Vijai Bajpai vs State Of U.P.
2017 Latest Caselaw 3813 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 44							(A.F.R.)
 
Case :- CRIMINAL APPEAL No. - 90 of 2004
 
Appellant :- Vijai Bajpai
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- A K Nigam- Amicus Curiae
 
Counsel for Respondent :- A.G.A. Ajeet Ray
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Dr. Kaushal Jayendra Thaker,J.

(Oral Hon'ble Dr. Kaushal Jayendra Thaker,J.)

1. Heard Sri A.K. Nigam, Amicus Curiae, on behalf of the appellant, Sri Ajeet Ray, learned A.G.A. for the State, and perused the record.

2. This criminal appeal challenges the judgment and order of conviction dated 5.12.2003 passed by Additional Sessions Judge, Court No. 17, Kanpur Nagar in Session Trial No.481/02: State Vs. Vijai Bajpai , convicting the appellant under section 302 I.P.C. for life imprisonment with a fine of Rs.5000/- in case of default of payment of fine, further conviction of 3 months. He is in jail since more than 15 years. .

3. The brief facts of the present case are that on 10.02.2001 at 9:10 am, it was found that some incident had occurred in the house of accused. PW-2 Virendra Tripathi informed Police Station Nawabganj about the incident and has stated that as he reached the house of accused at 8 a.m., which is around 1.5 km away from the Police Station, he found the doors of the house to be closed. He with other persons started banging on the door that the same be opened. On opening and  going inside the house, he found the internal doors of the rooms to be open and all the things in the room were lying scattered. Accused -Vijay Bajpai was sleeping in the next room. He saw that Kavita Bajpai was lying in a pool of blood in another room, and Kavita's daughter Mansi and Vijay Bajpai's mother were lying dead in another room. Kavita Bajpai's body was somewhat warm and she was taken to the hospital where she was declared dead.

4. On the same day, the police was informed by LLR Hospital that Kavita was brought dead there at 10:15 am. On the same day the police who were informed started investigation under Section 394 read with 302 of Indian Penal Code ( hereinafter referred to as "IPC"). The investigation for some time was directed towards dacoity with murder.

5. On the basis of the said information, a case was registered by the police u/s 394/302 IPC and the site was inspected. According to the police, as stated by PW-2 Virendra Tripathi, when he reached the spot,  doors were closed from inside. Vijay Bajpai was sleeping alone in the house. On hearing his voice, he opened the door. The police found the things scattered in the rooms where dead bodies of Kavita Bajpai, daughter of accused and  mother of accused  were lying. Near the dead body of Kavita, a gold chain, a mangalasutra, a silver anklet and a ring etc. were found. In the room where mother's dead body was lying, fixednear the iron almirah, silver anklet, 3 silver small bowls, silver coin, 3-4 other silver anklets, artificial jewellery, bangles etc. were found, an exhibit list whereof was prepared by the police. During inspection by the police, the house was found surrounded on three sides and a 16-feet high boundary wall was found to its south, on the backside whereof school's garden and field were found. The almirah was open, keys of almirah were found in the articles scattered on the floor. A briefcase was found in the kitchen, locks whereof were found intact. Water was found on the floor of the courtyard having traces of blood visible, blood was found in the washbasin of the large courtyard as well. The door of the kitchen's store was found closed with all the belongings safe therein. On checking of all the nuts, bolts, latch (kundi) etc. of all the doors, they were found intact and no scratch or any pressure mark was found on them. Inventory of jewellery etc. was prepared and the same was given into the custody of Vijay Bajpai's sister Jaya.

6. For some months, the investigation of the police continued to be focused on dacoity. During investigation, the police came to know that there were no entry and exit marks of anybody in the house, the doors were bolted from inside. It is further alleged that on the day of the incident, accused had an altercation with his wife on issue of going to Delhi, during which he hit her on the head, which caused her death. In order to conceal the factum of the incident, he murdered his mother and daughter as well by strangulating them and thereafter went to the room and slept.

7. The genuineness of trial begun with FIR being lodged regarding murder of three persons, namely, mother, wife and daughter. FIR was lodged against unknown persons. However, for about  six months, no charge sheet was laid. It is very clear from the record that name of accused was spelt after  investigation and after the Investigating Authority came for a conclusion that it was not a case of dacoity but the appellant accused was the perpetrator of crime and that is how the charge sheet was laid before the Magisterial Court and the learned Magistrate committed the case to sessions. 

8. A charge u/s 302 IPC was levelled against the accused Vijay Bajpai by summoning him. The accused pleaded not guilty and claimed to be tried.

9. The prosecution examined: PW-1 Smt. Sukhdevi, who was declared hostile; PW-2 Virendra Tripathi, who was the first to arrive at Vijay Bajpai's house on being called and got the report registered; PW-3 accused's sister Jaya Shukla; PW-4 Smt. Prem Verma; PW-5 father-in-law of accused Shri Murari Lal Shukla; PW-6 mother-in-law of accused Smt. Pratibha Shukla; PW-7 Pramod Kumar, who performed post-mortem on the dead body of the mother of the accused Vijay Bajpai; PW-8 Investigating Officer Ramesh Chandra Vidyarthi; PW-9 Arun Mahapatra, who was called by the accused to drop him at the station. The accused has admitted the authenticity of the post-mortem reports of deceased Kavita, his daughter and his mother.

10. Available on the record are panchayatnama of Smt. Kamla Bajpai being Ext. Ka-11 and her post-mortem report being Ka-3; panchayatnama of Kumari Mansi being Ext. Ka-10 and her post-mortem report being Ka-4 and panchayatnama of the dead body of the deceased Smt. Kavita Bajpai being Ext. Ka-9 and her post-mortem report being Ka-5, authenticity whereof was admitted by the accused. According to the aforesaid exhibits, the death of Kamla Bajpai, Baby Mansi and Kavita Bajpai had occurred as a result of asphyxia due to strangulation. A lacerated wound on Kavita's head and a scratched contusion mark were found on her neck. On the necks of Kavita Bajpai and Kamla Bajpai, scratched strangulation marks and contusion marks were found. In this way, it is clear that first of all Kavita Bajpai's head was ruptured by hitting and thereafter she was murdered by way of strangulation, which is established from the post-mortem report being Ext. Ka-5.

11. The statement of the accused was recorded u/s 313 Cr.P.C.. All the testimonies were read over to him. The accused has stated that he had not committed any murder and that he had not demanded any type of dowry from his father-in-law nor had he harassed his wife. In his statement, the accused has stated that after taking medicines, he had slept in his room and the deceased persons were in another room in the house. Some unknown thieves murdered them in the night, which he could not know. He got to know about the murders when he got up in the morning. According to accused even if the house is locked from inside, one can have access to it from the school behind through the stairs. The accused has also stated that he opened the door when the people knocked the doors in the morning. He has been falsely implicated in the case when the police failed to arrest the real culprits.

12. The accused has got examined his father Naval Kishore Bajpai in his defence as DW-1 who has not thrown much light on the case. 

13. We have heard the learned counsels for the parties. We have been taken through the evidence led before the Trial Court and  we have perused evaluated and reevaluated the evidence laid before the Trial Court as necessary to decide this appeal.

14. Sri A.K. Nigam, learned Amicues Curiae has submitted that FIR did not contain name of accused. Name of accused figured only after about five months. He has submitted that motive for crime has not been proved by prosecution. He further submitted that footprint and blood were taken by Police and they were not sent for examination  and there is no corroboration to show that accused was the only person who had committed the crime. It is submitted that majority of witnesses have not supported the theory put forth by prosecution.

15. It is also pointed out by learned Amicus Curiae that prosecution has not proved that the accused is the person who is perpetrator of the murder. He has relied on the decisions of Supreme Court in Vikramjit Singh Alias Vicky Vs. State of Punjab, (2006) 12 SCC 306, Tomaso Bruno & another Vs. State of U.P., 2015 Sup AIR(SC) 412 and  Digambar Singh and others Vs. State of U.P., Laws(All) 2015  2  259 and submitted that prosecution has failed to bring home or prove the charges and learned Judge eventually has passed the burden to prove the case on accused which is not  permissible in criminal trial. Prosecution has to stand on its own legs and cannot shift the burden on the appellant to prove his income. 

16. Prosecution has examined about nine witnesses. Out of which except the mother-in-law, father-in-law of accused and Doctor, witnesses did not support the prosecution cases and disowned the statement recorded under Section 161 of Cr.P.C. By Police.

17. In the backdrop of  this submission, three things emerge before us that FIR was lodged against unknown persons and only after five months accused was named as perpetrator of murder. There is no eye witness  and nothing has come from evidence of  witness that accused was murderer.  The blood reports  could have been sent for chemical analysis which would conclusively prove the involvement of accused which has not been done. There is a finding that a pipe was found which was used to commit crime on which blood  stains were there. However, medical reports shows that death was by strangulation and, therefore, this also creates doubt about involvement of accused.

18. The learned counsel for the accused has submitted that earlier the investigation had focused on dacoity but later the same was diverted towards the accused u/s 302 IPC and that too without any evidence. The witness on whose testimony the accused is stated to have been implicated have not given any evidence regarding the incident. PW-2 Virendra Tripathi, PW-3 Jaya Shukla and PW-4 Smt. Prem Verma etc. are not eyewitnesses. There is a way to enter the house from outside, which could have been used by anyone. PW-5 Murari Lal Shukla neither raised any doubt earlier nor did lodge any FIR. He has  given his statement against the accused after 6 months out of malafides. PW-6 Pratibha Shukla has given her statement different to what she has stated before the Investigating Officer. There is no eyewitness to the incident and the circumstantial evidences do not link complete the form the chain to convict the accused. The investigation was done in a faulty manner and the charge-sheet was submitted without any evidence. The earth etc. were taken but not sent for examination. No allegation is proved against the accused.

19. As against this, learned AGA has submitted that appellant was in the house as the house was opened by him.  DW-1, father of appellant was not present in the house at the time of murder. It is submitted that accused was alone who had committed murder. He has not discharged  the burden  cast on him to prove dacoity, the theory which he propounded. He was in the house when the murders took place and he is the perpetrator of the crime. No evidence worth the name to show that the deceased were done to death by any other persons. He submitted that the decisions relied by learned Trial Judge particularly that the accused did not prove his innocence have been properly appreciated and has requested for rejection of appeal.

20. It has been further submitted by AGA that the accused has admitted to have committed the murders. The death occurred which were homicidal in nature is established from the post-mortem reports. No case of theft was found at the spot; rather, a theft case was tried to be established merely by scattering the articles. No instance of entry/exit of any outsider was found. The most important fact is that only the accused Vijay Bajpai was available with the deceased persons at the house at the time of the incident and it was only he who opened the door in the morning. He was neither beaten up nor hit by any dacoits. This is the only chain which goes to establish that none other than the accused had committed the murders. No clarification in this respect has been given by the accused in his statement recorded as per Section 313 Cr.P.C.

21. As stated herein above, there is no eyewitness to the incident. In his statement u/s 313 Cr.P.C. the accused has admitted he had slept in a room after taking medicines and his deceased wife, daughter and mother were also in the house. He opened the door in the morning when outsider tried to open the door. In such a situation, there arises no question for any eyewitness. In circumstantial evidence, it is also necessary to see whether the circumstances as narrated by the witnesses link together or there is only a single link which goes to establish the entire incident as held by the Hon'ble Supreme Court in 2003 Supreme Court Cases (Criminal) 1569 Babu Ram Vs. Babu. It has been held by Hon'ble Supreme Court that if the deceased and any person are seen together before the murder, this is such one situation and circumstances which can be considered to be a link in the chain of events which would raise a finger against the  person who was last seen with the deceased. In such a situation, the onus lies on the accused last seen with the deceased to establish as to how the deceased had died. In the present case, it is established that the accused was sleeping in the locked house during the night along with the deceased persons but in another room all the three deceased i.e. his mother, daughter and wife died by strangulation. This fact is more important than the factum of last seen with the deceased persons. The accused has stated that he used to take medicines, this is corroborated by witness examined by him i.e. his father DW-1 who has also  said that his accused son does take stupefying drugs. In this context, no further witness has been produced. Hence, the statement of the accused that he had slept after taking stupefying drugs can raise a presumption in his favour.

22. As far as the question of establishing the said case by the prosecution is concerned, this fact does not need to be established that the accused had been sleeping alone with the deceased persons with the doors etc. of the house closed as the same has already been admitted by him. In his testimony, PW-2 Virendra Tripathi has stated that the door of Bajpai's house was not open. Many persons had gathered there. When they saw through the gate, the doors of the rooms inside were found open. No response came when the people from the adjoining house called. Meanwhile, the MLA and police reached there. Upon calling, Vijay Bajpai came from inside and opened the lock of the main door. Bajpai hurried into the room and shouted by saying 'Mummy Mummy'. His mother was lying dead under the quilt and his daughter was lying dead next to her. The TV was lying wrapped on the bed. He started searching for his wife. It was dark in the room. He entered the room and shouted that his wife was lying dead. All the persons went inside. Thereafter, the persons took his wife to Hallet Hospital where she was declared dead. Since Vijay Bajpai was in a jittery, he went to the police station with Anoop Bajpai and wrote the report there. During cross-examination, this witness has stated that he did not know how and why the incident had occurred.

23. To the south of Bajpai's house, there is school's field through which Bajpai's house can be accessed by some efforts.

24. In his testimony, PW-9 Arun Mahapatra has stated that Vijay Bajpai's mother and Vijay Bajpai had asked to drop the latter at the station the next morning. This had happened one day prior to the incident. When he reached Vijay Bajpai's house at 8:00 am - 8:30 am in the morning he along with other saw that the outside door was locked from inside. They called Verma Auntie and other persons from the adjoining house, thereafter, the people informed the police. During cross-examination, this witness has stated that when he reached the spot, the house was closed. This witness has, by way of giving testimony to the effect that there were good relations between Vijay Bajpai his mother and his wife and tried to say that Vijay Bajpai could not be the murderer and was declared hostile witness.

25. Accused's contention is that the theft was attempted but whatever articles were found from the spot have been given to accused's sister PW 3 Jaya Shukla s/o Ajay Shukla. This witness has stated that being informed by her neighbour she came to the house. Accused has stated that the handing over memo was prepared. The policemen had given some silver coins, one ., one bowl, etc which are mentioned in Ex ka 2. This witness has tried to save her brother stating that the murders were committed by dacoits. Ex ka 2 which is stated to have been given to witness mentions a silver pajeb, one pair of silver bowls, 5 silver suparis, one silver coin, two silver anklets, 4 silver toe rings, artificial Jewelleries, gold plated bangle, 9 silver coins of Ganesh Lakshmi, one HMT watch, one tola gold chain, a 25 gram gold wedding necklace, one pair of silver anklet and tops, etc. Besides it, the original copy of registered will and deposits of Rs. 1000/-, Rs.10000/- and Rs.21,000- of SBI are mentioned to have been handed over to her.

26. As mentioned above PW 2 Virendra Tripathi has stated that a television was kept in the room wrapped with a piece of cloth, thereby seeking to show that the thieves had attempted to take it away. This circumstance is another link. The site report of Forensic Laboratory does not give credence to link. On 10.12.2001, according to Ex ka 12, spot inspection was made by the Senior Scientific Assistant who clearly opined that any type of tool mark, hammer mark, etc. were not visible on the doors, windows and shelves. The authenticity of this document has been accepted which means all the almirahs, etc had been opened which was possible to have been done by unknown persons. It is also mentioned in the report that blood stains were found on the tap of wash basin installed in the courtyard, which reflects that the murderer had washed his hands, etc over there but the blood report was not produced which would indict accused.

27. The police version is that PW- 1, Sukh Devi had been informed about the incident but this witness has stated that she had gone to the place of occurrence and seeing police team she had returned back to her home. She did the sweeping-dusting at deceased's residence. She had not stated to Sub Inspector that accused Vijay had killed these persons. This witness did not support the prosecutor. If the investigation was carried out on the leads of this witness and the witness has not confirmed it, in such a circumstance the occurrence cannot be taken to be proved against accused. Similarly, Smt. Prem Verma-PW-4 has given testimony that she lives in the neighborhood of Vijay Bajpai. She came to know about the occurrence from other people. She does not know how the incident occurred and she doesn't know anything about murder. She had heard of a dacoity in her vicinity.

28. P.W.-5 witness Murari Lal Shukla has stated that considerable amount of dowry and gift was given in daughter's marriage. His daughter had told that she had been beaten by Vijay Bajpai several times. Vijai Bajpai had also held threats over phone to his relatives. He had received telephonic information of Kavita's death. Vijay and his family members had not made telephonic call. When he reached the site of occurrence; files and papers were scattered in the room as if to cover the articles. The television was kept on bed wrapped with cloth. Clothes, jewelleries, etc were scattered on the floor. A gold chain and a gold ring were on the body of deceased Kamla. Savita's deadbody was lying in another room, near which a piece of blood stained pipe having 1¼ feet was lying. Blood-stained vest and lungi were lying under the almirah. Some blood stains were there at internal courtyard. The courtyard was covered with a iron grill and nobody can enter it. The room where Vijay Bajpai used to sleep was close to it. He had seen blood stains on the washbasin installed in a big courtyard on the southern side. He saw around but found no mark of entry of a person because he had retired in 1987 from the post of Dy. S.P.; that's why, he inspected the occurrence site. Vijay Bajpai had pretended to be weeping a little. After his interference, case was registered. He was told by people that on arrival of the MLA and other persons, the door of Vijay Bajpai which was knocked and then only the door was opened. It is not possible to enter accused's house without opening door and window. No latch of his door was broken and he had checked it.

29. The principles enunciated by the Apex Court for case hinging on circumstantial evidence and the same culled out from the facts and what should be the approach of the Court, where accused has been convicted by the learned trial Judge for commission of the offence under section 302 IPC are absent as no proof that the accused killed the deceased is proved. This is not only a case of faulty investigation but shoddy investigation.

30. In this case, as per the factual matrix, which would go to show that the case of the prosecution rests on circumstantial evidence, the circumstance from which an inference of guilt is sought to be drawn, has to be cogently and firmly established. They must be of definite tendency which would point to the guilt of the accused and accused alone, the circumstances which would be taken cumulatively must and must form a chain unbroken and no escapism from the conclusion that the crime was committed by the accused and accused alone. This principle has been enunciated way back by the Apex Court in the case of Padala Veera Reddy v. State of M.P. Reported in JT 1989 (4) SC 223.

31. In this case there is no discovery which is one main breach in the chain of circumstances. No incriminating circumstance except last seen together is there against the accused. No medical evidence as far as alleged commission of murder is also proved. Motive plays an important role in a matter, which hinges on circumstantial evidence, hence the accused cannot not be held guilty. The medical evidence does not support the prosecution story. The findings of fact of the learned Trial Judge are also not based on evidence but on surmises and conjectures. We are unable to persuade ourselves subscribe to the decision of the Trial Court convicting the accused.

32. The only incident connecting the accused is recovery of weapon from house. Provisions of Section 3 read with Section 27 of Evidence Act, 1872 ( hereinafter referred to as 'Act, 1872')  have been recently analyzed by Apex Court in State of U.P. Vs. Sunil, AIR 2017 SC 2150, wherein after discussing several aspects, Court has reiterated that where there is no direct witness to prove the prosecution case, conviction of the accused can be made on the basis of circumstantial evidence provided the chain of the circumstances is complete beyond all reasonable doubt. In this case while going through the entire evidence, just because there is a self styled recovery  at the instance of accused and the discovery itself will not help the prosecution to sustain conviction. From a perusal of the evidence on record, it could without any hesitation be said that the basic foundation of the prosecution has crumbled down in this case by not connecting the respondent with the incident in question. And when basic foundation in criminal cases collapses, the conviction cannot be sustained. In such circumstances, it is difficult for the Court to hold that a judgment of conviction could be founded on the sole circumstance that recovery of weapon and seeing accused with deceased, after examining evidence and material on record meticulously and in the light of the judgments cited above, we are of the considered opinion that the prosecution has miserably failed to connect the occurrence with respondent herein.

33. The testimony of witnesses goes to show that they were not present when the incident occurred nor they saw deceased moving with accused as it is from an open place and not from a secluded place. The other missing links in the chain unfortunately do not link up. The principles of the exceptional clause that the prosecution must prove  that it was the accused and accused alone, who was perpetrator of the crime are missing in this case.

34. The impugned judgment and order dated 5.12.2003 passed by Additional Sessions Judge, Court No. 17, Kanpur Nagar in Session Trial No. 481/02 is set-aside and the appellant is  acquitted of the charges levelled against him and his conviction and sentence is hereby quashed and set-aside. He be released forthwith, if not require in any other offence.

35. Let a copy of this judgment along with the Trial Court record be sent to the court concerned for compliance.

36. In the result, appeal is partly allowed.

Order Date :- 30.8.2017

Mukesh