Jai Karan Pasi vs State Of U.P.
2019 Latest Caselaw 4685 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 5366 of 2016
 
Appellant :- Jai Karan Pasi
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ram Sumer Chaudhary, ,Ms.Tinku Singh,Sushil Kumar Dwivedi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Karuna Nand Bajpayee,J.

Hon'ble Ifaqat Ali Khan,J.

(Delivered by Hon'ble Karuna Nand Bajpayee,J.)

This criminal appeal has been filed by the appellant-Jai Karan Pasi against the judgement and order dated 19.9.2016 passed by the Sessions Judge, Kaushambi in S.T. No. 219 of 2014, State of U.P. vs. Jai Karan Pasi, relating to Case Crime No. 328 of 2014 of Police Station Sarai Akil, District- Kaushambi whereby the sole appellant before us has been held guilty for committing crime of murder and has been convicted under Section 302 I.P.C. and ordered to undergo sentence of life imprisonment. Rs. 5,000/- as fine has also been imposed upon him and in case of default regarding the same he shall have to go additional imprisonment of five months. The appellant has also been found guilty and hence convicted under Sections 4/25 Arms Act and has been sentenced to undergo three years imprisonment in that regard and to deposit a fine of Rs. 3,000/-. In case of default he has been ordered to undergo three months additional imprisonment. Both the sentences have been directed to run concurrently.

The deceased in this case is one Dinesh Singh @ Nankau who is the brother of the first informant Umesh Singh. The incident is said to have taken place in the intervening night of 17.8.2014 and 18.8.2014 at some point of time in the midnight. The F.I.R. of the case was lodged in the police station at about 6.30 A.M. on 18.8.2014 containing in substance the version to the effect that the deceased Dinesh Singh @ Nankau aged about 45 years, had celebrated the festival of Janmastami on that day and thereafter having taken his meals back home he had gone to sleep on the cot which lied in the verandah of his house. The other family members of his family slept inside the house in the courtyard. In the morning at about 5.00 A.M. when the wife of the deceased woke up, she found the deceased lying dead on the cot finding several injuries on his face and neck. When she screamed out having seen the dead body, the other members of the family also assembled and found the deceased dead. It was alleged in the F.I.R. that some unknown assailants had committed murder of the deceased.

After registration of F.I.R. the course of investigation followed and all necessary steps in that regard were taken up. The inquest proceedings were performed. The dead body was sent up for post mortem examination. The statements of witnesses were recorded by the Investigating Officer and after getting some clues about the assailants the appellant-accused was arrested on 26.8.2014 and at his instance weapon of offence, a knife, as well as his clothing (kurta) which allegedly contained blood stains, are also said to have been recovered. After completion of investigation charge sheet under Section 302 of I.P.C. and Section 4/25 of Arms Act was submitted in the court. Cognizance was taken and the case was committed to the court of Session where the charges under Sections 302 of I.P.C. and also under Section 4/25 Arms Act were framed against the accused-appellant. The accused-appellant pleaded not guilty and was therefore, tried with regard to the aforesaid offences in the court of Sessions.

The prosecution side in order to prove the case has produced seven prosecution witnesses. P.W.-1 is Umesh Singh who is the first informant and also the brother of deceased, P.W.-2 is Smt. Munni Devi who is the wife of the deceased, P.W.-3 is Sudhanshu Singh who was a witness of inquest proceedings, P.W.-4 was the constable Babu Lal Maurya, who prepared the check report and the corresponding General Diary entry, P.W.-5 was the doctor who performed autopsy and prepared the post mortem report. P.W.-6 Krishna Kumar Mishra was the Investigating Officer of the case. The last witness is Badri Prasad who was the village chauwkidar. Different prosecution witnesses proved different documents which were also marked as different exhibits the details of which shall be mentioned while narrating the testimonies of different witnesses at appropriate place.

After examination of witnesses got completed statement of the accused-appellant under Section 313 of Cr.P.C. was recorded by the court but no evidence in defence was led by the accused-appellant.

First of all this Court proposes to give reference to the evidence that has been adduced by different prosecution witnesses. P.W.-1 Umesh Singh has in substance given out a similar version as was disclosed by him in his F.I.R. and it was deposed by him that in the after morning of Janmashtami at about 6.00 A.M. when the wife of the deceased screamed out the family members rushed to the spot and found the deceased lying dead on the cot having several injuries on his neck and face. According to him he had remained awoke till about 12.00 A.M. in the midnight that day and thereafter, had gone to sleep. The F.I.R. of the case was lodged by this witness which has been duly proved as Exh. Ka-2. He has also said in his deposition that when the police had arrived he had expressed his suspicion on the appellant. This witness has further gone to depose in the court that the accused Jai Karan Pasi was trying to build a temple in the pathway but in that regard the deceased Dinesh Singh @ Nankau had helped one Harishchandra in order to hamper the prospect of temple construction and this had resulted in the enmity between the deceased and the accused. This witness has further deposed that certain persons namely Heera Lal Pasi, Bachau and Sonu Pasi had told him that at about 2.00 A.M. in the night of murder the accused-appellant had gone to their pumping set and had told those persons that he was going to his daughter's village to play 'Dholak'. It may be also mentioned that there is sufficient evidence on record to show that the accused-appellant was an expert player of Dholak and was known to excel in that art. P.W.-1 in his deposition has further gone to state that the aforesaid three persons had also told him that the accused had left their place at about 2.00A.M. immediately after lights got on which had gone off earlier. Regarding the strained relationship between the deceased and the accused this witness has stated that before this incident the accused-appellant had told him to persuade his brother, now deceased, and make good sense prevail upon him or face dire consequences. According to P.W.-1 he had also disclosed this fact to the Chawkidar of the village. Later on this chawkidar had told him after murder of the deceased that he had happened to meet the accused-appellant Jai Karan Pasi and at that point of time Jai Karan Pasi had told the Chauwkidar that the police was in search of him and so he should help him.

Smt. Munni Devi was examined as P.W.-2 and she during the course of her deposition has stated that the deceased was her husband and he was generally a man of helping nature. Before the incident took place he had returned home at about 9.00 P.M. in the night. This witness has tried to elaborate upon the motive aspect of the case and it has been stated in the deposition that one Harishchandra who was a co-villager, used to visit the deceased frequently and the deceased used to help him. This attitude of the deceased was not countenanced with by the accused-appellant. According to her deposition the accused-appellant had protested against such kind of help extended by the deceased and had also asked people to make him stop doing the same or else to face consequences. Her further deposition is to the effect that when she woke up in the morning at about 5.00 A.M. and went to verandah, she found that her husband had been murdered who had several injuries on his person. She has further gone to depose that the deceased had also, at some point of time, shared with her the fact that the accused-appellant Jai Karan Pasi did not approve of his help which he extended to Harichchandra. Thereafter this witness has touched upon the relationship of the deceased with one Ram Surat, another co-villager with whom also he is said to have had an unfriendly hostile background. Her husband had got a lease regarding a pond, in this regard she has stated that in the pond regarding which her husband had obtained lease, the aforesaid Ram Surat also used to do fishing but when the Pradhan of village tried to make good sense prevail upon him, he had agreed and backed out. She has tried to make it explicit in her deposition that in her opinion it was the appellant who had his hand in the murder of her husband. Though this witness has been candid to admit that the deceased used to consume the narcotic substance (Ganja) at times but she has denied the suggestion made by the defence that he was a drunkard and an addict of Ganja and had picked up enmity with so many peoples which resulted eventually in his murder. She has also shown the candour to admit that she was never a witness of the occurrence of murder and had pointed out accusing the finger at the appellant on the basis of suspicion alone.

P.W.-3 Sudhanshu Singh was Pradhan of the village in the relevant days of the incident who has deposed to have gone to the house of the deceased after having come to know about the occurrence. He is the witness of inquest proceeding and has deposed about himself being a signatory in the same along with Devendra Singh, Harishchandra Tripathi, Shiv Charan Singh and Rohit Kumar Tripathi. Nothing very substantial has been deposed by him in the examination-in-chief but during his cross-examination he has denied the factum of construction of temple which is said to have been going on in the village. It may be pertinent to observe at this stage that it was this construction of the temple which has been the apple of discord according to the prosecution version and from which emanated the causa-causans or to say that cause in connection with which the murder of the deceased is said to have taken place. This witness has plainly denied the fact that accused and the deceased had any kind of strained relationship or that they ever had any dispute amongst them. In fact this witness admitted the factum of strained relationship between the deceased and the aforementioned Ram Surat of the village in connection with the lease of the pond. The cross-examination with him appears to have been done with a casual brush and only a few points which may have some bearing in the course of our discussion may be mentioned. According to his statement when he reached the spot he had found the deceased lying in a north-south position, his head being towards the north while his legs towards the south direction on the cot. A quilt was there covering the dead body and till that time there was no whisper around as to who could be the possible assailant.

P.W.-4 C.P. 106 Babu Lal Maurya has prepared the check report of the F.I.R. in his own hand which has been duly proved as Exh.Ka-2. A corresponding G.D. entry of the same was also prepared by him on 18.8.2014 showing the time of registration at 6.30 A.M. This G.D. entry was proved as Exh. Ka-3 by this witness. During the course of his cross-examination he has sought to affirm the fact that the copy of the F.I.R. was duly given to the first informant immediately after registration of the same. This deposition may have some relevance with regard to the denial that has been made by the first informant about this fact, according to whom the copy was given belatedly to him. Nothing of much significance appears to be in his cross-examination which may be worth taking note of.

P.W.-5 Dr. Santosh Kumar Tripathi who had performed the autopsy of the deceased has deposed that the dead body along with the relevant papers was brought to him and during the course of his post-mortem examination following injuries were found on his cadaver :

(1) Stab wound of 5x3 cm on nose.

(2) Multiple stab wound on neck of size 11x4 cm (depth about 4 cm).

(3) Collar bone of left side -9x1½ cm.

(4) Right arm 1½ x 1 cm (stab wound).

Left two stab wound-4x1 cm, 3x0.5 cm.

On internal examination the larynx vocal cord has been found crushed and stabbed. The cause of death was shock due to ante mortem injuries. This witness has not deposed about the possible time of death and he has remained unexamined on that very relevant aspect of the case. No cross-examination was done on this witness by the defence.

P.W.-6 is Krishna Kumar Mishra, Inspector Crime Branch, who had investigated the case. According to his deposition, after the investigation having been entrusted to him he copied the F.I.R. in the case diary and examined the constable who had prepared the check report. He had also examined the first informant and then proceeded to the spot where he surveyed the spot and prepared the site plan. He also got completed the inquest proceedings. The plain as well as the blood stained earth was collected from the spot. The blood stained pillow as well as the pieces of quilt were collected. The relevant memo regarding the same was also prepared. The site plan of place of occurrence was duly proved by him and has been duly marked as Exh.Ka-5. The memo regarding the collection of blood stained and plain earth etc. has been proved as Exh. Ka-6. On 20.8.2014 he recorded the statement of wife of the deceased and again on 25.8.2014 he made further examination of the first informant. Certain other persons were also examined by him. He also kept collecting information secretly about the possible assassins and according to his deposition the complicity of the appellant had surfaced up during the course of his investigation. He therefore arrested the appellant on 26.8.2014 and at his instance the alleged weapon of offence knife as well as the clothe which he was allegedly wearing at the time of incident (kurta) were recovered. This kurta contained blood stains according to this witness. The corresponding memo of recovery in this regard was prepared and the same has been proved and marked as Exh. Ka-7. The weapon of offence knife was shown to him during the course of his deposition which he identified to be the same and was again marked as Exh. Ka-1. It may be observed right at this stage that this knife was a material object and ought not to have been marked as Exh. Ka-1. Being a material object it ought to have been marked as material Exh.-1 only. Similarly the alleged blood stained clothing of the accused (kurta) was also shown to him and was duly identified by this witness. Again the same mistake was repeated and it has been wrongly marked as Exh. Ka-2 while the right course was to mark the same as material Exh.-2. Similarly the blood stained piece of quilt has also been proved but wrongly marked as material Exh. Ka-3 while it also ought to have been marked as material Exh.-3 and not material Exh. Ka-3. The aforesaid nature of mistakes appear to be perennial in this case as we further find that the collected blood stained as well as plain earth has also been wrongly marked as material Exh. Ka-4 while it should have also been marked as material Exh.-4 and not Ka-4. The relevant papers regarding the inquest proceedings have been duly proved as Exh. Ka-8. The seal sample paper (Namuna Mohar) has been marked as Exh. Ka-9, police form No.13 has been marked as Exh. Ka-10, photonash has been marked as Exh. Ka-11, the letter requesting the post-mortem has been marked as Exh. Ka-12, the letter addressed to the R.I. has been marked as Exh. Ka.-13 by this witness. On the basis of the entire investigation, the charge sheet was submitted against the accused-appellant both u/s 302 I.P.C. as well as u/s 4/25 Arms Act. The charge sheet was also duly proved as Exh. Ka-14. During the course of cross-examination this witness has been asked about the facts as he got elicited during the course of investigation and he has admitted the fact that when the wife of the deceased was examined she had admitted about the hostile relationship of the deceased with Ram Surat in connection with lease of the pond which the deceased had got executed in his favour and a generalized suspicion upon him was hinted by the wife. According to this witness he had inquired about the dispute which is said to have existed between aforesaid Ram Surat and the deceased but had not found any application or case having been registered in the police station. During the course of his cross-examination on other aspects of the case, he has admitted to have recovered the weapon of offence about eight days after the incident from beneath a Nad (big tub which is used to serve the fodder to the cattle) in front of his house from the ruins of a building around which several houses exist and in which people live. According to him the recovery was made from the fallen ruins which was a sort of open place and the distance of the place of recovery and the place of the arrest of the accused was about 400 metres. When he was cross-examined about the site plan regarding the spot from where the recoveries were made, he answered that he had never prepared the site plan regarding the same. Though he had to admit that it was essential or necessary for him to have prepared the site plan but he could not offer any answer as to why he was remiss in this regard and as to what was the explanation regarding the same lapse. The distance between the house of the first informant and the accused was about 150-200 metres. According to P.W.-6, a number of persons from the village had assembled on the place of recovery but they were not made witness in the memo of recovery as none of them was prepared to volunteer himself as witness. According to I.O. during the course of his investigation he came to know about the fact that the accused had met certain persons at 1.30 A.M. from whom he had asked for tobacco. Later on the accused had slept over there and then had left that spot at 4.00 A.M. Those persons were namely Bachau, Heera Lal and Laxman. They were examined by P.W.-6 the I.O. but they had not found at that time any blood on the clothes of accused. It may be mentioned here that the aforesaid witnesses have not been examined by prosecution in the court and therefore what has been stated by them to the Investigating Officer can be subjected to a highly restricted use, if at all it may be used. We have noted the aforesaid deposition of the Investigating Officer just to facilitate the appreciation of this aspect at an appropriate stage later on. On further cross-examination this witness has deposed to have sent the blood stained earth and also the weapon of offence etc. to the laboratory for chemical examination. According to him the weapon of offence was found wrapped in kurta of the accused. In the last as was natural the defence suggestion put to this witness for having concocted the entire case diary in the police station was denied.

P.W.-7 is Badri Prasad, who was chowkidar, who has not deposed about any substantial fact and he has been declared hostile by prosecution. Even in his cross-examination nothing material or substantial could be elicited out and nothing much turns upon his testimony.

After completion of the evidence the accused was examined by the court u/s 313 Cr.P.C. and perusal of the answers given by the accused would show that he has simply denied all the allegations and has pleaded false implication calling the entire evidence produced against him as false. No evidence was produced by the accused in his defence.

Heard learned Amicus Curie appearing on behalf of accused-appellant.

Submission of learned Amicus Curie appearing on behalf of appellant is that this is a case of circumstantial evidence and there is no eye-witness of the occurrence. The evidence that has been produced is wholly inadequate and inconclusive in nature and, therefore, is completely incapable to give rise to any definite inference of guilt against the accused-appellant. Further submission is that it is also a case of very weak motive and there was hardly any good reason for the accused-appellant to commit the crime in question. Learned counsel has also tried to show from the evidence the possibility of the murder having been committed by other persons who were having stronger motive to commit the crime. Reliance has been placed upon the evidence in this regard showing the hostile relationship which the deceased had with one Ram Surat regarding a lease of fishing in the pond. Submission is that in view of above fact Ram Surat had a much stronger motive to commit the crime in question. The evidence that has been adduced against the appellant regarding motive seems to be insignificant and does not carry the prosecution case much far. Learned counsel has also tried to show that the incriminating evidence regarding recovery of the weapon of offence and the clothing of the accused at his instance is also inconclusive in nature and has also not been duly proved by the prosecution. Submission is that the chemical examiner's report in this regard which though is available on record has neither been duly proved or tendered in evidence nor does it fix up the group of blood which is said to have been found on the weapon (knife) and the clothes. Therefore the said recovery is vague in nature and does not connect to the crime. Further contention is that the story of the recovery itself is suspect and cannot be relied upon as there is no independent witness to prove the same. Even the incriminating statement that is said to have been given by the accused, which is confessional in nature and was allegedly referred to in the memo of recovery, has also not been duly proved by the Investigating Officer. It was also pointed out that the place of recovery is almost an open place which mitigates the worth and relevance of information sought to be used by prosecution u/s 27 of Indian Evidence Act. Learned counsel has also tried to argue that even the statements recorded by the Investigating Officer show that the accused in the intervening night of the incident was seen by certain persons but there was no blood found on his clothing at that point of time. Submission is that those witnesses have not been produced by the prosecution deliberately because that would have gone against the interest of prosecution and would have indicated the false nature of evidence regarding recovery. Learned counsel has also tried to elaborate upon the incompatibility of the medical evidence with the other evidence produced by the prosecution which according to him demonstrates that the time of death as per oral evidence does not quite match with the findings of the post mortem report and that goes to the root of the matter. Argument is that there are so many infirmities on record that in the wake of which it will be very unsafe to uphold the conviction of the accused.

Heard learned A.G.A. who has tried to justify the findings of guilt and has emphasized upon the recovery part of the prosecution evidence and has sought to show that there was no motive on the part of prosecution witnesses to falsely implicate the accused. According to him the fact that the weapon of offence (knife) as well as the clothing of the accused were recovered at the instance of the accused this by itself would go to indicate his guilty knowledge about a highly incriminating piece of factual information which is connected with the crime and which by itself should be deemed to be conclusive in nature in order to bring home the guilt of accused-appellant. Learned A.G.A. emphasized upon the presence of human blood both on the weapon of offence knife as well as on the Kurta of accused as indicated by the Chemical Examiner's Report which is available in lower court record.

Having heard the submissions raised on behalf of the accused-appellant as well as those which have been placed by learned A.G.A. representing the State, this Court has gone through the entire record of the case which includes the evidence, oral as well as documentary both and also the impugned judgement delivered by the trial court.

Admittedly it is a case of circumstantial evidence. The law regarding the proof of guilt in such cases is too widely known to be elaborated upon at any great length. Each circumstance which the prosecution places its reliance upon has to be proved individually. All the circumstances or the pieces of circumstantial evidence so proved by the prosecution when linked together should be of conclusive nature. In other words, all the circumstances proved by the prosecution when looked together should be capable to give rise to a definite inference of guilt regarding the accused and must not admit of any reasonable doubt regarding the same. The totality of facts or the circumstantial pieces of evidence proved by the prosecution should not only be conclusively consistent with the guilt of the accused but they should also be inconsistent with any such hypothesis which may be equally suggestive of or be consistent with the innocence of the accused. We may profitably refer to the observations made by the Hon'ble Apex Court in the case of Sharad Birdhi Chand Sarda vs State of Maharashtra, 1984 AIR 1622 in which the Hon'ble Apex Court had held as follows :

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

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

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

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

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

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

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

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

Illumined by the aforesaid observations of the Apex Court we have sought to assess the evidence and weigh the rival submissions made at the bar in the same light.

If we cull out the principal circumstances which have been sought to be proved on behalf of prosecution or have been relied upon by the trial court against the accused, they may be enumerated as follows:

(1) That there was a background of the accused-appellant having some ill feelings for the deceased which he nurtured against him for the reason that the deceased was helping one Harishchandra in his attempts to obstruct the construction of a temple which the accused-appellant was quite desirous to construct or complete.

(2) That at some point of time the accused had asked P.W.-1 the brother of deceased to make good sense prevail upon the deceased or else to face dire consequences.

(3) That as the factum of the accused having ill feelings against the deceased was known to the deceased therefore at some point of time he had shared the aforesaid information or the fact of the appellant's disgruntlement and indignation against him, with his wife also.

(4) In the morning of 18.8.2014 the deceased was found murdered on his cot where he was lying.

(5) That after the arrest of the appellant he took the police to the place where he is said to have concealed the weapon of offence knife as well as his wearing apparel (kurta), both of which were having blood stains according to the prosecution. These incriminating articles were found concealed beneath a large tub (nad) which is meant to contain fodder in order to feed the cattle.

(6) That the trial court in its judgement has also referred to details of the confessional statement given by the accused in consequence of which the incriminating recoveries of knife and wearing apparel have been made. The court appears to have placed reliance upon the same also though for reasons which shall be discussed later on, the same does not appear to have been duly or validly proved by the Investigating officer or any witness.

(7) The incriminating information given by the accused as has been referred to in the memo of recovery was to the effect that in the night of 17/18.8.2014 when the appellant had murdered the deceased, his clothing Kurta had caught some blood stains and therefore after wrapping the knife in the same Kurta he had concealed them both beneath the Nad (fodder pot meant for animal's feed) situated in front of appellant's house and he could show it.

(8) According to the contents of the memo of recovery the aforesaid information given by the accused led to the recovery of the weapon of offence knife and the kurta of accused in which the knife was wrapped.

Except the aforesaid circumstances nos.(1), (2), (3), (4), (5), (6), (7) and (8) there does not appear to be any other circumstance which may be taken into account in order to draw the inference of guilt. Nobody saw the accused going towards the place of occurrence. Nobody saw the accused going away from the place of occurrence. The accused was arrested itself from the village after a few days.

So far as the motive part of the prosecution evidence is concerned, we find reason to see substance in the submissions made by the learned Amicus Curie. The evidence as has been produced in this regard on behalf of prosecution is to the effect that the accused and certain other persons of the village were interested to construct some temple in the village. This endeavour of the accused and co-villagers was being resisted by one Harishchandra who belonged to the same village. It has been suggested in the evidence that the deceased was extending his co-operating help to aforesaid Harishchandra who was resisting the aforesaid temple relating plans. The evidence adduced by P.W.-1 about the accused having approached him asking to make good sense prevail upon the deceased as well as the evidence adduced by P.W.-2 about the deceased having told her about the disgruntlement of the accused against him is in fact related to the same help which the deceased was extending to Harishchandra regarding the temple issue. It was this stand of the deceased, according to the prosecution, whereby he is said to have taken side with Harishchandra, which eventually resulted in his assassination. It is not difficult to see in the evidence that the alleged resistance against the plans of temple construction was directly being offered or raised by Harishchandra and not by the deceased. If the deceased was himself so much against the temple construction, there does not appear any reason why he directly did not oppose the same and remained content only by helping Harishchandra. This very fact that his opposition was tacit and not overtly direct would go to show at least this much that he was not very passionate about his opposition and he did not find any such adequate or sufficient reason to oppose the construction of temple which could have prompted him to come to the fore and take up the gauntlet of opposition himself. In other words his resistance appears to be passive in nature and not as active as the aforesaid Harishchandra was having or offering, otherwise the evidence would have been to the effect that the deceased was himself opposing the construction of temple. In that situation, there would not have been any question of extending his help to aforesaid Harishchandra and thereby indirectly creating some hurdle in the same. That being so it does not really fit much in the syllogism of logic as to why the accused would choose to eliminate the deceased and not Harishchandra himself. The evidence adduced by the prosecution does not show any such incident which may suggest that in the process of putting spanner in the way of construction of temple the deceased himself had picked up such direct enmity with the accused which could be deemed to have furnished a sufficient cause or reason to the accused to the extent of thinking in terms of liquidating him. It may be pertinent to mention that on the other hand, we find in the evidence that the deceased had picked up some serious trouble with one other person namely Ram Surat in relation to a different issue with whom his interest directly clashed regarding the rights of fishing in a pond. P.W.-1 and P.W.-2 have categorically admitted the fact that one Ram Surat and the deceased both used to sell the fishes of the pond but after sometime the fishing lease of the pond was got executed by the deceased in his own favour which became a bone of contention resulting in a serious dispute between the two to the extent that a report was also lodged in the police station regarding the same. P.W.-2 has further gone on record to depose that even though the deceased had got the lease executed in his favour but the aforesaid Ram Surat was not allowing him to collect the fishes from the pond and on the day of incident also the deceased had gone to the aforesaid pond in question. The report in the police station was lodged by deceased in the same matter. The deposition of P.W.-2 during the course of her cross examination which finds place at page nos.28 and 29 of the paper book is quite relevant. These depositions certainly show that the aforesaid Ram Surat was having a direct hostility with the deceased and they did not see eye to eye with each other and had a lot of bad blood in between them. What we are driven to conclude therefore is that so far as the motive part of the evidence is concerned, the nature of motive, as has been sought to be proved on behalf of prosecution, is such which may be termed to be an almost innocuous piece of evidence which does not help to further the cause of prosecution substantially or in any great measure. We certainly do not propose to enter into any roving inquiry about the other possible assassins of the deceased on the basis of motives which different man might have had or nurtured against deceased. But what we only mean to say while discussing the motive aspect of the case is that even according to the prosecution evidence there were other persons who could have had a much stronger motive to commit the crime in comparison with the accused. It also goes without saying that though in cases of direct evidence the aspect of motive pales into insignificance but in the cases of circumstantial evidence this aspect is one of the significant factual steps of the link of evidence, which if duly proved, may help the prosecution to demonstrate or explain the crime committed by a particular accused and may also be usefully used against him in proof of his guilt. In the present case we feel constrained to say that the motive aspect does not help the prosecution case much and does not take it much further in proving the appellant's guilt.

We also find some disturbing features in the medical side of evidence as is available before us and despite our efforts to bridge those gaps we have failed to reconcile the glaring incompatibilities which we find apparently present on the face of record regarding the time of death. First of all in this regard we would like to point out that the Doctor who has performed the post mortem has proved the autopsy report as Exh. Ka-4. It has been clearly mentioned therein that the dead body was received at 1:45 P.M. on 18.8.2014 and the post mortem commenced immediately thereafter at 1:50 P.M. The same continued till 2:30 P.M. and was completed by that time. Another relevant finding recorded in the autopsy report is regarding the duration of death and it has been opined by the doctor that the duration after the death was about one day. On that reckoning the murder could have taken place one day before on 17.8.2014 at about 2:00 P.M. As all of us know that there is no such science which may predict the time of death with an exact precision and it always contains a margin of error involved in the estimate both ways. Ordinarily, if the death has taken place one day before then there may be a margin of six hours on both the sides. We may say that the murder could have taken place at about 8:00 P.M. on 17.8.2014 and it is also possible that the same might have taken place at about 8:00 A.M. on 17.8.2014. According to the settled medical norms, therefore, we may say that the murder appears to have taken place at some point of time between 8:00 A.M. on 17.8.2014 till 8:00 P.M. on 17.8.2014. Even if we stretch it further that will not be of much avail so far as the timing of the death of the deceased in the present case is concerned. The oral evidence as has been produced by the prosecution shows that the deceased had come to the house at about 9:00 P.M. on 17.8.2014 and thereafter he was served with the meals and then he had gone to take the sleep at about 11:00 P.M. Evidence given by P.W.-1 the brother of deceased further shows that he was in the same house and was quite awake till 12.00 A.M. and had not slept by that time. The murder must have taken place thereafter only, otherwise P.W.-1 must have known about the occurrence of murder. It is therefore very clear that the deceased was alive till 12:00 P.M. in the night and was done to death certainly at some point of time thereafter. This evidence about the time of death is quite incongruous with medical estimate according to which it should have taken place much earlier.

We, being conscious about the inexactitude involved in the medical estimate in assessing the correct time of death, have tried to look for ourselves into the findings of autopsy report. But woefully enough the stage of rigor mortis, its degree and the parts of body where it was found present, have not been mentioned in the post-mortem report. Had the doctor taken care to describe these features in the autopsy report, we could have made our own estimate in this regard but we do not find much contained therein which could help us. In fact, had the duration of death been given as 'half-day' instead of same being 'one-day', as has been noted by the doctor, that could have been more compatible with the time of death as suggested by the prosecution version. At any rate, even if we do not disbelieve the prosecution case on this basis alone and even if we give all possible allowances to the prosecution considering the vagueness of estimate regarding the death time, the least which we are constrained to say is that these features of medical evidence do not do any credit to the prosecution case and certainly do not augment the prospects of its credibility.

Now the most incriminating piece of evidence is or would have been so if duly proved, the recovery of the incriminating articles at the instance of the accused i.e. the alleged recovery of blood stained knife and that of the wearing apparel 'kurta' belonging to the accused which too is claimed by the prosecution to have contained blood stains. It goes without saying that if a particular fact is discovered in consequence of an information furnished by the accused while being in police custody then so much of such information which distinctly relates to the discovery of such facts becomes a relevant circumstance to be considered. It does not need any elaboration on the point and is a matter of settled law that the discovery of such alleged 'fact' is not tantamount to the discovery of such 'article' or 'object' which may be discovered by the police in consequence of such information furnished by the accused-appellant. As was so pithily observed by the Privy Council that if a knife is discovered in consequence of an information furnished by the accused it cannot be said to be a discovery owing to the statement of accused because the knifes were discovered many centuries back! It is not the discovery of knife which is relevant. Actually such kind of discovery will assume importance and relevance only if it can be proved that the discovered article is connected with the crime in question. If it can be shown that the article or object recovered has a connecting nexus with the crime committed, it becomes an incriminating article or an incriminating object. But in order to call or term the recovered knife an incriminating article it has to be shown and proved by prosecution as to how is it connected with the crime in question. It is for this purpose that the prosecution seeks to prove in such cases that the article recovered contained the blood which was or which could have been that of the deceased. If the recovered knife and the kurta of the accused contained such human blood, it would be then called an incriminating article or an incriminating object having evidentiary relevance. Then shall arise the question as to how and why the accused of a particular case acquired the conspicuous knowledge about such incriminating article having been placed or concealed at a particular place which could not be within common sight of people. If the recovered weapon was containing such blood or such features which demonstrated it to be a weapon of offence and if the kurta of the accused contained such blood which could be that of the deceased then the question would arise as to how had he acquired the knowledge about its whereabouts i.e. about the place of its concealment from where it has been recovered. Question will also arise as to how and under what circumstances the clothing belonging to the accused got the blood which could be or was that of the deceased. In fact, it is this guilty knowledge of the accused, the knowledge about the place of concealment of the weapon of offence or any such incriminating article like the Kurta which should be called a relevant fact and indeed be called the 'fact' discovered as a consequence of the information furnished by the accused as has been contemplated u/s 27 of Evidence Act. The time honoured observations made by the Privy Council in this regard while pronouncing its celebrated judgement in Kottaya v. Emperor, AIR (34) 1947 Privy Council 67 may be recalled profitably at this stage :

"8. The second question, which involves the construction of Section 27 of the Indian Evidence Act, will now be considered. That section and the two preceding sections, with which it must be read, are in these terms:-

'25. No confession made to a Police officer shall be proved as against a person accused of any offence.

26. No confession made by any person whilst he is in the custody of a Police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.'

9. The explanation to the section is not relevant.

27. Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a Police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

Now when we advert to the facts of the present case we find nothing on record on the basis of which it may be said that either the knife so recovered at the instance of the accused or the kurta which is also said to have been recovered at the instance of accused ever contained the blood of the deceased. The only way to prove the same was the forensic or the chemical examiner's report. The articles were actually sent to the chemical examiner in this case and the report in that regard has also been received which we find available in lower court record showing that both of these articles contained human blood. But it was to our shock when we found that this important evidential piece of paper was never tendered by prosecution in evidence and as a consequence of this lapse it remained an unproved document and was never marked or exhibited! Though we have referred to this chemical examiner's report after having gone through it but we have serious doubts whether an unproved document ought to have been even referred to by us. Another serious hurdle in making any use of the same is for the reason that this circumstance of the aforesaid two articles having contained human blood was never put to the accused while he was examined under section 313 of Cr.P.C. The prosecution side either out of recklessness or for reasons best known to itself never chose either to prove this document and exhibit it as evidence nor it took care to put this fact before the accused as an incriminating circumstance to be used as evidence against him while he was being examined by the Court. The court itself also has never put this circumstance to the accused during the course of his examination under section 313 of Cr.P.C. In this context it may be pertinent to recall the law on the point. The purpose and object of putting the circumstances or the evidence and confront the accused with them directly is to give a first hand opportunity at a personal level to the accused so that he may explain those circumstances, if at all he could, which have been proposed to be used against him by the prosecution. There are so many things done in defence of the accused by his counsel but this part of the trial when the accused is examined u/s 313 Cr.P.C. has a solemn motto and object behind it. It is neither a casual exercise nor a purposeless exercise and the law as has evolved in this regard has remained consistent all throughout which asserts that any violation of statute in this regard goes to the root of the matter and may even vitiate the trial if prejudice can be shown to have been occasioned. Certainly those circumstances or the pieces of evidence which have not been put to the accused during the course of his examination u/s 313 of Cr.P.C., have to be kept beyond the ken of consideration by the court and shall certainly not be reckoned against him in order to prove his guilt. Such facts and circumstances and pieces of evidence have got to be excluded by the court from consideration unless we may hold that such an omission has in fact not occasioned any prejudice to the accused for given reasons which may sometimes be conspicuously present in a given case. We may pile up a number of authorities in order to bring home this point but that is perhaps not needed as the point involved does not admit of any great controversy. Nevertheless it may be of use to cite some pertinent observations made by the Hon'ble Apex Court in this regard as were given in Nar Singh vs. State of Haryana (2015) 1 SCC 496 which reads as under :

9. The power to examine the accused is provided in Section 313 Cr.P.C. which reads as under:-

313. Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-

(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2). No oath shall be administered to the accused when he is examined under sub- section (1).

(3). The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4). The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5). The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.

10. There are two kinds of examination under Section 313 Cr.P.C. The first under Section 313 (1) (a) Cr.P.C. relates to any stage of the inquiry or trial; while the second under Section 313 (1) (b) Cr.P.C. takes place after the prosecution witnesses are examined and before the accused is called upon to enter upon his defence. The former is particular and optional; but the latter is general and mandatory. In Usha K. Pillai v. Raj K. Srinivas & Ors., (1993) 3 SCC 208, this Court held that the Court is empowered by Section 313 (1) clause (a) to question the accused at any stage of the inquiry or trial; while Section 313(1) clause (b) obligates the Court to question the accused before he enters his defence on any circumstance appearing in prosecution evidence against him.

11. The object of Section 313 (1)(b) Cr.P.C. is to bring the substance of accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him. The examination of accused under Section 313 (1)(b) Cr.P.C. is not a mere formality. Section 313 Cr.P.C. prescribes a procedural safeguard for an accused, giving him an opportunity to explain the facts and circumstances appearing against him in the evidence and this opportunity is valuable from the standpoint of the accused. The real importance of Section 313 Cr.P.C. lies in that, it imposes a duty on the Court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby, an opportunity is given to him to explain any such point.

12. Elaborating upon the importance of a statement under Section 313 Cr.P.C., in Paramjeet Singh alias Pamma v. State of Uttarakhand, (2010) 10 SCC 439 (para 22), this Court has held as under: Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration. (vide Sharad Birdichand Sarda v. State of Maharashtra(1984) 4 SCC 116 and State of Maharashtra v. Sukhdev Singh (1992) 3 SCC 700.

13. In Basava R. Patil & Ors. v. State of Karnataka & Ors., (2000) 8 SCC 740, this Court considered the scope of Section 313 Cr.P.C. and in paras (18) to (20) held as under:-

18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him. In Jai Dev v. State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:

The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.

19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.

20. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word may in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him."

The chemical examiner's report and its contents which purport to prove the presence of human blood on these articles are too significant aspects of prosecution evidence, and deprivation of opportunity to explain the same is no doubt fraught with possibility of causing grave prejudice to the accused. Therefore keeping in perspective the aforesaid propositions of law as have been discussed we have no option left now than to exclude from the purview of our consideration the circumstance of presence of human blood on the allegedly recovered knife and the allegedly recovered kurta. After excluding the factum of human blood having been found on these two articles the left out evidence remains in the nature of recovery of a simple knife and kurta at the instance of the accused. In such a situation there is hardly any way to show that the said recovered knife or the allegedly recovered kurta was in any manner connected with the crime in question. The presence of human blood having remained unproved on these two articles, they can hardly be termed as incriminating articles and the discovery of them at the instance of accused cannot be made basis to impute any guilty knowledge to the accused-appellant about the crime in question. Thus such kind of recovery very substantially gets denuded from its incriminating worth and can hardly take the prosecution case any far. The non proof of blood on these articles virtually reduces such recovery to become an almost innocuous circumstance and the alleged confessional information which led to the recovery of such articles looses the sting of its relevance. We may hasten to observe at this stage that if the other pieces of circumstantial evidence and otherwise general features of the case had been such which when considered together with the recovery of the aforesaid two articles would have successfully proved the guilt of the accused then we could also have considered the option of remanding back this case to the trial court again for the purpose of proving and marking the Chemical Examiner's report as an exhibit and thereafter for putting this piece of evidence to the accused under Section 313 of Cr.P.C. once again. This Court is conscious about the larger objective of the judicial institution which is primarily meant to arrive at the ends of justice. The courts cannot remain content by acting just as a referee, unconcerned and unaffected by the outcome. The courts are always expected to remain vigilant and adopt a participative approach in the process of exploring justice which alone is the solemn object which we seek and strive for. But after having gone through the entire evidence available on record we do not feel sure at all whether the finding of guilt could still be returned even if the aforesaid piece of evidence is brought to be duly proved and put to the accused. It is, therefore, that we are not exercising the option of remanding the case back for that purpose.

Now we may also at this stage refer to that part of judgement which is contained in paragraph 56 and in which the confessional statement of accused has been quoted extenso by the trial court. We must hasten to observe that this confessional statement of the accused has not been quoted or cited from the deposition of any witness examined in the court. Neither the Investigating Officer nor any other police official has at all referred to or quoted the same during his deposition given in the court. Too obviously the same has been cited from the case diary itself. We are afraid, but such kind of use of case diary is wholly impermissible. The court does have a right to look into the case diary in order to appreciate the evidence and that power has been provided to it u/s 172 of Cr.P.C. which reads as follows :

"172. Diary of proceedings in investigation.

(1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.

[(1A) The statements of witnesses recorded during the course of investigation under Section 161 shall be inserted in the case diary.]

[(1B) The diary referred to in sub-section (1) shall be a volume and duly paginated.]

(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872 ), shall apply."

But this section does not entitle the court to use the case diary itself as evidence. To read or consider something in order to have a better perspective of the evidence which has been duly proved or produced by the prosecution is one thing, but to treat the contents of the case diary itself as if it was a duly proved piece of evidence is a wholly illegitimate exercise. Otherwise there was no need for the prosecution to examine police witnesses. Instead of calling the police witnesses the prosecution could have done away by simply getting the case diary exhibited in the court. The contents of the case diary can be subjected to very restricted uses. One common use of it is when the defence seeks to use the previous statements of witnesses recorded u/s 161 of Cr.P.C., when they contain some contradictory version in comparison to the statements which have been given by those witnesses when examined in the court. Even these statements of witnesses recorded u/s 161 of Cr.P.C. contained in the case diary can be used only to the extent to which any part of it contradicts the subsequent statement made by such witness in the court after making full compliance with Section-145 of Indian Evidence Act, i.e. after drawing the attention of such witness to the contradictory part. If the prosecution intended to use the confessional statement of the accused on the basis or for the reason of its claim that such statement has led to the discovery of some incriminating fact then the Investigating Officer who recorded such statement ought to have proved this fact duly in the court and ought to have deposed about the same in the presence of accused or his counsel in the court. It was then for the court to see as to which part of such confessional statement may be said to have distinctly related to the discovery of some fact. The entire confessional statement cannot be proved even in such a situation. Only that part of it shall be provable which distinctly related to the discovery of fact as has been provided in clear terms of Section-27 of Indian Evidence Act. But in the present case the prosecution has chosen not to prove the same. It is surprising to see as to how the trial court has gone to the extent of not only looking into the case diary but then also quoting the confessional statement therefrom in extenso without even taking care to see as to which part of it can be said to have resulted in the discovery of any relevant incriminating fact. Therefore, in this context also we have no option left than to exclude this so called confessional statement given by the accused-appellant from the purview of our consideration as it finds its place in paragraph 56 of the judgement. A confession of accused given to Police is per-se inadmissible unless it is given in the presence of a Magistrate or unless it leads to the discovery of a fact.

In this context it would also not be out of place to reiterate that the truthfulness of a thing or a fact can be proved only by giving substantive evidence about the same. Unless a document itself has been declared by law to be treated as substantive piece of evidence, the previous documents which contained the narration of same fact may be used by prosecution for the purpose of lending corroboration only. As a matter of illustration it may be said that if a witness saw a particular incident happening in his presence then in order to prove the same he has to state on oath before the court that he had seen such incident taking place in his presence in such and such manner and it was done by such and such person. This statement on oath given in the court would be substantive piece of evidence in that regard. But if this witness happens to be the first informant then he may prove the First Information Report also, which being the previous statement of the first informant executed at or near the time of occurrence can be used to seek corroboration of first informant's deposition given in the court. If a person being the first informant comes in the court and only proves his F.I.R. and does not depose about the incident and the manner in which it took place before him then by merely proving the F.I.R. he will not prove the factum of the incident. It will prove only this much that a particular F.I.R. was lodged by this particular witness. Whether the contents of the same were true or false would remain unproved. Similarly in order to prove the presence of particular injuries on the dead body a doctor who prepared the post-mortem report has to come to the court and depose that he had found such and such injury on the body of deceased when he had examined him. The doctor also proves the post-mortem report saying that he had prepared the same in his handwriting at the time of autopsy noting the injuries therein. The truthfulness of the contents of the autopsy report is proved by the statement of the doctor given in the court when he gives the details of it on oath. It is such statement of the doctor deposing about the presence of particular injuries on the deceased which is substantive evidence. The contents of the post-mortem report which was prepared at the time of autopsy wherein the same injuries were noted is then to be used for the purpose of corroboration to substantiate the deposition of doctor given in the court. If the doctor comes in the court and says only this much that he had prepared a particular post-mortem report of a particular deceased in his own handwriting he would thereby simply prove the execution of a particular document i.e. the post-mortem report, but not the truthfulness of its contents. In the present case the alleged information furnished by the accused in consequence of which the knife and kurta are said to have been recovered has not been proved by the Investigating Officer. If the prosecution wanted to rely upon such information and intended to use the same as a relevant fact u/s 27 of Evidence Act, substantive evidence in that regard had to be produced in the court by the Investigating Officer. The prosecution had no option in this regard than to examine the I.O. on that point and bring it on record as a statement on oath that such and such information was given by the accused to him which eventually had led to the discovery of certain fact. Having made a note of such information in the memo of recovery or the case diary could then be proved and used only to seek corroboration regarding the authenticity of the same. Substantive nature of evidence and corroborative nature of evidence are two different classes or species and one cannot take another's place unless specifically provided by law. It is so obvious in the facts of the present case that the reference which has been given by the trial court in the judgement relates and purports to the information given by the accused as it has been mentioned in the case diary only, but no substantive evidence in this regard has been adduced on behalf of prosecution which further leaves us with no basis upon which we may act upon, even if we felt inclined to treat the same as information relevant u/s 27 of Evidence Act. These are the primordial principles of evidential jurisprudence regarding the mode of proof of a fact which we cannot afford to shelve or ignore.

Now the only other way how the factum of recovery of these articles at the instance of accused could have been used against him was to somehow make it admissible or relevant under Section-8 of Indian Evidence Act as conduct of the accused. But even that method does not appear to serve any purpose for the prosecution as even the conduct of the accused at whose instance these articles are said to have been recovered could be called 'an incriminating conduct', only if the aforesaid articles could be connected with the crime. As we have already discussed that the presence of blood, much less than human blood, has remained an 'unproved' fact, and therefore, in the absence of proof of any blood on these articles, even if they were recovered at the instance of accused, how could it be called an incriminating conduct of the accused and how can it at all be called a relevant conduct under Section-8 of the Indian Evidence Act becomes a self-defeating question. Thus when these circumstances go out from the purview of our consideration then the residual or remainder evidence falls far too short of proving any guilt against the accused.

We also do not feel satisfied about the manner in which the prosecution has proceeded to prove the recovery of aforesaid articles at the instance of the accused. There are no independent witnesses examined by the prosecution to prove the factum of recovery, if at all it can be termed a recovery. The examination of independent witnesses might have given some kind of corroboration which is not there in the present case. Even the circumstances of the arrest of the accused do not appear inspiring any confidence. In fact one wonders as to how an accused after having committed the murder of a co-villager would have still remained continuously for so many days in his house (from a part of which he is said to have been arrested) having remained undiscovered by all and sundry and would all of a sudden fall in the hands of the police. The circumstances of arrest of the accused arouse suspicion against the genuineness of such an exercise of police on one hand, just as on the other hand it may go to suggest to some extent the innocence of the accused. It sounds more probable that the appellant should have fled away from the village on the first opportunity if he had a guilty mind or if he had a hand in the murder of the deceased.

There are some other facts of evidence which deserve at least a fleeting glance. The evidence as has been given by P.W.-1 Umesh Singh is to the effect that certain persons namely Heera Lal Pasi, Bachau and Sonu Pasi had told him that at about 2.00 A.M. in the night the accused-appellant had gone to their pumping set and had told those persons that he was going to his daughter's village to play 'Dholak'. Now if we have to fix up the time of murder on the basis of the autopsy report the murder must have already taken place by that time. We have already discussed while dealing with the medical aspect of the case that the duration of death was assessed to be about one day by the doctor while post-mortem examination was done at about 1.50 P.M. on 18.8.2014. Such kind of conduct of accused inasmuch as it shows a normal kind of activity on the part of the accused i.e. moving freely, meeting co-villagers freely, talking to them freely, all are such features which do not appear very consistent with a guilty mind. This Court does not at all intend to enter into any broad-bracketed generalization in this regard and it goes without saying that there is a large range of variation that we may perceive in different people when they are caught in the same situation. The vagaries of human conduct are notorious and may be even misleading sometimes. But yet in ordinary course a particular behaviour may in general and by and large be an indication of some previous happening or may be deemed to be a natural corollary of some prior incidence. It is in context of such normal behavioral patterns that we have to sometimes view the subsequent conduct or the post crime behaviour of an accused. It is on the basis of such normal reckoning of human impulses that we sometimes feel inclined to find clues of guilt or innocence of a man. They are never conclusive by themselves but are always suggestive in nature. Keeping that perspective in mind when we visualise the activities of the accused as have been reported during the intervening night of murder and when we also visualise the situational circumstances regarding the arrest of the accused from the same village after a few days of the occurrence, we find them more compatible with his innocence rather than his guilt.

We also find substance in the submissions raised by Amicus Curiae that prosecution has not adopted a fair approach in the case inasmuch as it has committed the impropriety of suppressing some material witnesses. The evidence of P.W.-6, the Investigating officer, suggests that certain witnesses namely Bachau Lal, Heera Lal and Laxman had the occasion to see the accused in the intervening night of murder and the evidence is also suggestive of the fact that at that time there were no blood stains on his clothes. Whether there were blood stains on his clothes seen by the witnesses or not; or whether he had already got rid of them and had changed the clothes; or as to what kind of clothes was he wearing at that time, were all such significant aspects regarding which the evidence ought to have been allowed to come on record and be tested on the anvil of cross-examination. The statements referred to and attributed to witnesses namely Bachau, Heera Lal and Laxman are purely in the nature of hearsay and nothing can be inferred on that basis. But at least it goes to suggest and it is not difficult to see that their depositions might have gone a long way to unfold the prosecution story and would have shed light on some significant aspects of the case. Non production of these witnesses will naturally attract an adverse inference against the prosecution. What was stated by these witnesses to the I.O. cannot be looked into and be relied upon by the court unless they were produced in the court. It does not require much elaboration on the point and the law is trite in this regard that if a material piece of evidence or a material evidence that could have been produced is suppressed by the prosecution then court would have reason to presume that it was not without reason and the court may further proceed to presume that its production would have affected the interest of prosecution adversely. Section-114 of the Indian Evidence Act clearly contemplates such a presumption. It may be apt to quote the relevant part of Section-114 of Indian Evidence Act in this context, which reads as under :

"114. Court may presume existence of certain facts. --The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume--

(a) ...................................;

(b) ...................................;

(c) ...................................;

(d).....................................;

(e) ...................................;

(f) ...................................;

(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

(h) .....................................;

(i) ......................................."

Keeping in perspective the spirit of aforesaid section, the least which this Court feels inclined to observe is that non production of these aforesaid witnesses remains an unexplained circumstance and does not do any credit to the prosecution.

Be that as it may, in the aforesaid circumstances as we have discussed herein above and herein before, the circumstances as have been duly proved by the prosecution appear to be quite inadequate and quite inconclusive to be made any sure basis of conviction or for the purpose of holding the accused guilty. In our considered opinion the prosecution has failed to prove the charge against the accused-appellant beyond reasonable doubt. The impugned judgement and order appears to have been based on incorrect reasoning and incorrect appreciation of facts and also appears to have been based at least partially on material which was quite inadmissible in the eyes of law. Hence, the accused-appellant Jai Karan Pasi is entitled to be acquitted from the charge of committing offence u/s 302 I.P.C. and also from the charge of committing offence u/s-4/25 of Arms Act.

The impugned judgement and order dated 19.9.2016 passed by the Sessions Judge, Kaushambi in S.T. No. 219 of 2014 (State of U.P. vs. Jai Karan Pasi) relating to Case Crime No. 328 of 2014, Police Station Sarai Akil, District- Kaushambi is hereby set-aside. Accordingly accused-appellant Jai Karan Pasi is hereby acquitted from the charges u/s 302 I.P.C. and u/s 4/25 of Arms Act. If he is under detention then he immediately be released, if not detained in any other case.

The criminal Appeal stands allowed.

Lower court record be returned back immediately along with the copy of this judgement to the trial court for compliance.

This Court feels thankful for the competent assistance rendered by learned Amicus Curiae and deems it proper to direct that Rs.10,000/- shall be paid to her as fee/remuneration by the authority concerned from the State Exchequer.

Order Date : 17.5.2019

M. Kumar