Kunwar Pal Saini vs State
2017 Latest Caselaw 7959 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									AFR													Reserved on: 16.09.2017										Delivered on: 14.12.2017
 
Case :- JAIL APPEAL No. - 7417 of 2007
 

 
Appellant :- Kunwar Pal Saini
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Ram Surat Saroj(Amicus Curiae)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bachchoo Lal, J.

Hon'ble Aniruddha Singh,J.

(Delivered by Hon'ble Aniruddha Singh,J.)

1. The present Criminal Jail Appeal has been filed by the appellant Kunwar Pal Saini, against the judgment and order dated 01.09.2007 passed by Additional Sessions Judge, Court No.4 Bijnor in Sessions Trial No. 06 of 2007 (State of U.P. Vs. Baba Kunwar Pal Saini) arising out of Case Crime No. 112 of 2006, under Section 302 I.P.C., Police Station-Shercoat, District Bijnor whereby the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs. 10,000/- and in default, two months' rigorous imprisonment.

2. Prosecution story in brief is that on 02.03.2006 at 14:20 P.M.First Information Report (Ext. Ka-12) was lodged against unknown person under Section 302 IPC by informant Satish Kumar at concerned Police Station mentioning therein that near Ram Ganga Cemetery one dead body of unknown person having received injuries on neck and head was lying.

3. On the basis of written report (Ext. Ka-1) the case was registered and investigation started. Recovery memo of blood stained pillow cover recovered from the place of occurrence is exhibited as (Ext. Ka-8); recovery memo of wine bottle and other articles is exhibited as (Ext. Ka-9); recovery memo of Rajai and Shawl is exhibited as (Ext. Ka-10), recovery memo of watch and red angocha is exhibited as (Ext. Ka-17) and inquest report was prepared which is exhibited as (Ext. Ka-3). Dead body was sent for postmortem examination and after postmortem, Postmortem Report was prepared which is exhibited as (Ext. Ka-11). According to the Postmortem Report following injuries were found on the body of the deceased:

(i) incised wound 3x1cm upto bone deep left cheek.

(ii) incised wound 2.2 x 0.9 cm x muscle deep central to left lateral to left angle of eye.

(iii) incised wound 10 cm x 3 cm bone deep in middle of forehead.

(iv) incised wound 20 cm x 1.1 cm upto bone deep on left parietal region.

4. After inspection of site, site plan was prepared with index which is exhibited as (Ext. Ka-2). One bloodstained, 'trishool' was recovered at the pointing out of the accused, the recovery memo of said bloodstained 'trishool' is exhibited as (Ext. Ka-14), site plan for recovery of 'trishool' is exhibited as (Ext. Ka-15). All recovered items were sent to the Forensic Science Laboratory, Agra and the report of Forensic Science Laboratory was received. After completing all formalities, charge-sheet was submitted which is exhibited as (Ext. Ka-16).

5. After taking cognizance by the concerned Magistrate on the charge-sheet, the case was committed to the court of Sessions for trial and after transfer it was received in the court of Additional Sessions Judge, Bijnor. On 22.01.2007 charge under Section 302 IPC was framed against the accused to which he denied and claimed for trial.

6. In order to prove the charge on behalf of prosecution besides documentary evidence, prosecution examined eleven witnesses in all i.e. P.W.1 Satish Kumar, P.W.2 Hargyan Singh, P.W.3 Baburam, P.W.4 Constable Ved Prakash, P.W.5 Sub-Inspector Mohan Lal Yadav, P.W.6 Mukhram Singh, P.W.7 Karan Singh, P.W.8 Doctor V.K. Gupta, P.W.9 Constable Omkar Singh, P.W.10 Constable Ranvir Singh and P.W.11 Sub-Inspector Ajit Singh.

7. After closure of the prosecution evidence, statement of the accused-appellant under Section 313 Cr.P.C was recorded. He specifically stated in his statement that he is innocent and has not committed any offence and has been falsely implicated.

8. Trial Court after hearing the parties vide impugned judgment and order, convicted and sentenced the accused appellant for the offence under Section 302 IPC. Hence this appeal.

9. In this matter, on previous occasion when the matter was taken up, no one appeared to argue the appeal on behalf of the appellant, hence, notice was sent through concerned Superintendent of Jail to the accused appellant to engage counsel. On showing his in-ability to engage private counsel, Court appointed Sri Ram Surat Saroj as Amicus Curiae.

10. Heard Sri Ram Surat Saroj, Amicus Curiae for the appellant and Sri Saghir Ahmad and J.K. Upadhyay, learned A.G.A. for the State.

11. Learned Amicus Curiae submitted that this is the case of circumstantial evidence. The trial court wrongly held that this case is of direct evidence. There is no cogent and reliable evidence against the accused appellant. Evidence of so-called eye witness P.W.2 Hargyan is false, concocted and unbelievable as he is inimical and interested witness. He further submitted that the second ground for conviction is the recovery of 'trishool' at the pointing out of present accused appellant. From perusal of the evidence, it is clear that the recovery of 'trishool' shown at the pointing out of the appellant is false and planted. There is no recovery made at the pointing out of the appellant. Evidence produced by the prosecution is partisaned witness and wholly unreliable. P.W. 1 is not an eye-witness he is only informer, P.W.2 is so called eye-witness, P.W.3 is also not an eye-witness he identified the deceased only as his uncle, P.W.4 and P.W.5 are formal witnesses, P.W.6 and P.W.7 are independent witnesses of recovery of 'trishool' and they have turned hostile, P.W 8 is doctor of postmortem and according to the report of postmortem, deceased received four ante mortem injuries. P.W.9 is a formal witness, P.W. 10 is so-called witness of recovery of 'trishool' and is not believable/reliable and P.W.11 is formal witness. There is no evidence on record to convict the accused appellant under Section 302 IPC. Hence accused is liable to be acquitted.

12. Learned A.G.A submitted that there is sufficient evidence against the accused-appellant to convict him under Section 302 IPC.

13. First of all we would like to discuss whether this is the case of direct evidence or the case of circumstantial evidence. It is admitted that the F.I.R was lodged against unknown person and the dead body was also found as unknown person. Subsequently the name of the deceased was found out and after a long time the name of the deceased was disclosed as Shiv Charan Das by P.W.-2 and P.W.-3.

14. The F.I.R was lodged on 02.03.2006, the statement of P.W.2 Hargyan Singh so called eye-witness was recorded under Section 161 Cr.P.C on 18.8.2006 after five and half month of the incident.

15. According to the statement of P.W. 2 Hargyan Singh, he was also the pupil (chela) of the deceased Shiv Charan Das and at the time of incident he was present and he has seen the accused-appellant assaulting the deceased by 'trishool'. He further stated that on the date of incident he went outside to bring some fruit for Baba Ji(deceased) when he returned back he has seen in the light of lamp that the accused appellant was killing Baba Ji. The natural conduct was that initially the F.I.R should have been lodged by this person but he did not lodge any F.I.R. against the accused-appellant and when on 18.08.2006 his statement was recorded then he stated that he is the eye-witness and has seen the incident, this statement creates doubt because (a) why was he silent for five and half months and no plausible explanation was given by him on this point;(b) he admitted in his cross examination that near the place of occurrence there is a temple and a person was living in the temple as a priest why he has not stated about this fact to him; (c) it is also admitted that the accused-appellant was the good pupil of the deceased and all necessary services were being done by the accused-appellant, then why would he kill his own Guru.

16. It is also admitted by P.W.2 that he did not disclose anything to anybody neither at the place of incident nor anywhere except to the Investigation Officer. He admitted that he went to his home and slept. He further stated that he went outside for service and returned back his home on 18.08.2006. He also admitted that he disclosed the fact to only Sub-Inspector not to the villagers or neighbours. He was unknown about the F.I.R. The question arises whether it is possible act of any prudent man, answer will be certainly not and it is not a natural conduct of P.W.-2 who seldom takes chilam(Ganja).

17. It is also admitted by P.W.-2 in his cross-examination that the deceased use to drink alcohol(wine) and he was predictor of satta numbers and all types of persons were coming to him for this purpose. He further stated that the appellant was inimical to the deceased. The appellant was the main pupil of the deceased and he was also the pupil of the deceased and some enmity from accused was also admitted by him. Hence it is the duty of the Court to scrutinize the evidence of this witness (P.W.2) carefully.

18. As discussed above the story narrated by this witness i.e. P.W.2 is not reliable and on the basis of the evidence of only this single witness the accused cannot be convicted. The story stated by this witness is not corroborated by medical evidence nor by any other evidence.

19. If we leave the testimony of this witness, the case of the accused/appellant certainly would be of circumstantial evidence.

20. For the circumstantial evidence it is well settled parameter of law that the chain of circumstance existing in a particular case should be unbreakable and should point out only at the hypothesis of the guilt of the accused and there should be no alternative hypothesis available or probable in the case at all.

21. Before proceeding to examine whether the circumstances relied upon by the learned Trial Judge stood proved beyond all reasonable doubts on the basis of the evidence adduced by the prosecution and that in the aforesaid circumstances, the only hypothesis could be the guilt of the appellant and nothing else, are conclusive in nature and have tendency which could be considered against the appellant.

22. We consider it appropriate to first examine the law on the issue. The principles how the circumstances be considered and weighed are well settled and summed up by the Apex Court in Sharad Birdhi Chand Sarda Vs. State of Maharashtra 1984 (4) SCC 116 as under:

"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade and another Vs. State of Maharashtra 1973 2 SCC 793 where the observations were made :

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

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

23. In Sujit Biswas Vs. State of Assam (2013) 12 SCC 406 the Apex Court ruled that in judging the culpability of an accused the circumstance adduced when collectively considered must lead to the only irresistible conclusion that the accused alone is the perpetrator of a crime in question and the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused.

24. In Dhan Raj @ Dhand vs. State of Haryana (2014) 6 SCC 745, (Hon. Ghose,J.) while dealing on the imperatives of circumstantial evidence ruled that the same has to be of highest order to satisfy the test of proof in a criminal prosecution. It was underlined that such circumstantial evidence should establish a complete unbroken chain of events so that only one inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence. It was held further that in case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjecture.

25. The legal proposition which emerges out from the reading of the aforesaid authorities is where a case is based upon circumstantial evidence the same has to be of highest order to satisfy the test of proof in a criminal prosecution and as such circumstantial evidence should establish a complete unbroken chain of events so that only one inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjecture.

26. We now proceed to scrutinize whether the circumstances are conclusive in nature and have tendency which could be considered against the appellant in the background of the evidence adduced by the prosecution and the defence and to see if those circumstances bring home the case of the prosecution.

27. There is no chain established against accused to prove him guilty beyond reasonable doubt.

28. As regards delayed examination of witness P.W.2, if the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion (See Ranbir and Ors. V. State of Punjab, AIR (1973) SC 1409, Bodhraj @ Rodha and Ors. V. State of Jammu and Kashmir, [2002] 8 SCC 45 and Banti @ Guddu V. State of M.P., [2004] 1 SCC 414]. The High Court has placed reliance on a decision of this Court in Ganesh Bhayan Patel and Anr. V. State of Maharashtra, [1978] 4 SCC 371. A bare reading of the fact situation of that case shows that the delayed examination by I.O. was not the only factor which was considered to be determinative. On the contrary it was held that there were catena of factors which when taken together with the delayed examination provided basis for acquittal.

29. It is to be noted that the explanation when offered by I.O. on being questioned on the aspect of delayed examination, by the accused has to be tested by the Court on the touchstone of credibility. If the explanation is plausible then no adverse inference can be drawn. On the other hand if the explanation is found to be implausible, certainly the Court can consider it to be one of the factors to affect credibility of the witnesses who were examined belatedly. It may not have any effect on the credibility of prosecution's evidence tendered by the other witnesses. The statement of P.W.2 which was recorded after five and half months of the incident and plausible explanation has not been given by the I.O. as well as P.W.2. Hence evidence of P.W.2 is not credible and reliable. It is pertinent to mention here that P.W.2 himself told in his statement that he was unable to inform to anybody including police, chawkidar, villagers and neighbours about the said incident. It is also the circumstances which shows that he was neither present at the time of incident nor has seen the said incident. It is also pertinent to mention here that if he was present at the time of incident and has seen the occurrence then it is impossible to believe that how he left the deceased free as it was of the incident of night. Hence this witness is not reliable and comes into the category of wholly unreliable.

30. Statement of P.W.-2 after five and half month of incident has got no explanation, hence is not believable.

31. According to the postmortem report, injuries caused by the accused to the deceased are only on the face and head not in neck of the deceased. According to the F.I.R. injuries were found on his neck. According to the opinion of doctor( P.W.8) injuries found on the body of the deceased are caused by sharp edged weapon. He cannot say that these injuries were caused by 'trishool'. Hence there is contradiction between ocular evidence and medical evidence. There is also probability that injury received by deceased was not caused by 'trishool' because 'trishool is not a very sharp edged weapon.

32. According to the statements given by independent witness P.W.6 Mukhram Singh and P.W.7 Karan Singh no 'trishool' was recovered from the possession of the accused appellant. They further stated that neither any 'trishool' was recovered from him nor he has confessed before them that he has killed the deceased. Hence the story of recovery of 'trishool' and confessional statement of accused appear to be false and based upon surmises and conjunctures.

33. In the case of Lallu Manjhi & Another vs. State of Jharkhand reported in AIR 2003 SC 854, the Supreme Court has held as below:-

"The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. {See - Vadivelu Thevan etc. v. State of Madras, AIR 1957 SC 614}."

34. After analysing judgment of Supreme Court in Lallu Manjhi & Another vs. State of Jharkhand(supra) we find that the testimony of P.W.-2 is "wholly unreliable" and testimony of P.W.-3 and P.W.-10 come in the category of 'neither wholly reliable nor wholly unreliable" and being not corroborated by any other evidence, the testimony of P.W.-3 and P.W.-10 also come in the category of wholly unreliable, hence not reliable which may inspire confidence. Considering improbabilities and infirmities in the statements of P.W.-3 and P.W.-10, the accused cannot be convicted because they are partisaned witnesses.

35. Judgment of conviction of trial Court is based on two evidences, firstly on the evidence of P.W.-2 Hargyan Singh which has already been discussed above and secondly on the statement of P.W.3 Baburam. P.W.-3 Baburam in examination-in-chief identified the accused in the Court and deposed that appellant had committed murder of deceased in connection with money transaction but in his cross-examination he admitted that before him, the accused has confessed his guilt in the police station(Thana) stating that he had murdered deceased due to money transaction and in this way he identified the accused. Hence, the statement of this witness is not believable, reliable or trustworthy and conviction cannot be based on statement of P.W.3 Baburam.

36. Another factor held by the trial Court is that at the pointing out of the accused 'trishool' was recovered and sent to F.S.L., Agra and in the report, human blood was found on 'trishool', 'jarsi', sweater, thread of neck, 'kalawa', 'pillow and 'Angocha' of deceased. But as discussed above, it is not proved beyond reasonable doubt that the recovery of 'trishool' was made at the pointing out of the accused.

37. It is also pertinent to mention here that 'trishool' produced before the Court was in two pieces though the 'trishool' sent to F.S.L., Agra was aggregate in one piece. Hence, it is doubtful that the alleged 'trishool' was recovered at the pointing out of the accused or not. The incident is of 2.3.2006 and the alleged 'trishool' was recovered on 1.9.2006(after near about six month); it will be very unnatural conduct of a person to keep safely the bloodstained 'trishool' which can be used as an evidence against him.

38. According to site plan(Ext. Ka-2) in nearby place of incident, there is land of several persons who reside there and used to come for agricultural purposes, but no witness of nearby place was produced by the prosecution.

39. According to FIR, deceased received injury on his head and neck but according to post mortem report, injury was found on his face and head only, and no injury was found on his neck. Hence, ocular evidence is not corroborated by medical evidence. There is no report of finger print expert to prove that 'trishool' was used by the accused and it is also not proved that the blood recovered from the 'trishool' was the blood of deceased. It also creates doubt that the said incident was committed by the appellant.

40. P.W.-11 Ajit Singh, S.I. admits in his cross-examination that deceased was a man of bad character. He was drunkard and all types of persons used to come to him for different purposes. On this fact, there is also probability that due to some other motive and intention, deceased was murdered by some unknown persons; and due to enmity this accused has been falsely implicated.

41. Evidence of P.W.-10 Constable Ranvir Singh is also not believable about the recovery of 'trishool' due to absence of any corroboration.

42. This Court after scanning the evidence on record has to adjudicate whether the prosecution has proved charges levelled against accused beyond reasonable doubt or not.

43. Word 'proved' is defined under Section 3 of Evidence Act as under:- "Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

44. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist.

45. In the case of Bhimappa Chandappa Hosamani and others vs. State of Karnataka reported in (2006) 11 SCC 323 the Apex Court has held that on the basis of the testimony of a single eye-witness, a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye-witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness.

46. P.W.-2 is also a chance witness and his evidence has not been corroborated from other evidence on record, hence his testimony cannot be accepted as it was held by Apex Court in the case of Pawan @ Rajinder Singh V. State of Haryana 2017(3) Supreme 32.

47. In the facts and circumstances of the case, a prudent man can not believe the story of prosecution imposed against the accused. Hence, accused is entitled to be given the benefit of doubt.

48. For the foregoing discussions, the Criminal Jail Appeal No.7417 of 2007 is allowed and impugned judgment and order dated 1.9.2007 passed by the trial Court convicting and sentencing appellant Baba Kunwar Pal Saini under Section 302 IPC is hereby set aside. The accused appellant is acquitted. He is in jail. He shall be released forthwith if not required to be detained in any other case. He is directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437-A of Cr.P.C.

49. Sri Ram Surat Saroj, Amicus Curiae who assisted the Court in above appeal is entitled to be paid Rs.5,000/- towards his legal fee.

50. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.

(Aniruddha Singh, J.) (Bachchoo Lal,J.)

Order Date: 14.12.2017

A. Tripathi/P.P.