Shambhu vs State Of U.P.
2018 Latest Caselaw 656 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 

 
Case :- CRIMINAL APPEAL No. - 1554 of 1983
 

 
Appellant :- Shambhu
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.S.Tewari,Amit Kumar Srivastav,Jai Singh Parihar,P.K.Singh,P.V.Singh,R.C. Tewari,Rahul Mishra Amicus Curie,Raj Kumar Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Harsh Kumar,J.

(Delivered by Hon'ble Harsh Kumar,J.)

This appeal has been filed against the impugned judgment and order passed by Sessions Judge, Banda on 29.6.1983 in S.T. No.425 of 1982, State Vs. Phool Chandra and Shambhu, P.S. Baberu, District Banda, under sections 302/34 and 201/34 IPC, convicting the sole surviving accused Shambhu for offences under sections 302 and 201 read with section 34 IPC.

The brief facts relating to the case are that on 10.6.1982 a written report scribed by Babu Lal Awasthi was submitted by first informant Hira Lal son of Jagannath, at P.S. Baberu at 3:45 p.m. upon which F.I.R. was lodged at Case Crime No.NIL of 1983, under sections 302 and 201 IPC against unknown persons with suspicion on Smt. Rabariya.

The brief facts mentioned in F.I.R. are as under:-

"Applicant is resident of Nahar Purva, Majra Amwa, P.S. Bisanda; that his 18-19 years old younger brother Thakurdin @ Bijli son of Jagannath had left to village Akona, P.S. Bisanda (where there is Sasural and Nanihal of applicant) on invitation, about 13 days ago; that he oftenly used to visit and stay at Akona for several days; that when he did not return home upto several days, the applicant reached village Akona in search of him and was told that since today morning there is talk in village Akona that one dead body is lying on the Well in the fields of Bhadehoo of village Akona; that on this information he along with several persons reached there and saw that dead body of his brother Thakurdin @ Bijli tied with ropes was floating in the Well; that he had no enmity with anybody; that the brother of applicant was entangled with Smt. Rabariya, the sister of Bhaiyadin Lodh of village Akona and oftenly used to stay at their place on coming to village Akona; that he has every suspicion on Smt. Rabariya; that upon seeing the dead body, it appears that his brother was tied with ropes in the shape of bundle (Ghatri) and after tying with stones thrown in the Well; that the dead body has been taken out from the Well and has been kept over it."

The Investigating Officer after completing the process of preparing inquest report, site plan etc. and sending the dead body for autopsy and after collecting postmortem report as well as other evidences, submitted the charge sheet against Phool Chandra and Shambhu. The case was committed to sessions and the Sessions Judge after hearing the learned counsel for the accused-persons framed charges against them for offences under sections 302/34 and 201/34 IPC, to which they denied pleading not guilty and demanded trial.

The prosecution in order to prove it's case has produced Hira Lal, the first informant as P.W.1, Dr. A.K. Bhardwaj, who conducted the postmortem of the body of deceased as P.W.2, Jageshwar as P.W.3, Shyam Lal Dixit Head Mohrir as P.W.4, Sri C.S. Tiwatia the second Investigating Officer as P.W.5, Hajari Lal as P.W.6, Ram Sipahi as P.W.7 and Ram Kishore as P.W.8.

During pendency of trial accused Phool Chandra died on 5.5.1983 so trial abated against him and proceeded against the sole surviving accused Shambhu. After completion of prosecution evidence, the statement of accused Shambhu was recorded under section 313 Cr.P.C. and he did not produce any defence evidence.

Learned trial court after hearing the parties counsel and perusal of record decided the sessions trial by impugned judgment and order holding accused Shambhu guilty of offences under section 302 read with section 34 and 201 read with section 34 IPC for the murder of Thakurdin @ Bijli. Feeling aggrieved the sole surviving accused/convict has preferred this appeal.

We have heard Sri Rahul Mishra, Amicus Curiae for the sole appellant, Sri Phool Singh Yadav, learned AGA for the State and perused the record as well as record of trial court summoned in this appeal.

In this case, no specific time or date of the incident has been mentioned in the F.I.R. or in the evidence adduced by prosecution witnesses. As per averments made in F.I.R., the incident in question did take place at unknown time about 13 days ago. There is no eye witness of the incident of murder of Thakurdin @ Bijli and the prosecution case is based on circumstantial evidence wherein finger of suspicion has been raised towards Smt. Rabariya, the sister of Bhaiyadeen of village Akona with whom the deceased was allegedly having illicit relations. It has also been contended by prosecution that accused Phool Chandra and Shambhu were also having illicit relation with Smt. Rabariya a young widow, and the murder of Thakurdin @ Bijli was committed by Phool Chandra and Shambhu in conspiracy with Smt. Rabariya and her brother Bhaiyadin.

First informant Hira Lal as P.W.1 in his statement on oath at page 9-12 of the paper book has stated that (i) his Sasural and Nanihal are in village Akona (ii) on 28.5.1982 his 18-19 years old brother Thakurdin @ Bijli, had gone to attend the marriage of a girl on 31.5.1982 at the place of Baldev Lodh of Akona (iii) on 9.6.1982 Rameshwar of his village told him that he had gone to Akona where, there was a talk in the village about a dead body lying in the Well, on which he and his father went to village Akona and seen the dead body of Thakurdin @ Bijli floating in the Well of Ram Ashrey situated in the fields of Bhadehu and next day on 10.6.1982 by noon, the dead body was taken out from the Well and kept at Devsthan near Peepal Tree and since Babu Lal Awasthi had arrived by that time the written report was got scribed from him, (iv) Thakurdin used to stay at the place of Bhaiyadin and his 20-22 years old widow sister Smt. Rabariya and had developed illicit relationship with her, who was also having illicit relationship with Shambhu, (v) after getting the F.I.R. lodged he returned to place of occurrence, met Jageshwar and Ram Sipahi (vi) then he left with dead body and met Ahiwaran after postmortem (vii) his conversation with Jageshwar and Ram Sipahi took place after three days i.e. on 13.6.1982,(viii) P.W.3 Jageshwar is his real maternal cousin, (ix) he has no personal knowledge about illicit relationship of Smt. Rabariya with accused-appellant Shambhu and believes so upon hearing from people, (x) he did not meet Jageshwar and Ram Sipahi between 9th to 13th June and that (xi) after lodging of F.I.R. he returned to Banda and visited Akona on 13th June.

P.W.2 is Medical Officer, who performed postmortem examination of the body of deceased and proving the postmortem report Ext. A-2 has stated that at the time of autopsy of the dead body at 4:00 p.m. on 11.6.1982, he found that the death of 18 years old boy had occurred about one to two week ago by throttling, his body was in advanced decomposed stage, there was swelling and redness on face, stomach had burst with fracture of hyoid bone as well as 4th right rib and multiple abraded contusions over back and his body had been tied with ropes all around the body.

P.W.3 Jageshwar the witness of last seeing the deceased with accused-appellant and Phool Chandra has stated in his statement on oath on 27.5.1983 at page 16-17 of the paper book that (i) deceased was known to him, and was murdered about one year ago, (ii) on that day he and Ram Sipahi had gone to attend the invitation at the place of Hajari in village Akona and on return at about 11:00-11:30 a.m. when they were returning, reached at the door of Bhaiyadin, seen Bhaiyadin, Phool Chandra, Shambhu, Smt. Rabariya and deceased Bijli standing there and upon being asked they told that they are going in search of missing cattle, (iii) next day when he was going to fields at about 4:00 a.m. Bhaiyadin, Phool Chandra, Shambhu and Smt. Rabariya, looking disturbed, were returning from North but Bijli deceased was not accompanying them and upon being asked for reason of their disturbance, they told that missing cattle could not be traced (iv) after 7-8 days he came to know that dead body of Bijli has been found in Well on which he reached there and body was recovered from the Well in his presence, (v) Smt. Rabariya was a lady of easy virtue having relations with Phool Chandra, Shambhu and Bijli deceased, (vi) he is cousin brother of Bijli deceased as well as first informant, (vii) he was accused in the case of murder of co-accused Phool Chandra and was also witness against Mool Chandra, the brother of Phool Chandra in a case of theft, wherein he was acquitted.

P.W.4 is a formal witness and has proved Chik F.I.R. and G.D. While P.W.5 is second Investigating Officer for the period from 12.6.1982 to 31.7.1982 after which investigation was done by Sri Narayan Singh.

P.W.6 Hajari in his statement on oath at page 21 of the paper book has stated that (i) his daughter-in-law had died on last Holi and on the occasion of her death anniversary (Barsi) he had invited five Brahmins and neither any relative nor any person of Biradari was invited nor Thakurdin @ Bijli or Bhaiyadin came at his place on 31.5.1982 on the occasion of Barsi his daughter-in-law.

Above witness was declared hostile and in cross examination with him by prosecution, nothing material has come out.

P.W.7 Ram Sipahi in his statement on oath at page 22-24 of the paper book has stated that (i) he and Jageshwar had attended invitation of Barsi of daughter-in-law of Hajari and on return at about 11:00 p.m. they seen Bhaiyadin, Phool Chandra, Smt. Rabariya, Bijli deceased and Shambhu at the door of Bhaiyadin, who were going towards East and upon being asked had told that they are going in search of the missing cattle, (ii) next morning at 4:00 a.m. when he was going to attend the call of nature, Bhaiyadin, Phool Chandra, Smt. Rabariya and Shambhu were returning from East without Bijli the deceased, and upon being asked they told that he has left for his village Nahar Purwa (iii) after 10-11 days of above incident the dead body of Bijli was recovered from the Well of Ram Ashrey in his presence and he and Jageshwar told first informant Hira Lal, the brother of Bijli deceased about the incident of last seeing on next day. In his cross examination, he has stated that (iv) dead body was recovered from the Well in his presence, whereafter he left to another place, returned after 4-5 days and P.W.1 Hira Lal did not meet him for next one month and did not visit anywhere else and (v) Bijli deceased had come to his village one day before he was seen by him at the door of Bhaiyadin.

P.W.8 in his statement at page 25 of the paper book has stated that about one year ago Thakurdin @ Bijli had attended the marriage of daughter of Baldev and, thereafter, he left for staying elsewhere and after 12-13 days of attending of invitation of marriage, body of Bijli was recovered from well.

Upon hearing parties counsel and perusal of record, we find that the prosecution case regarding murder of Thakurdin @ Bijli is fully based on circumstantial evidence and there is no eye witness account of the incident. The postmortem report shows that death of Bijli did take place about one or two weeks before autopsy of his body on 11.6.1982 due to throttling, and his body tied with ropes was recovered from a well in advance decomposed condition after several days since he left his village.

It is pertinent to note that motive which looses its importance in case based on ocular evidence of eye witness becomes very relevant and important in a case of offence based on circumstantial evidence. In this case, upon investigation Shambhu and Phool Chandra were charge sheeted on the pretext that apart from deceased they were also having illicit relations with Smt. Rabariya, the sister of Bhaiyadin and the deceased was last seen with them and not later, which indicates that his death would have been caused by them and none other except them.

The contention of prosecution is that (i) Smt. Rabariya, living with her brother Bhaiyadin had illicit relations with as many as three persons, Bijli deceased, accused Phool Chandra deceased and accused-appellant Shambhu and that (ii) Bijli deceased used to stay at her place.

As per prosecution case Sasural of first informant and Nanihal of first informant and Bijli deceased (real brothers) were there in village Akona and widow Smt. Rabariya was residing with his brother Bhaiyadin. It is also alleged that Thakurdin @ Bijli was having illicit relationship with Smt. Ragariya and used to stay at her place for 4-6 days. Since Sasural of brother of Bijli deceased as well as Nanihal of Bijli deceased himself were in village Akona very naturally, he was supposed to stay in his Nanihal or in the alternative in Sasural of his brother and the contention of his usual stay at the place of Smt. Rabariya widow is highly unnatural and improbable. About 35 years back (or even today) either in city or in village, it may not be believed that a person living with his widowed sister would have ever permitted a paramour of his widowed sister or stranger (from another village) to stay at his home so as to afford him better opportunity to establish illicit relationship with his widowed sister. It is also quite unnatural and highly improbable that despite having knowledge of alleged illicit relationship the first informant would have permitted his bachelor brother, Bijli deceased to go, stay at her place and establish illicit relations with Smt. Rabariya, a widow lady.

The contention of P.W.1 about alleged illicit relationship, has been corroborated by none other except his real maternal brother Jageshwar P.W.3, who has stated that he has only heard about such relationship of Smt. Rabariya with Phool Chandra and Shambhu. It is pertinent to mention that P.W.3 is real maternal brother of deceased and has not alleged that he ever asked deceased to stay at his home i.e. in his Nanihal. He is a partisan witness being real maternal brother of first informant P.W.1 and deceased and is also inimical to co-accused Phool Chandra deceased as he (i) was allegedly having election rivalry with father of co-accused Phool Chandra deceased, (ii) was witness in theft case, against brother of Phool Chandra deceased decided in acquittal and (iii) was also charged for murder of Phool Chandra and for evidence appeared in court from jail in judicial custody.

Considering the improbabilities in prosecution case with regard to alleged illicit relationship of Smt. Rabariya with three persons Bijli deceased, co-accused Phool Chandra deceased and accused-appellant Shambhoo and with regard to alleged unusual stay of Bijli deceased at her place (despite having his Nanihal and Sasural of his brother in same village) in absence of any independent, cogent and reliable corroborative evidence on record, we have come to the conclusion that the prosecution has utterly failed to establish any such illicit relationship of above three persons or of deceased with Smt. Rabariya widow.

As far as the evidence of last seeing the deceased in the company of accused-appellant Shambhu, co-accused Phool Chandra deceased as well as absconding accused Smt. Rabariya and Bhaiyadin is concerned, P.W.3 Jageshwar and P.W.7 Ram Sipahi have been produced as witnesses of last seen. Both of them have stated to have jointly seen the deceased in company of Shambhu, the appellant, Phool Chandra, Smt. Rabariya and Bhaiyadin at the door of Bhaiyadin when they were returning after attending the Barsi ceremony of daughter-in-law of Hajari P.W.6 but there are following material contradictions viz :- (i) While, P.W.3 has stated to have seen them at about 11:00-11:30 a.m., P.W.7 has stated to have seen them at about 11:00 p.m.(ii) the same persons allegedly jointly seen the disturbed looking accused-persons with Smt. Rabariya and Bhaiyadin without Bijli deceased in the next morning at about 4:00 a.m., P.W.3 was allegedly going to fields for collecting fodder and P.W.7 was going to attend call of nature and while P.W.3 seen them coming from North, P.W.7 seen them coming from East (iii) P.W.3 states that they told him that missing cattle could not be traced, while P.W.7 states that they told that Bijli deceased has returned to his native village Nahar Purwa (iv) above two witnesses have stated to have together seen above persons twice on one day and in next morning but have not given any specific date of seeing the deceased with accused and above Smt. Rabariya and Bhaiyadin and (v) while P.W.3 has stated that after 7-8 days of seeing the deceased as above in the company of accused-appellant etc., the body of deceased was recovered from well in his presence, but P.W.7 has stated that the body of deceased was recovered from well in his presence after 10-11 days of the incident of last seeing the deceased and above persons.

In view of above mentioned discrepancies and material contradictions in the statements of P.W.3 and P.W.7, the witnesses of last seeing, apart from the fact that one states to have seen at 11:00 a.m. and other states to have seen at 11:00 p.m., there is material difference of at least 3 days period of seeing deceased in company of accused-appellant etc. by them. It is also pertinent to mention that P.W.3 and P.W.7 both have specifically stated that the body of deceased was recovered from well in their presence hence there can be no reason to them for not disclosing the incident of last seen to first informant, particularly when P.W.3 is cousin brother of first informant as well as deceased, and consequently for not naming them in F.I.R. wherein first informant has pointed finger of suspicion towards Smt. Rabariya.

It is also pertinent to mention that P.W.3 and P.W.7 states to have seen the deceased in the company of accused-appellant Shambhu and others on return from the house of P.W.6 Hajari, after taking food on the occasion of Barsi of his daughter-in-law, but P.W.6 Hajari states that his daughter-in-law had died at last year's Holi and in her Barsi ceremony he invited only five Brahmins and none other from the village. Upon declaring P.W.6 hostile nothing incriminating has come out in his cross examination by State so as to disbelieve him. It is also pertinent to mention that festival of Holi falls in the month of March and the ceremony of Barsi, which is usually performed within 11 to 12 months from death, would have been performed in the month of March or at the most in April, but may not have taken place in the last month of May or in June. Otherwise also since P.W.6 Hajari has specifically stated that he did not invite P.W.3 or P.W.7 on the occasion of ceremony of Barsi of his daughter-in-law, so the question of their returning from his place and seeing the deceased in company of accused-appellant and his associates does not arise at all.

Above mentioned contradictions in statements of P.W.3 and P.W.7 and P.W.6 are material enough to disbelieve the evidence of last seen as well as to hold that the prosecution has failed to prove by any cogent, independent and trustworthy evidence that the deceased was last seen in the company of accused-appellant and others as alleged.

As per medical evidence on record, death of Thakurdin @ Bijli was committed by throttling and after tightening his body in the shape of bundle (Ghatri), it was thrown into the well, where from it was recovered after several days. In F.I.R. the first informant has stated that deceased had gone to village Akona about 13 days back and when he did not return upto several days, he reached village Akona on 10.6.1982 and heard the talk that a body is lying in well at Bhadehoo, upon which he along with several persons seen the dead body of his brother Bijli, tied with ropes floating in the well.

In contradiction to above, the first informant in his statement on oath as P.W.1 at page 9 to 12 of paper book has specifically mentioned that Bijli left to village Akona on 31.5.1982 to attend the invitation of marriage of daughter of Baldev Lodh but sensing his averments made in F.I.R. that Bijli left about 13 days, he changed/correct his version and stated that deceased had gone on 28.5.1982. He has further stated that Rameshwar (not produced) of his village came to him on 9.6.1982 and told that he had been to village Akona where a dead body was lying in the well, upon which he and his father went to village Akona, seen that dead body of Thakurdin tied with ropes was floating in the well which was got it recovered by him on next day 10.6.1982. This statement of P.W.1 is in clear contradiction to the averments made in F.I.R., that without any informant for Rameshwar he went to village Akona all alone out of his own. It is also noteworthy that father of the deceased, who allegedly accompanied the first informant would have been the best witness to throw light on the character of his son about his going to village Akona and other relevant facts, has not been produced by prosecution without assigning any reason.

It is pertinent to mention that if a dead body tied in shape of a bundle as well as with stones thrown in the well starts floating after about 10-12 days, it is quite impossible for any person to identify the deceased from the top of the well unless at least the body is taken out of the well. Further the body so recovered from the well was in very bad and advanced decomposed condition with brust stomach and swelling all over and it is just improbable to identify such advanced decomposed body without help/support of wearings like pant, shirt, belt, chain etc. of some specific quality, colour or brand. Since P.W.1 does not state of identifying the body with the help of any wearing of the deceased, the identification itself becomes doubtful.

The learned trial court relying on the evidence of last seen by P.W.3 and P.W.7 at internal page 16 of judgment (page 50 of paper book) has held that "the facts proved from the circumstantial evidence are complete incapable of explanation of any other hypothesis than that of guilt of accused Shambhu, as the deceased was undoubtedly in the company of accused-appellant Bhaiyadin, Smt. Rabariya, Phool Chandra deceased and accused Shambhu in the night between 28.5.1982 and 29.5.1982 when murder of Thakurdin was committed and he is equally liable for the murder and also for concealing the dead body and causing the evidence to disappear."

Abscondance of accused-appellant Shambhu has also been taken by trial court as an additional circumstances in holding him guilty which may not be sufficient ground to hold one guilty.

On the point of motive, the learned trial court at internal page 16-17 of the impugned judgment (page 50-51 of the paper book) has held that

"In a case based on circumstantial evidence motive factor is an important circumstance. The accused denied his connection with Smt. Rabariya, whom he alleged to be middle aged widow aged about 29-30 years. On behalf of the prosecution it is said that Smt. Rabariya was young widow aged about 20-22 years and was of loose character and that Phool Chandra since deceased, Shambhu accused and deceased Thakurdin all young man had developed illicit connections with her. The prosecution, no doubt, could give no direct evidence upon the point. Such clandestine affairs are embedded in secrecy and no direct evidence was possible in this regard. The over all facts and circumstances do indicate that there was some clandestine affair between Smt. Rabariya and these young men who had just come of age and that Smt. Rabariya had been the pivot around whom those young men howered for her favour and lust of sex. The contention of the prosecution that Thakurdin who was of different village was an intruder in the affairs of accused Shambhu and Phool Chandra, since deceased and that he was eliminated in order to clear the way for others is not without force. It is unfortunate that in this triangle Phool Chandra also lost his life on 5.5.1983 when he was murdered. The last man in the triangle namely accused Shambhu is also to suffer the consequences for his affair with Smt. Rabariya. It cannot thus be said that the murder of Thakurdin was motiveless. The facts and circumstances reasonably lead to a definite conclusion that Thakurdin was murdered because his overtures sex affairs with Smt. Rabariya was not relished nor welcomed by others including the accused."

In view of evidence on record, though the possibility of illicit relationship of deceased, Phool Chandra and accused-appellant Shambhu may not be ruled out, but in absence of any reliable, cogent and trustworthy evidence on record, there can be no presumption of such illicit relationship. Undisputedly, no direct evidence of illicit relationship of the persons may be expected, but the contention of illicit relationship of a widow with as many as three persons within knowledge of her brother is quite unnatural and may not be believed on mere hearsay evidence of first informant and his cousin P.W.1 and P.W.3 and the findings of the trial court on this point are based on surmises and conjectures. Similarly even if there may be reason for having suspicion on accused-appellant and his associates, for causing death of Thakurdin @ Bijli, but mere suspicion howsoever strong and grave it may be, may not take place of proof and in absence of any reliable or cogent and strong evidence of causing of murder of Thakurdin by accused-appellant and his associates, it will not be safe and correct to hold him guilty for the offence under section 302 IPC on the basis of suspicion.

The prosecution has not given any specific date of marriage of daughter of Baldev Lodh for attending which Bijli deceased is said to have left for village Akona. From the statement of P.W.1, it appears that Bijli left for village Akona either on 31.5.1982 or on 28.5.1982 to attend above marriage invitation scheduled for 31.5.1982. The statement of P.W.8 shows that Bijli attended the marriage ceremony of daughter of Baldev Lodh and stayed somewhere else in the village.

As per statement of P.W.7, the deceased was last seen in company of accused-appellant and his associates 10-11 days before recovery of his dead body on 10.6.1982, i.e. on 30th or 31st May and as per statement of P.W.3 he was last seen in company of above persons 7-8 days before recovery of his body on 10.6.1982 i.e. on 2nd or 3rd May. Though arithmetical calculation of statements of rustic villagers is not required, but difference of 3-4 days in time of their seeing and seeing jointly, by one in forenoon at 11:00-11:30 a.m. and by the other late in night around 11:00 p.m., makes their statements untrustworthy.

The medical officer P.W2 has stated that body of deceased was in advanced decomposed stage and approximate period of death of deceased may be between 1 to 2 weeks before postmortem of his body conducted on 11.6.1982, while death of deceased would have occurred on or after 30th - 31st May, 1982 as per statement of P.W.3 and on or after 2nd - 3rd June, 1982 as per statement of P.W.7.

Upon determining the approximate or near correct time of death of Thakurdin @ Bijli, his death could have occurred between 31st May to 3rd June after attending the marriage of daughter of Baldev Lodh as stated by P.W.8 and the findings of trial court that death of Thakurdin @ Bijli was caused in the night between 28th - 29th May, 1982 appears erroneous. It is pertinent to mention that the trial court has lost sight of the fact that the evidence on record shows that marriage of daughter of Baldev Lodh was scheduled for 31st May, 1982, which was attended by deceased as per statement of P.W.8. It is also noteworthy that in absence of any evidence of proximity between the incident of last seen and death, the possibility of any other person meeting or approaching him, before commission of his death, may not be ruled out.

It is settled principle of law that suspicion howsoever strong or grave it may be, may not take place of proof and in cases based on circumstantial evidence, the chain of circumstances indicating that the accused and none other than the accused can be the real culprit must be complete.

In the case of Padala Veera Reddy Vs. State of Andhra Pradesh, 1989 Supp (2) SCC 706 the Apex Court held that

"In cases of circumstantial evidence it is required that;

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

(ii) circumstances should be of a definite tendency unerringly pointing towards guilt of accused,

(iii) circumstances taken cumulatively should form a chain to complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation to any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of accused, but should also be inconsistent with his innocence."

The above view was relied by three Judges Bench of the Apex Court in the case of Raju Vs. State by Inspector of Police (2009) 11 SCC 111.

In the case of C.Chenga Reddy Vs. State of Andhra Pradesh 1996 (10) SCC 193, the Apex Court held that

"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 completed and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of guilt of accused and totally inconsistent with his innocence."

In the case of State of Goa Vs. Sanjay Thakran and others (2007) 3 SCC 755, the Apex Court confirming the order of acquittal passed in appeal held that

"In the case of circumstantial evidence - last seen together - duration of time gap between accused-persons seen in the company of deceased and the detection of crime would be a material consideration. Normally such evidence would be taken into account, where the prosecution establishes that the said time gap was so small that possibility of any other person being with the deceased could completely be ruled out - But, it cannot be said that in all cases where there is a long time gap between the above two points, the evidence of last seen together is to be rejected - Even in such cases the proof of last seen together would be relevant if the prosecution establishes that in the intervening period there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of crime -"

In this case, the prosecution has failed to establish the correct time gap between the time of alleged last seeing the deceased in company of accused-appellant and his associates and approximate time of his death and has also failed to establish that in the intervening period, there was no possibility of any other person meeting or approaching him. The trial court has failed to consider this aspect.

The prosecution has also charge sheeted Smt. Rabariya and her brother Bhaiyadin, but has failed to assign any reason as to why they were not arrested.

In view of the discussions made above, we find that the learned trial court acted wrongly and illegally in misappreciating the evidence on record and in ignoring material contradiction in

(i) statements of witnesses of last seen P.W.3, P.W.7 and P.W.6

(ii) material contradictions between averments made in F.I.R. and in the statement of first informant P.W.1

(iii) non-production of material witnesses Rameshwar as well as father of first informant by prosecution

(iv) material contradictions about the approximate time of death of deceased and its proximity with time of his having been last seen.

(v) absence of any strong and reliable evidence about illicit relationship of Smt. Rabariya widow with deceased, Phool Chandra deceased and accused-appellant.

We are of the considered view that the prosecution could only create suspicion about involvement of accused-appellant in the murder of Thakurdin @ Bijli and failed to establish prosecution case by any strong, reliable, cogent and trustworthy evidence of circumstances by completing the chain of circumstances in the manner that there can be no escape from concluding that within all human probability the crime was committed by the accused-appellant and his associates and none other than them. Since the chain of circumstantial evidence is not complete and incapable of explanation to any other hypothesis than of guilt of accused-appellant, the impugned judgment and order of conviction, may not be allowed to stand and is liable to be set aside. The accused-appellant is entitled for acquittal by giving him benefit of doubt. The appeal is liable to be allowed and the impugned judgment and order of conviction and sentence is liable to be set aside.

The appeal is allowed. The impugned judgment and order of conviction and sentence is set aside. The sole surviving appellant Shambhu, who is on bail is acquitted of charges of offences under sections 302/34 and 201/34 IPC framed against him. His bail bonds are cancelled and sureties are discharged. He need not surrender.

We appreciate the valuable assistance rendered by learned amicus curiae Sri Rahul Mishra.

Let the lower court record be sent back to court below forthwith along with a copy of this judgment, for ascertaining necessary compliance.

Order Date :- 18.05.2018

Tamang

Case :- CRIMINAL APPEAL No. - 1554 of 1983

Appellant :- Shambhu

Respondent :- State Of U.P.

Counsel for Appellant :- R.S.Tewari,Amit Kumar Srivastav,Jai Singh Parihar,P.K.Singh,P.V.Singh,R.C. Tewari,Rahul Mishra Amicus Curie,Raj Kumar Singh

Counsel for Respondent :- A.G.A.

Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Harsh Kumar,J.

Sri Rahul Mishra, Advocate was appointed as Amicus Curiae in this case.

Registrar General of this Court is directed to pay an honorarium of Rs.11,000/- to the learned amicus curiae for rendering effective assistance in the matter.

The said amount be paid to him within two months.

Order Date :- 18.05.2018

Tamang