Nand Ram vs State
2018 Latest Caselaw 1094 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 
Case :- JAIL APPEAL No. - 7497 of 2007
 

 
Appellant :- Nand Ram
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Atul Kumar Srivastava,Raghuvansh Mishra[A.C.],Vijay Shankar Mishra,A.C.
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Chandra Dhari Singh,J.

(Per Hon'ble Ashwani Kumar Mishra, J.)

1. Appellant Nandram son of Gurudayal Kumhar, resident of village Jafarpura, Police Station Usrahar, District - Etawah has been convicted of an offence under sections 364, 302 readwith section 201 IPC by the court of Additional Sessions Judge, Court No.1, Etawah in Sessions Trial No.530 of 2000, vide judgment dated 31.01.2007. The trial arose out of Case Crime No.173 of 1999, Police Station Usrahar, District Etawah wherein appellant was not named. Sentence of life imprisonment has been imposed for offences under sections 364 and 302 IPC, while rigorous imprisonment of 7 years together with fine of Rs.5000 is imposed under section 201 IPC, and in its default the appellant is to undergo one year further rigorous imprisonment. While convicting and awarding sentence to the appellant, other accused persons named in the First Information Report, namely Ram Kishan son of Kamta Prasad Yadav; Jor Singh son of Kamta Prasad Yadav; Balram son of Ram Singh Yadav; Brijesh Kumar son of Maharaj Singh and Sanjeev @ Pandey son of Vishram Singh Yadav have been acquitted.

2. Accused appellant Nandram is the real brother of informant Ram Prakash, whose minor son Satya Ram, aged about 11 years, was kidnapped and murdered.

3. At about 2.00 PM on 11.08.1999, the deceased went missing from the grove/field of Mustaq. A missing report no.19 was lodged by Ram Prakash on 25.08.1999, at Police Station Usrahar at 11.30 AM against unknown persons. A First Information Report was later lodged on the complaint of Ram Prakash on 16.10.1999, at 9.10 AM, under sections 364/120-B/504/506 IPC as Case Crime No.173 of 1999, against Brijesh, Ram Kishan, Balram, Sanjeev @ Pandey and Jor Singh. Informant apparently is an illiterate person and the complaint was written by one Pankaj Kumar. As per the FIR version son of complainant, namely Satya Ram, aged about 11 years, went missing from the grove of Mustaq at 2.00 PM on 11.08.1999 in respect of which a missing report was lodged on 25.08.1999. On 15.09.1999 at about 5.00 PM, Nandram (appellant) and Ram Prakash son of Chet Ram Yadav, Gorelal, Vrindavan resident of village Jafarpura allegedly saw the kidnapped child Satya Ram in the millet field of Jagdish, son of Hariram Jatav held by accused persons namely Brijesh; Ram Kishan; Balram; Sanjeev residents of Patiyapura, Police Station Bharthana. The accused persons were stated to be armed and had tide the face of Satya Ram and upon seeing complainant's brother Nandram (appellant), Ram Prakash, Gorelal and Vrindavan coming towards them they fled towards the forest with the kidnapped boy. Attempt to rescue the child failed with accused persons fleeing while hurling abuses and threatening them with country made firearm. Upon return to the village accused Jor Singh who is brother of accused Ram Kishan assured that the kidnapped child would be released soon and the complainant was threatened not to lodge a police report, but the kidnapped child has not returned. It was thus complained that accused persons have kidnapped Satya Ram with an intent to kill him and Jor Singh is also a party to it.

4. Pursuant to registering of Case Crime No.173 of 1999, investigation was handed over to SHO of Police Station Usrahar i.e. J. K. Soni. It is alleged that in the statement of witnesses during the course of investigation name of appellant surfaced as an accused. On 12.05.2000, the statement of accused appellant was therefore recorded who admitted having murdered Satya Ram alongwith Ram Kishan, Jor Singh, Balram and Sanjeev and later buried his dead body with the help of other accused persons so as to destroy any evidence of crime. The appellant is stated to have taken the Investigation Officer and other two witnesses, namely Prahlad and Shiv Kumar, to the spot where the dead body was buried. At the south west corner in the field of Mustaq the accused appellant dug earth by 2- 2½ feet where from a human skull together with about 15 bones were recovered. A blue colour sando vest and an underwear were also found. A recovery memo was prepared in the presence of witnesses, vide report no.16, dated 12.05.2000 (Exhibit Ka-5). The accused is said to have identified the skeleton as that of deceased Satya Ram. From a look at the clothes recovered the complainant Ram Prakash also recognized the body/skeleton as that of Satya Ram. A postmortem of the skull and bones recovered was conducted on 12.05.2000 at 4.45 PM.

5. On the basis of materials and evidence collected during investigation a charge sheet was submitted on 05.02.2001 under section 364, 302, 149, 201, 120-B, 504 and 506 IPC against the accused persons including the appellant. The charges were denied and trial proceeded. Following evidence was adduced and exhibited before the court below:-

 
"1.	Exhibit Ka-1		Written report dated 16.10.1999
 
2.	Exhibit Ka-2		Postmortem report
 
3.	Exhibit Ka-3		Application of Gore Lal for affidavit 
 
4.	Exhibit Ka-4		Affidavit of Gore Lal 
 
5.	Exhibit Ka-5		Memo of recovery of bones and clothes dated 				12.05.2000
 
6.	Exhibit Ka-6		Site plan in context of recovery 
 
7.	Exhibit Ka-7		Inquest report 
 
8.	Exhibit  Ka-8		Photo dead body
 
9.	Exhibit Ka-9		Challan dead body
 
10.	Exhibit Ka-10		Papers addressed to R.I. for postmortem
 
11.	Exhibit Ka-11		Documents sent to CMO 
 
12.	Exhibit Ka-12		Charge sheet 
 
13.	Exhibit Ka-13		Affidavit of Nandram (accused appellant)
 
14.	Exhibit Ka-14		Copy of FIR
 
15.	Exhibit Ka-15		Report of destruction of documents pertaining to 				G.D. entries dated 16.10.1999
 
16.	Exhibit Ka-16		G.D. No.18 dated 16.10.1999
 
17.	Exhibit Ka-17		Site plan of the place from where Satya Ram went 				missing
 
18.	Exhibit Ka-18		Site plan of the field of Jadish where the witnesses 				saw Satya Ram in the company of accused. 
 
19.	Exhibit Ka-19		Report No.16 dt. 12.05.2000 in respect of remoery 				of remains of the deceased
 
20.	Exhibit Ka-20		Documents with respect of destruction of the 				entries dated 25.08.1999 and 15.05.2000 in GD. 
 
21.	Exhibit Ka-21		G.D. No.19 dated 25.08.1999 missing report of 				Satya Ram"
 
6. Following nine witnesses were adduced in support of prosecution case:-
 
"PW.1		Ram Prakash s/o Guru Dayal (informant and father of the deceased)
 
PW.2		Vrindavan (resident of same village as the informant)
 
PW.3.		Gore Lal (resident of same village as the informat)
 
PW.4		Dr. Suresh Chandra Gupta, who has conducted postmortem
 
PW.5		Raj Bahadur (resident of village Kalahara Mauja)
 
PW.6		Brij Pal Singh (resident of same village)
 
PW.7		Kunwar Pal Singh, S.I., Investigating Officer  
 
PW.8		Narain Singh Rana, Investigating Officer
 
PW.9		Nem Singh Yadav, Advocate"
 

7. Before proceeding further, it would be relevant to note that during course of trial the skull and bones recovered from the spot, together with clothes, allegedly worn by the deceased, were not produced or exhibited in evidence. While hearing the present appeal this aspect was highlighted by the learned Amicus Curiae whereupon following orders were passed on 18.1.2018:-

"Heard Shri Raghuvansh Mishra, learned Amicus Curiae for the appellant.

During the course of arguments, he submitted after perusing the statement of PW-8, an Investigation Officer, it reveals that the bones as well as clothes of the deceased were sent for chemical examination, but the same has not been brought on record.

In view of the aforesaid submission, we, hereby direct to learned Additional Government Advocate to place the aforesaid report on record by the next date of listing. List this case on 05.02.2018."

8. When the matter was taken up next on 30.3.2018, following orders were passed:-

"Heard Sri Raghuvansh Mishra, learned counsel for the appellant and Sri Narendra Kumar Singh Yadav on behalf of State.

In this case the court had directed the State to produce the report of the Forensic Laboratory but the same has not been produced so far. Learned AGA informs that a letter was sent on 19.1.2018 by his office to the Director, State Forensic Laboratory, Lucknow but he has not received any reply nor report has been provided to him.

We therefore direct the learned Government Advocate to take up this matter at his level and ensure that the report is placed before this Court before the next date of hearing.

In case the record is not made available on the date fixed, the Director, State Forensic Laboratory shall submit his own explanation on affidavit as to why the report is not being provided to this court.

List on 09.4.2018 at 3.00 P. M. for further arguments.

Let a copy of this order be supplied to learned AGA, free of cost, within 48 hours."

9. This Court then proceeded to pass following orders on 9.4.2018:-

"Sri M.K.S. Yadav learned A.G.A. has filed personal affidavit of Dr. Archana Tripathi presently posted as Director Forensic Science Laboratory, Lucknow and he has argued that various letters have been sent by the Director to the SSP, Etawah for providing relevant details with regard to the bones and clothes which were allegedly sent to the laboratory for its report and which is not traceable in the Forensic Science Laboratory, Lucknow, which details have not yet been sent as per learned A.G.A., who prays for and is granted a week's time to file a better affidavit.

In view of the above, list on 16.4.2018."

10. A supplementary affidavit has been filed by Dr. Archana Tripathi, Director, Forensic Science Laboratory, Lucknow, which is on record. Para 12 to 14 of the affidavit filed by the Director of Laboratory is reproduced hereinafter:-

"12. That it is crystal clear that from the aforesaid facts and circumstances at no point of time the postmortem potly containing the bone and clothes and other relevant papers have ever been filed in the Forensic Science Laboratory by the police department.

13. That it is also important to bring into the notice of this Hon'ble Court that the bone and clothes, which has been sent to the Forensic Science Laboratry has been returned back by the Forensic Science Laboratory, which was actually brought in the office of State Medico Legal Expert, Aishbagh, Lucknow, where there by noticing the material has been returned back by constable 79 Sunil Kumar, SIS, Etawah and thereafter its receipt to the Forensic Science Laboratory has not been found by the enquiry conducted by police department also.

14. That the deponent at her level best made communication on 05.04.2018 to the Additional Director, State Medico Legal Expert, Aishbagh, Lucknow with regard to the receipt of postmortem potly containing the bones and clothes and other relevant papers for making compliance of the Hon'ble High Court orders, but no response has been given. For kind perusal of this Hon'ble Court copy of the letter dated 05.04.2018 is being annexed herewith and the same is marked as Annexure No.5 to this affidavit."

11. Alongwith the affidavit a report of Additional Superintendent of Police, Etawah, dated 13.4.2018 has also been annexed. Since in the postmortem report the cause of death could not be ascertained, therefore, the bones and recovered clothes were directed to be sent to Forensic Science Laboratory. This fact is recorded at serial no.23 of case diary dated 3.6.2000. The supervisory authority on 24.6.2000 instructed the Investigating Officer, Narain Singh Rana, to arrange for sending of bones etc. for its chemical examination to the office of State Medico Legal Expert. It is then recorded that with approval of Magistrate concerned, Constable Sunil Kumar Singh, AIS Branch, took materials (skull and bones) to the State Medico Legal Expert office, but in view of the objections raised, the materials were not accepted and further clarifications were sought. The concerned constable returned and after obtaining order of the court of concerned Magistrate, as well as with endorsement of Additional Superintendent of Police, such materials were deposited in the Malkhana vide item no.313/2000, dated 6.7.2000. As per the report, the potaly containing bones and clothes was never got received in the office of State Medico Legal Expert. Moreover, there is no receiving of the potaly containing skull and bones in the Forensic Science Laboratory, Lucknow, either. It is also recorded that despite endeavours made to trace out such materials, it could not be located in the Malkhana. The concerned Moharrir, as per the report, is negligent in preserving the materials. Documents in support of such report have also been annexed alongwith affidavit, which are marked as Exhibit-Ka, Exhibit-kha, Exhibit-Ga & Exhibit-Gha. Perusal of the affidavit of Director, Forensic Science Laboratory as well as report of the Additional Superintendent of Police, Etawah would go to show that neither the recovered skull and bones nor the clothes recovered have been produced before the trial court, nor has it been traced out in Malkhana. As per the affidavit of the Director, the Incharge Station Officer/Investigating Officer and the Malkhana Moharrir have committed dereliction of duty and a preliminary enquiry has been ordered to be conducted against them. Facts nevertheless remain admitted that the skull and bones together with clothes allegedly recovered at the pointing out of the accused appellant have not been adduced as evidence before the court below, nor is it otherwise traceable.

12. Prosecution has relied upon the testimony of PW.1, 2, 3, 4, 5, 6, 7, 8 and 9 in support of its case. PW.1 in his statement has stated that his son Satya Ram went missing and a missing report was lodged in that regard. As per the statement, he made efforts to locate the kidnapped child. It is alleged that Ramvir told him that his son (kidnapped child) was taken by accused persons Ram Kishan, Jor Singh, Balram, Brijesh, Sanju after tying his face to the millet field of Jagdish son of Hari Ram Jatav. Ramvir, however, has not been produced as witness by the prosecution. PW.1 has not alleged that Ramvir also took name of accused appellant Nandram in kidnapping his son. PW.1 has verified the written report (Exhibit Ka-1) on the basis of which First Information Report was lodged. He has admitted his thumb impression on the complaint written by Pankaj. He further states that accused persons wanted to grab his land and that is why his son was kidnapped and killed. He has further stated that accused appellant had got the skeleton and bones of deceased recovered from the grove of Mustaq and that the appellant was also involved in the conspiracy. PW.1 has stated in his cross examination that he had not seen the accused persons taking away his son and that the accused persons wanted him to contribute his land in securing loan. It is also stated that in fact accused persons wanted his land to be sold to them. He further states that at the time when Satya Ram had gone to play he was wearing underwear and blue colour sando vest. He has also stated that he does not know the person who wrote the written report on the basis of which FIR was registered and that the report itself was got dictated by the Sub Inspector concerned. Upon a pointed query by the public prosecutor, PW.1 has stated that report was not written on his instructions and that the report was written on the instructions of the Sub Inspector.

PW.2 Vrindavan has supported the prosecution case, but has stated nothing against the present appellant. His statement therefore need not be discussed at length as he has only stated about other accused persons who have already been acquitted and there is no appeal filed against their acquittal.

PW.3 Gore Lal has been declared hostile as he has feigned ignorance. PW.3 has otherwise not stated anything about involvement of the accused appellant.

PW.4 Dr. Suresh Chandra Gupta was the doctor, who conducted the postmortem. He has verified the contents of the postmortem report (Exhibit Ka-2). The postmortem report clearly mentions that the cause of death could not be ascertained. In column 4 of the postmortem report the doctor has also stated that the age of deceased could not be ascertained on the basis of skeleton and bones produced. In his cross examination he, however, has stated that age of deceased could be 11 years. He has also stated that no mark of injury has been found on the bones.

PW.5 Raj Bahadur Singh has stated that at about 2.30 PM about a quarter and a year back he saw the accused Ram Kishan, Balram and Jor Singh and couple of other persons taking Satya Ram and he later came to know that Satya Ram had been killed. This witness has also not taken the name of accused appellant.

PW.6 Brij Pal Singh is the only person who has stated that he saw the deceased child being taken away by the Nandram alongwith four other persons towards village Bhura. Since this witness has not supported the prosecution case against Ram Kishan, Jor Singh, Balram etc., as such he was declared hostile. This witness has clearly stated that he had disclosed the incident of accused appellant taking away the deceased to PW.1 Ram Prakash after 2-3 days of incident. He has admitted that he was working in the fields of Raj Bahadur Singh i.e. PW.5. The statement of Raj Bahadur Singh and Brij Pal Singh, who allegedly were working in the same field, appears to be contradictory insofar as involvement of accused appellant in kidnapping the child is concerned.

PW.7 S.I. Kunwar Pal Singh and PW.8 Narain Singh Rana are the witnesses of investigation, who have explained the steps taken by them to unearth the crime during the course of investigation. PW.7 has stated that the potaly containing bones and clothes were given to Constable Sunil Kumar Singh for being taken to Forensic Laboratory, Lucknow. He has stated that the potaly containing bones etc. were produced before the Magistrate and till the filing of the charge sheet, the Forensic report was not received. He has admitted that the charge sheet was filed without perusing the chemical report, as it had not been received till then.

PW.9 Nem Singh Yadav, Advocate has proved certain affidavits submitted by Nandram and Gore Lal, which are not of much relevance so far as issues raised in present case are concerned.

13. On the basis of evidence adduced by the prosecution, the court below has found the charges to be proved beyond reasonable doubts against the accused appellant under section 364, 302, 201 IPC. The primary reason assigned for the accused appellant to be held guilty of offence is the recovery of skull and 15 bones, allegedly of the victim Satya Ram, from the field of Mustaq at his pointing out. According to the court below, there also was credible evidence of last seen against the accused appellant and since the dead body was also recovered at his pointing out, therefore, his implication in the case was found proved beyond reasonable doubt.

14. Sri Raghuvansh Mishra, learned Amicus Curiae submits that offence against the accused appellant is not proved beyond reasonable doubt as (i) the bones and clothes allegedly recovered at the pointing out of the accused appellant were not produced before the court below; (ii) last seen evidence is contradictory; (iii) date and time of last seen evidence is not specified inasmuch as except for stating the time to be around 2.30 PM, none of the witnesses have specified the date when the accused appellant was lastly seen taking away the deceased child; (iv) the recovery of bones and clothes cannot be relied upon inasmuch as alleged witnesses of the recovery i.e. Prahalad Singh and Shiv Kumar have not been adduced in evidence; (v) the identity of bone and skeleton recovered as being that of Satya Ram has not been established; (vi) since no injury marks were found on the bones and skeleton, as such cause of death has not been ascertained. It is also contended that date and time of death has also not been established, and therefore, the alleged time of last seen, as well as the subsequent factum of death could not be connected. Learned Amicus Curiae has placed reliance upon a decision of the Apex Court in Sharad Birdhichand Sarda vs. State of Maharashtra: (1984) 4 SCC 116 in order to contend that the test(s) required to prove a case of circumstantial evidence is not satisfied/made out, against the accused appellant in the facts of the present case.

15. Sri A. N. Mulla, learned A.G.A. has placed reliance upon the observations and findings of the court below in order to contend that the guilt of accused appellant has been established beyond reasonable doubt with reference to the evidence brought on record.

16. The question that requires determination in this jail appeal is as to whether the prosecution has been able to establish guilt of accused appellant, beyond reasonable doubt, on the basis of evidence adduced of having committed the offence?

17. The touchstone on which the prosecution must prove its case based on circumstantial evidence is no longer res integra. Relying upon the observations made by the Apex Court in Hanumant vs. State of Madhya Pradesh, 1952 SCR 109, the Apex Court in Sharad Birdhichand Sharda (supra) observed as under in para 151 to 162:-

"151. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh and Ramgopal v. State of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):

"It is well to remember that in cases where the evidence is 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 tendency 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 far 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."

152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) 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.

153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

154. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus deliciti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry, thus:

"Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that up on no rational hypothesis other than murder can the facts be accounted for."

155. Lord Goddard slightly modified the expression, morally certain by 'such circumstances as render the commission of the crime certain'.

156. This indicates the cardinal principle' of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry's case (supra) was approved by this Court in Anant Chintaman Lagu v. The State of Bombay(2) Lagu's case as also the principles enunciated by this Court in Hanumant's case (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases Tufail's case (supra), Ramgopals case (supra), Chandrakant Nyalchand Seth v. The State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19.2.58), Dharmbir Singh v. The State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4.11.1958). There are a number of other cases where although Hanumant's case has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration (1974 (2) SCR 694) 96960, Mohan Lal Pangasa v. State of U.P., (AIR 1974 SC 1114), Shankarlal Gyarasilal Dixit v. State of Maharashtra (1981 (2) SCR 384, ) and M.C. Agarwal v. State of Maharashtra (1963 (2) SCR 405) a five-Judge Bench decision.

157. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. The State of Bihar(5), to supplement this argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:

"But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation-such absence of explanation of false explanation would itself be an additional link which completes the chain."

158. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.

(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.

159. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal's case (supra) where this Court observed thus:

"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused."

160. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case (supra). Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General.

161. Moreover, in M.G. Agarwal's case (supra) this Court while reiterating the principles enunciated in Hanumant's case observed thus:

"If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt."

In Shankarlal's (supra) this Court reiterated the same view thus:

"Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment".

162. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh,(l) this Court made the following observations:

"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."

"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.""

18. It is settled that guilt of accused in a case of circumstantial evidence can be established only if the circumstances are strong enough and the chain of events is complete so as to make the conviction possible. Reference may also be made to the judgment of the Apex Court in the case of Majenderan Langeswaran Vs. State (NCT of Delhi) & Another 2013 (7) SCC 192. Paragraph nos. 16 to 25 of the same are extracted hereinunder:-

"16. Now, we have to consider whether the judgment of conviction passed by the trial court and affirmed by the High court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the Accused committing murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the Accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court.

17. In the case of Hanumant Govind Nargundkar v. State of M.P. : AIR 1952 SC 343, this Court observed as under:

"10...... It is well to remember that in cases where the evidence is 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 tendency 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."

18. In the case of Padala Veera Reddy v. State of A.P. : 1989 Supp (2) SCC 706, this Court opined as under:

"10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the Accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the Accused;

(3) 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 none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the Accused and such evidence should not only be consistent with the guilt of the Accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra (1982) 2 SCC 351)

19. In the case of C. Chenga Reddy and Ors. v. State of A.P. : (1996) 10 SCC 193, this Court while considering a case of conviction based on the circumstantial evidence, held as under:

"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the Accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence.

20. In the case of Ramreddy Rajesh Khanna Reddy v. State of A.P : (2006) 10 SCC 172, this Court again considered the case of conviction based on circumstantial evidence and held as under:

"26. It is now well settled that with a view to base a conviction on circumstantial evidence, 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 as would permit no conclusion other than one of guilt of the Accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an Accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. : (2005) 7 SCC 603).

21. In the case of Sattatiya v. State of Maharashtra MANU/SC/7067/2008 : (2008) 3 SCC 210, this Court held as under:

"10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the Accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. This Court further observed in the aforesaid decision that:

"17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court-Bharat v. State of M.P. : (2003) 3 SCC. In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the Appellant had committed the crime.

22. In the case of State of Goa v. Pandurang Mohite : (2008) 16 SCC 714, this Court reiterated the settled law that where a conviction rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the Accused or the guilt of any person. The circumstances from which an inference as to the guilt of the Accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. In the case of G. Parshwanath v. State of Karnataka : (2010) 8 SCC 593, this Court elaborately dealt with the subject and held as under: 23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the Accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.

24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the Accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the Accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the Accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court.

24. In the case of Rajendra Pralhadrao Wasnik v. State of Maharashtra : (2012) 4 SCC 37, while dealing with the case based on circumstantial evidence, this Court observed as under:

"12 . There is no doubt that it is not a case of direct evidence but the conviction of the Accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the Accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete as not to leave any substantial doubt in the mind of the court. Irresistibly, the evidence should lead to the conclusion which is inconsistent with the innocence of the Accused and the only possibility is that the Accused has committed the crime.

13. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the Accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the Accused or the guilt of any other person.

25. Last but not least, in the case of Brajendrasingh v. State of M.P.: (2012) 4 SCC 289, this Court while reiterating the above principles further added that:

"28. Furthermore, the rule which needs to be observed by the court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the Accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the Accused is innocent till proven guilty and that the Accused is entitled to a just and fair trial. (Ref. Dhananjoy Chatterjee v. State of W.B. : (1994) 2 SCC 220;S hivu v. High Court of Karnataka : (2007) 4 SCC 713 and Shivaji v. State of Maharashtra: (2008) 15 SCC 269)."

(Emphasis supplied by us)

19. The evidence adduced by the prosecution has to be scanned in light of the principles laid down by the Apex Court in aforesaid judgments. There is no direct evidence of the crime alleged to have been committed by the accused appellant. The circumstances which have been relied upon to prove the guilt are only two fold i.e. (i) deceased was seen last in the company of accused appellant and (ii) recovery of the skeleton containing skull and 15 bones alongwith clothes of the deceased at the pointing out of accused appellant.

20. So far as evidence of accused appellant having been seen in the company of the deceased is concerned, the only direct evidence adduced in that regard is the testimony of PW.6 i.e. Brij Pal Singh. This witness has deposed of having seen the deceased being taken by Nandram (appellant) alongwith four others towards village Bhura. This witness has been declared hostile. He has not specified the date when he had seen this event happening and has merely stated that about six and a quarter year back he saw the accused taking the deceased alongwith four others. In his cross examination, he states that Raj Bahadur (PW.5) was also present in the same field where from he saw the incident but Raj Bahadur has taken name only of other accused persons, named in the FIR, and not the name of accused appellant. He has also stated that this fact was disclosed by him to PW.1 after 2-3 days. PW.1, however, has not stated in his deposition of being informed by PW.6 about the accused appellant taking the deceased. PW.6 moreover admits of working in the fields of PW.5 and also states that PW.5 was also present. Neither the statement of PW.6 is corroborated with the testimony of PW.5 nor with the testimony of PW.1 on the aspect of accused appellant taking away the kidnapped child.

21. The statement of PW.6 is alleged to have been recorded on 12.05.2000, which is almost 8 months after the disappearance of deceased. This witness is otherwise a resident of the same village and apparently had been questioned earlier also, and there is no explanation as to why such disclosure was not made by him earlier or the crime investigated from this aspect.

22. Moreover, PW.1 in his statement has, on the other hand, implicated the accused appellant on the basis of disclosure made to him by one Ramvir. Evidence of PW.1, on this count is a hearsay evidence. Ramvir admittedly has not been adduced as a witness. Moreover, PW.1 in his cross examination has clearly stated that it was Ramvir alone who had told him about his son being taken and that nobody else told him of it. This statement of PW.1 clearly contradicts the statement of PW.6 about informing PW.1 of the appellant taking the deceased.

23. Reliance is also placed upon a judgment of the Apex Court in Rishi Pal Vs. State of Uttarakhand 2013 (12) SCC 551. Paragraph nos. 19 to 26 of the aforesaid judgment are extracted hereinunder:-

"19. It is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the Appellant but suspicion howsoever strong is not enough to justify conviction of the Appellant for murder. The trial Court has, in our opinion, proceeded more on the basis that the Appellant may have murdered the deceased-Abdul Mabood. In doing so the trial Court over looked the fact that there is a long distance between 'may have' and 'must have' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The decisions of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial evidence. The essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged. The disappearance of deceased-Abdul Mabood in the present case is not explainable as sought to be argued before us by the prosecution only on the hypothesis that the Appellant killed him near some canal in a manner that is not known or that the Appellant disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal from which it was never recovered.

20. In Mohibur Rahman and Anr. v. State of Assam : (2002) 6 SCC 715, this Court held that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case.

"10.....There may however be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.

21. Similarly in Arjun Marik and Ors. v. State of Bihar : 1994 Supp (2) SCC 372, this Court reiterated that the solitary circumstance of the accused and victim being last seen will not complete the chain of circumstances for the Court to record a finding that it is consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be founded.

22. So also in Godabarish Mishra v. Kuntala Mishra and Anr. : (1996) 11 SCC 264, this Court declared that:

"11.......(g) the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless supported by other links in the chain of circumstances.

23. In Bharat v. State of M.P. : (2003) 3 SCC 106; two circumstances on the basis whereof the Appellant had been convicted were (i) the Appellant having been last seen with the deceased and (ii) Recovery of ornaments made at his instance. This Court held:

"12...............Mere non-explanation cannot lead to the proof of guilt against the Appellant. The prosecution has to prove its case against the Appellant beyond reasonable doubt The chain of circumstances, in our opinion, is not complete so as to sustain the conviction of the Appellant."

24. We may also refer to State of Goa v. Sanjay Thakran and Anr. : (2007) 3 SCC 755 where this Court held that in the absence of any other corroborative piece of evidence to complete the chain of circumstances it is not possible to fasten the guilt on the accused on the solitary circumstance of the two being seen together.

25. Reference may also be made to Bodh Raj alias Bodha and Ors. v. State of Jammu and Kashmir : (2002) 8 SCC 45 where this Court held:

"31.The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".

26. Finally in Jaswant Gir v. State of Punjab : (2005) 12 SCC 438, this Court held that it is not possible to convict Appellant solely on basis of 'last seen' evidence in the absence of any other links in the chain of circumstantial evidence, the Court gave benefit of doubt to accused persons."

(Emphasis supplied by us)

24. The circumstance of accused appellant taking away the deceased or the deceased having been seen last with the appellant is thus not proved. The testimony of witnesses on this count is found to be inconsistent and not worth placing reliance. Moreover, the dead body, allegedly of deceased has also been recovered after about 8 months. The date and time of death is also unknown. It is, therefore, not a case where the event of last seen and actual death are in close proximity so as to role out any other person coming in between the two events. The evidence adduced on last seen theory, therefore, is not convincing. An order of conviction and sentence cannot be sustained on such evidence.

25. This takes us to the examination of other circumstance which is recovery of dead body, allegedly of the deceased, at the pointing out of the accused appellant. The alleged recovery is said to have been made in the presence of witnesses Prahlad and Shiv Kumar. They are the only independent witnesses apart from police personnel's. The witnesses of recovery, however, have not been adduced. This is a material aspect which appears to have been completely omitted from consideration by the trial court. There is no explanation otherwise brought on record by the prosecution as to why the witnesses of recovery have not been produced.

26. The alleged dead body recovered at the pointing out of accused appellant consists of a human skull and 15 bones. The postmortem report has been brought on record before the court below. In column 5 of it, which relates to age of the deceased, the doctor has clearly opined that its age could not be ascertained. No sign of injury has otherwise been noticed. Since skeleton alone was recovered, the doctor has opined that cause of death cannot be ascertained. The recovery has also been made after about 9 months of the disappearance of deceased.

27. From the body recovered it cannot be ascertained as to what was the age of the deceased, cause of death, date and time of death or even establish the identity of deceased. Merely on the basis of recovery of a skull and 15 bones it cannot be established that the dead body was of the deceased or that he was murdered by the accused appellant. To make the matter worse the prosecution has even failed to produce the skull and the bones recovered at the pointing out of the accused. Unless such evidence was exhibited and proved it could not have been relied upon.

28. The Hon'ble Supreme Court in the case of Hargovandas Devrajbhai Patel & Others Vs. State of Gujarat reported in 1998 (9) SCC 17 has been pleased to observe that a highly decomposed body which could not be identified according to the medical report can be said to have been identified on the strength of the dress found on the body of the deceased. Once the corpus delicti itself is not established, the conviction was impermissible.

29. Neither the recovery has been proved nor the identity of the deceased has been established. The underwear and vest worn by the deceased, relied upon to determine the identity of deceased have also not been adduced as an evidence.

30. There is also no scientific report to correlate the recovery made with the deceased.

31. The trial court has disbelieved implication of named accused persons on account of past enmity etc. by granting benefit of doubt to them. Various judgments of the Apex Court although have been referred to by the trial court, but relevant aspects, noticed above, have completely been omitted from consideration by the trial court. There is no discussion in the judgment of the court below about non production of recovery witnesses; identity of deceased with reference to the dead body recovered; material contradiction on the last seen theory; and even non production of alleged potaly containing bones and skull at the stage of trial. It is clearly a case where chain of events have not been sufficiently correlated with material evidence. No credible evidence has at all been adduced by the prosecution to complete the chain of events, which is necessarily required to be established in a case of circumstantial evidence. In view of the principles settled, the prosecution has failed to establish guilt of accused appellant beyond reasonable doubt. The appeal, therefore, must succeed.

32. Accordingly, this Jail Appeal is allowed. Conviction and sentence of the appellant Nandram, vide impugned judgment and order dated 31.01.2007, passed by Additional Sessions Judge, Court No.1, Etawah in Sessions Trial No.530 of 2000, under sections 364, 302 readwith section 201 IPC arising out Case Crime No.173 of 1999, Police Station Usrahar, District Etawah is hereby set aside. Appellant Nandram is acquitted of the charges under sections 364, 302 readwith section 201 IPC. Appellant is presently in jail. He shall be released forthwith, if not wanted in any other case.

Let a copy of this order be sent to the Chief Judicial Magistrate, Etawah, in advance, forthwith, for immediate compliance.

33. We place on record our appreciation for the assistance rendered to the Court by the learned Amicus Curiae and his fee is quantified at Rs.15,000/-. We are also impressed by the gesture shown by the learned Amicus Curiae in not accepting the fee and for it to be remitted to the Allahabad High Court Legal Service Authority. The amount of fee quantified, therefore, shall stand transferred to the Legal Service Authority of this Court.

Order Date:- 30.5.2018

Ashok Kr.

(Chandra Dhari Singh, J.)               (Ashwani Kumar Mishra, J.)