Manti Lal vs State Of U.P.
2017 Latest Caselaw 1741 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 45
 
Case :- JAIL APPEAL No. - 134 of 2012                      AFR
 
Appellant :- Manti Lal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,R.K. Mishra
 
Counsel for Respondent :- A.G.A.,Shravan Kumar Yadav
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Hon'ble Daya Shankar Tripathi,J.

(By order of Court)

Since the instant jail appeal is of the year 2012 and listed for its disposal during summer vacation under the heading "Notified Listed" cases, no one turns up on behalf of the appellant though Sri R.K. Mishra, Advocate was previously appointed as amicus curiae. The appellant is admittedly languishing in jail and is not having proper means to engage any counsel to argue the case on his behalf, therefore, we appoint Sri Lal Chandra Mishra as amicus curiae to argue the case on behalf of the appellant in order to safeguard his interest.

By way of the instant jail appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 13.09.2011 passed by Additional Sessions Judge, Court No.8, Allahabad, in Sessions Trial No.189 of 2011 State of U.P. Vs. Manti Lal, arising out of Case Crime No.302 of 2010, under Sections 302, 404 IPC, Police Station- Sarai Inayat, District- Allahabad whereby the appellant has been sentenced to life imprisonment coupled with fine Rs.10,000/- under Section 302 IPC, with default stipulation for six months' additional rigorous imprisonment and one year rigorous imprisonment coupled with fine Rs.1,000/-, with default stipulation for one month additional rigorous imprisonment. Both the sentences were directed to run concurrently.

Heard Shri Lal Chandra Mishra, learned Amicus Curiae for the appellant, Shri K.C. Pandey learned AGA for the State and perused the record.

The prosecution story as unfolded through the record reflects that the informant Munna Bind son of late Ganpat Bind, resident of Village- Hazipur, Police Station Sarai Inayat, District Allahabad, lodged the written report on 06.10.2010 at 10:15 a.m. qua recovery of the dead body of his brother's wife Urmila Bind from field alleging therein that she had gone to answer nature's call in the evening around 6:00 p.m. on 05.10.2010 but she did not return home. After search, her dead body was recovered around 8:00 a.m. on the next morning from field of millet and blood was oozing out from her nose and mouth. An apprehension was expressed that someone had committed her murder. It was prayed that report be lodged and action be taken. The written report is Ext. Ka-1.

Contents of the aforesaid information were taken down in the Check FIR on 06.10.2010 at 10:15 a.m. at aforesaid police station at Case Crime No.302 of 2010 under Sections 302, 201 IPC. Check FIR is Ext. Ka-2. On the basis of entries so made in the check F.I.R., a case was registered in the relevant G.D. at serial no.24 on 06.10.2010 at 10:15 a.m. at aforesaid case crime number at Police Station Sarai Inayat under aforesaid sections of I.P.C. against appellant, which is Exhibit Ka-3.

The investigation ensued soon after registration of the case. The investigation of this case was entrusted initially to S.I. Pawan Kumar Patel PW-8 who after obtaining copy of the first information report and after making relevant entries in the case diary, proceeded to the spot and got prepared inquest report of the deceased under supervision of the concerned Naib Tehsildar Mahatma Singh (PW-7) who was present on the spot. The Investigating Officer appointed inquest witnesses and prepared inquest report of deceased Urmila Bind. Its preparation commenced at 12:15 p.m. on 06.10.2010 and completed at 14:30 hours. In the opinion of the inquest witnesses and the Investigating Officer, it was thought proper to send the body for postmortem examination for ascertaining real cause of death. The inquest report is Exhibit Ka-7.

In the process, relevant papers for sending dead body for autopsy were prepared which are letter to R.I., letter to CMO, challan dead body Police Form No.13, photonash and specimen of seal. These papers have been exhibited as Ext Ka-9, Ext. Ka-10, Ext. Ka-11, Ext. Ka-12 and Ext. Ka-13, respectively. The Investigating Officer also prepared site plan of the place of occurrence as Exhibit Ka-17.

Record reflects that post mortem examination on the cadaver of the deceased Urmila Bind was done by Dr. C.P. Verma PW-6, on 07.10.2010 at 2:15 p.m. wherein the following ante mortem injuries were found on the dead body:-

1. Contusion 6 cm x 3 cm over anterior aspect of neck at middle portion. On dissection, haemorrhage present.

2. Abrasion 5 cm x 4 cm over left knee.

3. Multiple abrasion over left hand.

In the opinion of the doctor, cause of death was stated to be due to asphyxia as a result of strangulation. The relevant time of death was stated to be from 6:00 p.m. on 05.10.2010 up to the intervening night of 05/06.10.2010 at 04:00 p.m. Dr. C.P. Verma PW-6 has proved post mortem examination report as Exhibit Ka-14.

During course of investigation, certain relevant memos were prepared by the Investigating Officer. A brief reference of the same is Chappal and talisman (Taviz) Ext. Ka-15 and two pieces of bamboo is Ext. Ka-16.

Record further reflects that on the tip off information, some recovery was effected from the appellant by S.O. Ajay Kumar Singh, the second Investigating Officer on 11.10.2010 who in pursuance of the information so received, arrested the appellant at 9:30 p.m. and after his arrest, he made certain disclosure statement to the police, on the basis of which silver girdle was recovered from inside the house of the appellant. Arrest and recovery memo is Ext Ka-2 on record.

Relevant to mention that the Check FIR has been marked previously as Ext. Ka-2 and it appears that the arrest and recovery memo was also marked Ext. Ka-2 which apparently is a repetition, whereas, it may be read for the sake of convenience as Ext. Ka-2A and to be referred to as such hereinafter as and when the context so requires.

The Investigating Officer after recording statement of various persons and completing other formalities filed charge-sheet Ext. Ka-5 against the appellant.

After filing of charge-sheet, committal proceeding took place and the trial court was entrusted with the task of hearing and disposal of the concerned Sessions Trial Nos.189 of 2011 (pertaining to Case Crime No.302 of 2010) under Sections 302, 404 IPC.

The learned trial Judge heard both the sides on point of charge and was prima-facie satisfied with case against the accused. Consequently, the trial court framed charges under Sections 376, 302/201, 394 and 411 IPC. Charges were read over and explained to the appellant who abjured charges and opted for trial.

In turn, the prosecution was asked to adduce its testimony whereupon the prosecution produced in all 9 witnesses. A brief sketch of witnesses is as under:-

Munna Bind PW-1 is the informant. He had lodged the written report and proved the same as Ext. Ka-1. Kanchan PW-2 is the husband of the deceased Urmila Bind and he is witness of arrest and recovery. Amar Nath PW-3 is also witness of arrest and recovery. Constable Kamleshwar Nath PW-4 has made relevant entries in the Check FIR and concerned general diary and has proved the same as Ext. Ka-3 and Ext. Ka-4, respectively. Arun Kumar Pandey PW-5 is the subsequent Investigating Officer who took over the investigation on 09.11.2010 from previous Investigating Officer and has filed charge-sheet Ext. Ka-5 and has proved the same before the trial court. Dr. C.P. Verma conducted post mortem examination on the cadaver of the deceased Urmila Bind and has proved the post mortem examination report Ext. Ka-14. The doctor witness has also proved approximate time of death. Mahatma Singh PW-7 is Naib Tehsildar who got prepared the inquest report on 06.10.2010 at the place where the dead body of the deceased Urmila Bind was found from field of millet. S.I. Pawan Kumar Patel PW-8 is also subsequent Investigating Officer and had participated in preparation of the inquest report as well. He has proved various prosecution papers. Ajay Kumar Singh PW-9 is also subsequent Investigating Officer, he has detailed various steps, he took in completing his part of investigation.

Except as above, no any other testimony was adduced by the prosecution, therefore, evidence for the prosecution was closed and statement of the appellant was recorded under Section 313 Cr.P.C. wherein he denied claim of the prosecution and submitted that he has been falsely implicated in this case and the witnesses are falsely deposing before the trial court. He has specifically denied fact of any recovery having been made from his possession or from his house. No testimony, whatsoever, was led by the defence.

Therefore, the case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellant under Sections 302, 404 IPC and sentenced him to life imprisonment coupled with fine Rs.10,000/- on the first count, with default stipulation for six months' additional rigorous imprisonment and one year rigorous imprisonment coupled with fine Rs.1,000/- on the second count, with default stipulation for one month additional rigorous imprisonment, respectively.

Consequently, this jail appeal.

It has been vehemently contended by Sri Lal Chandra Mishra, learned amicus curiae for the appellant that in this case various links of chain of circumstances are altogether missing and chain of circumstances is not complete. This being a circumstantial case, it is incumbent upon the prosecution to establish guilt of the appellant beyond reasonable doubt and to prove conclusively that the appellant alone was involved in the commission of the offence right from the stage of disappearance of the deceased Urmila Bind on 05.10.2010 at 6:00 p.m. upto the time when the murder of the deceased Urmila Bind could have been caused by him. But there is no worthy material or circumstance indicative or conclusive which may evince fact that the appellant was seen anywhere by any person during above span of time on or near the place of occurrence, therefore, vital links of chain of circumstances are missing.

It has been further contended by learned amicus curiae for the appellant that motive suggested for commission of crime in the circumstantial case assumes greater importance. It is imperative for the prosecution to come out positively and establish the motivating force for committing the offence. But the circumstance posits that motivating force is afterthought of both the informant and the police and they had acted in such a manner that they deliberately and falsely involved the appellant with false recovery of silver girdle from the house of the appellant which recovery is vitiated for various specific reasons which is amply proved by the testimony of the recovery witness itself when he testified before the trial court that signature he appended on recovery memo Ext. Ka-2A was in fact made at the police station and the glaring example of negligence can be gathered from testimony of Amar Nath PW-3 when he says that recovery material (silver girdle) was sealed at the police station which throws lot of doubt on the claim of the prosecution that silver girdle was recovered from the house of the appellant. If it was so recovered then it must have been sealed on the spot, therefore, factum of recovery of silver girdle from house also becomes dubious and cannot be relied upon by this Court at this stage.

Insofar as abscondance of the appellant is concerned that is not cogently proved by the prosecution. Recovery memo itself divulges that it was a fabricated story and the appellant was arrested from his house. Had the appellant absconded from the village, he would not have returned within 4-5 days of the occurrence and he would hardly have any occasion to get the silver girdle concealed under soil in his own house. If he had absconded he could have concealed the silver girdle at safer place somewhere else than his own house. The theory of rape being committed on the deceased as divulged in disclosure statement of the appellant has not been verified and corroborated by evidence on record or any circumstance.

It appears that the prosecution has done guess work. Merely because the appellant was somehow attracted towards the deceased that alone became the guiding factor for implication of the appellant in commission of the offence. No reliance can be placed on testimony of the prosecution witnesses so as to justify conviction of the appellant. The trial court while appreciating above particular aspect of the case failed to see that chain of circumstances is woefully incomplete. The various vital links of the case are missing and no conviction can be based on shattered evidence. Consequently, the conviction cannot be sustained on the face of it as the same is perverse and illegal.

Per contra, Sri K.C. Pandey, learned AGA retorted to aforesaid arguments by submitting that in this case, entire chain of circumstances is complete right from the beginning upto the very end. The involvement of the appellant in the commission of the offence is very much proved by factum of recovery of silver girdle because the place of recovery is not deserted place. It is house of the appellant from where silver girdle was recovered.

The very motive for committing the offence has been proved both in the testimony of the prosecution witnesses as well as in the disclosure statement of the appellant when silver girdle was recovered from his house pursuant to disclosure statement that he was physically attracted towards the deceased Urmila Bind and was in hunt of some opportunity to give practical shape to his lust which he succeeded on the fateful evening when he committed crime.

One independent aspect of the case is abscondance of the appellant from the village after the dead body of Urmila Bind was recovered and he (appellant) on the tip off information was arrested from his house when he returned to his house after 5-6 days of the incident. Therefore, fact of his abscondance also becomes relevant pointing out and signifying his involvement in the commission of the offence. Appellant has not explained about his absence from the village after commission of the offence. Learned trial court has judiciously recorded conviction and has passed appropriate sentence.

We have also considered the rival submissions and taken into consideration rival claims. In view of above, the moot point raised for adjudication of this appeal basically relates to fact as to whether the prosecution has been able to establish beyond reasonable doubt all the links of chain of circumstances so as to justify and base conviction on the same to the exclusion of all others - that the appellant and appellant alone has committed the crime in question?

Insofar as merit of this case is concerned, we are aware of the fact that this case is based on circumstantial evidence. The following facts need to be taken into consideration while appreciating testimony of the prosecution witnesses on record vis-a-vis circumstances. Firstly, all links in the chain of circumstances should be so complete as to leave aside any hypothesis of innocence of the accused. Secondly, motive for committing the offence need be established firmly. Thirdly, testimony of the prosecution witnesses on record should indicate positively involvement of the accused in shape of either last seen or his presence in and around the spot from where the dead body of Urmla Bind was found.

As regards the aforesaid factual circumstances and aspect of the case, we would like to delve on the point of motive. Upon careful perusal of testimony of Kanchan PW-2, who has testified before the trial court in his examination in chief, we find that PW-2 was told by his wife Urmila Bind that the appellant used to tease her as and when he got opportunity and when she goes to answer nature's call. His testimony can be very much compared with testimony of witnesses of recovery memo Ext. Ka-2A whereby some disclosure statement was recorded by the concerned Investigating Officer to the extent that the appellant was attracted towards the deceased and was somehow bent upon committing sexual assault against her wishes which he committed on the fateful evening.

As per this disclosure statement of the appellant (appearing in recovery memo Ext. Ka-2A), it has been clarified that the appellant committed sexual assault - "Maine Bura Kam Kiya". But absolutely all the testimony of the prosecution witnesses on record and particularly, testimony of Dr. C.P. Verma is suggestive of fact that no such sexual assault was committed on the deceased Urmila Bind on the fateful evening of 05.10.2010 and no sign external or internal was discovered by the doctor at the time of post mortem examination. Therefore, theory of committing rape or any sort of sexual assault on the deceased is not discovered by us at this stage and the same is not established.

Thus, we doubt existence of the very motivating force for committing the offence that it was lust which impelled the appellant to commit the crime in such a manner that he sexually assaulted the deceased Urmila Bind and then killed her. Therefore, the very motive suggested by the prosecution for committing the offence is found to be not proved even in the least by the prosecution.

We may observe that the first information report, no doubt, was lodged only after recovery of the dead body of the deceased. The husband of the deceased had information about fact of teasing the deceased by the appellant previously but the husband of the deceased did not care to see that the first information report makes any whisper about this particular aspect - say motive behind offence.

Another factual link of chain of circumstance is that it is admitted to the prosecution that there is no last seen or factual aspect proved to the ambit that the appellant was ever seen in the company of the deceased either at the approximate time of murder or at the relevant point of time when the deceased went to answer nature's call from her house or was sighted somewhere near the field of millet where the dead body was discovered. On this point, the prosecution drew absolutely blank and no worthy advantage can be gained by the prosecution. Therefore, it is obvious that the factual aspects about the initial or latter stages of the case in shape of various links of the chain of circumstances are altogether missing.

Now we come to the point of arrest and recovery. Arrest and recovery was effected by Ajay Kumar Singh PW-9. He has prepared memo of arrest and recovery Ext. Ka-2A on 11.10.2010. As per his testimony, the appellant was arrested on the tip off information from his house around 9:30 p.m. and pursuant to the disclosure statement made by the appellant, some silver girdle was recovered from inside his house which was identified by the husband of the deceased (PW-2).

While scrutinizing veracity of preparation of recovery memo Ext. Ka-2A, we come across testimony of Amar Nath PW-3 who though has testified factum of arrest and recovery in his examination in chief but has vacillated on point of preparation of this recovery memo and has submitted in his cross-examination on page 19 of the paper-book that thumb impression was impressed at the police station and in the very last line on the same page, it has been categorically testified that the recovered material Ext.1 (silver girdle) was in fact sealed inside the police station. This by itself vitiated the entire recovery memo because the material recovered was not sealed on the spot but at some another place and thumb impression of this witness was appended on recovery memo at the police station.

Thus we have ample reason to doubt authenticity of arrest and recovery of silver girdle from the house and the recovery memo. It is obvious that the appellant was arrested from his house. This by itself suggests that the appellant was at home and he did not abscond. Further Kanchan PW-2 and Amar Nath PW-3 were taken to the police station in the night prior to the arrest of the appellant and their thumb impression was obtained there.

Here we may observe at ease that Kanchan PW-2 has himself testified on page 16 and 17 of the paper book that thumb impression of several persons including this witness and Amar Nath PW-3 was obtained at the police station around 3:00 p.m. He (PW-2) can not recall the exact date but at that point of time, the appellant Manti Lal had been arrested and was at the police station. Therefore, factum of arrest and recovery of silver girdle fails to evoke any positive response and the same cannot be relied on.

Pivotal aspect of the case in hand indicates in unambiguous terms that there is no proof of any last seen or any connected link in form of fact or circumstances whispering about proximity of the accused with the deceased right from the moment the deceased left her home up to the stage of discovery of her body from the millet field. In this conspicuous backdrop of the case, we come across evidence and fact regarding arrest of the accused and discovery of silver girdle pursuant to the disclosure statement/information given by him to the Investigating Officer Ajay Kumar Singh PW-9. In this context, we are conscious of the mandate and import of the recovery made pursuant to the information furnished by the accused while in custody.

In this view of the matter, it would be relevant to take note of Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as "the Act") which is extracted hereinbelow:

"How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

As per Section 27 of the Act, it is obvious that edict indicates that only that much of information can be proved as to fact discovered in consequence of information received from a person accused of any offence.

Here in this case what the accused informed to the police on 11.10.2010 around 6:00 p.m., after his arrest was strictly confined to fact of sliver girdle only. The very disclosure in form of utterance that 'the accused killed the deceased' and that "he committed sexual assault on the deceased" would be kept apart and would not carry any probative value, as that aspect is to be cogently and substantially proved by the prosecution by admissible and relevant evidence only then it would be taken to have been proved. It can be summed up that in the absence of any admissible and relevant evidence, disclosure statement made by the accused to the ambit that he committed sexual assault and murder of the deceased shall remain inadmissible and the same shall be excised.

That being the case as it may be, we have already castigated authenticity of the recovery memo Ext. Ka-2A.

Now we do not want to reflect on that aspect any more as that would be repetition of fact but at this stage, we may conveniently hold that fact of recovery cannot be linked with fact of murder of the deceased Urmila Bind as that would be an imagination and guess work, in absence of corroborative evidence or circumstances conclusively pointing to that in a reasonable manner. The trial court definitely staggered on legal aspect of this case and it totally confused fact of discovery of the girdle with the disclosure statement and construed the same sufficient enough to hold that the accused and accused alone has committed the murder of the deceased Urmila Bind. That was not legitimate construction of law particularly Section 27 of the Act.

It is cardinal principle of criminal jurisprudence that in cases based on circumstantial evidence, chain of circumstances must be complete and conclusive so as to unmistakably point to the guilt of the accused and any hypothesis incompatible with the guilt of the accused will result in acquittal of the accused. In this case, we find that the chain of circumstances is not complete and the testimony of prosecution witnesses is full of contradictions. If one aspect of the case is considered to be correct then the other aspect of the case is rendered improbable. The chain of circumstances is neither conclusive nor complete and in such cases hypothesis of guilt of the accused cannot be established. Hon'ble Apex Court in the case of Birender Poddar Vs. State of Bihar 2011 (74) ACC 283 (SC) has held that for appreciating circumstantial evidence, the Court has to be cautious and find out whether chain of circumstances led by the prosecution is complete and chain must be so complete and conclusive as to unmistakably point to the guilt of the accused, that he alone is the perpetrator of the crime.

In view of the above discussion, it is obvious that learned trial Judge while appreciating facts and circumstances of the case failed to come out with positive finding and failed to give finding qua shortcomings of the prosecution case. The learned trial Judge did not appreciate properly factual aspect of circumstances that every link of chain of circumstances must be complete so as to leave every hypothesis of innocence of the appellant and to establish that it was the appellant and appellant alone who was perpetrator of the crime to the exclusion of all others. This factual aspect also went beyond consideration of the trial court. Therefore, the trial court was not justified while it recorded conviction of the appellant under Sections 302, 404 IPC and awarded sentences therefor.

Consequently, the judgment and order of conviction dated 13.09.2011 passed by Additional Sessions Judge, Court No.8, Allahabad, in Sessions Trial No.189 of 2011 State of U.P. Vs. Manti Lal, arising out of Case Crime No.302 of 2010, under Sections 302, 404 IPC, Police Station- Sarai Inayat, District- Allahabad, is hereby set aside. Accordingly, the instant appeal succeeds and the same is allowed.

The appellant is acquitted of charges under Sections 302, 404 IPC.

In this case, the appellant is in jail. He shall be released forthwith unless and until he is wanted in connection with any other case. The appellant shall ensure compliance of Section 437A Cr.P.C.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Order Date :- 22.06.2017

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