumar Vema and Virendra Kumar were sitting. He was seen in Makdoompur market in the company of these two persons. This route proceeded in the direction of Iltifatganj

The importance of Iltifatganj is reflected from the statement of Kamla Devi (P.W.6) wherein she has stated that, her deceased husband while leaving the house for the shop, had stated that Surendra Kumar Verma had promised that in Iltifatganj money would be arranged and paid to the deceased. This statement is admissible as dying declaration under Section 32 (1) of the Evidence Act. Almost under similar circumstances a statement made by the deceased was held to be admissible under this clause in the case of Satish Chandra Saha Vs. State AIR 1954, Calcutta 379.

Evidence of Ram Pati Maurya (P.W. 8) is only of hearsay and has been rightly discarded by the learned trial judge. Evidence of (P.W. 9) Ram Lot and Lal Bahadur (P.W.10) is of formal nature.

In the form of testimony Vijay Kumar Verma (P.W.7) the prosecution has tried to prove the extra judicial confession of the murder of Tej Nath Verma by the four accused and made by one of them Virendra Kumar. Learned counsel for the appellant and respondent nos. 1 to 3 has argued that this witness is a relative of Kamla Devi. There was no reason for Virendra Kumar to confess the guilt to him. It is true that this witness is a worker of Bahujan Samaj Party, however, he had no position to bring pressure on the family of the deceased or on the police authority, therefore, it does not appeal to reason why Virendra Kumar would make a confessional statement that too in the presence of more than one person. In order to take benefit of the evidence of extra judicial confession by an accused person the prosecution is obligated to show how the accused reposed confidence in the person before whom he confessed his guilt vide Jaspal Singh Vs. State of Punjab 1997 SCC (CRI) 358. In the present case the prosecution has not shown any reason why Virendra Kumar had made the alleged confession. For this reason we are also in agreement with the finding recorded by the learned trial judge that extra judicial confession by Virendra Kumar to Vijay Kumar Verma (P.W.7) could not be read against any of the accused persons and no reliance can be placed on the testimony of Vijay Kumar Verma.

Learned counsel for the appellant has submitted that in absence of evidence of extra judicial confession there remains no incriminating evidence against respondent Nos. 1 to 3 and revision filed against them deserves to be dismissed. We are in agreement with this argument.

In reference to the conviction of Surendra Kumar Verma, he has submitted that there is only evidence of motive and last seen. According to him all links in the chain of the circumstantial evidence are not complete. One link is missing, therefore, conviction of Surendra Kumar Verma is also not sustainable. In support of his argument he referred following authorities:

1. Ramesh Babulal Doshi Vs. State of Gujarat 1996 SCC (Crl) 972. He has placed reliance on the observations contained in paragraph No. 14 which reads as under:

"14. Apart from the above two circumstances, namely, circumstances Nos. (iii) and (vi), the only other circumstance which the High Court found on discussion of the evidence to have been conclusively proved was that the appellant was last seen with the deceased at 1.30 p.m. in his (appellant's) flat [circumstance No. (ii)]. Even if we proceed on the basis, notwithstanding the finding of the trial court in this regard, that the above circumstance stands proved it does not further the prosecution case for by itself it does not lead to the only conclusion that the appellant was guilt of the offences alleged against him."

2. Daulat Ram @ Daulati Vs. State of Haryana 2015 Legal Eagle (SC) 349. It was also a case of circumstantial evidence consists of evidence of last seen. In this case chain of circumstances was found to be not complete.

In answer to this legal position on behalf of the State and the wife of the victim in addition to case of N.S. Nagendra (supra) case of Muni Gadappa Meenaiah Vs. State of Andhra Pradsh AIR 2008 SC 3027 has been referred. In that case accused invited the deceased to his house and killed her by inflicting pestle blows on her head. The body was found lying in front of the house of the accused next morning and weapon of crime was also recovered on the pointing out of the accused. We do not think that in that case the prosecution relied only on the evidence of last seen.

However, the case of N.S. Nagendra (supra) has some what similar kind of evidence where on the strength of strong motive and evidence of last seen the conviction was upheld by the Apex Court.

Now we have to see what the prosecution could establish to complete the chain of circumstantial evidence in the present case. Evidence of last seen cannot be generalised for its probative force. Sometimes it may be clinching,sometimes it may not be so. Reason for this has to be searched for, that lay in the logic of its relevancy.

The relevancy and probative force of the evidence of last seen has a logical basis. This basis is only available where the time gap between the point of time when the accused and deceased were last seen alive and deceased is found dead is so small that the possibility of any person other than the accused being author of crime become impossible. Vide Ram Reddy Rajesh Khanna Reddy Vs. State of Andhra Pradesh, 2006 (10) SCC 172.

According to the prosecution deceased was last seen alive in the company of the appellant on 5th Janary, 1995 at about 5-5.30 p.m. In the early morning of 6th January he was found dead. Thus there is time gap of about 9-10 hours. In a strange place this time gap possibly cannot be said to be long, specially, when deceased was not carrying anything valuable.

In this regard learned AGA has submitted that the interval between the period from when the deceased was seen alive in the company of the accused and crime was discovered should be reckoned only between the period from the time of last seen alive upto the time when the crime was discovered to be committed. According to him postmortem examination was conducted on 7th January, 1995 at 9.30 a.m. and according to medical evidence time since death was estimated to be 1-1/2 days. Thus according to learned AGA commission of crime must be deemed to have been discovered in the intervening night of 5th/6th January, 1995 at about 9 p.m. The argument advanced on behalf of learned AGA appeals to us because discovery of dead body would not mean discovery of time of commission of the crime. On this basis time gap between the period when the deceased was seen alive in the company of the accused i.e. 5-5.30 p.m. on 5th January, 1995 and 9.30 p.m. on the same night. The deceased was murdered. Interval of 4 hours, in the facts and circumstances of the case, is very short in absence of any explanation by the present appellant it clinches the issue completes all links in the chain of circumstantial evidence.

In addition to this evidence we have also taken into consideration that the present appellant in his statement recorded under Section 313 Cr.P.C. has simply denied the evidence of last seen. He has not given any details how he had parted with the company of the deceased and when. Under Section 106 of the Evidence Act the present appellant was required to disclose these facts his failure to do so persuades us to raise an adverse inference against him and this adverse inference supplies the missing link in the chain of circumstantial evidence on which the prosecution has relied.

In addition to the evidence of motive, last seen, adverse inference we have also dying declaration of the deceased referred hereinbefore and proved by Smt. Kamla Devi. The case law cited by learned counsel for the appellant is of no help to him on account of the reasons stated hereinabove.

We find that the learned trial judge has rightly appreciated the evidence and he committed no factual or legal error in holding the charges proved against the present appellant. We are further of the opinion that acquittal of Respondent Nos. 1 to 3 is fully justified on the basis of material available on record. Thus appeal as well as revision are devoid of any substance and they deserve to be dismissed. Accordingly they are dismissed.

Office is directed to certify this order to the court concerned forthwith and send back the lower court record.

[Pratyush Kumar,J.] [S.V.S. Rathore,J.]

Order Date: 4th December, 2015

MT**