Pramod vs State
2017 Latest Caselaw 1666 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
	Court No. - 44
 
Case :- JAIL APPEAL No. - 1766 of 2008
 
Appellant :- Pramod
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Deepak Yadav,Raghuraj Kishore,A.C.
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Prabhat Chandra Tripathi,J.

(Oral by Hon'ble Bharat Bhushan, J.)

1. Present Jail appeal has been filed by appellant Pramod against the judgment and order dated 25.2.2008 passed by Additional Sessions Judge (F.T.C.-1), Meerut in Sessions Trial No. 520 of 2000, arising out of Case Crime No. 11 of 2000, Police Station (in short P.S.) Parikshitgarh, District Meerut whereby the appellant was convicted under Sections 364, 302 and 201 Indian Penal Code (in short I.P.C.), consequently he was sentenced to 10 years rigorous imprisonment under Section 364 I.P.C. and a fine of Rs. 5,000/- with default stipulation, life imprisonment under Section 302 IPC and a fine of Rs. 10,000/- with default stipulation and 7 years rigorous imprisonment under Section 201 I.P.C. and a fine of Rs. 2,000/- with default stipulation respectively. All the sentences were directed to run concurrently.

2. Prosecution Story in brief is that one year and nine months old, Rinku (deceased) of Village-Gawada, disappeared while playing with other children on 14.2.2000 at about 2:00 pm. Information of this disappearance was given to P.S. Parikshitgarh by the father of deceased, Kiran Singh (Informant/P.W.-1). This information was scribed by Mool Chandra (P.W.-3). Prosecution story also says that police tried to search Rinku in the village but could not locate his whereabouts. Next day search was again initiated by father of deceased as well as his other companions. It is alleged that informant Kiran Singh (P.W.-1), Surendra (P.W.-2), Mool Chandra (P.W.3) and their other companions went to the agricultural field of one Ashwani Kumar Sharma in course of search where they suddenly spotted appellant Pramod, who was hiding something in his hand which was covered with cloth. Seeing the suspicious conduct of appellant, the informant and his companions rushed towards Pramod but Pramod entered into the sugarcane field nearby. He threw the bundle, which he was holding, in the sugarcane field and fled away from the spot. The search party allegedly found the cadaver of deceased Rinku covered with cloth, which was allegedly left by appellant Pramod.

3. As per the prosecution version this recovery was made at about 9:00 am in the morning of 15.2.2000. Information of this recovery was again communicated to the police in the form of First Information Report (in short FIR) Ex.Ka.-2, wherein the story was narrated in detail.

4. After recording the FIR, the chick report (Ex. Ka.11) was carved out. Relevant entries were made in General Diary (in short G.D.) of P.S. Parikshitgarh, extract of which is available on the record as Ex.Ka.-12.

5. Inquest proceedings were conducted and this report is available on record as Ex.Ka.-7. The cadaver was sent for postmortem on the same day. P.W.-7 Dr. M.C. Gulecha, the then Medical Officer, District Hospital, Meerut conducted postmortem and found the following ante-mortem injuries:-

(i) Contusion with abrasion 2.5cmx3cm on front of neck and chin.

(ii) Abrasion 0.5 cm x 0.5 cm on right side face 2cm below right angle of mouth.

(iii) Lacerated wound 0.5cm x 0.5cm on inner aspect of lower lip at middle.

(iv) Abrasion 0.5 cm x 0.5cm on front of middle of left thigh.

6. Postmortem concluded that the deceased died due to asphyxia on account of smothering. It also concluded that deceased possibly died on 14.2.2000 after 2:00 pm. This postmortem report is available on record as Ex.Ka.14.

7. On concluding the investigation, a charge sheet (Ex.Ka.-3) was submitted by the Investigating Officer against appellant Pramod under Sections 364, 302 and 201 I.P.C. Thereafter, Trial Judge framed the charges under sections 364, 302 and 201 I.P.C. on 25.7.2000. Appellant denied the charges and desired to be tried.

8. Prosecution produced as many as seven witnesses in support of its allegation namely informant P.W.-1 Kiran Singh, (Father of deceased), P.W.-2 Surendra, P.W.-3 Mool Chandra, P.W.-4 Sub-inspector Samar Pal Singh (Second Investigating Officer) (in short I.O.), P.W.-5 Chandan Singh (First I.O.), P.W-6 HC Raj Bahadur Singh (recorded FIR) and P.W-7 Dr. M.C. Gulecha (conducted autopsy). Statement of accused was recorded under Section 313 Cr.P.C. wherein appellant denied the prosecution allegations and claimed false implication.

9. On conclusion of the trial, learned Trial Judge was convinced of the prosecution evidence and found that the prosecution has established its case beyond reasonable doubt and consequently, convicted and sentenced the appellant Pramod as aforesaid vide impugned judgment and order dated 25.2.2008. This judgment is under challenge before this Court.

10. Heard Sri Raguraj Kishore, learned Amicus Curiae for appellant Pramod and Sri K. C. Pandey, learned AGA for State.

11. Learned Amicus Curiae has argued that the motive in this case is very weak and remote and there is no proximate reason attributed to appellant Pramod for commission of this crime. He has further submitted that the cadaver of deceased Rinku were actually not found in the manner as alleged by the prosecution. He has also argued that there is no evidence on record to connect the appellant as far as assassination of deceased Rinku is concerned. No evidence has been produced for causing disappearance of deceased. The only evidence brought on record is that the alleged witnesses saw the appellant Pramod hiding the bundle of cloth in the sugarcane field and subsequently corpse of deceased was found in the same sugarcane field.

12. Learned Amicus Curiae has further submitted that chain of circumstances is not at all complete. Even the ' last-seen' evidence is not available on record. He has also drawn the attention of the court towards the deposition of Kiran Singh (P.W-1) (informant/father of deceased) wherein he has not supported prosecution case fully and has been declared hostile at the instance of prosecution itself.

13. To the contrary, learned AGA, Sri K.C. Pandey has pointed out that entire case depends on circumstantial evidence. Accused has not explained the circumstances, as to how the cadaver of deceased was found in his possession. Learned AGA has also submitted that testimonies of P.W.-2 Surendra and P.W.-3 Mool Chandra are sufficient to establish the guilt of appellant.

14. The entire prosecution case depends on circumstantial evidence. Eye witness account of incident is not available. Fact of the matter is that the prosecution story indicates that stated incident took place in different stages; first one year and nine months old child Rinku (deceased) disappeared from a place near his house while playing with other children. This disappearance was reported to Police vide Ex.Ka.-1 in the same night.

15. Secondly, on the next day i.e. on 15.2.2000, appellant Pramod was seen with a bundle of cloth near the agricultural field of one Aswani Kumar Sharma by informant and his companions and on seeing these witnesses the appellant suddenly entered into sugarcane field. Somehow, this created a suspicion in the minds of informant and his companions. They rushed towards him in the sugarcane field but by that time appellant Pramod had fled away from the spot but cadaver of Rinku was found inside the sugarcane field. This took place somewhere around 9:00am in the morning of 15.2.2000. They intensively searched for appellant Pramod but could not find him.

16. The prosecution has produced three witnesses of fact namely P.W-1 Kiran Singh (father of deceased), P.W.-2 Surendra (brother of informant) and P.W.-3 Mool Chandra scribed of both reports i.e the application reporting disappearance as well as F.I.R. lodged by Kiran Singh, the informant. Surprisingly, P.W.-1 Kiran Singh (father of deceased/informant) has turned hostile at the instance of prosecution itself and has not supported the prosecution story. Initially, this witness testified in favour of prosecution but it appears from the record that his cross-examination was deferred and later on this witness turned hostile during cross-examination.

17. Learned AGA has argued that this witness has testified differently on different occasions and that his testimony on earlier occasion should be accepted and his subsequent deposition should not be taken into account. Learned AGA has argued that the evidence of a hostile witness is not completely effaced from the record. Part of such testimony can be accepted, if found trustworthy. The testimony of the witness who has turned hostile is not to be excluded entirely or rendered unworthy of credit. His testimony remains admissible and conviction can be based on it, if it finds corroboration.

18. There is no dispute about the said legal principle. Now the question is, can such witness be trusted, who keeps changing the story again and again? Discrepancies and contradictions are implicit in such testimony which would always adversely affect the credibility of such witness.

19. If, we take the earlier version of testimony of P.W.-1 Kiran Singh (father of deceased/informant) into account even then his testimony does not inspire confidence. This witness has admitted that he was not present at the time of disappearance of his minor son. He was not given any information by any third person about the disappearance of his son. His lack of knowledge regarding disappearance is reflected from the report Ex.Ka.-1, wherein no one was held responsible for disappearance of his son.

20. The similar evidence has been given by his brother P.W.-2 Surendra and P.W.-3 Mool Chandra and both of them have quite clearly admitted that they became aware of disappearance of deceased Rinku, subsequently and then both of them searched for the disappeared Rinku but could not find.

21. Prosecution evidence reveals that at the time of disappearance, Rinku was playing with several children including his elder brother Aadesh but Rinku disappeared without leaving any trace. Announcements regarding disappearance were made from the loudspeaker of mosque also. Neighbours were questioned; and yet deceased Rinku could not be located. Surprising thing is that no one had seen the departure of this toddler at 1-2:00pm i.e. in the middle of the day despite presence of several persons. This fact has been disclosed by P.W.-1 Kiran Singh in his testimony reproduced as below:-

ßgeus vius cPps dh ryk'k xkao es vkl&ikl ds edkuksa esa iwNk ,oa efLtn ls Announcement es djk;kA geus vius cPps dks nksigj [email protected]&ikSus nks cts ls ryk'k&djuk 'kq: fd;k FkkA gees ls cPps dks tkrs gqos fdlh us ugh ns[kkA uk fdlh vkSj us ges cPps dks tkrs gqos ns[kus dh ckr crk;hA yM+dk esjs ?kj ds lkeus ls xk;c ugh gqok] cfYd /keZ flag dh [kqV ls xk;c gqvk] tgkW cM+s&yM+ds us mls MkWVdj ?kj tkus dks dgk] pwWfd esjs cM+s dks Ldwy okil tkuk FkkA ml yM+ds dk uke vkns'k dqekj gSAÞ

22. The testimonies of P.W.-2 Surendra and P.W.-3 Mool Chandra also reinforce the aforesaid positions. It is, therefore, clear that there is no evidence of involvement of appellant Pramod or for that matter anyone else in the disappearance of Rinku. The entire prosecution evidence also does not indicate or provide any evidence as far as the murder of deceased Rinku is concerned. Postmortem report (Ex.Ka.-14) says that deceased Rinku died due to asphyxia as a result of smothering. Two abrasions, one contusions with abrasions and one lacerated wound were found on the person of deceased. Somebody must have caused these injuries but there is no evidence on record to demonstrate the involvement of appellant Pramod in the stated murder of deceased Rinku.

23. The only evidence against appellant Pramod is that he was suddenly seen in the agricultural field of one Aswani Kumar Sharma on 15.2.2000 at about 9:00am in the morning with a bundle of cloth in his hand, entering in the sugarcane field and fleeing away. When witnesses allegedly entered the sugarcane field they found the cadaver of deceased Rinku. This is the only circumstance on the basis of which appellant Pramod has been convicted. We will have to examine the evidence of prosecution in this regard but before examining the evidence in support of this allegation, it would be appropriate to analyze the attributed motive of appellant Pramod.

24. Admittedly, appellant Pramod is not resident of village Gawda, where the incident took place. The evidence reveals that appellant Pramod was resident of Kasba Vahsuya and had come to village Gawda to visit his uncle (Mausa) Dharm Singh. The FIR which was reportedly lodged at 9:45am on 15.2.2000 attributes a specific motive to appellant Pramod. In the FIR, there is reference of one Ranveer resident of village Gawda. Dharm Singh is the brother of this Ranveer and appellant Pramod is brother-in-law (Saduh) of Dharm Singh. Son of Ranveer's was murdered 15 years prior to the present incident. Meaning thereby, that the son of Ranveer's was done to death some time ago in the year 1985. Chhatarpal is the brother of informant Kiran Singh and was named in that case. Prosecution believes that on account of this animosity, Rinku was done to death. Can this attribution be taken as a gospel truth?

25. The appellant Pramod disclosed his age as 30 years at the time of recording his statement under section 313 Cr.P.C. on 21.4.2006. Meaning thereby that the appellant Pramod was about 24 years at the time of present incident. If the murder of Ranveer's son took place in the year 1985 than it would mean that appellant Pramod was merely nine year old at the time of murder of Ranveer's son. Obviously appellant Pramod was child at the time of incident stated in the FIR. Appellant Pramod does not belong to village Gawda and if this motive as attributed by prosecution is taken at its face value then it would mean that a nine year old child who had very distant relationship with Ranveer or his slain son harboured animosity for almost 15 years. Even after 15 years this animosity resulted in the death of toddler.

26. We cannot ignore the argument of learned counsel for appellant that it would have been much more sensible or satisfying to take revenge from Chhatarpal himself. We are not convinced of alleged motive attributed to appellant Pramod. The question of motive is one of the perception. In the instant case, motive is too weak and distant to be of any value to the prosecution. While it is true that human nature cannot be categorized or analyzed on some fixed notions but in a case where no direct evidence of crime is available, we have to seek a reasonable motive for commission of crime. We cannot ignore that the motive provided by the prosecution is of weak nature. It is also clear that there is no direct evidence in this case. We believe that stated motive in this case is not credible.

27. Now, coming back to the recovery part of prosecution case, it is apparent that no any witness actually saw the corpse or cadaver of deceased Rinku in the hand of appellant Pramod. On 15.2.2000 at about 9:00 am appellant Pramod was seen with a bundle of cloth. It is said that as soon as he saw the village folks, he went inside the sugarcane field. Witnesses went inside the sugarcane field but by that time appellant Pramod had already fled away but corpse of deceased Rinku was found inside the sugarcane field. Even if we conclude that appellant Pramod was holding the dead body of deceased Rinku at that point of time it would not necessarily mean that appellant Pramod had abducted and murdered the deceased Rinku.

28. The involvement of appellant Pramod in recovery of deceased is also doubtful. Postmortem report has opined that deceased died on 14.2.2000 after 2:00pm. Postmortem further indicates that deceased died about one day prior to the incident. Postmortem report (Ex.Ka.-14) was conducted at about 4:00pm on 15.2.2000 meaning thereby that deceased died somewhere about 4:00pm on 14.2.2000. It would also be consistent with the original prosecution allegation that deceased Rinku disappeared at 2:00pm on 14.2.2000. Even, if we give some margin, it would be clear that deceased was dead at least by 8-9:00pm in the night of 14.2.2000.

29. This is the time when virtually entire village was involved in search of deceased Rinku. The evidence reveals that announcements were made from the loudspeaker of the mosque. P.W.-1 Kiran Singh says that several persons were involved in search of deceased Rinku. Same fact has been reiterated by P.W.-2 Surendra and P.W.-3 Mool Chandra. The difference is in the number of persons. P.W.-3 Mool Chandra says that more than 40-50 people were involved in search of deceased Rinku in the morning of 15.2.2000 while P.W.-2 Surendra talks of himself, Kiran Singh (P.W.-1), Mool Chandra (P.W.-3) and seven or eight other persons. If P.W.-1 Kiran Singh, P.W.-2 Surendra, P.W.-3 Mool Chandra were together in the morning of 15.2.2000 then the discrepancy, in number of people who were involved in search of deceased, is surprising. Difference of 2 or 3 or 5 or even 6 persons can be understandable but difference of almost 20-30 in the number is startling. If corpse of deceased was recovered in the morning of 15.2.2000, it would mean that accused kept the cadaver throughout the night. This story is weird and inconceivable. If deceased had been murdered between 2-8:00pm on 14.2.2000 then there was no reason for appellant Pramod to keep cadaver of deceased Rinku with him for next about 12 hours.

30. It is pertinent to point out that no-one had any suspicion about appellant Pramod. Therefore, it was not necessary for him to carry the corpse of deceased Rinku in the morning of 15.2.2000. He could have disposed it off or left the body anywhere in the night itself. It was much more difficult to see him and to trace him in the night rather than 9:00am in the morning. This stated conduct of appellant Pramod is unnatural and not believable. The evidence of P.W.-1 Kiran Singh (father of deceased) in this regard confirms our conclusion. P.W.-1 Kiran Singh himself has clearly stated that he was searching for his disappeared son in the morning of 15.2.2000 on bicycle. He says that he was sent on bicycle by his brother's. Meaning thereby that he did not accompanying the other village folks, Surendra and Mool Chandra etc. in the morning of 15.2.2000. This finds support from the following testimony of P.W.-1 Kiran Singh (father of deceased).

Þvxys fnu njksxk o 2&3 flikgh lqcg esjs xkao es vk;s FksA ge iqfyl ds vkus ls igys ryk'k dj jgs FksA iqfyl eqykdkr jkLrs esa 8 [email protected]&9 cts ?kj ds vkl ikl gqbZA fQj dgk fd eq>s esjs HkkbZ;ksa us lkbZfdy ysdj ryk'k ds fy, Hkst fn;k FkkA vkSj eS tc 9&9 [email protected] cts ykSVdj vk;k rks iqfyl esjs ?kj ds ckgj ?ku';ke ds ?kj cSBh feyhA eS tc ykSVdj vk;k rks esjs cPps dh yk'k Fkh esjs ?kj ds njokts ij j[kh gqbZ FkhAß

31. The aforesaid evidence indicates two facts, first is that P.W.-1 Kiran Singh did not accompany other witnesses in the morning of 15.2.2000; secondly he did not see appellant Pramod with the cadaver of deceased Rinku because he subsequently has asserted that when he came back home after the futile search, the corpse of his son was found at his door steps. This clearly belies the prosecution claim that appellant Pramod was seen with the cadaver of deceased by P.W.-1 Kiran Singh in the morning of 15.2.2000.

32. This evidence clearly demolishes the main plank of prosecution story. The evidence of P.W.-1 Kiran Singh is full of discrepancies. It has come in the evidence that he went to police station with dozens of people to inform the police about the disappearance of his son but the extract of general diary does not support this claim.

33. The testimony of P.W-2 Surendra is also full of contradictions. He claims that P.W.-1 Kiran Singh was with him when they spotted appellant Pramod with a bundle in his hand. P.W.-1 Kiran Singh has denied it. This witness has stated that agricultural field of Aswani Kumar Sharma, near which the deceased appellant Pramod was first seen was nearly 100 paces away from village. He further, says that a bundle was thrown by appellant Pramod and they chased him and at that time appellant Pramod was nearly 4-5 paces ahead of them. There were almost 10-12 people in the chase and yet they could not apprehend appellant Pramod. Infact this witness has admitted that appellant Pramod was merely two paces ahead when bundle was thrown in sugarcane field and yet they were not able to catch the appellant.

34. P.W.-2 Surendra says that police station was merely half a kilometer away from the village. Chick report claims that place of occurrence was two kilometer away from the police station. P.W-2 Surendra has asserted that they went to police station by tractor owned by their neighbour. While P.W.-3 Mool Chandra says that they went to police station on foot. If P.W.-1 Kiran Singh, P.W.-2 Surendra and P.W.-3 Mool Chandra went to police station together subsequent to the recovery of dead body then their evidence would have been similar if not same at least on important points. P.W.-2 Surendra says that they went on tractor while P.W.-3 says they were on foot.

35. Chick report indicates that FIR was lodged at 9:45am on 15.2.2000 while P.W.3 Mool Chandra says that FIR was lodged at police station at 8:30 am. On the contrary other witnesses say that cadaver of deceased was recovered somewhere about at 9:00am in the morning. The prosecution evidence on record is riddled with too many discrepancies and contradictions. The evidence of prosecution regarding recovery of dead body is not trustworthy. The presence of appellant Pramod on the spot with the cadaver in his hand in a bundle of cloth at about 9:00am in the morning of 15.2.2000 is not believable.

36. The last fatal flow in prosecution case is about the description of clothes given by prosecution. The disappearance report says the incident occurred in the middle of the month of February. The disappearance report (Ex.Ka.-1) says that deceased was wearing a red colour vest at the time of disappearance. On the other hand the inquest report says that corpse of deceased Rinku was wearing a white colour vest, T-shirt and a sweater etc. We cannot fathom the reason for this discrepancy. Postmortem report also confirms the presence of these clothes on the person of deceased.

37. We have carefully examined all material available on record and there appears to be far too many discrepancies in the prosecution evidence. Motive as alleged by the prosecution is very weak. In any case there is no connecting evidence to the factum of murder and disappearance. There is no evidence to link the appellant Pramod with abduction and murder of deceased. At the time of stated recovery he was allegedly seen at the distance of only 2-4 paces and yet he was not apprehended. The only allegation is that he threw some bundle inside the sugarcane filed. It is very difficult to see any activity of any person in the ripe sugarcane field. There is no way the witnesses could have seen appellant Pramod with the cadaver in the sugarcane field. P.W.-3 Mool Chandra has indicated that they were at a distance of 50 metres when they first saw the appellant Pramod while P.W.-2 Surendra says that appellant was merely at a distance of 2-4 steps. This contradiction again is highly strange and surprising.

38. The description of appellant Pramod itself is contradictory. P.W.-1 Kiran Singh and P.W.-2 Surendra has not talked about covering cloth of Pramod while P.W.-3 Mool Chandra has subsequently stated that appellant Pramod had covered himself with sheet. In this scenario to recognize appellant Pramod covered with cloth, at distance of 50 meters in a ripe sugarcane field was well nigh impossible. An attempt to manufacture evidence is palpable.

39. It has been well settled by Hon'ble Apex Court in catena of decisions that if a case is based upon circumstantial evidence then prosecution is required to prove its case beyond all reasonable doubt by leading complete chain of evidence so as to hold accused guilty. We cannot forget that in the instant case, the prosecution story is entirely based on circumstantial evidence but the prosecution has miserably failed to complete the chain of evidence.

40. For the reasons stated hereinabove, we hold that the prosecution has failed to prove its case beyond all reasonable doubt and the appellant-accused is entitled to the benefit of doubt and consequential acquittal.

41. Resultantly, the appeal is allowed, the conviction and sentence awarded to the appellant vide judgment dated 25.2.2008 passed by Additional Sessions Judge (F.T.C.-1), Meerut is set aside and the appellant, who is in jail, is ordered to be set at liberty forthwith, if not required in any other case.

42. Office is directed to certify this judgment to the concerned Court within 10 days. The concerned Court shall send the compliance report within a month thereafter.

43. Sri Raghuraj Kishore as Amicus Curiae has conducted this case very diligently. Office is directed to make payment of honorarium to learned Amicus Curiae in accordance with the rules of the Court.

Order Date :- 13.6.2017

Neeraj