Dinesh vs State Of U.P.
2019 Latest Caselaw 3343 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on : 28.01.2019
 
Delivered on : 23.04.2019
 
Court No. - 34
 

 
Case :- JAIL APPEAL No. - 4477 of 2012
 

 
Appellant :- Dinesh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Prateek Samadhiya (A.C.),R.B. Gaur,Saurabh Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV,J.)

1. This Jail Appeal has been filed by accused-appellant Dinesh through Superintendent of Jail Shahjahanpur against judgement and order dated 16.07.2012 passed by Additional Sessions Judge (ECP) Court No. 26, Shahjahanpur in Sessions Trial No. 269 of 2003 (State v. Dinesh and Another) under Section 302/34 IPC, Police Station, Banda, District Shahjahanpur convicting accused-appellant and sentencing him to undergo life imprisonment and fine Rs. 10,000/-.

2. Factual matrix of the case as emerging from First Information Report (hereinafter referred to as "FIR") as well as material placed on record is as follows.

3. A written report Ex. Ka-1 dated 7.11.1998 was presented by PW-1, getting it scribed by one Srikant, in Police Station Banda, District Shahjahanpur, alleging that on 6.11.1998 at 5:00 p.m. his brother Munnu was taken by accused Dinesh from his house. Thereafter, he (victim) along with one unknown person went to Grocery shop of Om Prakash situated at Kandharpur for taking snacks (Namkeen) but due to lack of retail money, they went without taking the same. Victim did not come back to house throughout the night, when PW-1 along with his other family members was searching him. In the next morning, his dead body was found lying in Barha, near lane, in western side of village Kandharpur.

4. On the basis of Written Report Ex. Ka-1, a chick F.I.R. Ex.Ka-11 was registered by PW-6 the then H.M. Tribhuvan Singh as Case Crime No. 214 of 1998 under Section 302 IPC against accused. An entry was made in general diary, copy whereof Ex. KA-12 is on file.

5. PW-5 commenced investigation of the case, proceeded to spot, held inquest over the dead body of deceased-Munnu, prepared inquest report Ex.Ka-4 and other relevant paper relating thereto, sent the body for postmortem examination to District Hospital, Shahjahanpur, collected sample and blood stained earth from spot, prepared Farad thereof, Ex.Ka-2, visited spot and prepared site plant Ex.Ka-9, recorded statement of witnesses and thereafter further investigation of case was undertaken by then SO Rajendra Prasad Awasthi.

6. Autopsy over the dead body of deceased-Mannu was conducted by PW-4 Dr. Ashok Kumar, Medical Officer, District Hospital Shahjahanpur on 8.11.1198 at about 11:30 p.m. Doctor prepared postmortem Ex.Ka-3 expressing his opinion that death of victim was due to coma and hemorrhage on account of ante-mortem injuries and found one ante-mortem injuries on neck i.e. incised wound 11x4 cm bone deep.

7. After completion of investigation, charge-sheet Ex.Ka-10 was submitted by Rajendra Singh Yadav (not examined), against the accused-appellant-Dinesh and Chhotey under Section 302/34 IPC in the Court of Chief Judicial Magistrate, Shahjahanpur, who took cognizance of the offence.

8. Case, being triable by Court of Sessions, was committed to Sessions Court for trial.

9. Sessions Judge, framed charge against accused-appellant and one Chhotey under Section 302/34 IPC on 03.07.2003 which reads as under :

" I, V.D. Chaturvedi, Sessions Judge, Shahjahanpur do hereby charge you:

1. Dinesh alias Bade

2. Chhotey

as follows :-

That you along with another co accused on intervening night of 6/7.11.1998 at some time within the limits of village Kandharpur, within the circle of P.S. Banda district Shahjahanpur did commit murder by intentionally causing the death of Munnu and that you there by committee an offence punishable under section 302 I.P.C. and within the cognizance of this court of sessions.

And I hereby direct that you be tried by this court on the said charge."

10. Accused-appellant pleaded not guilty and claimed to be tried.

11. Sessions Trial ultimately came to be heard and decided by Additional Sessions Judge, (ECP) Court No. 26, Shahjahanpur.

12. In order to substantiate its case, prosecution has examined as many as six witnesses, out of whom, PW-1 Ram Ashrey is witness of fact, remaining witnesses PW-2 Rakesh Kumar, PW-3 Rajendra Prasad Awasthi, PW-4 Dr. Ashok Kumar, PW-5 Rajendra Singh and PW-6 Tribhuwan Singh are formal witness.

13. Statement of accused-appellant under Section 313 Cr.P.C. was recorded by Trial Court explaining all evidence and other incriminating circumstances in which he denied the prosecution case in toto and claimed false implication on account of enmity in the present case. Accused-appellant did not adduce any documentary or oral evidence in support of his defence.

14. Trial Court, after hearing counsel for parties and appreciating entire evidence on record, has found the accused appellant guilty and convicted him as stated above but acquitted accused-Chhotey for the charge leveled against him. Feeling aggrieved with the order of conviction, appellant has filed this appeal from Jail through Jail Superintendent.

15. We have heard Sri Saurabh Singh, Advocate and Sri Prateek Samadhiya, learned Amicus Curiae appearing for appellant, Sri Ratan Singh, learned A.G.A. for State and have travelled through the entire examination record with the valuable assistance of learned counsel for parties.

16. Learned Amicus Curiae appearing for appellant has assailed conviction of accused-appellant advancing his submissions in the following manner :

i. This is a case of circumstantial evidence and prosecution mainly rests on last seen circumstance but that has not been duly proved.

ii. There is no motive to accused to commit murder of victim. Only last seen theory of PW-2 is there. There is no other evidence except PW-2.

iii. There is no complete chain of evidence so as to indicate that accused is the only person who has committed crime.

iv. There are several contradictions in the statements of PWs rendering prosecution case doubtful.

v. F.I.R. of missing of victim was not lodged by PW-1 brother of deceased.

17. Per contra learned AGA opposed submissions by submitting that PW-1 is the witnesses of fact who established last seen theory, dead body of deceased-Munnu was found lying in the Barha of near lane in western side of village in the next morning.

18. Present case rests on circumstantial evidence. Prosecution relied mainly on the following circumstance :-

i. Victim Munnu was taken by accused from his house in the evening at 5:00 pm on 6.11.1998 in presence of PW-1 and other family members. He was last seen with the company of accused-appellant by PW-1.

ii. Victim did not come back to house throughout the night.

iii. On being searched, body of deceased-Munnu was found in Barha, near lane, in western side of village.

iv. Victim-Munnu was assaulted by giving axe blow which resulted to death.

19. We now proceed to consider rival submissions on merits.

20. PW-1, real brother of deceased, deposed that accused-Dinesh and one unknown person took victim-Munnu from his house. Thereafter, they went to the grocery shop of one Om Prakash and demanded snacks (Namkeen) but due to lack of retail money, they proceeded without taking it. Victim did not come back to house throughout the night. Then he along with other family members searched for him and found his body in Barha, near lane, in the western side of village Kandharpur. There was an injury on the neck of deceased. It was suspected that he was murdered by Dinesh and his companion. He presented a Tahrir getting it scribed before Police Station. Witness withstood his lengthy cross-examination in which he stated that he was taking meal when accused took his brother from house. According to learned counsel for defence, statement of this witness is not worthy to credence for the reasons that incident of taking Muunu from house is said to be at 5:00 p.m. and it was not a time for either dinner or lunch. Besides this fact was not mentioned in FIR by witness and for the first time, after a lapse of more than two years, it has come in the statement before Court.

21. PW-2 deposed that dead body of Munnu was found in the field near Kandharpur village. He had gone to see the dead body. Sub-Inspector present there collected sample and blood stained earth from spot and sealed them before him. He put his signature on memo. In this way, this witness is not a witness of fact. PW-5 visited the spot and held inquest over the dead body on spot. He prepared site plan also. PW-4 Dr. Ashok Kumar conducted post mortem and found one ante-mortem incised wound injury on the neck of deceased. He opined that incised wound on neck was caused by some sharp cutting weapon. No other injury except incised wound on neck was found on the body of deceased.

22. Although it is not practically disputed by learned counsel for defence before us that it is a clear case of murder of Munnu, however, according to defence, accused-appellant is not responsible for the crime. Time, place and date and manner in which victim was assassinated, as established by prosecution, is also not challenged. From the perusal of statements of PW-1, 4 and 5, these facts are established.

23. The crucial question for consideration, therefore is, who is perpetrator of this crime.

24. In present case, PW-1 is witness of last seen. Nobody has seen victim anywhere after last seen of victim with accused till dead body is detected. No other evidence is on file except dead body found in Barha, near lane, in western side of village Kandharpur and last seen theory. This case totally rests upon circumstantial evidence, more so, on these two facts.

25. It is no doubt a case where there is no eye witness of crime. Prosecution totally rests on circumstantial evidences. There cannot be any dispute as to well settled proposition that the circumstances from which the conclusion of guilt is to be drawn must or "should be" and not merely "may be" fully established. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explicable through any other hypothesis except that the accused was guilty. Moreover, the circumstances should be conclusive in nature. There must be a chain of evidence so complete so as to not leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must show that in all human probability, the offence was committed by the accused.

26. In a case, which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link in chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all circumstances must be consistent only with guilt of accused.

27. In Hanumant v. The State of Madhya Pradesh, AIR 1952 SC 343, as long back as in 1952, Hon'ble Mahajan, J. expounded various concomitant of proof of a case based purely on circumstantial evidence and said:

"... 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...... it must be such as to show that within all human probability the act must have been done by the accused. " (emphasis added)"

28. In Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person.

29 In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent :-

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.

(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.

(emphasis added)

30. In Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR 1989 SC 1890, Court said:

"...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."

(emphasis added)

31. In C. Chenga Reddy and Others v. State of Andhra Pradesh, 1996(10) SCC 193, Court said:

"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. "

(emphasis added)

32. In Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir, 2002(8) SCC 45 Court quoted from Sir Alfred Wills, "Wills' Circumstantial Evidence" (Chapter VI) and in para 15 of judgement said:

"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt,

(5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."

(emphasis added)

33. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Another v. Registrar General High Court of Karnataka and Another, 2007(4) SCC 713 and Tomaso Bruno v. State of U.P., 2015(7) SCC 178.

34. In present case, circumstantial evidence commences with statement of PW-1 that his brother Munnu was taken by accused with him at 5:00 p.m. on the fateful day. Deceased was last seen by Informant in company of appellant going with victim. Thereafter, on the next day, his dead body was found in Barha, near lane, of western side in village Kandharpur, which is admittedly not belonged to accused-appellant. In the meantime, nobody has seen accused going with victim towards Barha, nobody has seen them in Barha. There is no evidence as to what happened with the deceased. There is also no evidence that accused has assassinated victim. In this way complete chain is totally missing. It is also notable that PW-1 has not lodged any FIR about missing of his brother. He has also not mentioned in FIR that he was present in the house when accused took victim from his house. After a lapse of more than two years PW-1, for the first time, disclosed that he was taking meal when accused took victim from the house. It is also notable that the time when victim is said to have been taken by accused in respect of last seen in early evening and PW-1 claimed of taking meals at that time. Statement of PW-1 does not find support from other evidence.

35. Learned counsel for appellant contended that circumstances relating to last seen have wrongly been applied in the case in hand for the reason that deceased might have been killed by someone else and there is sufficient gap of time, in which, some one could have approached the victim and commit crime. There cannot be any presumption that victim was murdered only by accused.

36. We may examine as to what is the concept of last seen and in what circumstances it is a relevant crucial circumstantial evidence for proving culpability of a person of crime.

37. In State of U.P. vs. Satish, 2005(3) SCC 114, Court said :-

"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."

38. In Jaswant Gir v. State of Punjab, 2005(12) SCC 438, Court also said that in absence of any other links in chain of circumstantial evidence, it is not possible to convict appellant solely on the basis of last seen evidence, even if, version of witnesses of fact in this regard is believed.

39. Last seen theory has been applied as one of the circumstances that deceased was seen last alive in company of appellant by Informant on 6.11.1998 at about 5:00 p.m. Thereafter his dead body was found in Barha near lane in the western side of village Kandharpur on 7.11.1998 admittedly not belong to accused-appellant. Nobody, in village, had seen deceased anywhere. Meaning thereby, having gone with appellant till detection of his dead body, there was nothing to show what happened with deceased and who murdered him. From the detection of dead body in the Barha near lane in the western side of village Kandharpur, it cannot be said that crime could not have been committed by somebody else.

40. As per statement of PW-1, accused along with deceased went to a grocery shop of one Om Prakas who has not been examined. In fact, as per PW-1, Om Prakash at whose grocery shop, the duo allegedly went, is the person who had last seen the deceased alive and in the company of accused but Om Prakash has not been examined and this fact remained unproved. Withholding of this material witnesse, in our view, renders the prosecution version doubtful and short of proof of last seen theory.

41. It is settled that it is not prudent to base conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of prosecution in its entirety and keeping in mind circumstances that precede and follow the point of being so last seen.

42. Looking into entirety of facts and circumstances of the case, as discussed above, we are of the view that Court below was not correct in convicting appellant, solely relying on statement of PW-1 in respect of last seen, treating it to be a conclusive proof of incident overlooking other major contradictions in the evidence and missing chain of circumstantial evidence. Trial Court has not marshalled facts and law with care and cautious. In our considered view, appellant is entitled to benefit of doubt and it cannot be said that prosecution has been successful in proving guilt of appellant beyond reasonable doubt.

43. In the result, appeal succeeds and is hereby allowed. Impugned judgment and orders dated 16.7.2012 are hereby set aside. Accused-appellant Dinesh is acquitted of charges levelled against him. He is in jail and shall be released forthwith, if not wanted in any other case.

44. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.

45. Before parting, we provide that Sri Prateek Samadhiya, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal and assisted Court very diligently, shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.

Order Date :- 23.04.2019

Akram