Sujeet vs State Of U.P.
2018 Latest Caselaw 1987 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 

 
In Chamber
 

 
Case :- JAIL APPEAL No. - 4302 of 2013
 

 
Appellant :- Sujeet
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Rajesh Dayal Khare, J.

Hon'ble Jayant Banerji, J.

(Delivered by Hon'ble Jayant Banerji, J.)

By means of this Jail Appeal, the appellant seeks to challenge the judgment dated 13.09.2013 and the order imposing sentence dated 17.09.2013 passed by the Additional District and Sessions Judge, Court No.9, Kanpur Dehat whereby the appellant-Sujeet was convicted under Sections 302 and 201 of the Indian Penal Code and awarded a sentence imposing life imprisonment and Rs.5000/- penalty in respect of the conviction under Section 302 IPC and, on his failure to pay the amount of penalty, to undergo three years additional imprisonment and in respect of his conviction under Section 201 IPC, a term of three years of rigorous imprisonment with Rs.2000/- penalty was also imposed and, in case of failure to deposit the said amount of penalty, an additional imprisonment of a term of one year was imposed. Both the aforesaid sentences were directed to run concurrently.

Heard Ms. Usha Srivastava, Amicus Curiae on behalf of the appellant and the learned Additional Government Advocate on behalf of the State.

On 12.10.2011, Shiv Shankar (PW-8) is stated to have given a written report (Exhibit Ka-16) in Thana Derapur, District Ramabai Ngar to the effect that on that date, while going to Akbarpur at 10.15 in the morning from Village-Muvai Mukta, along the 'kharanja' road near to the Highway near which the milestone on which Kanpur 62 kms. is written, below the road, a dead body of a male person was lying which is 400 mts. from Vandana Hotel towards Mungisapur. Just then employees of Vandana Hotel came, they informed that the dead body is of Anil who used to work in Umran Dhaba. The aforesaid written report was entered by the then Clerk Constable Moharir Iqbal in the General Diary at Report No.22 at 11:30 am.

The Chowki Incharge, Bihar Ghat, Police Station Derapur, Sri Kedar Singh, Prosecution Witness No.-5, on receiving information, went to the spot of the incident on 12.10.2011 and appointed the panch and prepared Panchayatnama (Exhibit Ka-5) and prepared a letter for the Chief Medical Officer, took the photographs and sent the dead body for postmortem.

On 13.10.2011, at 7:15 am, the Prosecution Witness No.1-Kamalkant Dixit filed a written report (Exhibit Ka-1) and got lodged an First Information Report to the effect that on the side of the Highway, his Vandana Filling Station Petrol-pump and Dhaba are situated and one Sujeet s/o of Udrej Singh r/o Village-Khaira Thana Dev Gaon, District Azamgarh was working as a waiter in the hotel from 28.09.2011 and earlier he used to work at Umran Dhaba in Rania. On 11.10.2011 Anil Kumar, a waiter working in Umran Dhaba, came to meet Sujeet in his Dhaba and on that very night at 11.00 pm both persons left towards Muvai Mukta stating that they had to attend the call of nature. Thereafter, around 1.30 at night Sujeet returned alone and went to sleep in the labour room. On 12.10.2011, around 10.30 am, it came to his knowledge that 300 mts. from his hotel on the side of the road going towards Muvai Mukta, a bloodstained body of a man is lying in the bushes. On seeing that body, his employees namely, Pooran Singh s/o Daroga Singh and Arvind Kashyap s/o Bhagwan Das both r/o Ladhpur Pad District Ramabai Nagar stated that the body is of Anil Kumar, who had gone out with Sujeet and was wearing T-shirt of Sujeet. The informant further stated that an old dispute was there between Anil and Sujeet and that he had come to know that Sujeet had murdered Anil.

On the basis of the report of PW-1, an FIR was written and Case Crime No.189 of 2011 under Sections 302 and 201, IPC was registered and an entry in the General Diary was made on 13.10.2011 bearing Report No.11 at 7.15 am.

The postmortem was done by Dr. Surendra Kumar Sharma (PW-4) who also proved the postmortem report. The injuries mentioned in the postmortem report were crush injuries over the face extending from frontal bone to upper part of neck and left pinna to right pinna. The underlying bone was crushed and eyes, nose, teeth were missing. Brain matter was coming out and half centimetre maggots were present. The time of death is written as "about 2-3 days old". However, the panchayatnama dated 12.10.2011 (Exhibit Ka-5) that was proved by the PW-5, Sub-Inspector Kedar Singh, mentions that it appears that for concealing the crime, some inflammable material was poured on the face of the dead body. The investigation was conducted by Smt. Anjana Singh (PW-6), the Inspector In-charge of Thana-Derapur and thereafter the charge-sheet dated 8.12.2011 was filed bearing Exhibit Ka-15.

The arrested accused Sujeet was produced before the Court of Additional District and Sessions Judge, Court No.9, Ramabai Nagar and on 30.5.2012 the Court framed two charges for the accused Sujeet to which he pleaded not guilty and, therefore, the case was committed to trial.

The trial commenced and prosecution witnesses were produced. PW-1 Kamalkant Dixit was the informant. PW-2 Pooran Singh, who is working in the hotel Vandana Dhaba, turned hostile. PW-3 Head Constable Gopi Shyam proved the writing of the FIR. PW-4 Dr. Surendra Kumar Sharma proved the postmortem report. PW-5 Sub-Inspector Kedar Singh proved the panchayatnama dated 12.10.2011. PW-6 was Smt. Anjana Singh, Station House Officer, Thana Derapur who made the investigation. PW-7 was Constable Brajesh Babu Tiwari who proved the entry in the General Diary of the report of Shiv Shankar on 12.10.2011. PW-8 was Shiv Shankar who affirmed his signatures on his report. PW-9 was Arvind Kashyap, the other employee of Vandana Dhaba, who turned hostile. The statement of the accused under Section 313 of the Code of Criminal Procedure (Cr.P.C.) was taken on 31.08.2013 and after consideration of the evidence on record, the Additional District and Sessions Judge, Court No.9, Ramabai Nagar (Kanpur Dehat) by means of the judgment dated 13.09.2013 and sentencing order dated 17.09.2013 convicted Sujeet and imposed life imprisonment with penalty in regard to Section 302 IPC as well as three years rigorous imprisonment for his conviction under Section 201 IPC alongwith penalty. This judgment is under challenge in this Jail Appeal.

Learned Amicus Curiae has vehemently urged that the prosecution had concocted story to frame the accused. She has placed the FIR lodged by PW-1, Kamalkant Dixit and has referred to his deposition and has argued glaring contradictions in them. It is urged that PW-1 had stated in his check FIR that two employees of his Hotel, namely Pooran Singh and Arvind Kashyap had informed him that the dead body is of Anil and that Anil was wearing T-shirt of the accused Sujeet, while in the cross-examination he stated that he had received information of the unknown dead body and he had gone to the spot and saw the dead body and identified it. Moreover, in the leading question put to PW-1, he denied that he owed Sujeet (the accused) a sum of money and used to quarrel with PW-1 and, therefore, he was falsely implicated. It is urged that in view of the just demands of the accused Sujeet of his salary from the PW-1, the PW-1 falsely implicated Sujeet in the murder of Anil. Learned Amicus Curiae also urged that both the employees of the PW-1, namely Pooran Singh (PW-2) and Arvind Kashyap (PW-9) had turned hostile. It is further urged that on 13.10.2011, a bloodstained shirt was recovered from the Almirah of the servant quarter of Vandana Dhaba but admittedly that shirt was not sent for forensic examination. It was urged that this Appeal is firmly grounded and deserves to be allowed.

The learned Additional Advocate General, on the other hand, has stringently defended the prosecution case and has stated that the accused had known the deceased and used to work with him at Umran Dhaba prior to working in Vandana Dhaba and it has come in the deposition that there was an old dispute between Anil and Sujeet which led to frequent quarrel between them. It is urged that the accused and Anil were last seen by the PW-1 while leaving the Dhaba together at 11.00 pm on 11.10.2011 and after that at 1.30 at night when Sujeet (the accused) returned alone and went to sleep in the servant's quarter. The bloodstained shirt was also recovered from possession of the accused. Therefore, it is urged that the finding of guilt as well as sentence awarded by the Trial Court do not call for any interference and this Appeal deserves to be dismissed.

The question that needs to be looked into is whether the prosecution has been able to proof its case beyond reasonable doubts.

It was PW-8, Shiv Shankar, who is stated to have given a written report to the police on 12.10.2011 regarding the dead body of a male person. This report was marked as Exhibit Ka-16 and PW-8 specifically has affirmed his signatures on the report. Despite the PW-8 mentioning in the complaint (Exhibit Ka-16) that employees of Vandana Dhaba came and identified the dead body as that of Anil, he answered in his cross-examination that he did not know whether there was any employee of Vandana Dhaba at the site on not. He has also stated that the complaint was not written in his presence but his signature thereon was directed to be made by the SHO Derapur. The panchayatnama was prepared by the PW-5, Kedar Singh, Sub-Inspector, Kotwali Fatehgarh on 12.10.2011 after visiting the site and he sent the dead body for postmortem. On 13.10.2011, the PW-1 namely Kamalkant Dixit submitted a written report in Police Station-Derapur, District Ramabai Nagar which was registered by the police. In his deposition, the PW-1 stated that before working in his Dhaba, the accused Sujeet used to work in Umran Dhaba which is near Rania where the deceased Anil Kumar also used to work. He has improved on his report by stating that on 11.10.2011 at 11.00 O'clock night, Anil and Sujeet went towards a pond near Muvai Mukta village for answering the call of nature. As per the FIR dated 13.10.2011, the PW-1 came to know at 10.30 in the morning of 12.10.2011 that a man's body is lying in the bushes near the road going to Muvai Mukta village and, on seeing which, the employees of his Hotel, namely Pooran Singh and Arvind Kashyap had told him that he is the same Anil who had gone out with Sujeet and that the deceased was wearing the T-shirt of Sujeet. However, in his examination-in-chief, he has stated that Pooran Singh and Arvind Kashyap, who were the waiters in his Hotel, had told him that they recognised the dead body of Anil. Further, in the FIR, the PW-1 had stated that he has come to know that there was an old dispute going on between the deceased Anil and the accused Sujeet and they had quarrelled over the dispute. However, in his examination-in-chief, he stated that later he had come to know from Umran Dhaba that Anil and Sujeet had fought several times with respect to the money that Sujeet had lost while gambling and that Sujeet himself had called Anil for giving him money and for this reason the accused Sujeet had murdered Anil. In his cross-examination, the PW-1 stated that he had written the complaint in his Dhaba but prior to the writing of the complaint, he had not attempted to contact Umran Dhaba. It is, therefore, very strange and inexplicable when the PW-1 did not attempt to contact Umran Dhaba prior to the writing of the complaint then how he could have written in the FIR that the deceased Anil and the accused Sujeet had an old dispute and enmity between them. It is important to note that admittedly the PW-1 came to know about the murder of Anil at 10.30 in the morning of 12.10.2011 and had ample time before submitting his complaint to the police which resulted in lodging of the FIR on 13.10.2011. It is also important to note that the PW-2, Pooran Singh as well as PW-9, Arvind Kashyap, who were admittedly working in the Dhaba of PW-1 and had allegedly informed the PW-1 about the dead body of Anil and who were referred to by the PW-1 in the FIR, had turned hostile during their deposition before the Court below. Thus, the FIR when read in conjunction with the deposition of the PW-1 itself creates serious doubts as to the credibility of the PW-1.

The Investigating Officer, Smt. Anjana Singh (PW-6) has deposed regarding recovery of a bottle containing some amount of acid and one brick that was bloodstained, on the pointing out of the accused-Sujeet, as well as the preparing of a site plan of the place of recovery on 13.10.2011. She has also proved the recovery of one shirt belonging to the deceased and the recovery memo. In her cross-examination, she admits that on the panchayatnama, no person from Vandana Dhaba or Umran Dhaba were made any of the panch. It is strange that despite recovery by the Investigating Officer of the bloodstained brick, a bottle containing the acid from the site of the incident and the bloodstained shirt from the Almirah on the pointing out of the accused Sujeet, none of these items were sent for forensic examination. This reflects the sheer callousness of investigation and lends force to the case of the defence that the accused has been framed in the murder of the deceased Anil.

The PW-2, Pooran Singh, a worker at the Dhaba where the accused Sujeet used to work, had turned hostile and, on being cross-examined on behalf of the prosecution, has denied giving any statement under Section 161 of Cr.P.C. and, in the leading question put to him, has denied having seen the deceased Anil and the accused Sujeet going together. The PW-9, Arvind Kashyap, who was working at the Dhaba, also turned hostile and in his cross-examination by the prosecution has denied giving any statement under Section 161 Cr.P.C. He has also denied in his cross-examination that the deceased as well as the accused had gone out at night to answer the call of nature.

Moreover, the accused Sujeet in his statement under Section 313 of Cr.P.C. has denied the allegations made against him. He has stated that he used to work as a waiter in the Vandana Hotel and had quarrelled a lot with the owner regarding his salary and the owner in connivance with the SHO of Derapur Police Station had falsely implicated him in the case.

After careful perusal of the records of the Exhibits and the depositions of the witnesses, it is apparent that the murder for which the accused was convicted, took place in the night of 11.10.2011. There are no witnesses of the murder and this is a case of circumstantial evidence. It was, therefore, imperative on the part of the prosecution to have established and proved the chain of events completely so as not to leave any room for doubt regarding the identity of the murderer. The PW-1, who had allegedly last seen the accused and the deceased, was the sole witness to the exit of the accused and the deceased at 11.00 at night on 11.10.2011. No other independent witness has been produced by the prosecution who could vouch and corroborate the testimony of the PW-1. Vandana Dhaba is owned by the PW-1 and is admittedly situated near to the Highway and as per the statement of PW-1 himself, the day the deceased had come to the Dhaba, the PW-1 was working from 12 noon till 1.30-2.00 at night. It would, thus, be difficult to believe that there were no other witnesses present at the Dhaba at that point of time who could be produced by the prosecution to corroborate the statement of the PW-1. The PW-1 himself had named two witnesses, namely Pooran Singh and Arvind Kashyap who were working in his Dhaba, but the aforesaid witnesses themselves turned hostile during their testimony. Moreover, the recovery affected by the Investigating Officer (PW-6), of the bloodstained brick, the bottle containing the acid and the bloodstained T-shirt ought to have prompted any police officer of merit to have immediately dispatched these items for forensic examination which was never done by the Investigating Officer. The forensic examination of these recovered articles could have been proved in the Court below for establishing the guilt of the accused but all this was not done.

All this leads us to the irresistible conclusion, as affirmed by the defence, that the accused Sujeet has been falsely implicated in the case. The chain of events has not been established by the prosecution. It was incumbent on the prosecution to have established the motive ascribed to the accused regarding lost of money due to gambling and the quarrels between the accused and the deceased which was not done.

The present case rests on circumstantial evidence and the well settled law regarding a case based on circumstantial evidence is that the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances, so proved, must form such a chain of events so complete as would permit no conclusion other than one of guilt of the accused.

Recently, in the case of Ganpat Singh Vs. The State of Madhya Pradesh 2017 (16) SCC 353, the Supreme Court has once again reiterated the law relating to circumstantial evidence as follows:

"The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence."

In view of the reasons stated above, this Jail Appeal deserves to be allowed and is, accordingly, allowed. The conviction and sentences of the accused awarded by the Court below by means of the judgment dated 13.9.2013 and the order dated 17.9.2013 are set aside. The accused Sujeet, who is in jail, shall be released forthwith.

In the end, we acknowledge the able assistance rendered by Ms. Usha Srivastava, learned Amicus Curiae, who shall be entitled to a fee of Rs.10,000/-.

Date :-16.08.2018

SK

(Rajesh Dayal Khare, J.)

(Jayant Banerji, J.)