Nasir @ Fuddan vs State Of U.P.
2018 Latest Caselaw 3359 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										   AFR
 
						     Reserved on 22.09.2018
 
						     Delivered on 26.10.2018
 
Case :- JAIL APPEAL No. - 6662 of 2011
 
Appellant :- Nasir @ Fuddan
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,P.K. Goswami
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Harsh Kumar,J.

Hon'ble Rajiv Gupta,J.

(Delivered by Hon. Rajiv Gupta, J)

The present appeal calls in question the defensibility of the judgment of conviction and the order of sentence dated 30.8.2011 passed by Addl. Sessions Judge, Court No. 6, Mathura in Sessions Trial No. 406 of 2009, State of U.P. vs. Nasir @ Fuddan & another arising out of Case Crime No. 455 of 2009, P.S. Kotwali, District- Mathura, whereby the appellant- Nasir @ Fuddan has been convicted under Section 302 IPC and awarded the sentence of life imprisonment while acquitting the other accused Munna Khan.

The prosecution case as set out in the written report Exbt.-Ka-1 of P.W.-1- Chhitaria, the first informant is that he had married his daughter with the appellant Fuddan @ Nasir, who used to take narcotic/psychotropic substance. It is further alleged that whatever her daughter used to earn by her hard labour, was snatched by him and spent in taking narcotic/psychotropic substance. On getting knowledge about the said fact on 22.4.2009, he sent his son Islam to persuade the appellant- Nasir @ Fuddan to give up his habit of taking narcotic/psychotropic substance. On 23.4.2009 at about 7:00 a.m, his son Islam telephonically informed him that last night, he along with his elder sister- Maya and brother in-law Nasir along with his wife were sleeping on the roof. At about 5:00 a.m. his brother in law to fulfil his urge for narcotic/psychotropic substance asked his sister to part some money. On refusal by her sister, in a fit of rage, Nasir took up a Aata-chakki stone lying nearby and assaulted his sister on her head. He along with his sister snatched the stone from him however in the said assault, his elder sister sustained injuries on her mouth and Jija Nasir sustained injury in his hand. However, Nasir somehow managed to make his escape good and her sister died instantaneously. Her dead body is lying on the roof. It is further alleged that prior to this incident, the applicant had also visited his daughter's place in order to persuade his son in law and his father, which resulted in a quarrel between husband and wife and in the said quarrel, accused Munna Khan had instigated his son to assault his daughter Guddan. On the basis of aforesaid written report (Exbt. Ka-1), an FIR was registered vide Case Crime No. 455 of 2009, under Sections 302/120B IPC at Police Station- Kotwali, District- Mathura on 23.4.2009 at 9:10 a.m., Chik FIR (Exbt. Ka-2) and the corresponding G.D. Entry vide Rapat No. 9 dated 23.4.2009 was prepared by the constable, a carbon copy whereof was brought on record as Exbt. Ka-4. The investigation of the case was entrusted to the Office Incharge, P.S. Kotwali, Mathura, who after registration of the first information report rushed to the place of occurrence and conducted the inquest proceeding on the person of the deceased and after preparing the necessary police papers i.e. the Photo-nash, Chitthi nash, Chitthi C.M.O, Chitthi R.I. and sample of seal for sealing the dead body sent the same for post-mortem. The I.O. also prepared the site-plan and had collected the blood stained earth, plain earth and blood stained stone of Aata-Chakki and prepared its recovery memo. He also examined the witnesses and recorded the statements under Section 161 Cr.P.C.

An autopsy was conducted on the person of the deceased on 23.4.2009 at 3:40 p.m. by Sri Ajay Agarwal of District Hospital, Mathura, who had noted the following injuries on the person of the deceased :-

(1) General External Observation

The deceased was of average body built. Rigor-mortis was present all over the body. Blood was coming out from nose and right ear.

(2) Ante-Mortem (external) Injuries

(i) Lacerated wound, 2 cm x 1 cm over right side above the eye brow.

(ii) Abrasion, 2 cm x 1 cm over right ear.

(3) Ante-Mortem (internal) Injuries

(i) Brain and its membranes were found lacerated.

(ii) Right temporal and parietal bones and base were found fractured.

(4) Cause of death ; Died due to head injury

The deceased was also found six months pregnant.

The Investigating Officer after collecting cogent and reliable evidence against the accused-appellant Nasir @ Fuddan and his father Munna Khan, filed charge-sheet against them in the Court of Chief Judicial Magistrate, Mathura under Section 302/120B IPC.

The Chief Judicial Magistrate, Mathura took cognizance of the offence on the basis of charge-sheet against the accused persons and after complying the provisions of Section 207 Cr.P.C. committed the case to the Court of Sessions, where the case was registered as Sessions Trial No. 406 of 2009; State vs. Nasir @ Fuddan and another who thereafter made over the case for trial before the Addl. Sessions Judge, Court No. 6, Mathura. The trial court framed charges under Section 302 IPC against the appellant Nasir and against the co-accused Munna Khan framed charges for the offence punishable under Section 302 read with 109 IPC. Both the accused abjured the charge and claimed to be tried.

The prosecution in order to bring home the guilt against the appellant has examined as many as four witnesses of fact. Chhitaria (P.W.-1) is the father and first informant of the case. Raju (P.W.-2) is the brother of the deceased. Islam (P.W.-3) is the another brother of the deceased and an eye witness. Maya (P.W.-4) is the elder sister of the deceased and also an eye witness. During the course of trial, only P.W.-1, who admittedly was not an eye witness, supported the prosecution story in his examination in-chief but did not support the prosecution case in his cross examination, however, he has not been declared hostile by the prosecution. The other three witnesses, namely Raju (P.W.-2), Islam (P.W.-3) and Maya (P.W.-4) have not at all supported the prosecution story and all the three witnesses have been declared hostile by the prosecution. The prosecution has dispensed with the formal witnesses however the genuineness of the documents particularly the post-mortem, site-plan, panchayatnama, serologist report and memo of recovery and other documents has been admitted by the defence. The accused were then asked to enter in their defence and their statement u/s 313 Cr.P.C. has been recorded. The appellant Nasir in his statement has clearly stated that he is innocent and has been falsely implicated in the present case. However, in his statement in reply to question No. 13 has stated that on the alleged date and time of incident, he was sleeping on the roof. However, he has not led any evidence in his defence.

Learned Addl. Sessions Judge, Court No. 6, Mathura after considering the submissions advanced by learned counsel for the parties and scrutinizing the evidence on record both oral as well as documentary, convicted the appellant- Nasir @ Fuddan under Section 302 IPC and awarded the sentence of life imprisonment to him. However, acquitted the other co-accused Munna Khan.

Heard Sri Pradeep Kumar Mishra, learned Amicus Curiae for the appellant and Sri Arunendra Kumar Singh, learned AGA for the State.

Learned counsel for the appellant has submitted that except P.W.-1- Chhitaria who is the first informant and father of the deceased none of the other witnesses P.W.-2, P.W.-3 and P.W.-4 have supported the prosecution story and have been declared hostile. He has further submitted that even P.W.-1 though to some extent supported the prosecution case in his examination-in-chief but in his cross examination has resiled from his statement and did not support the prosecution case yet he has not been declared hostile by the prosecution. He has further submitted that even according to the prosecution own case, he is not an eye witness of the incident and has deposed only on the basis of information given to him by his son Islam. Thus his evidence is based on hearsay and no credence whatsoever can be attached to his testimony to establish the manner of incident and the involvement of the appellant in the present case. So far as the other witnesses P.W.-2, P.W.-3 and P.W.-4 are concerned, they have not supported the prosecution case at all and have completely turned hostile, as such no credence can be attached to the testimony and the appellant is liable to be acquitted.

Learned counsel for the appellant has further submitted that though the incident is said to have been taken place on the roof of the house of the appellant yet the prosecution has not produced any witness to establish the fact that at time and place of incident, the appellant was present at his house. None of the prosecution witnesses has stated that at the time of incident, he was seen at or near his house by any of the witnesses, as such no presumption under Section 106 of Indian Evidence Act can be drawn against him. Learned counsel for the appellant has further submitted that except suspicion there is absolutely no evidence to connect the appellant in the present case and mere suspicion howsoever strong it may be cannot take the place of proof as such the finding of conviction recorded by the trial against the appellant is wholly illegal and liable to be set aside by acquitting the appellant. In order to buttress his argument learned counsel for the appellant has drawn the attention of the Court by placing reliance upon the case reported in (2014) 12 SCC 444, Joydeb Patra & Ors. vs. State of West Bengal wherein it has been held that :-

"This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Indian Evidence Act to establish that he was not guilty. In Sucha Singh Vs. State of Punjab (2001) 4 SCC 375, this Court held:

"We pointed out that under Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference."

Similarly, in Vikramjit Singh Vs. State of Punjab (2006) 12 SCC 306, this Court reiterated:

"Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same.

Learned counsel for the appellant further relying upon the case of Jose @ Pappachan vs. Sub Inspector of Police reported in (2016) 3 JIC 636 (SC) has vehemently urged that in the absence of any persuasive evidence to hold that at the relevant time the accused was present in the house it would be impermissible to cast any burden on him as contemplated under Section 106 of the Evidence Act and in this backdrop also the appellant is liable to be acquitted.

Thus, we are of the opinion that in the absence of any persuasive evidence to hold that at the relevant time the accused was present in the house, it would not be permissible to cast any burden on him as contemplated u/s 106 of the Evidence Act, the finding recorded by the trial court in this respect is, therefore, erroneous and liable to be set aside.

Per contra, learned AGA has submitted that according to the prosecution case the dead body of the victim was found on the roof of the house of the accused at the time of inquest and as per the post-mortem report, the victim had died 12 hours before the time of post-mortem which was done at 4 p.m. on 23.4.2009 from which it is established that the deceased had died in the early morning on 23.4.2009 at about 5 A.M. and the presence of appellant in the early morning at his house is quite natural. The recovery of the blood stained stone of Aata Chakki clearly establishes the fact that the victim was done to death at her house by hitting a heavy stone on her head and presence of appellant in his house in the early morning hours is quite natural, as such a presumption under Section 106 of the Indian Evidence Act can be reasonably drawn against the appellant and it was the appellant, who was the perpetrator of the crime and absconded after causing the death of his own wife. The order passed by the trial court in the light of the said evidence is just, proper and legal and do not call for any interference by this Court and the appeal is liable to be rejected.

We now proceed to evaluate the evidence led by the prosecution in this case to establish the guilt of the appellant on the touch stone of the principle enunciated by the Apex Court in several cases and by this Court.

P.W.-1 informant- Chhitaria in his examination-in-chief before the trial court has supported the prosecution story stating therein that he married his daughter Guddan with Nasir @ Fuddan, who used to ply a riksha and habitual in taking narcotic/psychotropic substance and whatever her daughter used to earn by her hard labour, was snatched by him to fulfil his urged for narcotic/psychotropic substance. On the date of incident on 22.4.2009, he had sent his son Islam to persuade, the appellant however at about 7:00 a.m. he was telephonically informed by his son that he along with his elder sister Maya and Nasir @ Fuddan were sleeping on the roof. In the morning at about 5:00 a.m. his brother in-law asked his younger sister Guddan to part some money for fulfilling his urge for narcotic/psychotropic substance and on refusal by her some quarrel took place between them and in a fit of rage, Nasir @ Fuddan picked up a stone and hit Guddan on her head. The said stone was snatched by him and his daughter Maya however Nasir made his escape good, whereas Guddan died instantaneously. A written report of said incident was drawn by one Islam son of Hammi and on the basis of which, he lodged the FIR. The said witness has been cross examined by the defence, in which he has categorically stated that he had reached the place of incident after the incident had already occurred. When he reached the place of incident, the dead body of Guddan was lying there but his son-in-law Nasir @ Fuddan appellant was not present there. He has further denied to met his son Islam at the place of incident and has stated that on the telephonic call of the neighbours, he reached the place of incident and on the saying of the neighbours he had lodged the report. He has further categorically denied to have seen his son-in-law taking any narcotic/psychotropic substance nor had seen the appellant demanding money from his daughter. He has also denied to have given any statement to the Investigating Officer and if the Investigating Officer has written any of his statement then he cannot assign any reason for the same. He has further denied that the site plan was prepared on his pointing out and has clearly stated that on the saying of the neighbours and in a fit of emotion has lodged false first information report.

Thus, from the aforesaid evidence adduced by P.W.-1 in his cross examination, it is evident that he was not an eye witness of the incident and in his cross examination, has not supported the prosecution story at all and has clearly stated that on the saying of the neighbours, he has lodged the first information report, as such no credence can be attached to the testimony of P.W.-1 about the involvement of the appellant in the present case and the manner in which the incident had occurred.

Now coming to the testimony of P.W-2, it is evident that he has not supported the prosecution story at all and has stated that the information about the death of his sister was received by him at his house and he along with his father had reached Mathura and has found the dead body lying at the place of incident and he had not seen Nasir @ Fuddan causing the death of Guddan nor had come there one day prior to the incident. He has been declared hostile by the prosecution and on being cross examined, his attention has been drawn to his statement recorded by the Investigating Officer under Section 161 Cr.P.C. However, he has categorically denied to have given any such statement to the Investigating Officer. He has categorically stated that he had not seen anyone causing the death of Guddan nor has been informed by his brother- Islam nor he met him at the place of incident.

From his evidence, it is crystal clear that he has not supported the prosecution story at all and when his attention was drawn under Section 161 Cr.P.C. he has categorically denied to have made any statement to the I.O, as such no credence can be attached to his testimony about the involvement of the appellant in the present case and the manner in which the incident had taken place.

Islam (P.W.-3) is the brother of the deceased and said to be an eye witness of the incident and on the basis of whose information the first information report is alleged to have been lodged by P.W.-1, also does not support the prosecution story and states that on 23.4.2009 information about the death of his sister was given to him in his village and on the said information, he along with his father had reached at the house of his younger sister Guddan, where she was found dead. He has categorically denied to have seen any quarrel between his brother-in-law Nasir @ Fuddan and his sister Guddan, nor had seen him assaulting Guddan by the stone of Aata-chakki. The said witness has also been declared hostile by the prosecution and when his attention was drawn to his statement under Section 161 Cr.P.C, he has denied to have made any such statement to the Investigating Officer and when the entire statement under Section 161 Cr.P.C. recorded by the I.O. was put to him, he has categorically denied to have made any such statement and shown his ignorance as to how such statement was recorded. Thus, from the aforesaid evidence adduced by P.W.-3, also it cannot be said by any stretch of imagination that the appellant was involved in the present incident and the manner in which the present incident occurred.

Now coming to the testimony of P.W-4- Maya, who is another eye witness of the incident. It is stated by her that about 2 years back at about 7 a.m. in the morning, her sister Guddan was done to death by some unknown person by hitting her on her head while she was sleeping and on the date of incident she was present at her parent's place and not at the place of incident. On getting information about the death, he had reached at the place of incident and had not seen her brother-in-law assaulting his sister. She has further categorically stated that she was informed by the neighbours that her sister has been done to death by some unknown person and even the neighbours have not informed her that Nasir have assaulted her sister and has categorically stated that Nasir has not killed her sister. The said witness has also been declared hostile by the said defence and when her attention was drawn towards her statement recorded under Section 161 Cr.P.C, she has categorically denied to have made any statement to the Investigating Officer and showed her ignorance as to how the said statement was recorded. In the cross examination by defence, she has categorically stated that she was not present at the place of incident and had no knowledge about the incident and in the first information report, it has been wrongly mentioned that she was present at the scene of incident and her name has wrongly been mentioned in the first information report. Thus, from the statement of P.W.-4 also there is no iota of evidence to show the involvement of the appellant in the present incident and the manner in which the incident is said to have occurred.

Now coming to the facts that all the four prosecution witnesses have not supported the prosecution story. The only question left for our consideration is whether on the basis of presumption under Section 106 of the Evidence Act the appellant can be saddled with the responsibility of causing the death of the deceased. Learned AGA has argued that the inquest proceeding has been performed at the roof of the house of the deceased and as per the post-mortem report the victim has died 12 hours before the time of post-mortem which was done at 4 P.M. on 23.4.2009 from which it is established that the victim had died in the morning on 23.4.2009 at about 5 A.M. and the presence of appellant in the early morning at his house is quite natural coupled with the fact that the appellant in his statement u/s 313 Cr.P.C. in reply to question No. 5 has merely denied the manner of incident of assaulting his wife on her head by a atta chakki; stone causing her death and in reply to question No. 13 put to him in his additional statement under Section 313 Cr.P.C. that on 23.4.2009 at about 5 A.M. after the death of his wife he had run away and was arrested by the police in the evening, has been denied by him, and he has stated that he was sleeping on the roof caste a burden upon him to explain his conduct of abscondance after the incident.

Before we delve in the question of the applicability of the provision of Section 106 Indian Evidence Act in the present case, it would be useful to quote the Provisions of Section 106 of the Indian Evidence Act :-

"Section 106 of the Evidence Act envisages that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him."

Hon'ble Apex Court as well as this Court in catena of decision has held that in order to attract the provision of Section 106 of Evidence Act, it is necessary for the prosecution to prove that the fact was specially in the knowledge of the accused and further that whether the prosecution has discharged its initial burden of proving the guilt of the appellant beyond all reasonable doubt and further whether only on the basis of statement made by the appellant in his statement under Section 313 Cr.P.C. that he was sleeping at his roof on the date and time of incident would be sufficient evidence for attracting the provision of Section 106 of the Evidence Act in the present case.

While considering the applicability of Section 106 of the Indian Evidence Act, it should be kept in mind that the said provision in anyway does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved that the burden in regard to such facts which was within the special knowledge of the accused, then only burden may be shifted to the accused for explaining the same. It may be that in a situation of this nature where the Court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well settled principle of law that suspicion, howsoever grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar v. State of M.P., State v. Mahender Singh Dahiya and Ramesh Harijan v. State of U.P.)

In the present case from the evidence adduced, there is nothing on record to suggest that the appellant was at or around his residence at the relevant time. None of the prosecution witnesses have supported the prosecution case that at the relevant time the appellant was present at his house and had assaulted the deceased. We are now left only with the material i.e. the statement of the accused-appellant under Section 313 Cr.P.C. wherein he has stated that at the time of incident he was sleeping at his roof. Now we have examined two facts as to whether in the absence of any corroborating evidence only on the basis of the statement given by the accused-appellant under Section 313 Cr.P.C.

can the appellant be convicted for the offence punishable under Section 302 IPC ?

It is well settled principle of law that the statement of an accused made under Section 313 Cr.P.C. can be taken into consideration is not in dispute; not only in view of the what has been contained under Section 313 (4) of the Code but also because of the law laid down by the Hon'ble Apex Court as well as this Hon'ble Court in several pronouncements. We may in this regard refer to the decision of this Court in the Sanatan Naskar v. State of West Bengal reported in 2010 (8) SCC 249, where this observed: (SCC page 258-59, paras 21-24)

"21. The answers by an accused under Section 313 of the Cr.P.C. are of relevance for finding out the truth and examining the veracity of the case of the prosecution. ...

22. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr.P.C. is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. ... Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.

23. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) of Cr.P.C. explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for, any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.

24. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Cr.P.C. as it cannot be regarded as a substantive piece of evidence....."

To the same effect is the decision of this Court in Ashok Kumar v. State of Haryana.

Reference may also be made to the decision of this Court in Brajendra Singh v. State of M.P. where this Court said : (SCC page 297, para 15)

"15. It is a settled principal of law that the statement of an accused under section 313 of Cr.P.C can be used as evidence against the accused, insofar as it supports the case of the prosecution. Equally true is that the statement under section 313 of Cr.P.C simpliciter normally cannot be made the basis for conviction of the accused. But where the statement of the accused under section 313 Cr.P.C is in line with the case of the prosecution, then certainly the heavy onus of proof on the prosecution is, to some extent, reduced."

Now examining the fact whether appellant's participation in the crime is proved by the prosecution evidence adduced in the trial, we find that none of the four witnesses have stated that at the time of incident, the appellant was present at his house nor any other witness has been examined to suggest that the appellant was at or around his residence at the relevant time. In the absence of which in our opinion the presumption under Section 106 of the Evidence Act cannot be drawn merely on the basis of the statement made by the appellant under Section 313 Cr.P.C. Thus, we are of the opinion that the presumption under Section 106 of the Evidence Act cannot be drawn in the present case on the basis of which the appellant can be convicted. The view taken by the trial court in this respect is, therefore, erroneous and cannot be sustained.

Now the question arises as to whether on the basis of the abscondance of the accused after the incident, can the appellant be convicted as argued by the learned AGA. So far as the question of abscondance of an accused can be taken as a circumstance against the appellant to convict him was lucidly considered by the Apex Court in Bipin Kumar Mondal v. State of West Bengal wherein the Court observed : (SCC page 98-99, paras 27-28)

"27. In Matru alias Girish Chandra v. State of U.P., AIR 1971 SC 1050, this Court repelled the submissions made by the State that as after commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person observing as under:

''19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self- preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused.

In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence.'

28. Abscondence by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, cannot be said to be unnatural. Thus, in view of the above, we do not find any force in the submission made by Shri Bhattacharjee that mere absconding by the appellant after commission of the crime and remaining untraceable for such a long time itself can establish his guilt. Absconding by itself is not conclusive either of guilt or of guilty conscience."

While deciding the said case, a large number of earlier judgments were also taken into consideration by the Court, including Matru and State of M.P. v. Paltan Mallah.

Thus, in a case of this nature, the mere abscondance of an accused does not lead to a firm conclusion of his guilty mind. An innocent man may also abscond in order to evade arrest, as in light of such a situation, such an action may be part of the natural conduct of the accused. Abscondance is in fact relevant evidence, but its evidentiary value depends upon the surrounding circumstances, and hence, the same must only be taken as a minor item in evidence for sustaining conviction. (See: Paramjeet Singh @ Pamma v. State of Uttarakhand and Sk. Yusuf v. State of W.B.

Thus, in our view in the light of the aforesaid settled prepositions of law the argument raised by the learned AGA that abscondance of the accused is relevant under Section 8 of the Evidence Act and as such the appellant can be held guilty and the view taken by the trial court in this regard is just, proper and legal in our opinion is not a correct view and is liable to be set aside.

In the back drop of the aforesaid case and there being absolutely no evidence to show the involvement of the appellant in the present case, we are of the opinion that merely on the basis of abscondance, the appellant cannot be convicted and the said argument of the learned AGA does not hold any water. Thus, from the entire discussion and taking into consideration entire material and evidence on record, we are of the opinion that the prosecution in the present case is not able to prove its case beyond all reasonable doubt and the view taken by the trial court in recording the conviction of the appellant does not hold good and is liable to be set aside by allowing the present appeal.

The present appeal stands allowed by setting aside the judgment of conviction and sentence against the appellant . The appellant is in jail. He is liable to be released forthwith if he is not wanted in any other case.

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

Judgment be certified and placed on record.

Order Date :- 26.10.2018

KU

Case :- JAIL APPEAL No. - 6662 of 2011

Appellant :- Nasir @ Fuddan

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,P.K. Goswami

Counsel for Respondent :- A.G.A.

Hon'ble Harsh Kumar,J.

Hon'ble Rajiv Gupta,J.

Sri Sri Pradeep Kumar 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 :- 26.10.2018

KU