Jitendra Pandey vs State Of U.P.
2017 Latest Caselaw 3856 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 44
 

 
Case :- CRIMINAL APPEAL No.1641 of 2005
 

 
Appellant :- Jitendra Pandey
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Hari Prasad Gupta,B.B.P. Srivastava,P.C. Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. Heard Sri P.C. Srivastava, learned Counsel for the appellant and Sri Ajit Ray for the State.

2. This appeal challenges the judgment and order dated 7.2.2005 passed by Addl. Session Judge/Fast Track Court No.3, Gorakhpur, in Session Trial No.451 of 2003, State Vs. Jitendra Pandey, under Section 302 IPC convicting accused-appellant for Life Imprisonment and also fine of Rs.10,000/-. The accused-appellant is in Jail since 9.2.2005 and has not been enlarged on bail.

3. The brief facts are that Shri Jitendra Pandey s/o Late Jang Bahadur Pandey, co-parcener of the complainant Shri Ishwari Prasad Pandey, had invited five priests to recite mantras (verses) for the purashaaran maaran Jitendra Pandey s/o the complainant one week before 23.07.03, as a result of which son of the complainant fell ill; and to reduce the effect of the said jaap, the complainant along with his son Jitendra Pandey, Smt. Sudha Devi, Suraj and others went to Pishachmochan in Varanasi, and had the Jaap (recitation of mantras) performed there; whereby his son regained heath. Meanwhile, some persons conveyed to Jitendra Pandey that the complainant had performed some rituals against his family. On this, Jitendra Pandey in collusion with Vindhyachal, kidnapped and murdered Suraj Pandey, aged around 4 years, by inflicting knife blows on his person in the balcony of old house at around 9:00 P.M.

4. On completion of the investigation pursuant to the criminal case the accused was arrested and was chargesheeted before the concerned Magisterial Court. The concerned Magisterial Court made over the case to the court of sessions, who framed the charge against the accused. The accused pleaded not guilty and wanted to be tried.

5. To bring home the charges against the appellants, the prosecution examined about 6 witnesses, before the trial court:-

Deposition of Sudha Pandey

12/03/04

PW1

Deposition of Sudha Pandey

17.3.2004

PW1

Deposition of Nivedita Pandey

24.3.2004

PW2

Deposition of Dr.K.N. Singh

07/05/04

PW3

Deposition of Ram Daras Yadav

22.7.2004

PW4

Deposition of Mahant Yadav

04/08/04

PW5

Deposition of Mahant Yadav

07/08/04

"

Deposition of Mahant Yadav

28.9.2004

"

Deposition of Rajan Pandey

12/08/04

PW6

Examination of Acc. Jitendra Pandey

01/10/04

Examination of Acc. Jitendra Pandey

07/02/05

6. To bring home the charge levelled against the appellants-accused, the prosecution has also produced the following documentary evidence before the trial Court.

FIR

23.7.2003

Ex.Ka.2

Written Report

23.7.2003

Ex.Ka.3

Recovery memo of blood stained and plain earth.

24.7.2003

Ex.Ka.11

Recovery memo of 'Sabarinuma' Iron

25.7.2003

Ex.Ka.12

Photo Nash

24.7.2003

Ex.Ka.7

Letter

24.7.2003

Ex.Ka.8

Letter

24.7.2003

Ex.Ka.9

P.M. Report

24.7.2003

Ex.Ka.1

Report of Vidhi Vigyan Prayogshala

12/11/03

Ex.Ka.16

Panchayatnama

24.7.2003

Ex.Ka.5

Police Paper

Ex.Ka.6

Chargesheet Mool

28.8.2003

Ex.Ka.14

Nakal Rapat

Ex.Ka.13

7. The accused was subjected to examination under Section 313 and he has submitted that he has been falsely implicated due to inimical relations.

8. Learned Counsel for the appellant has submitted that PW1 and PW2 are the mother and sister of the deceased. PW6 is the witness of recovery, who is also cousin of the deceased and is not an independent witness. The recovery of the weapon is from an old house and from an open place known to all, except last scene together as stated by PW1 no other witness has testified that accused was ever seen with the deceased. The dead-body was recovered from old ruins of the house and in her cross-examination PW1 and PW2 admit that they had not seen the deceased going with the accused. It is further submitted that important missing link is that the dead-body was found from open place and though the incident has occurred very near the house of complainant. The site plan goes to show that there was no light and there was darkness. It is submitted that the post-mortem report goes to show that there was undigested food in the corpse. It is submitted that the death was by strangulation and there was no incised wound. It is submitted that the behaviour of the accused after the incident requires to be seen as he was arrested from his home when the police came. It is submitted that the knife so called which was recovered at the behest of the accused is not murder weapon and the fact that there was strangulation and no such thread or any incriminating materials were found on the deadbody. An important witness namely Durgesh Mishra has not been examined. The weapon which was recovered does not show conclusively that there was human blood on it. There is inconsistency in the ocular version and the medical version and the other evidence.

9. The learned Counsel for appellant in support of his arguments, he has relied upon the following judgments:-

(i) Kanhaiya Lal Vs. State of Rajasthan, (2014) 2 SCC (Cri) 413;

(ii) Prem Thakur Vs. State of Punjab, 1983 SCC (Cri) 88; and

(iii) Prakash Vs. State of Karnataka, (2014) 6 SCC (Cri) 642.

10. On the basis of these decisions it is submitted that this is case where the matter hinges on circumstantial evidence. The fulcrum of the prosecution rotates around the only one fact the accused was last seen with the deceased.

11. It is submitted that no other incriminating circumstance necessary for convicting the accused is approved. It is submitted that the principles enunciated in the aforesaid decisions and the latest decision in H.D. Sikand Vs. CBI and Another (2017) 2 SCC 166 and has submitted when there are missing links in the chain the appellant be acquitted by giving benefit of doubt.

12. Per contra learned A.G.A. has submitted that PW1 and PW2 tried to take the deceased to the hospital and, therefore, as the police station is 16 kms. away, the F.I.R. was lodged belatedly and has been explained this aspect properly.

13. The learned Counsel for the State has further submitted that he relies on the decision of this Court in Criminal Appeal No. 147 of 2003 where in reliance has been placed on the decisions in Pulukuru Kottaya & Ors. vs. Emperor, reported in AIR (34) 1947 Privy Council 67, State Of Maharashtra vs. Bharat Fakira Dhiwar, (2002) 1 SCC 622 and the subsequent decisions of the apex court in R. Shaji vs. State of Kerala, AIR 2013 SC 651, Raja alias Rajinder Vs. State of Haryana JT 2015 (4) SC 57, Soyebbhai Yusufbhai Bharania Vs. State of Gujarat, 2017 (6) JT 381 and the landmark decision in Mukesh and Anr. Vs. State for NCT of Delhi and Others, AIR 2017 SC 2161 and has contended that the recovery cannot be said to be bad and the trial court has not committed any mistake in considering this as a material piece of evidence pointing towards the guilt of the accused as it is discovery of a fact in consequence of information received from the accused. The recoveries were made separately at the instance of the accused

14. 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. There must be definite proof 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.

15. Now the next question, which arises for the consideration of this Court is, as to whether the prosecution successfully proves that it was the accused- appellant, who perpetrated the crime. Before we proceed further to examine the aforesaid aspect, it would be relevant to note that in this case, there is no eye-witness of the alleged incident, and therefore the entire case of the prosecution hinges on the circumstantial evidence. In other words, this Court has to examine, as to whether the chain of circumstances pointed out by the prosecution lead only to the guilt of the accused-appellant.

16. 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 IP Code are reiterated time and again and recently in State of U.P. Vs. Sunil, AIR 2017 SC 2150, are also perused by us.

17. In Mohd. Mannan Vs. State of Bihar (2011) 5SCC 317, Apex Court held that :-

"To bring home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in fanciful manner. In order to sustain conviction circumstantial evidence must be complete and must point towards the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard and fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case."

18. In Wakkar & Another Vs. State of U.P. (2011) 3 SCC 306, Apex Court held that :-

"Reiterated, for basing a conviction on the basis of circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. It is also well settled as held by this Court in more than one decision that the Courts have to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometime, unconsciously it may happen to be a short step between moral certainty and legal proof."

19. In Birendra Poddar Vs. State of Bihar (2011) 6 SCC, Apex Court held that:-

"Reiterated, for appreciating circumstantial evidences, the court has to be cautious and find out whether the chain of circumstances led by the prosecution is complete and the chain must be so complete and conclusive as to unmistakably point to the guilt of the accused. It is well settled that if any hypothesis or possibility arises from the evidences which is incompatible with the guilt of the accused, in such case, the conviction of the accused which is based solely on circumstantial evidences is difficult to be sustained."

20. Before accused can be convicted of murder, it is necessary to prove that the death of the deceased was caused by the act of the accused alone and no one else. There is no direct evidence in this case. The medical evidence shows that he died due to strangulation and therefore in light of the principles enunciated in Sharad Birdhichand Sarda (Supra). Paragraph 153 of above judgement will have to be looked into.

21. The medical evidence does not support the prosecution story. The findings of fact of the learned Trial Judge are also not based on circumstantial evidence but on surmises and conjectures. We are unable to persuade us into subscribe to the decision of the Trial Court convicting the accused.

22. The only incident connecting the accused is recovery of weapon which is said to be at his instance. 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 had crumbled down in this case by not connecting the respondent with the incident in question. And when basic foundation in criminal cases is so collapsed, the circumstantial evidence becomes inconsequential. 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 other articles have been made. After examining every 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. Resultantly, the judgment and order passed by the High Court setting aside of conviction order passed by the Trial Court is hereby upheld.

23. 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. There is snap in the circumstantial chain and just because Jitendra was said to be seen with the deceased, it cannot form edifice to convict him.

24. The incident occurred on 23rd July, 2003. The judgment of Trial Court was pronounced on 7.2.2005 and since then he is in jail, namely 12 years which is a major part of the punishment inflicted on him.

25. Deposition of PW-1 & 2 has stated that her husband has four brothers and she, who is mother of deceased stated that Jitendra took her son and Jitendra alone came to take the child. He was silent but when they went to other house, her son was found dead and she believed that her son was done to death by appellant herein who took him alone when she has with stood cross examination. In her cross examination, she has accepted that the dead body was found in a place where they had  gone in the ruins of an old house also but Suraj was not found. The deceased was found in an injured condition in the old house. It is stated that Jitenra shouted from the old house only and that is how every body gathered there. PW- 2 also gives similar version and she is sister of deceased, she reiterated the story of PW-1.

26. The medical evidence of PW-3 shows that there is strangulation and the death was due to asphyxia.

27. In the totality of the facts and circumstances what emerges that it is case of circumstantial evidence. The two circumstances  which point finger at the accused are the recovery at his behest but the said recovery is from the house belonging to the prosecution witnesses also and was from a known place, known to all and, therefore, the decision in State of U.P. Vs. Sunil (supra), will come to the aid of accused. There is now a snap in the chain namely the time during which the death occurred and the accused had already come back home. It was after his coming back that the death occurred as per Doctor's version.

28. After hearing the learned counsel for the parties and after going through the records of this matter, including the evidence, as analyzed by the Trial Court, it appears that the case in hand is totally dependent upon the circumstantial evidence. We have examined the evidence led in course of the arguments and have specifically considered the tests which have to be met by the prosecution to get success in the matter as laid down in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116, wherein the tests have been specifically given and it appears to us after analyzing the facts and evidence in this case, that the prosecution has failed to pass such tests to bring home the guilt of the accused. Accordingly, in our opinion, the Trial Court has erred in law. In our opinion, the arguments which have been put forward in the matter by learned counsel for appellant, are much more acceptable in the facts and circumstances of this case. The findings recorded by the Trial Court are perverse, erroneous and cannot stand the scrutiny of law and do not command for affirmation. Thus, we do not have any hesitation to hold that the lower Court has erroneously come to the conclusions with the reasons given therefor.

29. On the basis of aforesaid discussion in our considered opinion and also applying the rule of caution, conviction of the accused-appellant cannot be sustained and is liable to be set-aside and in the circumstances of the case, the accused-appellant deserves to be acquitted.

30. Accordingly, appeal is allowed. The impugned judgement and order dated 7.2.2005 passed by Addl. Sessions Judge/Fast Track Court No.3, Gorakhpur, in Sessions Trial No. 451 of 2003 is hereby set aside and the appellant is acquitted of the charges levelled against him and his conviction and sentence is hereby quashed and set aside. As the appellant is in jail, he shall be released forthwith.

31. The judgement and order of this Court be transmitted to the Trial Court within 15 days for its expeditious implementation. The concerned court shall report compliance within one month thereafter.

32. Office is directed to forward a copy of this order to the concerned C.J.M. forthwith through fax as well as registered post for compliance.

Order Date :- 31.8.2017

Irshad