Ram Lakhan vs State
2017 Latest Caselaw 6879 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Case :- JAIL APPEAL No. - 5192 of 2005
 

 
Appellant :- Ram Lakhan
 
Respondent :- State
 
Counsel for Appellant :- From Jail, Dharmendra Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Chandra Dhari Singh,J.

(Delivered by Hon'ble Chandra Dhari Singh,J)

1. Heard Mr. Arvind Kumar Singh, learned Amicus Curiae for the appellant, Mr. Nagendra Bahadur Singh, learned A.G.A. for the State and perused the record.

2. This instant jail appeal has been preferred against the judgment and order dated 24.01.2001, passed by the 7th Additional District and Sessions Judge, Farrukhabad in Session Trial No.525 of 1997, by which the accused-appellant had been convicted for offence punishable under Section 302 I.P.C. and sentenced to undergo life imprisonment along with fine of Rs.2,000/-. In the event of default in payment of fine, the appellant would further undergo simple imprisonment for six months.

3. Brief facts of the case.

(I) The story of the prosecution is that on 13.09.1996, when deceased Chhavinath was coming back from Mainpuri Bazar to his village, near Nagla-Ghus at about 8:00 p.m., the accused-appellant Ram Lakhan and his two unknown friend started inflicting knife blow on him. He started crying and asked help from the people. After hearing his loud noise, Shivpal PW-3 and Manoj PW-4 reached at the spot with torch and in the torch light, they had seen that the accused Ram Lakhan was inflicting knife blow to deceased. They tried to save him but the accused-appellant fled away from the place of incident while threatening them. Chhaviram died on the spot. The Tehrir was made on 14.09.1996, by complainant Shivpal PW-3 at police station Mohammadabad. On the basis of the Tehrir, an F.I.R. was lodged against the accused-appellant and other two unknown person for offence punishable under Section 302 I.P.C.

(II) The police after registering the F.I.R., sent the dead body of the deceased to hospital for post-mortem. After completion of the investigation, the police filed charge-sheet against the accused Ram Lakhan, Jauhari Lal Jatav and Brijbhan for offence punishable under Section 302 I.P.C.

III. Upon considering the materials available on record and hearing the counsel of both sides, the appellant was charged for offence punishable under Section 302 I.P.C. The charge was read over and explained to him. The applicant pleaded not guilty and claimed for trial.

IV. The prosecution in order to prove, its case examined PW-1 Harpal, PW-2 Ram Shree, PW-3 Shiv Pal, PW-4 Manoj Kumar, PW-5 Assistant Sub-Inspector Nabab Sher Khan, PW-6 Dr. Jagmohan Verma, PW-7 S.I. Har Prasad Singh. Site plan Ex.Ka-5, memo of blood stained soil and simple soil Ex.Ka-6, memo of recovery of blood stained shirt, paint, etc. Ex.Ka-7 were prepared by the police.

V. After appreciation of the evidences on record and other circumstances, the trial court had convicted the appellant for offence punishable under Section 302 and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2000/-, in default of payment to undergo simple imprisonment for six months.

4. The Criminal Jail Appeal bearing No. 5192 of 2005 was filed against the order dated 24.01.2001, passed by the learned trial court in S.T. No.525/97 before this Court.

5. Mr. Arvind Kumar Singh learned Amicus Curiae appearing for the appellant has submitted that appellant has been falsely implicated in the crime for offence punishable under Section 302 I.P.C. It is submitted that the incident took place on 13.09.1996 at 8:00 p.m., but F.I.R. was lodged on next day i.e. 14.09.1996 at about 8:35 a.m. The delay in lodging F.I.R. was not explained with any adequate reason, therefore, unexplained long delay in filing the complaint, creates doubt as to the genuineness of the prosecution case. He further submitted that PW-1 Harpal, PW-2 Ram Shree and PW-3 Shivpal have stated in their deposition that when PW-1 and PW-3 reached at the spot, the dead body of deceased was lying there, they had not seen any person at the spot. In the main chief testimony, PW-1 and PW-3 stated that they had saw the incident but in cross examination, they denied that they had seen any person to kill the deceased. PW-1, PW-3 and PW-4 have not declared as hostile witnesses. Therefore, the prosecution is bound by the statement of the witnesses though not declared hostile. He further submitted that the weapon used in the offence has also not been recovered. Therefore, in view of the above facts and circumstances, conviction of appellant under Section 302 I.P.C. is unwarranted and thus, the criminal appeal deserves to be allowed.

6. On the other hand, learned A.G.A. appearing for the State has vehemently opposed the appeal, contending that there was no adequate delay in lodging the F.I.R., some delay in lodging the F.I.R. would not be fatal to the prosecution case. The ocular evidences as well as other material evidences corroborated to each other and supported the case of the prosecution. There are sufficient materials against the accused person to convict him for offence punishable under Section 302. Therefore, the appeal lacks a merit and is liable to be dismissed.

7. We have considered the rival submissions made by the learned counsel for the parties and perused the records.

8. PW-1, Harpal son of Ram Bhajan stated in his deposition that about two and half years before, the deceased was murdered when he was coming back from Manipur Bazar. In the chief testimony, he has stated that he had seen that the appellant had given knife blow to deceased. But in the cross examination, PW-1 has put dent on the story of the prosecution by stating that he had not seen any person to kill the deceased on the site, and when he reached, only dead body was lying. But he had not been declared as hostile witness.

9. PW-2, Ms. Ram Shree stated in her testimony that the complaint had been written by her on the dictation given by, PW-3, Shivpal. It was further stated in the testimony that the said Tehrir (Complaint) had been filed in the police station on the signature of PW-3 Shivpal. Tehrir was also read out in front of PW-3, Shivpal. In the cross examination, she denied that police had taken her statement in the police station.

10. PW-3, Shivpal son of Ram Bhajan stated in his chief testimony that when he reached on the spot after hearing of loud cry of the deceased, they saw that accused and other two co-accused were inflicting knife below on the body of deceased. They objected and tried to save the deceased, but the accused ran away from the place of incident. He further stated in his testimony that he had seen the incident in light of torch. But in cross-examination PW-3, complainant has put dent on the story of the prosecution by stating that when they reached on the spot after hearing cry of the deceased, the deceased was lying on the earth. He was not dead at that time, he died after sometime. He further stated in his statement that he had not seen the accused at the place of the incident. PW-3 has also not declared as hostile witness.

11. PW-4, Manoj Kumar son of Harpal Singh stated that before two and half years, when the deceased was coming back from the Mainpuri Bazar near Nagla-Ghus in the field of one Ahibaran at about 8-9 p.m., Ram Lakhan and his two unknown friend had killed the deceased by inflicting the knife blow on her body. After hearing loud cry of deceased, he, Harpal and Shivpal reached on the spot with torch and in the light of torch, they had seen the incident where the accused person were inflicting knife blow to the deceased. In his cross-examination, he stated that when he reached on the spot, the deceased was lying and nobody was present on the spot. He had seen three-four people were running away but due to darkness, they could not be recognized. The prosecution had also not declared this witness as hostile witness.

12. PW-5, A.S.I. Nawab Sher Khan stated in his testimonies that on the written complaint of Shivpal, prepared the chik of F.I.R. and also prepared the G.D. Report. On the basis of the F.I.R., he lodged the Case Crime No.327 of 1996 under Section 302 I.P.C. against the accused/appellant. He also proved his signature on the G.D. as Ex.Ka-3. He clarified in the cross-examination that the complainant came to the police station at about 8:30 p.m. and on written complaint, he lodged the case as Case Crime No.327 of 1996, under Section 302 I.P.C. against accused Ram Lakhan and other two unknown person. He further stated that he had not taken any statement of the complainant at that time when the complainant had come in the police station with the written complaint. He also refused to remember that the accused person was arrested during his posting in the concerned police station.

13. PW-6, Dr. Jagmohan Verma stated in his deposition that on 14.09.1996, when he was posted in Ram Manohar Hospital, Farrukhabad, the dead body of deceased Chhavinath aged about 55 years was brought by Constable Police, Kanhaiya Lal and Constable Police Dinesh Chandra in evening at about 4-10 p.m. for the post-mortem. The post-mortem of the dead body was conducted by him. As per post-mortem report there were following injuries :

1. Incised wound of 6 cm x 2 cm x deep till head was present on the left side of the head, aligning the eyelid. Frontal wound was present above the brain, the brain was rapture and the blood was oozing out. (Sir I am not confirmed about what is Aluda).

2. Incised wound of 4 cm x 1 cm x bone deep entering into left eye, aligning the eye and nose. Nose bone was also incised.

3. Incised wound of 4 cm x 3 cm x muscle deep, on the left side of the face at the distance of 1.5 cm from injury no.2.

4. Incised wound of 2 cm x 1 cm x deep till mouth was present on the left corner of the face.

5. Five incised wounds measuring between 4.5 cm x 1.5 cm x bone deep to 1.5 cm x 0.3 cm x muscle deep were present on the left side of the face in the area admeasuring 12 cm x 9 cm.

6. Incised wound of 5 cm x 1.5 cm x bone deep, present on the left side of the neck at 2 cm from the ear.

7. Incised wound of 3 cm x 1 cm x deep till chest on the front of right side at the distance of 10 cm from the right nipple, present deep upwards.

8. Linear abrasions which are ten in number were found on the left side of the neck in the region measuring 11 cm x 9 cm and they were admeasuring from 1 cm to 3 cm.

9. Marks of abrasion of 6 cm x .2 cm on the left side of chest on at below region.

10. Incised wound 3 cm x 1.5 cm x deep till mouth on the upper lip at the right side. Teeth were broken and gums were crushed.

Doctor opined that the reason of the death of the deceased was due to ante-mortem injuries and he further opined that the death was occurred at about 8:00 p.m. on 13.09.1996.

14. PW-7, A.S.I. Har Prasad Singh, who was Investigating Officer of the case stated in his testimony that at the instance of the complainant the site plan was made. The blood stain soil and without blood stain soil was collected from the site. He recovered blood stained shirt, angauchha, chappal and other articles of the deceased from the spot and made recovery memo. On 20.09.1996, the accused was surrendered in the court below and his arrest was entered in the case diary. On 22.09.1996, post-mortem report of deceased Chhaviram was received by the police. He went to the village Bhatkurri on 25.09.1996, and had taken the statement of complainant and witnesses of panchnama.

15. For every question put to the appellant under Section 313 Cr.P.C., the same reply was given that he was innocent and he submitted that he would not adduce any evidence in his defence. He further stated that he had been falsely implicated in the offence punishable under Section 302 I.P.C.

16. Before we proceed to examine the impugned judgment of the court below and facts of the case, it may be desirable to refer to the settled principles of law which have to be applied in the instant case.

17. Section 300 I.P.C. reads as under:

"300. Murder. - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -

Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -

Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -

Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

18. The term 'murder' is derived from the Germanic word 'morth', which means 'secret killing'. 'Murder' is when one is slain with a man's will, and with malice or forethought. Murder is unlawful homicide with malice afterthought. Murder is a more serious offence than the culpable homicide. Culpable homice is a genus, whereas murder is a species. An offence cannot amount to murder unless it falls within the definition of the culpable homicide.

19. Section 300 I.P.C. defines murder with reference to culpable homicide defined in Section 299.

Homicide is a causing of the death of one person by another. Homicide may be culpable, and culpable homicide may amount to murder.

20. Homicide is culpable homicide simplicitor, if death is caused by the doing of an act with the intention of causing death, or with the knowledge that the doer of the act is likely by such act to cause death, or with the intention or knowledge of causing death, following circumstances namely :

(i) If the offender, while deprived of the power of self control under rage and sudden provocation, caused the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.

(ii) If the offender, whilst exercising in good faith the right of private defence, exceeds the power given by the law and causes the death of the person against whom he is asserting the right, without premeditation and intention of doing more harm then is necessary for such offence.

(iii) If the offender causes the death by doing a lawful act in an unlawful manner.

21. Essentials of the offence of murder -

The offence is murder in the following cases :

(i) If the act is done with the intention of causing death.

(ii) If the act is done with intention of causing such bodily injury as the offender knows to be likely to cause the death of the preson to whom the harm is caused.

(iii) If the act is done with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death.

(iv) If the act is done with the knowledge, that it is so imminently dangerous that it must, in all probability, cause death by such bodily injury as is likely to be caused death, such act is permitted without any excuse of incurring the risk of causing death or injury.

22. In Virsa Singh vs. State of Punjab (AIR 1958 Supreme Court 465), it was held that in the absence of any circumstances to show that the injury was caused accidental or unintentional, the presumption would be that the accused had intended to cause the inflicted injury and the conviction was upheld. The Supreme Court, further laid down in order to bring a case within Clause 3 of Section 300, the prosecution must prove the following:

i. Firstly, it must establish, quite objectively, that a bodily injury is present.

ii. Secondly, the nature of injury must be proved, it is purely objective investigation.

iii. Thirdly, it must be proved that there was an intention to inflict the particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended.

Once these three elements are proved to be present, the inquiry proceeded further, and

iv. Fourthly, it must be proved that the inquiry of the type just described made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the inquiry is purely objective and in inferential and as nothing to do with the intention of the offender.

23. In Thangaiya vs. State of Tamilnadu 2005 9 SCC 650, the Hon'ble Supreme Court categorically ruled that Clause 4 of Section 300 would be applicable where the knowledge of the offender as to probability of death of a person approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability.

24. In Sehaj Ram vs. State of Haryana, AIR 1983 Supreme Court 614, the accused who is a Constable fired several shots with a 303 Rifles at another Constable. One shot hit the victim beneath the knee of his right leg and he fell down. Even after that, the accused fired another shot at him, though the shot did not hit him.

Since the bullet hit the deceased below the knee, it was contended that intention of the accused was only to frighten the deceased or cause grievous hurt and not to kill him. The Hon'ble Supreme Court rejected the contention and held that the act would fall within the ambit of Clause 4 of Section 300 and convicted the accused of murder.

If a witness is not declared hostile by prosecution.

25. In the instant case the PW-1 Harpal, PW-3 Shivpal and PW-4 Manoj Kumar had not supported the case of the prosecution, but they had not been declared as hostile witness by the prosecution. The issue in the instant case is that if a witness is not declared hostile by prosecution, then what is the relevance of the such witnesses for purpose of prosecution to prove its case. In the instant case, it is not known as to why the public prosecutor in the trial court failed to seek permission of the court to declare them hostile. In the present case, the prosecution never declared Pws 2, 3 and 4 hostile. Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in law that precludes the defence to rely on their evidence.

26. In Mukhtiar Ahmad Ansari vs. State (NCT of Delhi), the Hon'ble Supreme Court held that :

"29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW-1. He, however, did not support the prosecution. The prosecution never declared PW-1 "hostile". His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence.

30. A similar question came up for consideration before this Court in Raja Ram vs. State of Rajasthan. In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open tot he defence to rely on the evidence of the doctor and it was binding on the prosecution.

31. In the present case, evidence of PW-1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to the police in which the police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, the accused can rely on that evidence."

27. In the case of Akil @ Javed vs. State of (NCT of Delhi), the Hon'ble Supreme Court held that:

"27. In the earlier part of our judgment we have referred to the reliance placed upon by the trial Court as well as by the High Court on the evidence of PW.20 as regards the identity of the appellant. Both the Courts had made a pointer to the adjournment granted at the instance of the accused for the cross-examination of PW.20. The chief- examination of PW.20 was recorded on 18.09.2000 and for the purpose of cross-examination the case was adjourned by two months and was posted on 18.11.2000. The reason for adjournment was a request on behalf of the appellant that his counsel was busy in the High Court. PW.20 identified the appellant as the person who attempted to molest the complainant PW.17 and that when the same was questioned by the deceased the appellant shot at him who fell down on the bed and who was later declared dead by the doctors. However, in the cross- examination PW.20 stated that the identity of the appellant on the earlier occasion was at the instance of Inspector Rajinder Gautam who tutored him to make such a statement.

28. It is also relevant to note that the said witness PW-20 was not treated as a hostile witness in spite of diametrically opposite version stated by him as regards the identity of the appellant. Nevertheless, both the Courts below proceeded to hold that the identification made by PW.20 cannot be ignored. By relying upon Section 155 of the Evidence Act and also the decision reported in Paramjeet Singh and Suraj Mal learned counsel for the appellant contended that such a testimony of the witness is wholly unreliable. In Paramjeet Singh SCC pp. 445-46, para 10, this Court held that howsoever SCC p.726, para 2 .... where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses become unreliable and unworthy of credence and in the absence of special circumstance no conviction can be based on the evidence of such witnesses.

29. Apart from the above decisions relied upon by learned counsel for the appellant, we ourselves have noted in the decisions in Kunju Muhammed, Nisar Khan, Mukhtiar Ahmed Ansari and Raja Ram, wherein this Court has specifically dealt with the issue as regards hostile witness who was not treated hostile by the prosecution and now such evidence would support the defence (i.e.) the benefit of such evidence should go to the accused and not to the prosecution. In paragraph 16 of the decision in Kunju Muhammed alias Khumani (supra), this Court has held as under:

"16. We are at pains to appreciate this reasoning of the High Court. This witness has not been treated hostile by the prosecution, and even then his evidence helps the defence. We think the benefit of such evidence should go to the accused and not to the prosecution. Therefore, the High Court ought not to have placed any credence on the evidence of such unreliable witness."

30. In Nisar Khan alias Guddu (supra) in paragraph 9 this Court has held as under:

"9....We are of the view that no reasonable person properly instructed in law would allow an application filed by the accused to recall the eyewitnesses after a lapse of more than one year that too after the witnesses were examined, cross- examined and discharged."

31. In Mukhtiar Ahmed Ansari (supra), this Court in paragraphs 29 and 30 dealt with the hostile witness who was not declared hostile and the extent to which the version of the said witness can be relied upon as under:

"29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW 1. He, however, did not support the prosecution. The prosecution never declared PW 1 "hostile". His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence.

30. A similar question came up for consideration before this Court in Raja Ram vs. State of Rajasthan. In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution."

32. In the decision reported in Raja Ram a similar issue was dealt with in paragraph 9 and it was held as under:

"9. But the testimony of PW 8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW 5 making the deceased believe that unless she puts the blame on the appellant and his parents she would have to face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial court to seek permission of the court to heard (sic declare) PW 8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW 8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW 8's testimony can be sidelined."

33. We have referred to the above legal position relating to the extent of reliance that can be placed upon a hostile witness who was not declared hostile and in the same breath, the dire need for the Courts dealing with cases involving such a serious offence to proceed with the trial commenced on day to day basis in de die in diem until the trial is concluded. We wish to issue a note of caution to the trial Court dealing with sessions case to ensure that there are well settled procedures laid down under the Code of Criminal Procedure as regards the manner in which the trial should be conducted in sessions cases in order to ensure dispensation of justice without providing any scope for unscrupulous elements to meddle with the course of justice to achieve some unlawful advantage. In this respect, it is relevant to refer to the provisions contained in Chapter XVII of the Criminal Procedure Code whereunder Section 231 it has been specifically provided that on the date fixed for examination of witnesses as provided under Section 230, the Session's Judge should proceed to take all such evidence as may be produced in support of the prosecution and that in his discretion may permit cross-examination of any witnesses to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination."

28. A similar question came up for consideration before the Hon'ble Supreme Court in Raja Ram vs. State of Rajasthan, (2005 5 SCC 272). In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K. that she who implicate the accused or else, she might have to face prosecution. The doctor was not declared hostile. The High Court, however, convicted the accused. The Hon'ble Supreme Court held that it was opened to the defence to rely on the evidence of the doctor and it was binding on the prosecution. Therefore, the testimony of PW-2, PW-3 and PW-4 are binding on the prosecution as it is.

Motive

29. When the direct witnesses are not reliable and contradictions in the statement goes to the roots of the case, then the motive gets relevance for establishing the case of the prosecution against accused beyond any doubt. In the present case, the prosecution has also failed to establish the cogent motive.

30. In the instant case, it was argued that there were no motive to kill the deceased and therefore, if the prosecution has failed to prove its case on the basis of eye witnesses which have not supported the case of the prosecution, the motive aspect become very important to prove the case of the prosecution.

31. In Shivji Genu Mohite Vs. State of Maharashtra, this Court held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy.

32. It is settled legal proposition that even, if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance. (Hari Shankar Vs. State of U.P., (1996) 9 SCC 40; Bikau Pandey & Ors. Vs. State of Bihar, (2003) 12 SCC 616; and Abu Thakir & Ors. Vs. State of Tamil Nadu).

33. While dealing with a similar issue, this Court in State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73 held as under:

"The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."

34. In the case of Dhananjay Shankar Shetty vs. State of Maharashtra 2002 6 SCC 596, the Hon'ble Supreme Court held that merely because motive is neither alleged nor proved, the same would ipso facto not affect the prosecution case but in case there are other circumstances to create doubt regarding veracity of the prosecution case, this may also become material.

35. In the instant case, the prosecution witnesses PW-1, PW-2 and PW-4 had not supported the case of the prosecution and therefore, the prosecution miserably failed to prove its case. In such circumstances, another weak chain of the prosecution case is that the motive of the accused has also not been established. If the prosecution has proved its case by ocular evidences and other material evidence i.e. medical evidence, etc., then in that case the motive is not relevant for the prosecution to prove its case. But where the other material evidences are also not supporting the case of the prosecution and motive is also absent, then this benefit will go to the accused and it will be the sufficient ground to acquit the accused person from the offence which is allegedly committed by him.

No recovery of the weapon

36. The weapon used in the offence has not been recovered in the instant case.

37. In the case of Mrityunjai Vishwas vs. Pravab @ Gutti Vishwas and others,2012 13 SCC 796, the Hon'ble Supreme Court observed that "where unimpeachable ocular testimony supported by medical evidence is available, none recovery of the weapon of assault is of no advantage to the accused".

38. The decision of the judicial Committee of the Privy Council in Sambasiram vs. Public Prosecutor Federal of Malaya, (1950) AC 458, it is held:

"The acquittal of Pritam Singh Lohar of that was tantamount to a finding that the prosecution had failed to establish the possession of the revolver Ex.P56 by him. The possession of that revolver was a fact in issue which had to be established by the prosecution before, he could be convicted for the offence with which he had been charged".

39. In the instant case, the ocular testimony is not unimpeachable, therefore, the non-recovery of the weapon of the assault is of advantage of the defence. The counsel is right in contending that non-recovery of the knife in present case is vital for the prosecution to prove its case beyond a reasonable doubt.

Proof beyond reasonable doubt

40. Beyond a reasonable doubt in the higher standard of proof that must be met in any trial. Reasonable doubt is a standard of proof used in criminal trials. When a criminal defendant is prosecuted, the prosecution must prove the defendant's guilt beyond a reasonable doubt, if the judge has a reasonable doubt as to the defendant's guilt, the Judge should pronounce the defendant not guilty. If the Judge have no doubt as to the defendant's guilt, or if there only doubts are unreasonable doubts, then the prosecution has proved the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilt.

41. In the case of Bhagwan Singh vs. State of Punjab, AIR 1952 SC 214, the Hon'ble Supreme Court held that:

"But even if the fact be true that the deposition was not read over, that would only amount to a curable irregularity and, as the Privy Council observed in Abdul Rahman vs. King Emperor, in the absence of prejudice which must be disclosed in an affidavit which shows exactly where the record departs from what the witness actually said, there is no point in the objection. The object of the reading over prescribed by Section 360 of the Code of Criminal Procedure is not to enable the witness to change his story but to ensure that the record faithfully and accurately embodies the gist of what the witness actually said. Therefore, before prejudice can be substantiated on this score, it must be disclosed by affidavit exactly where the inaccuracy lies. The next and last objection is on similar lines. Jit Singh, P.W. 2., and Jagir Singh, P.W. 4, said that their statements before the Committing Magistrate were made under the threats and duress of the police. It was argued that that should not have been rejected without further enquiry, and a ruling in which a further enquiry was considered necessary was cited. Here (1) [1952] S.C.R. 526. (2) A.I.R. 1936 P.C. 253 at 258. (3) A.I.R 1927 P.C. 44 at 45-47. again, it is no part of a Court's duty to enter upon a roving enquiry in the middle of a trial on matters which are collateral to the main issue. The burden is on the person making these allegations to substantiate them and if he chooses to rely on evidence.which does not satisfy the Court he must' suffer the same fate as every other person who is unable to discharge an onus which the law places upon him. It was also argued that there was no proper compliance with the provisions. of section 342 of the Criminal Proce- dure Code. We are satisfied that there was substantial compliance in this case. The facts were simple and few and the crucial matters were brought to the attention of the appellant. In any event, the learned counsel was unable to tell us even at the argument stage exactly how his client was prejudiced and tell us what answers his client would have given to the questions which, according to counsel, ought to have been put to the appellant. We pressed him several times to disclose that but he was unable to do so. As we said at the outset, the case is a very simple one in which a man was caught red-handed with a pistol still in his hand and in which the first information report was recorded practically on the spot within 15 minutes of the occurrence. The murder was committed in day light and there was no dearth of eye-witnesses. Two have been believed, and in the case of the other two, certain statements made by them in the Sessions Court resiling from statements previ- ously recorded in the committal proceedings have been disbe- lieved.

42. In the casse of State of M.P. vs. Ram Krishna Sampatrao Limsey, AIR 1954 SC 20, the Hon'ble Supreme Court held that:

"8. There is considerable force in these contentions. We are, however, unable to find that the High Court was necessarily in error in holding that the circumstantial evidence in the case was not wholly incompatible with the innocence of the accused and that it did not lead to an irresistible presumption that Dattu was murdered by Limsey. It is unlikely that Limsey would have invited Dattu to his own place on the 8th October by a letter with the intention of murdering him. There is no evidence of a preconceived plan to that effect. If the estrangement between the two was still continuing Dattu would not have so readily come to Limsey's house. Ganpat having been disbelieved, there is no evidence of any act or conduct on the part of Kisanrao and Shaligram indicating their participation in this affair. In such circumstances the conclusion as to the guilt of the accused cannot be reached perhaps by introducing an element of conjecture in the case.

It may well be that Dattu and Limsey had some quarrel while they were drinking and smoking together and were trying to adjust their differences and that in the heat of the moment he was struck by Limsey in a manner which brought about his end, or that Limsey administered poison to him to finish him as he was obstinate and would not desist from his defamatory propaganda or even that Dattu died of heart failure. All these possibilities cannot be ruled out. These are, however, pure matters of speculation in the absence of any material pointing to a definite conclusion. It cannot, therefore, be said that the High Court acted improperly when it held that there was no evidence to establish that Dattu was murdered.

The strongest weapon in the armoury of the learned Advocate-General is the existence of a freshly constructed tomb in the loft of Limsey's house wherein the dead body of Dattu was entombed. The conduct of Limsey in constructing Dattu's tomb in the third storey of his house more or less verges on lunacy and is not conclusive evidence of the fact that Dattu had been murdered by him, though it raises a very strong suspicion against him. The High Court was dealing with the case of a person whose mind was so perverted that he could not see that such conduct on his part would surely recoil on himself and be the strongest proof against his innocence. The possibility, therefore, cannot be ruled out that he may have acted in a similar way in case he wanted to conceal for reasons of his own, the death of a person brought about by natural causes in his house. It is not difficult to visualize that Dattu died a natural but sudden death and in a moment of panic and confusion Limsey conceived the idea of concealing his death by entombing him in his own house.

There are no such circumstances that militate against the theory that Dattu might have died of alcoholic poisoning or of heart failure while sitting in the company of Limsey and drinking heavily. Limsey having been flabbergasted at what had happened might well have thought of disposing of his body in the manner he did in order to conceal the fact that his death took place while he was in his company and was taking liquor and smoking ganja, his object being to avoid bad repute and his place being described as a den of drunards and resort of ganja-smokers.

9. Moreover, it is not quite clear that the strained relations between Dattu and Limsey were continuing till October 1949. In August 1949 Dattu made efforts of reconciliation and it is not unlikely that he was successful in his effort. The informal letter that Limsey wrote to Dattu on 8th October inviting him to come to his house & Dattu's response to his call suggest that apparently at that moment they were on good terms. There was thus no strong motive for Limsey to murder Dattu. No doubt, a very strong suspicion arises against Limsey by reason of the existence of the tomb of Dattu in his house but we are unable to hold that the High Court after taking into consideration all the circumstances in the case was wrong in not treating this circumstance as conclusive of the guilt of Limsey. As against the other two respondents, there is not the slightest evidence to hold that they are in any way responsible for the murder of Dattu."

43. In the case of Sucha Singh vs. State of Punjab, (2003) 7 SCC 643, the Hon'ble Supreme Court held that:

"20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. [See: Gurbachan Singh vs. Satpal Singh and others [AIR 1990 SC 209]. The prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. vs. Ashok Kumar Srivastava [AIR 1992 SC 840]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh vs. State (Delhi Admn. (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation.

"A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC 315) quoted in State of U.P. vs. Anil Singh (AIR 1988 SC 1998).

Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.

21. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade vs. State of Maharashtra [1974 (1) SCR 489 (492-493]:

"The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.......The evil of acquitting a guilty person light-heartedly as a learned author '(Glanville Williams in 'Proof of Guilt') has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless.....'a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....."

22. The position was again illuminatingly highlighted in State of U.P. Vs. Krishna Gopal (AIR 1988 SC 2154). Similar view was also expressed in Gangadhar Behera and others vs. State of Orissa (2002 (7) Supreme 276).

44. In the case of Bhupendra Nath Prasad vs. State of Bihar (1992) 3 SCC 547, the Hon'ble Supreme Court held that:

"We find considerable force in this submission. P.W. 6, the Doctor, in his chief examination itself has stated that the family members who brought the deceased to the hospital told him that somebody made him to take wine and betel and that since thereafter he started vomitting the feeling giddiness. In cross-examination P.W. 6 further admitted that he has written in the bed-ticket that the death was due to cardio respiratory failure. It is also elicited from him that such failure could be due to over-drinking of wine or due to poison. He also stated that when brought to the hospital, the wine odour was coming from the mouth of the deceased. So his evidence is not very helpful as to the cause of death. As already mentioned the Doctor, who conducted the post-mortem, has not been examined. However, the post-mortem certificate is on record. It only shows that the viscera was preserved for chemical analysis and the opinion as to the cause of death was reserved till the report of the Chemical Examiner regarding the viscera was received. As already noted no such report of the Chemical Examiner has been produced nor the Doctor who conducted the post-mortem has given any opinion as to the cause of death. Therefore we are left with the Chemical Examiner's report given on the basis of the test examination of the stomach wash and the vomitted substance, said to have been seized by the Police and sent to the Chemical Examiner. P.W. 6 the Doctor does not speak about any such seizure. P.W. 1, a Compounder in the hospital, however, deposed that the vomitted substance was put in a bottle and sealed but he does not say that the same was seized. P.W. 3, however, deposed that the police officer seized the vomitted substance at the house of the deceased and a seizure report was prepared and he affixed his signature. P.W. 12, an Investigating Officer also stated that he seized the vomitted substance. It is needless to say that in a criminal case the cause of death has to be ascertained conclusively. As already noted the post-mortem report does not in any manner establish the same. Even accepting that Nux voice was found in the vomitted substance it cannot be concluded that the death was due to poisoning and particularly when P.W. 6, the Doctor has noted that the death was due to cardio respiratory failure either due to taking excess wine or due to poison. Admittedly the alcoholic smell was coming from the mouth of the deceased when he was unconscious. Therefore a reasonable doubt arises about the cause of death. Even otherwise there is no satisfactory evidence in this case that it was the accused who gave the betel containing poison to the deceased. The wife and the daughters of the deceased who took the deceased to the hospital stated before P.W. 6, the Doctor that the deceased told them that somebody gave him wine and betel and thereafter he became giddy. These witnesses were cross-examined with their earlier statements and P.W. 12, an Investigating Officer admitted that the wife of the deceased did not state before him that the accused had taken her husband with him. Thus the evidence regarding the so-called oral dying declaration is also unsatisfactory and does not inspire confidence. It is well-settled that in a case depending upon circumstantial evidence all the circumstances should conclusively point towards the guilt of the accused. In this case even the cause of death has not been conclusively established. Therefore, we are constrained to interfere."

Delay in institution of an F.I.R.

45. In the instant case, the F.I.R. was lodged by the complainant after an inordinate and unexplained delay of twelve hours at police station Mohammadabad, District Farrukhabad against the appellant and two unknown person, which renders the F.I.R. in this case wholly unreliable. The delay in lodging the F.I.R. corrodes the credibility of the prosecution story. The Supreme Court in several cases held that delay in lodging the F.I.R. creates a doubt if the said dealy is not properly explained.

46. In the case of Apren Joseph @ Current Kunjukunju and others vs. State of Kerala, AIR 1973 SC 1, the Hon'ble Supreme Court held that :

"It is always better that the F.I.R. is rendered before there in time and opportunity to embellish or before the informant's memory fades. Undue or unreasonable delay in lodging the F.I.R., therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. Effect of delay in lodging the F.I.R. would always depend on the facts and circumstances of a given case."

47. In the case of Genesh Bhavan Patel and another vs. State of Maharashtra, AIR 1979 SC 135, the Hon'ble Supreme Court held that:

"In the instant case, some of the main reasons given by the trial court could not be effectively and rationally dispelled. One of such reasons, which cast a cloud on the credibility of the prosecution evidence, was that there was inordinate delay of several hours on the part of the police in recording the statement which was treated as F.I.R. and further undue delay in recording the statements of the alleged eye-witnesses by the investigating officer, and no credible explanation of these delays was forthcoming."

48. In the case of State of M.P. vs. Kriparan, (2003) 12 SCC 675, the Hon'ble Supreme Court held that:

"Inordinate and unexplained delay in lodging the F.I.R. is fatal to the case of the prosecution particularly when the facts and circumstances of the case demonstrate such an inference".

49. In the case of Sahebrao and another vs. State of Maharashtra 2006 (9) SCC 794, The Hon'ble Supreme Court has held that :

"The settled principle of law of this Court is that delay in filing F.I.R. by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the F.I.R. would put the court on its guard to serve if any plausible explanation has been offered whether it is satisfactory."

Delay in disposal of criminal appeal

50. The instant criminal jail appeal bearing No.5192 of 2005 has been pending since 2005 in this Court for the disposal. The appellant had been convicted for offence punishable under Section 302 I.P.C. vide judgment/order dated 24.01.2001 of Additional District and Session Judge, Farrukhabad. The incident took place on 13.09.1996 and the appellant was arrested in the said crime on 20.09.1996, therefore, he is still confined in the jail from 21 years.

51. The delay in disposal of criminal appeals pending in the High Court is matter of serious concern to all those involved in the administration of criminal justice. The Hon'ble Supreme Court has repeatedly emphasized the fact that speedy trial or disposal of the criminal appeals pending before High Courts are a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution of India. The aforesaid Article confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law. If a person is deprived of his liberty under a procedure which is not reasonable, fair, or just, such deprivation would be violative of its fundamental right under Article 21 of the Constitution of India. It has also been emphasized by the Hon'ble Supreme Court that the procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. It is conceded that some amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial/disposal of criminal appeal becomes unduly long, the fairness assured by Article 21 would receive a jolt

52. In the case of Sheela Barse and others vs. Union of India and others: [1986] 3 SCR 562, The Hon'ble Supreme Court held that:

"A Division Bench comprising Bhagwati and R.N. Misra, JJ. re-affirmed that the "right to speedy trial is a fundamental right implicit in Article 21 of the Constitution" and observed "the consequence of violation of fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right."

53. In the case of Srinivas Gopal vs. Union of Territory of Arunachal Pradesh, (Now State) 1988 1 SCR 477, the Hon'ble Supreme Court held that:

"The Hon'ble Supreme Court quashed the proceedings against the appellant on the ground of delay in investigation and commencement of trial. In this case, investigation commenced in November, 1976 and the case was registered on completion of the investigation in September, 1977. Cognizance was taken by the court in March, 1986. These facts were held sufficient to quash the proceedings particularly when the offence charged was a minor one namely, Section 304-A read with 338 of I.P.C."

54. In the case of Machander vs. State of Hyderabad,1955 Cri LJ 1644, The Hon'ble Supreme Court held that:

"This Court observed that while it is incumbent on the court to see that no guilty person escapes, it is still more its duty to see that justice is not delayed and accused persons are not indefinitely harassed. The scales, the court observed, must be held even between the prosecution and the accused. In the facts of that case, the court refused to order trial on account of the time already spent and other relevant circumstances of that case."

55. In Strunk vs. United States, 37 Law Edn. 2Nd 56, it was held that an accused's right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial. It was observed that the desires or convenience of the accused or other individuals are of little relevance and make no difference to the prosecutor's obligation to ensure a prompt trial. The main question considered in this case was whether the violation of the said guarantee entails dismissal of the charges. It was held that dismissal of charges is the only possible remedy where a speedy trial has been denied. Indeed, in this case, the court of appeals was also of opinion that the accused's right to speedy trial was denied but it did not quash the charges but directed merely that the sentence awarded to the accused should be reduced by the period of unconstitutional delay. (The matter was taken to appellate court after the district court had convicted and sentenced the accused).

56. In the case of Bell vs. Director of Prosecution, Jamaica [1985] 2 A.E.R. 585, the Privy Council expressely affirmed the principles enunciated in Barker in the following words :

"Their Lordships acknowledge the relevance and importance of the four factors lucidly expanded and comprehensively discussed in Barker v. Wingo. Their Lordships also acknowledge the desirability of applying the same or similar criteria to any constitution, written or unwritten, which protects an accused from oppression by delay in criminal proceedings. Th weight to be attached to each factor must however vary from jurisdiction to jurisdiction and from case to case."

57. In this case, the Privy Council emphasized the necessity of taking notice of the delays inherent in a particular system. The Privy Council was dealing with a case from Jamaica. The Court of Appeals of Jamaica held that having regard to the circumstances obtaining in that country, a delay of 32 months cannot be said to infringe the constitutional right of an accused to speedy trial. The Privy Council observed that this opinion of the Jamaican court, which must be deemed to be acquainted with the conditions in that country, must be accepted. But, inasmuch as, it was a case of re-trial, the Privy Council held that the said delay must be held to have infringed the said right. The Board emphasized that a re-trial must be held with greater speed and that the delay which may be ignored in the case trial may not be ignored in the case of re-trial.

58. In the Criminal Appeal No.509 of 2017, Hussain and others vs. Union of India, the Hon'ble Supreme Court vide judgment dated 09.03.2017 held that delay in deciding the criminal appeals are violation of right of accused guaranteed under Article 21 of the Constitution of India. The Hon'ble Supreme Court had framed the guidelines for speedy trial and disposal of criminal appeals.

59. Delay in the context of justice denotes the time consumed in the disposal of case, in excess of the time within which a case can be reasonably expected to be decided by the Court. No one expect a case to be decided overnight. However, difficulty arises when the actual time taken for disposal of the case for exceeds its expected life span and that is when we say there is a delay in dispensation of justice. In its 41st report, the Law Commission had observed that the Criminal Appeals should be heard at earliest by the High Court to avoid miscarriage of justice and to secure a uniform standard in dealing with such criminal appeals.

60. In the instant case, the prosecution has miserably failed to prove its case beyond reasonable doubt. The ocular evidences of PW-1, PW-3 and PW-4 stated in their deposition that they had not seen the accused on the place of the incident. They had not supported the case of the prosecution, but prosecution has chosen not to be declared them as hostile witnesses. The prosecution has also failed to establish the motive and to recover the weapon used in the crime. F.I.R. was lodged next day and delay in lodging the F.I.R. was not explained. There are several material contradictions in the statements of the ocular evidences. Accused has already undergone 21 years in jail. The criminal appeal has been pending since 2005 before this Court.

61. The appellate court is under an obligation to consider and identify the error in the decision of the trial court and then to decide whether the error is a gross enough to warrant interference. The appellate court is not expected to merely substitute its opinion for that of the trial court and that it has to exercise its discretion very cautiously to correct an error of law or fact, if any and significant enough to warrant reversal of the verdict of the trial court.

62. The prosecution case, when judged on the touchstone of totality of the facts and circumstances, does not generate the unqualified and unreserved satisfaction indispensably required to enter a finding of guilt against the appellant. Having regard to the evidence on record as a whole, it is not possible for this court to unhesitatingly hold that charge levelled against the appellant has been proved beyond reasonable doubt. In contrast, the findings of the trial court are decipherably strained in favour of the prosecution by overlooking many irreconcilable inconsistencies, anomalies and omissions rendering the prosecution case unworthy of credit. We are of the unhesistant opinion that the prosecution has failed to prove the charge against the appellant to the hilt as obligated in law and thus, he is entitled to the benefit of doubt. The appeal thus succeeds and is allowed. The impugned judgment and order is set aside. It is directed to release the appellant from the custody forthwith, if he is not required in other crime/case.

63. The Registry is directed to send a certified copy of the judgment with all original documents to the concerned court below for compliance.

64. The learned Amicus Curiae Sri Arvind Kumar Singh shall be paid Rs.10,000/- for providing active assistance to the Court from the fund of State Legal Services Authority.

Order Date :-15.11.2017

Jitendra

(Chandra Dhari Singh,J.)  (Shri Narayan Shukla, J.)