Ashok vs State Of U.P.
2019 Latest Caselaw 4047 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 29.1.2019
 
Delivered on 3.5.2019
 
Court No. - 34
 

 
Case :- JAIL APPEAL No. - 1367 of 2013
 

 
Appellant :- Ashok
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Yogesh Srivastava
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV)

1. Present jail appeal has been directed by accused-appellant against the judgment and order dated 17.3.1998 passed by IXth Additional Sessions Judge, Ghaziabad in Session Trial No.1 of 1996 (State Vs. Ashok and Rajjan) under Section 302, 394, 411 I.P.C., P.S. Hapur, District Ghaziabad whereby Trial Court convicted accused-appellant under Sections 302, 394 I.P.C. and sentenced him to imprisonment for life under Section 302 IPC and ten years rigorous imprisonment under Section 394 I.P.C. Trial Court further convicted accused Rajjan and sentenced him to three years rigorous imprisonment under Section 411 I.P.C. but acquitted him under Section 302 I.P.C.

2. Brief facts giving rise to present appeal as emerging from F.I.R. and other evidence are that accused-appellant has given an oral information to Police Station Hapur that in intervening night of 8/9 September, 1995, one Ram Kumar Sharma while sleeping in shop of one Jai Prakash son of Dulichand whereas, he (informant) was sleeping outside shop, at about 1:00 a.m., four unknown miscreants committed murder of Ram Kumar Sharma by cutting his neck by weapon Khukhari like Katar. He has fully recognized assailants. On the basis of oral information, a Chik F.I.R. Ex.Ka-33 was registered as Case Crime No.560 of 1995, under Section 302 I.P.C. against four unknown miscreants and entry of case was made in general diary on the same day, copy whereof Ex.Ka-27 is on file.

3. On the same morning P.W.-1 Jai Prakash presented a Written Tehrir-Ex. Ka-1 getting it scribed by Ajay Kumar in Police Station Hapur stating therein that on 8.9.1995, Ram Kumar Sharma took mustard in a Tractor Trolley for selling and amount worth Rs.1,08,000/- thereof was with him, who stayed in his shop during night keeping money in almirah, get it locked when his servant Ashok Kumar was sleeping outside the room. Ex.Ka-1 recites further that at about 3.30 a.m. Ashok Kumar came to his house situated at Narayan Ganj, Hapur and told that four miscreants committed murder of Ram Kumar and took money getting it looted. He (P.W.-1) alongwith his neighbour Rajesh Sharma and two constables posted at outpost Chopal, went to his shop and saw that dead body of Ram Kumar was lying there with blood and money kept in almirah was missing and lock was found broken.

4. P.W.7 S.I. Prem Pal Singh, under direction of P.W.-10, held inquest over dead body of Ram Kumar Sharma and prepared Panchayat Nama Ex.Ka-27 and other papers relating thereto, body was duly sealed and sent for post mortem.

5. PW-6 conducted autopsy of dead body of Ram Kumar Sharma and prepared postmortem report Ex. Ka-26, expressing his opinion that death would have been occurred due to coma and haemorrhage on account of ante-mortem injuries which was possible by some sharp aged weapon like knife or Katar. He further opined that death was possible in the intervening night of 8/9 September, 1995. Doctor found following ante-mortem injuries on the body of deceased, which read as under :-

1. Incise wound on left side on temporal bone, extending from left eye to temporal bone, 13 cm x 4 cm x bone deep, gravy matter coming out (temporal bone fractured).

2. Incised wound 17 cm x 4 cm x bone deep from angle of mouth (left side) up to neck, all muscle, nerve mandible bone cut.

3. Incised wound in front of neck 17 cm x 6 cm x cavity deep, in middle of neck, aerophagia trachea, all muscle nerve and vessels are cut.

4. Incised wound 6 cm x 4 cm on right hand dorsum side of hand, 4 cm below right wrist joint.

6. PW-10 R.K. Chhabba commenced investigation, recorded statements of Ashok, Jai Prakash, directed S.I. Prem Pal Singh to hold inquest over dead body, visited the spot, prepared Site Plan Ex.K-36, collected blood stained and simple Gadda and pieces of floor, prepared Fard thereof Ex.Ka-37 and 38, inquired of Ashok and on his information, recovered blood stained, torn Chadar (Bed-sheet) and one blood stained "Dav", prepared Fard thereof Ex.Ka-2, prepared Site Plan of spot of recovery Ex.K-39 and after completing entire formalities of investigation, submitted charge-sheet Ex.Ka-40 against accused-appellant and one Rajjan.

7. Case, being exclusively triable by Court of Sessions, was committed to Sessions Judge, wherefrom, it was transferred to VIIIth Additional Sessions Judge, Ghaziabad for disposal in accordance with law.

8. Trial Court framed charges under Sections 302, 394, 411 I.P.C. against accused-appellant Ashok Kumar and one Rajjan on 31.1.1996. Charges read as under:-

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''I, RP Shukla, 8th Additional Sessions Judge, Ghaziabad, charge you, the accused persons, Ashok and Rajjan, with the following: -

1. That on the night of 8/9-9-95, on the first floor of the Jai Prakash's shop 'Mukutlal Jaiprakash Canvassing Agent' located at Pucca Bagh near Swarg Ashram Gate under PS - Hapur; you, with an intent to commit murder of Rajkumar r/o Bajna, Mathura, inflicted injuries on his person with Gandasa (cleaver), due to which he died at the spot. In this way, the act committed by you is an offence punishable u/s 302 IPC, which is in the cognisance of this court.

2. That on the aforesaid place, date and time, you accused persons, having inflicted injuries on the person of the decedent, forcibly robbed him of Rs. 1,08,000/- kept in the almirah, thereby committed an offence punishable u/s 394 IPC, and which is in the cognisance of this court.

3. That on 11.09.95 at 10:30 p.m., you accused Rajjan was arrested by police from Freeganj road near the Railway Road Mata Temple, and while you were being frisked, Inspector Shri VP Singh recovered Rs. 88,000/- from your possession. In this way, you committed an offence punishable offence u/s 411 IPC, which is in the cognisance of this court.

I hereby direct that for the aforesaid offences, you be tried by this court.''

(English Translation by Court)

9. Accused-appellant denied charges levelled against him, pleaded not guilty and claimed trial.

10. In order to substantiate its case, prosecution examined as many as ten witnesses i.e. PW-1 Jai Prakash and P.W.-2 Dwarika Prasad are witnesses of fact and remaining PW-3 Bhagwat Prasad, P.W.-4 Vinod Kumar Agarwal, P.W.-5 Ram Kishan, P.W.-6 Dr. J.K. Verma, P.W.-7 S.I. Prempal Singh, P.W.-8 Constable Jai Prakash, P.W.-9 H.C. Chandrapal and P.W.-10 S.I. R.K. Chhabba alongwith other papers.

11. In the statement under Section 313 Cr.P.C., recorded by Trial Court explaining entire evidence and other incriminating circumstances, accused -appellant denied prosecution story in toto and claimed false implication. In response of question nos.13, 14 and 15 he answered that statements are under pressure of shop-owner and police challaned him falsely with collusion of shop-owner. He choose to lead evidence but later on did not do so.

12. Trial Court after evaluating and examining the entire evidence led by prosecution, found accused guilty and convicted and sentenced, as stated above.

13. We have heard Sri Yogesh Srivastava, learned counsel for the appellant and Sri Ratan Singh learned A.G.A. for State, perused record carefully with valuable assistance of learned counsel for parties.

14. Learned counsel appearing for appellant took us through the record and advanced his submissions in following manner:-

i. This is a case of circumstantial evidence, nobody has seen accused-appellant killing Ram Kumar.

ii. Accused-appellant himself gave information regarding murder of Ram Kumar to police station concerned at which case was registered against unknown four accused but later on he has been falsely implicated in the present case.

iii. Nothing has been recovered from possession of accused on information made by him.

iv. Recovery attributed to him, has been fabricated by police and was not fully proved.

v. There are so many contradictions rendering prosecution case doubtful.

vi. There is nothing on record to connect accused-appellant with present case except recovery of Chadar (Bed-sheet) and "Gadasa", allegedly, not established by prosecution.

vii. There is no complete chain of circumstantial evidence so as to connect him with present case or justifying his connection.

viii. Prosecution has failed to establish its case beyond reasonable doubt against accused-appellant, therefore, he is entitled to get benefit of doubt.

15. Per contra, learned A.G.A. appearing for State supported the order of conviction and submitted that at the time of incident, admittedly, accused was present on spot and he has given false information to police. Chadar (bedsheet) and Gadasa came to be recovered by police at the pointing out of accused-appellant from store of shop. Prosecution has established a complete chain of circumstantial evidence connecting accused in present case. Accused is only person, who committed murder of Ram Kumar.

16. Although place, time and date of occurrence and manner in which Ram Kumar was assassinated as set up by prosecution, has not been disputed from the side of defence, but according to Advocate for defence, accused-appellant is not responsible for the same. From evidence of prosecution witnesses, information given by accused himself to police station concerned, the relevant date, time and place of incident as stated by prosecution, are fully established.

17. Only question remains for consideration is "whether accused-appellant committed murder of Ram Kumar and Trial Court rightly convicted and sentenced accused-appellant or not?"

18. We may now consider briefly evidence of prosecution. Admittedly, PW-1 Jai Prakash is not eye witness. He only presented Ex.Ka-1 in Police Station concerned. He deposed that in the night of 8.9.1995, victim Ram Kumar stayed in his shop with Rs.1,08,000/- which was kept in almirah, key whereof was with victim. Accused-appellant Ashok Kumar was also present there. At about 3:30 a.m., accused-appellant, Ashok Kumar, himself came to his house and told that some miscreants caused murder of Ram Kumar and looted money. He aloghwith one Rajesh and two constables of outpost Chopal reached at shop and saw dead body of Ram Kumar, lying there with blood; lock of almirah was broken and money was missing. He presented Ex.Ka-1 getting it scribed by one Ajay Kumar in the Police Station concerned. In his cross examination, he admitted that while going to Police Station, accused Ashok Kumar was not with him.

19. P.W.-2, Dwarika Prasad deposed that accused Ashok was servant of Jai Prakash. At the time of incident, he went to Hapur from his village. On receiving information of incident, police inquired of Ashok, who confessed his guilt and on his pointing out, police recovered a blood stained Gadasa and a piece of one bedsheet, which contained blood, from store. Police sealed recovered material and prepared Fard Ex.Ka-2 before him.

20. P.W.-3 identified recovered money of Rs.1,08,000/- but did not give any evidence against accused-appellant.

21. P.W.-5 deposed that at about 10:00 p.m. on 11.9.1995, he was going towards Hapur Railway Station alongwith Prakash Chand when police arrested the accused Rajjan and searched before them. Police recovered Rs.88,000/- from his possession, prepared recovery memo Ex.Ka-25 and took his signatures. In this way, P.W.-5 proved recovery memo of money which has been recovered from possession of accused Rajjan (not appellant).

22. Only evidence against accused-appellant is evidence of P.W.-1, who established presence of accused at the time of incident and statement of P.W.-2, Dwarika Prasad establishing recovery of one Gadasa and Bed-sheet on pointing of accused from store of shop which allegedly belong to P.W.-1 and oral information given by accused himself to Police Station regarding incident.

23. It is evident from record that accused-appellant had given information of incident to Police Station concerned. He did not disappear from spot. It is also an admitted case that accused-appellant Ashok Kumar was servant of Jai Prakash and present in the shop where victim was killed. Nobody has seen accused-appellant Ashok Kumar with victim in night. P.W.-1 admitted in cross examination that accused-appellant was with him from three years, prior to incident, and Traders usually come with him and he had full confidence upon him (accused). Conduct of accused-appellant was never suspected by P.W.-1. Witness further stated that usually traders used to stay in his shop therefore, accused Ashok lived there in night. Allegedly, recovery was shown from store of P.W.-1 but P.W.-1 is not a witness which is quite unnatural. It is not a case of prosecution that key of store was with the accused-appellant.

24. Except presence of accused-appellant on spot which was usual and recovery of Gadasa, and, confessional statement of accused himself before police which is not admissible in evidence, there is no other evidence to connect accused with crime. P.W.-10 admitted in his cross-examination in chief that after sending dead body to post-mortem, he did not take Ashok and Jai Prakash to Police Station but left them on spot. He further admitted that he had not sent blood stained material for chemical examination because he did not think it proper. In this way according to this witness, accused-appellant did not disappear from spot. According to Advocate, it is natural conduct that accused, if, had committed crime, he would not have been present on spot and presence of accused on spot indicates his innocence. We find substance in the submission made by learned advocate for defence in this regard. It is also notable that Gadasa which is allegedly used in commission of offence has been said to be recovered from store of shop, belong to P.W.-1, who was not a witness. Moreover said Gadasa has neither been produced in the court nor sent for examination. Recovery of Gadasa at the pointing out of accused-appellant is not found proved beyond doubt and it is not safe to convict accused solely on the ground of recovery of Gadasa allegedly not to be proved beyond doubt.

25. Case of prosecution is based on circumstantial evidence. 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.

26. There cannot be any dispute as to the 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.

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.

33. In Devi Lal Vs. State of Rajasthan, Criminal Appeal No.148 of 2010, Supreme Court has held that though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof. It has been further observed in the aforesaid judgment that if two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him.

34. 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 broadly relying on statements of P.W.-2 and P.W.-10 (Investigating Officer) in respect of recovery of Gadasa, treating it to be a conclusive proof of incident overlooking other major contradictions in the evidence and missing chain of circumstantial evidence. In our view, prosecution has failed to establish a complete chain of circumstantial evidence and appellant is entitled to benefit of doubt. It cannot be said that prosecution has been successful in proving guilt of appellant beyond reasonable doubt.

35. In the result, present jail appeal succeeds and is hereby allowed. Impugned judgment and order dated 17.3.1998 passed by IXth Additional Sessions Judge, Ghaziabad in Session Trial No.1 of 1996, is hereby set aside. Appellant is acquitted of charges levelled against him. He is in jail and shall be released forthwith, if not wanted in any other case.

36. Keeping in view provisions of Section 437-A Cr.P.C., appellant is directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.

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

Order Date :- 3.5.2019

Vivek Kr.