Pramod Prajapati vs State Of U.P.
2019 Latest Caselaw 4849 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on : 08.05.2019
 
Delivered on:  22.05.2019
 
Court No. - 34
 

 
 Case :- CRIMINAL APPEAL No. - 1254 of 2015
 
Appellant :- Pramod Prajapati
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Mukesh Kumar Pandey, Devendra Pratap Singh
 
Counsel for Respondent :- Govt.Advocate,Mohd. Shoeb Khan, Ratan Singh
 
Hon'ble Sudhir Agarwal, J.

Hon'ble Raj Beer Singh, J.

(Delivered by Hon'ble Raj Beer Singh, J.)

1. The present criminal appeal has been preferred by accused-appellant Pramod Prajapati against judgment and order dated 09.03.2015 passed by Shri Manoj Kumar Singh Gautam, Additional District & Sessions Judge, Court No. 2/Special Judge, Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as SC/ST Act, 1989), Kushinagar at Padrauna in Session Trial No. 29 of 2010 whereby accused-appellant has been convicted under Section 302 IPC and sentenced to undergo life imprisonment and fine of Rs. 1,00,000/- and in default thereto, he is further sentenced to six months additional rigorous imprisonment, while accused-appellant was acquitted of the charge under Sections 377, 506 IPC.

2. The facts and circumstances giving rise to the present appeal are that on 27.10.2008 at around 6:00 PM, Sonu Sharma, aged 16 years, grandson of complainant Kanhaiya Sharma had gone to buy eggs but did not return back and gone missing. On 28.10.2008 at about 8:00 AM, some shepherds (charwaha) informed complainant, Kanhaiya Sharma, that blood stained dead body of his grandson Sonu Sharma is lying at the sugar-cane field of Sharada Yadav in western side of the village. The complainant reported the matter to police by submitting written tehrir Ex. Ka-1 and on the basis of that tehrir, case was registered on 28.10.2008 at 11:00 AM against unknown persons under Section 302 IPC.

3. Police reached the spot and inquest proceedings were conducted by PW-5 S.I. Mewa Lal vide inquest report Ex. Ka-4. Dead body of deceased was sealed and sent for post-mortem. Samples of blood stained and simple soil and one pair of slipper as well as one string (rassi) were seized from the spot vide seizure memo Ex. Ka-5.

4. The post-mortem on the dead body of deceased child Sonu Sharma was conducted by PW-8, Dr. Javed Hayat on 29.10.2008 and following injuries were found on his person:

(i) I/W 5 cm x 2 cm x muscle deep on the rt. angle of mouth.

(ii) I/W 4 cm x 1.5 cm x bone deep on the rt. side forehead just above the rt. eyebrow.

(iii) I/W 4 cm x 0.5 cm x at the left side of face x muscle deep 3 cm lateral to the left angle of mouth.

(iv) I/W 4 cm x 1 cm x scalp deep located at 8 cm above of the rt. ear on the rt. side of head.

(v) I/W 5 cm x 2 cm x muscle deep at the rt. face, just below the rt. angle mouth.

(vi) I/W 9.5 cm x 1 cm on the just chin x muscle deep.

(vii) I/W 4 cm x 0.5 cm x muscle deep on back of neck, just below the occipital.

(viii) I/W 4 cm x 1 cm x muscle deep left side of neck x 16 cm below of the left ear.

(ix) I/W 5 cm x 1 cm x at the rt. side of hip just below the rt. iliac crest.

(x) I/W 3 cm x 1 cm x bone deep x on the rt. side back of hand, 5 cm below the wrist.

(xi) I/W 2 cm x 0.5 cm x muscle deep x on the back of rt. wrist.

(xii) I/W 2.5 cm x 0.5 cm muscle deep at the back of rt. hand.

(xiii) I/W 1.5 cm x 0.5cm muscle deep on the back of rt. hand.

(xiv) I/W 3 cm x 1 cm muscle deep on the back of left hand.

(xv) I/W 4.5 cm x 2 cm x bone deep at the back of rt. elbow.

(xvi) I/W 9 cm x 1.5 cm x at the neck just below chin muscle deep to cavity deep.

(xvii) Multiple I/W on the left forearm with area of 16 x 8 cm (total 4) size are 2 to 4 cm to 0.5 cm x muscle deep.

5. According to autopsy Surgeon, cause of death of deceased was due to shock and haemorrhage as a result of ante-mortem injuries.

6. After his arrest, accused-appellant Pramod Prajapati was also medically examined by PW-6, Dr. Aftab Husain, vide MLC report Ex. Ka-7 and following injuries were found on his person:

(i) Stitched wound 6.5 cm in length (no. of stitches 5) over left side neck 2 cm below the angle of left mandible. KUO Adv. x-ray.

(ii) Abrasion 1 cm x 0.5 cm over palmer aspect of rt. thumb 4 cm above the tip of rt. thumb hard scab fall off.

7. After completion of the investigation, accused-appellant was charge-sheeted for the offences under Sections 302, 377, 506 IPC vide charge-sheet, Ex. Ka-16.

8. Trial Court framed following charges under Sections 302, 377, 506 IPC against accused-appellant:

"eSa v'kksd dqekj] l= U;k;k/kh'k dq'khuxj vki vfHk;qDr izeksn iztkifr dks fuEu vkjksiksa ls vkjksfir djrk gwWA

1- ;g fd fnukad 27-10-2008 ls 28-10-2008 ds lqcg 8 cts ds e/; cgn xzke lkM+h [kqnZ Fkkuk dl;k tuin dq'khuxj esa vkius oknh dUgS;k 'kekZ ds ukrh lksuw 'kekZ ds lkFk izd`fr dh O;oLFkk ds fo:) LosPN;k bfUnz;&Hkksx fd;kA bl izdkj vkius Hkknala- dh /kkjk 377 ds rgr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA

2- ;g fd mijksDr fnukad LFkku o le; ij vkius lksuw 'kekZ dks Hknnh Hknnh xkyh xqIrk nsdj viekfur ,oa izdksfir fd;k ftlls 'kkafrHkax dh vk'kadk mRiUu dh x;h FkhA bl izdkj vkius Hkknala- dh /kkjk 506 ds rgr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA

3- ;g fd mijksDr fnukad LFkku o le; ij vkius lksuw dh gR;k dj fn;kA bl izdkj vkius Hkknala- dh /kkjk 302 ds rgr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA

,rn }kjk vkidks vknsf'kr fd;k tkrk gS fd mDr vkjksiks ds rgr vkidk ijh{k.k bl U;k;ky; }kjk fd;k tk;A**

"I, Ashok Kumar, Sessions Judge, Kushinagar charge you Pramod Prajapati as under:-

1. That from 27.10.2008 to 28.10.2008 at around 8:00 AM in the morning, at Village Sadi Khurd under P.S. Kasya, District Kushinagar, you committed carnal intercourse on Sonu, grandson of complainant Kanaihya Sharma against the order of nature and thereby committed an offence punishable under Section 377 IPC within the cognizance of this Court.

2. That on the aforesaid date, time and place you intimidated alleged Sonu Sharma by hurling shabby abuses and terrorising him which might lead to breach of peace and thereby you committed an offence punishable under Section 506 IPC within the cognizance of the Court.

3. That on the aforesaid date, time and place you committed murder of Sonu and thereby committed an offence punishable under Section 302 IPC within the cognizance of this Court.

It is hereby directed that you shall be tried by this Court for the aforesaid offences."

(English Translation by Court)

9. So as to hold accused-appellant guilty, prosecution has examined nine witnesses. After prosecution evidence, statement of accused-appellant was recorded under Section 313 of Cr.P.C, wherein he has denied prosecution version and claimed false implication. However, no evidence was led in defence.

10. After hearing and analysing the evidence on record, accused-appellant was convicted under Section 302 IPC and sentenced as mentioned in paragraph No. 1 of the judgment whereas he was acquitted of the charge under Sections 377, 506 IPC.

11. Being aggrieved by impugned judgment and order, accused-appellant Pramod Prajapati has preferred present appeal.

12. We have heard Sri Devendra Pratap Singh, learned Amicus Curiae for appellant and Sri Ratan Singh, learned Additional Government Advocate for State-respondent.

13. Learned Amicus Curiae for accused-appellant has contended that there is no evidence against accused-appellant and no incriminating circumstance has been proved against him, thus, it cannot be said that chain of circumstances is complete and there is no evidence of last seen against accused-appellant; no recovery has been effected from his possession; it is a case of no evidence but Trial Court has not appreciated evidence in its correct prospective and committed error by convicting accused-appellant.

14. Refuting the contentions of learned Amicus Curiae for accused-appellant, it has been submitted by learned A.G.A. for State that the impugned judgment and order is based on evidence on record. There is sufficient and reliable evidence on record against accused-appellant. Trial Court has appreciated evidence in correct perspective. There is no eye witness of the incident but incriminating circumstances have been proved against him. It has been submitted that evidence of prosecution witnesses points out that an offence under Section 302 IPC is made out against accused-appellant. It has also been submitted that conviction of accused-appellant is based on evidence and there is no force in the appeal.

15. We have considered rival contentions of learned counsel for the parties and perused the record.

16. In the present case it is clear from the post-mortem report of deceased that death of the deceased was homicidal in nature. However, there is no eye witness of the alleged incident and the case is based on circumstantial evidence.

17. It is well settled that though conviction can be based on circumstantial evidence alone but for that prosecution must establish chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with their innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, accused and none else have committed offence.

18. In Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, Court held as under:-

"152. 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 Sahebaro Bobade V State of Maharashtra 1973 CriLJ1783 where the following observations were made:

Certainly, it is 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 accuses, 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.

153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".

19. In Joseph vs. State of Kerala, (2000) 5 SCC 197, Court has explained circumstances where under conviction can be based purely on circumstantial evidence. It observed:-

16. "it is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavor in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused."

(Emphasis Added)

20. Similar view has been expressed in Padala Veera Reddy v. State of Andhra Pradesh, AIR 1990 SC 79. In C. Chenga Reddy and others v. State of Andhra Pradesh, AIR 1996 SC 3390, Court has 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)

21. In State of U.P. vs. Ashok Kumar Srivastava, (1992) 2 SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if evidence relied on is reasonably capable of two inferences, the one in favour of accused must be accepted. It was also pointed out that circumstances relied upon must be found to have been fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt.

22. In State of Himachal Pradesh Vs. Raj Kumar, reported in (2018) 2 SCC 69, Court was considering a case based on circumstantial evidence. Their Lordships while taking note of the well settled legal position, in Paragraph 9 and 10, observed as under:-

"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain 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.

10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:-

"12. ...........The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."

23. The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679.

24. In Vijay Shankar Vs. State of Haryana, reported in (2015) 12 SCC 644, although the case was based on last seen theory, Court discussed the principles in respect of evidentiary value and held in Paragraph 8 as under:-

"8. There is no eye-witness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.

(Emphasis Added)

25. In Varkey Joseph Vs. State of Kerala, reported in AIR 1993 SC 1892, Court held that suspicion cannot take place of proof. In Paragraph 12 of the judgment, Court concluded as under:-

"12. Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its Patna High Court CR. APP (DB) No.202 of 1996 dt.13-03-2018 16/ 25 case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under S. 302, IPC"

26. In Raja @ Rajinder Vs. State of Haryana, reported in (2015) 11 SCC 43, Court noted down in Paragraph 10 aspects with which court should be satisfied in a case based on circumstantial evidence. Para 10, 11 and 12 of the judgment read as under:-

"10. As the factual matrix would show, the case of the prosecution entirely hinges on circumstantial evidence. When a case rests on circumstantial evidence, the Court has to be satisfied that:

"(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 Patna High Court CR. APP (DB) No.202 of 1996 dt.13-03-2018 17/ 25 consistent with the guilt of the accused but should be inconsistent with his innocence."

27. In Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259, it has been laid down that:-

"4. ..... the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."

28. From the aforesaid exposition of law, it is clear as on day that Court is required to evaluate circumstantial evidence to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted [See Ujjagar Singh v. State of Punjab, (2007) 13 SCC 90 : (2009) 1 SCC (Cri) 272].

29. In the present case, PW-1 Kanhaiya Sharma has stated that his grandson Sonu Sharma was taken away from the home by one Bholu, son of Brijbhan Prajapati, by saying that they would eat eggs and PW-1 has given ten rupees to his grandson for eggs but thereafter deceased did not return. He has further deposed that he has heard that mother of accused-appellant Pramod Prajapati, namely Lalmati was afflicted with some ghost since last six months and the alleged ghost was demanding sacrifice of a child and for that purpose Lalmati was searching some boy for sacrificing him. PW-1 has also stated that father of accused-appellant Pramod Prajapati, namely Nageena, his mother Lalmati, Pramod Prajapati (accused-appellant), Rizwan and Bholu have taken away his grandson and on the second day, dead body of deceased child was found, which was lying tied with a string from the neck to a rosewood tree (seesam tree) and deceased was having several stab wounds. One pair of slipper of deceased was lying there. He has further stated that a knife was recovered at the instance of accused-appellant and Bholu.

30. PW-2 Jai Prakash Sharma, who is father of deceased, stated that his son was taken away at around 6:00 PM by Bholu for eating eggs but thereafter he did not return. When they inquired from Bholu, he refused to tell anything. On the next date, dead body of deceased was found. PW-2 has also stated that since last six months, Lalmati was afflicted by some ghost and there was some talk about the sacrifice. The deceased was taken away by Bholu and thereafter, Nageena Prajapati, Lalmati, Pramod and Rizwan have sacrificed him. One pair of slipper was lying near dead body. Police have taken action only against accused-appellant Pramod Prajapati and Rizwan while PW-2 has told Investigating Officer that all the above-stated persons were involved in the alleged incident and in this regard complaints were also made to higher officers. On 01.11.2008, one blood stained towel and one knife were also recovered from the sugar-cane field of one Sharada Yadav, which were taken into possession by police vide recovery memo Ex. Ka-2.

31. PW-3 Ugrasen Yadav is a witness of inquest proceedings, while PW-4 Singhasan Yadav has stated that after recovery of dead body of deceased, on the next day, a mug was found near place of recovery and one Smt. Prem Sheela had told that it was her mug and it was taken away by Rizwan.

32. PW-5 S.I. Mewa Lal has investigated the case. During the course of the investigation, he prepared site-plan Ex. Ka-6 and has also proved seizure memos of blood stained soil and simple soil, slipper and string as Ex. Ka-5 and inquest report Ex. Ka-6. He has also recorded statements of the witnesses including that of Bholu. On 01.11.2008, accused-appellant and Rizwan were arrested and the weapon, which was used in the alleged offence, i.e. knife as well as one shirt, one towel were recovered at the instance of the accused-appellant, vide recovery memo Ex. Ka-2. One 'dav' (wood cutting instrument) was recovered at the instance of Rizwan vide recovery memo, Ex. Ka-3. After completion of investigation, the charge-sheet was filed against the accused-appellant and co-accused Rizwan.

33. PW-7 S.I. Vijay Shanker Gaur is a formal witness and recorded FIR. PW-8 Dr. Javed Hayat has conducted postmortem on the dead body of deceased vide post-mortem report Ex. Ka-15.

34. It appears from record that PW-7 S.I. Vijay Shanker Gaur was again summoned as PW-9 and he has stated that co-accused Rizwan was minor, thus, charge-sheet was filed against him in Juvenile Justice Board while charge-sheet Ex. Ka-16 was filed against accused-appellant by S.O. Hari Shanker Prasad.

35. Keeping in view the above mentioned settled principles regarding circumstantial evidence, in the present case so far as the circumstance of last seen of deceased with the accused-appellant is concerned, it may be stated that in FIR, no such version was mentioned that deceased was taken away by accused-appellant Pramod Prajapati. In fact, no one was named in FIR. It merely stated that on 27.10.2008 at about 6:00 PM, deceased has gone for eating eggs but thereafter, he did not return back. In his statement, PW-1 initially stated that deceased was taken away by Bholu but later on, stated that the deceased was taken away by accused-appellant as well as by his father Nageena, his mother Lalmati and Rizwan and Bholu. In his cross-examination, he has again stated that deceased was taken away by Bholu. He was asked specific question, whether deceased was taken away by the accused-appellant and alleged Lalmati and Rizwan but he stated that he does not know except the fact that deceased was taken away by Bholu. He has again reiterated this fact that deceased was taken away only by Bholu.

36. Here it would be pertinent to mention that alleged Bholu has not been made an accused, rather, it appears from the statement of Investigating Officer that he was examined as a witness. It is clear from the statement of PW-1 that his statement is not clear and cogent. He has repeated for several times that deceased was taken away by Bholu. Further, no one was named in FIR. Considering the statement of PW-1 in its entirety, it is clear that statement of PW-1 against accused-appellant is not clear and cogent. It does not lead to the conclusion that deceased was taken away by accused-appellant.

37. Similarly, PW-2 has stated that deceased was taken away by Bholu, though he has stated that after his son was taken away by Bholu, he was murdered by Nageena, Lalmati, accused-appellant Pramod Prajapati and Rizwan by way of sacrifice. There is no eye witness of the alleged incident. As stated that alleged Bholu has not been made an accused nor he has been examined as a witness during trial. In his cross-examination, PW-2 has reiterated that his son was taken away by Bholu. Thus, it is clear that statement of PW-2 is also not cogent and categorical against accused-appellant. The statements of PW 1 and PW 2 do not lead to any such conclusion that deceased was taken away from his home by accused-appellant Pramod Prajapati. In view of these facts, it is quite apparent that the circumstance of last seen of the deceased in the company of accused-appellant has not been established at all.

38. The next circumstance relied upon by the prosecution is recovery of a knife, one shirt and one towel at the instance of accused-appellant. Though PW-1 has stated that a knife was recovered from accused-appellant but he has not clarified as to when and from where the alleged recovery was made. Similarly, PW-2 has stated that the knife, one shirt and one towel were recovered from the possession of accused-appellant from the sugar-cane field of one Sharada Yadav but he has also not clarified, when the alleged recovery were made. PW-5 S.I. Mewa Lal has also made a statement about alleged recovery but there is no forensic report that the alleged knife was used in commission of alleged offence. Similarly, shirt and towel could also not be connected with the alleged offence. Through PW-1 and PW-2 have alleged that mother of accused-appellant Lalmati was afflicted with some ghost and to get rid of the same, they were talking about sacrifice of a child but it is a hearsay evidence and prosecution has not established the alleged motive. It is also not clear, that, as per prosecution version if deceased was murdered by way of sacrifice by Nageena, Lalmati, accused-appellant and Rizwan, than why all these persons were not charge-sheeted by police.

39. Another aspect of the matter is that PW-5 Mewa Lal has stated that on 31.10.2008, he has examined alleged Bholu as a witness. He has stated that deceased Sonu Sharma, accused-appellant Pramod Prajapati and Rizwan used to commit unnatural act with him and used to threaten that if he discloses to anyone, they would kill him. On 27.10.2008, Rizwan and accused-appellant asked him to bring the deceased at the place where they used to indulge in unnatural act and when he (Bholu) took the deceased at Chhera Chauraha, accused-appellant and Rizwan met them and when deceased tried to do unnatural act with him, accused-appellant and Rizwan tied a string in the neck of deceased and deceased was murdered by both of them by 'dav' and knife. During incident, deceased snatched knife from the accused-appellant and attacked on the accused-appellant with knife but again the accused-appellant snatched knife from him and committed murder of the deceased.

40. It is apparent that during investigation alleged Bholu has depicted an entirely different story regarding murder of deceased and interestingly, during investigation, alleged Bholu was examined as witness while on the other hand, version of PW-1 and PW-2 is that the deceased was taken away by Bholu and thereafter, Nageena, Lalmati, accused-appellant and Rizwan have committed murder of deceased to get rid of the ghost by which Lalmati was suffering since last six months.

41. No doubt, deceased was brutally done to death as he has sustained as many as 17 stab injuries but there is no eye witness of the alleged incident. The only circumstance against accused-appellant established by prosecution is the alleged recovery of one shirt, one towel and one knife at the instance of the accused-appellant. As stated earlier, there is no Forensic Expert Report to connect alleged knife with the commission of alleged offence. Similarly, recovery of shirt and towel is also not connected with the alleged crime. Merely on the basis of alleged recovery, it cannot be said that the chain of circumstances is complete. After taking into consideration totality of the facts and circumstances of the case and evidence led on record by prosecution, we find that there are material inconsistencies and infirmities in the prosecution evidence and important links are missing so as to form complete chain of circumstances. The alleged incriminating circumstance that deceased was taken away from his house by accused-appellant has not been established. Neither incriminating circumstances have been proved nor the chain of circumstances is complete. The evidence led by prosecution does not lead to the inference of guilt of accused-appellant. The circumstantial evidence relied by prosecution does not satisfy the test laid down in various authorities as discussed above for recording the finding of guilt.

42. In view of above discussion, Trial Court, in our opinion, committed error by recording findings of guilt and thus, it will not be safe to uphold conviction of accused-appellant Pramod Prajapati in commission of murder of the deceased. The accused-appellant deserves benefit of doubt.

43. The appeal succeeds and is allowed. Impugned judgment and order passed by Court below in Session Trial No. 29 of 2010, whereby accused-appellant has been convicted under Section 302 IPC, is hereby set aside. Accused-appellant Pramod Prajapati is acquitted of the charge under Section 302 IPC. He is stated in jail, thus, he be released forthwith if not wanted in any other case.

44. Trial Court record along with the copy of this judgment be remitted to the Court concerned forthwith for necessary compliance. A Copy of this judgment be also sent to accused-appellant through Jail Superintendent concerned for intimation forthwith. Compliance report be also submitted to this Court.

45. Before parting, we find it appropriate to place on record our commendation to learned counsel who has argued this appeal as Amicus Curiae with ability and actually assisted the Court effectively. We provide that he shall be paid counsel's fee as Rs. 11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri Devendra Pratap Singh, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.

 
Order Date : 22.05.2019
 
Anand 
 
 (Raj Beer Singh)    (Sudhir Agrawal)