Ram Gopal vs State Of U.P.
2017 Latest Caselaw 7458 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 43
 

 
Case :- CRIMINAL APPEAL No. - 538 of 1997
 

 
Appellant :- Ram Gopal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Tej Pal, Ghanshyam Joshi, Noor Mohammad, Rahul Saxena, Sukhendr Apal Singh, V.P. Sharma
 
Counsel for Respondent :- D.G.A.
 

 
Hon'ble Pradeep Kumar Singh Baghel, J.

Hon'ble Rajiv Gupta, J.

This is an appeal under Section 374 (2) Cr.P.C. by the sole appellant- Ram Gopal against the judgment and order dated 26.02.1997 passed by 1st Additional Sessions Judge, Moradabad, whereby the trial court has found the appellant guilty for commission of the offence under Sections 302 and 201 IPC and sentenced him to undergo imprisonment for life under Section 302 IPC and three years rigorous imprisonment and to pay a fine of Rs.1,000/- under Section 201 IPC. In default of payment of fine, to further undergo simple imprisonment for one month.

The prosecution case in short is that PW-1 Ram Chandra made a written report on 26.11.1993 that his son Kamal aged about 12 years is missing for the last three days. The FIR was registered on 26.11.1993 at 3:40 P.M. The investigation was entrusted to SI Govind Singh (PW-6). In his written report, PW-1 has named the appellant for commission of the said offence.

PW-1 has stated in his written report that his son Kamal was working in the shop of Babbu Mistri, who runs a mechanic shop of scooter and motorcycle. On 23.11.1993 at 4:00 P.M. in the evening, the accused went to the shop of Babbu Mistri and introduced himself as a close relative of Kamal and asked him to relieve Kamal. Babbu Mistri after verifying the fact that Ram Gopal is a close relative of Kamal, allowed Kamal to accompany the accused-appellant.

In the evening, when Kamal did not return back to his home, then PW1 searched him at various places including the village of Ram Gopal at Gumsani.

After hectic search at various places, when Kamal was not found, PW-1 lodged an FIR on 26.11.1993 at 3:40 PM. On the basis of which, the chik FIR was drawn on the same day and the investigation was handed over to SI Rahtu Singh (PW-7), who arrested the appellant at 5:00 PM in the same evening.

It is stated that at the instance of the accused-appellant-Ram Gopal, the body of Kamal was recovered from Gaggan River. A recovery memo was prepared and the same was signed by the independent witnesses and the police officials. Thereafter, on the direction of the I.O., PW-6 Govind Singh conducted the inquest on the person of the deceased and after preparation of other relevant papers, the body was sent for post-mortem.

PW-4 Dr. N.B. Sharma conducted an autopsy on the person of the deceased Kamal and in his opinion, the cause of death was strangulation.

In the post-mortem report, following injuries were found on the body of the deceased.

1. Abrasion 3 cm x 1 cm on the front of back on left side.

2. Abraded contusion 7 cm X 2 cm on the front of neck right side.

3. A contused area 2 cm x 1 cm on the middle of front of neck.

On the completion of investigation, a charge-sheet was submitted against the appellant as a sole accused in the said offence. Learned Magistrate committed the matter for trial to the court of session, who framed the charges against the appellant, to which he did not plead guilty and claimed to be tried.

In support of its case, the prosecution has produced seven witnesses; PW-1 Ram Chandra, the first informant as well as father of the deceased Kamal, PW-2 Smt. Kalawati, the mother of the deceased Kamal, PW-3 Hasib Ali, co-worker of the deceased Kamal, PW-4 Dr. N.B. Sharma, PW-5 Babbu Mistri, owner of the shop, PW-6 SI Govind Singh and PW-7 SI Rahtu Singh, the Investigating Officer.

The Trial Court, after considering the evidence on record, found the appellant guilty for commission of the offence under Section 302 and 201 IPC.

Accordingly, the Trial Court sentenced the appellant to undergo rigorous imprisonment for life under Section 302 IPC and to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/- under Section 201 IPC and in default of payment of fine, to undergo for further one month's simple imprisonment.

Learned counsel for the appellant Sri Rahul Saxena submits that the finding of the Trial Court convicting the appellant for the above offence is perverse as the Trial Court has failed to appreciate the entire evidence in proper perspective.

He submits that there is no eye-witness of the incident and conviction has been made on the basis of circumstantial evidence. He further submits that Babbu Mistri, in his cross-examination, has stated that Kamal has not asked him to go with the accused-Ram Gopal but he has asked from Hasib, who is also co-worker at his shop, to go.

Learned counsel for the appellant has submitted that it is hearsay evidence. Thus, story of the prosecution of last seen is completely absent in the facts of this case.

He has further submitted that the recovery is also doubtful as PW-1, in his statement, has stated that he was present at the time of recovery of the dead body, which he has signed but the recovery memo does not bears the signature of PW-1 Ram Chandra, as such his presence at the time of recovery is doubtful.

He has also drawn our attention to the deposition of PW-1, wherein he has stated that the recovery was made after an hour of filing of the FIR, which does not corroborate with other evidences produced by the prosecution.

He further submits that in the recovery memo, it is mentioned that the recovery was made at 8:10 PM, which is against the statement of PW-1, who says that the recovery was made within one hour of filing of the FIR. Since the FIR was lodged at 3:40 PM, hence the said statement is false.

He has further drawn our attention to the deposition of PW-7 SI Rahtu Singh, who has stated that at the time of recovery, no family member of the complainant was present and after some time, they arrived at the spot. Whereas, PW-1 has stated at the time of recovery, he was present at the spot.

He has further invited our attention to the discrepancy in the prosecution case by placing the evidence of PW-7 SI Rahtu Singh (Investigating Officer, IO) that the arrest was made at 5:00 PM after the FIR was lodged at 3:40 PM.

He submits that the recovery is totally doubtful and it is made from an open place. Lastly, he has urged that in the circumstantial evidence, motive has an important facet.

In the present case, from the statement of PW-2 Kalawati, it is evident that the alleged motive was prior to 5-6 years of occurrence of the incident.

He further submits that the said motive, which is attributed to the appellant, was 5-6 years old in respect of his demand of Rs.5,000/- from Kalawati and when Kalawati declined the said demand, he had threatened to her.

He further submits that the appellant is living with his wife in his own house and wife of the appellant is in government job. Hence said motive, which has been attributed to the appellant, is unbelievable.

In view of the said submission, he has tried to impress upon the Court that the finding recorded by the Trial Court holding the appellant guilty is a perverse finding.

Sri A.N. Mulla, learned AGA submits that Babbu Mistri, in his examination-in-chief, has clearly stated that the appellant had come to his shop and had identified himself as close relative and after being satisfied, he had allowed Kamal to accompany the appellant, who is the real Phupha of the deceased Kamal.

Learned AGA further submits that even in the cross-examination, Babbu Mistri reiterated the said facts but subsequently, after lunch, he had resiled from his statement and has introduced for the first time the fact that the appellant had come to Kamal and Kamal had accompanied the appellant and this fact was revealed by Hasib on the next day, who is also working at his shop.

Learned AGA further submits that the recovery of the dead body at the instance of the appellant is a clinching circumstane against the appellant, which cannot be ignored in the facts of this case.

Learned AGA has further submitted that there is clear motive for the murder of Kamal, which has been proved by the prosecution, hence the findings of the Trial Court do not suffer from any perversity.

We have heard learned counsel for the parties and perused the record.

PW-1 is the father of the deceased Kamal, who is only 12 years old and he was working in the mechanic shop of PW-5 Babbu Mistri.

From the evidence on record, it is evident that on the fateful day i.e. 23.11.1993, the appellant went to the shop of Babbu Mistri and introduced himself as Phupha of Kamal and sought the permission of PW-5 to take Kamal along with him.

PW-5 Babbu Mistri having being satisfied, allowed Kamal to accompany the appellant. There is serious dispute regarding this fact as the case is based on the circumstantial evidence, therefore, this piece of evidence need a little elaboration.

A careful perusal of the statement of PW-5 Babbu Mistri shows that in his examination-in-chief, he has clearly stated that the appellant came to his shop and sought the permission to take Kamal along with him. This fact has also been reiterated in his cross-examination but after lunch, when cross-examination was resumed, he has changed his version a little bit and said that this fact has been told by Hasib, who is also a co-worker of Kamal.

Learned counsel for the appellant has laid emphasis that when in cross-examination, PW-5 Babbu Mistri has stated that Hasib has told him about the fact but the prosecution has failed to declared him hostile.

We do not agree with the said submission. Firstly, it is well settled law that entire statement of the witnesses has to be analyzed and if in certain part of the statement of the prosecution witnesses, there is minor discrepancy, it can be ignored.

In the present case, by considering this issue we have also perused the statement of PW-3 Hasib Ali. In his statement, he has clearly stated that the appellant came to the shop of Babbu Mistri and he sought the permission from PW-5 Babbu Mistri. Thus, the statement of Hasib Ali is very clear and supports the prosecution case. The subsequent part of the statement of Babbu Mistri that Hasib has told him about the fact, is not true version, and is not corroborated by any other evidence.

From the aforesaid facts, it is clear that the prosecution has successfully proved the theory of the last seen. In so far as the submission that the recovery is doubtful, no doubt that the recovery is a weak piece of evidence but in the present case, from the statement of the PW-1, PW-6 and PW-7, it is evident that the recovery of the dead body was made at the instance of the appellant and the body of the deceased Kamal was found near Gaggan River.

PW-6 Govind Singh was a Sub-Inspector at the relevant time at Kotwali, Moradabad. He has deposed that on 26.11.1993, he accompanied Sub-Inspector Rahtu Singh, who was investigating the present cace. According to him at the instance of the accused/appellant, the body of deceased Kamal was recovered from the Gaggan River. After the body was taken out from the river, he made the inquest report. He has proved those papers, which was prepared by him. There were five independent witnesses, who have signed the inquest report.

PW-7 Rahtu Singh is the SI and Investigating Officer. He has deposed that after recording statement of Ram Chandra, he arrested the accused/appellant from Kapoor Company and recorded necessary entries in G.D. He has stated that during interrogation, the accused Ram Gopal confessed that he had done away Kamal and had concealed his corpus, which he can get recovered. At his instance, the body was found at the bank of Gaggan River. The body was submerged in the water at the edge of the river, the body was taken out of water by witnesses of informant. He has further stated that accused had confessed that he had strangulated the boy. It was stated that at the time of recovery, no family member of accused was present there.

The minor discrepancy pointed out by learned counsel for the appellant with regard to the recovery of Chappal of the accused or the deceased Kamal does not make any material difference in the facts.

As regards the submission of learned counsel for the appellant that the PW-1, in his statement, has stated that he has signed Panchayatnama but a perusal of Panchayatnama, it is evident that his signature is not there.

In our view, this discrepancy is not material discrepancy. The fact remains that the body was recovered at the instance of the appellant.

As regards the submission of learned counsel for the appellant that demand was said to be 5-6 years old from the occurrence of the incident.

We have examined this issue by perusing the statement of PW-1 Ram Chandra and PW-2 Kalawati. PW-2 Kalawati, in her statement, has stated that the wife of the appellant Omwati is the real sister of PW-1. The appellant has always been maltreating his wife Omwati after their marriage, therefore, she lived at her parental house at least for six years and she did not go to her matrimonial house.

PW-2 Kalawati has stated that the appellant had become alcoholic and he demanded Rs.5,000/- from her but she expressed her inability to give the money, which annoyed him. He threatened to her "she would weep throughout her life."

She has further stated that due to the said reason, appellant was nursing grudges against her. She has given detailed description that Kamal used to go to the shop of PW-5 Babbu Mistri in the morning and used to come back to take his lunch. On 23rd November, 1993, when the incident had occurred, he had come to the house for lunch and went back to the shop but when he did not return back to the home in the evening, she asked her husband PW-1 Ram Chandra to search him and later, his body was found near Gaggan River at the instance of the appellant.

PW-1, in his deposition, has reiterated the same facts about the motive. A careful analysis of the statement of PW-1 and PW-2, we find that there is no inconsistency or discrepancy in their facts with regard to the motive of the appellant.

The statement of PW-1 and PW-2 clearly corroborate the prosecution case. Hence, we are satisfied regarding the motive of the appellant to do away Kamal, who was only 12 years old. PW-4 Dr. N.B. Sharma, who has conducted autopsy on the body of the deceased, has stated that in his opinion, the cause of death was strangulation.

We have perused the post-mortem report and from the injuries sustained by Kamal, it is well established that his death was caused due to strangulation and according to the Doctor, all signs for strangulation were found.

The law on the circumstantial evidence is well settled. The Supreme court in the case of Hanumant Vs. State of Madhya Pradesh, AIR 1952 SC 343 has settled the proposition with regard to the circumstantial evidence.

"12. It is well to remember that in cases where the evidence in of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Exhibit P-3A or outside and we are constrained to observe that the courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case."

The said judgment has been consistently followed by the Supreme Court. It is well settled that in cases where the evidence in of a circumstantial nature, the circumstance from which the conclusion of guilt is to be drawn should at the first instance be fully established and all facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and there must be of such a nature as to exclude every hypothesis.

In other words, there must be a chain of circumstances pointing towards guilt of the accused and it does not leave any reasonable ground for innocence of the accused.

The Supreme Court has further noted while holding the accused guilty, in the case of circumstantial evidence, there should not be the word "may be" but it should be "must be".

The reference may be made to the following judgments:-

(1). Tufail Vs. State of U.P., (1969) 3 SCC 198.

(2). Ram Gopal Vs. State of Maharashtra, 1972 CriLJ 473.

(3). Shivaji Sahabrao Babode Vs. State of Maharashtra, 1973 CriLJ 1783.

(4). Riaz Ali Vs. State (Govt of NCT) of Delhi, 194 (2012) CriLJ 706.

(5). Munna Kumar Upadhyay Vs. State of A.P., (2012) 6 SCC 174.

From the analysis of the aforesaid decisions, the following principles emerged out before a case against the accused can be said to be fully established:-

(a) That the circumstances concerned 'must be proved' and not 'may be established'. The mental distance between 'may be' and 'must be' is long and divides way conjunctures from sure conclusions

(b) The circumstances should be a conclusive nature and tendency.

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

(d) They should exclude every possible hypothesis except the one to be proved.

(e) The facts so established should be consistent only with the hypothesis of the guilt of the accused. They should not be explainable or any other hypothesis except that the accused is guilty.

Applying the aforesaid principle in the present case, for the reasons recorded above, we find that the circumstance stand established against the accused/appellant.

(A) The appellant went to shop where the deceased was working and having been last seen in the company of the deceased. This fact is evident from the deposition of PW-3 and PW-5.

(B) The knowledge of the appellant regarding the place of dead body. The body was recovered at his pointing out.

(C) The time of death of the deceased as opined in the post-mortem report point out to the time being approximately after deceased was taken away by the appellant, thereafter it can be concluded that the appellant had an opportunity to kill the deceased and there was no possibility that anyone else had committed the offence.

(D) Trial Court after examining the testimony of PW-2 Kalawati has found that there was a motive to appellant to kill Kamal.

Having due regard to the facts and circumstance of the case and evidence on record, we find that circumstances mentioned above having immense inferential value and is incapable of explanations of any other hypothesis than that of guilt of the accused/appellant.

Accordingly, we are of the view that the findings recorded by the Trial Court holding the appellant guilty for commission of offence under Section 302 IPC and imposing sentence of life imprisonment do not suffer any perversity, hence we have affirmed those findings as well as the sentence awarded to him under Section 201 IPC for three years rigorous imprisonment along with a fine of Rs.1,000/-. If the fine is not paid, the appellant shall undergo for further one month's simple imprisonment. Both the sentences shall run concurrently.

The appellant is on bail. His bail is cancelled. The CJM/Sessions Judge, Moradabad shall cause the appellant Ram Gopal to be arrested and lodged in jail to serve out the sentence.

The appeal is dismissed.

Let a copy of this judgment and the record be sent back to the lower court for its intimation and necessary compliance.

Judgment be certified and place on record.

Order Date :- 30.11.2017

Nadim