Ram Pal vs State Of U.P.
2021 Latest Caselaw 1737 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 49
 

 
Case :- CRIMINAL APPEAL No. - 231 of 2012
 

 
Appellant :- Ram Pal
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rajesh Kumar Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Gautam Chowdhary,J.

(Per Hon'ble Kaushal Jayendra Thaker, J.)

1. Heard Sri Rajesh Kumar Mishra, learned counsel for the appellant and learned A.G.A. for the State.

2. This appeal challenges the judgment and order dated 1.12.2011 passed by the Additional Sessions Judge, Kannauj in Sessions Trial No. 93 of 2011 convicting Ram Pal, appellant, for commission of offence under Sections 302, 201 and & 394 of Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.').

3. The factual matrix of the case in hand, as gleaned from the pleadings and submissions of the parties as also the record is that on 2.9.1992, a complaint was moved by Suraj Kumar to the police authority at Kannauj stating that Ram Beti, wife of the late brother of Suraj Kumar and Kumari Draupadi alias Bauna, daughter of Ram Beti were gone missing from 12.00 noon on the said date and he suspects that they have been abducted and killed as his search for them turned in failure.

4. On the aforesaid complaint, G.D. Report No.43 was made at 21.30 hrs on 2.9.1992 and the matter was investigated, during investigation, dead bodies of Ram Beti and Draupadi alias Bauna were found from the place of incident, description of the same were written in G.D. Report No.2 at 00.15 hrs on 3.9.1992 on the basis of which Case Crime No.548 of 1992 under Sections 302 and 201 of I.P.C. was lodged and investigation was moved into motion and after recording statements of various persons, the Investigating Officer submitted the charge-sheet to the competent court on 9.2.1993.

5. The accused was facing charges which were exclusively triable by the Court of Sessions, he was committed to it.

6. On being summoned, the accused pleaded not guilty and wanted to be tried.

7. The prosecution examined about 6 witnesses who are as follows:

Deposition of Prem Shanker

27/01/11

PW1

Deposition of Dr. Prithibi Raj Singh

14/03/11

PW2

Deposition of Ved Prakash Giri

07/04/11

PW3

Deposition of Ram Nandani

05/05/11

PW4

Deposition of Ram Ratan

18/06/11

PW5

Deposition of Pradeep Pradhan

18/07/11

PW6

8. In support of ocular version following documents were filed:

Written Report & Application

02/02/92

Ex.Ka.1 & Ex. Ka.3

Recovery memo and Supurdginama of Lock and Goods

03/09/92

Ex.Ka.14

Recovery Memo of White Cloth

03/09/92

Ex. Ka. 15

Recovery Memo of 'Suti Nara' (Kamarband)

03/09/92

Ex. Ka. 16

Postmortem Report

03/09/92

Ex.Ka.3

Postmortem Report

03/09/92

Ex.Ka.4

Panchayatnama

03/09/92

Ex. Ka.6

Charge-sheet

09/02/93

Ex. Ka.17

9. On the witnesses being examined and the prosecution having concluded its evidence, the accused was put to questions under Section 313 Cr.P.C.

10. Hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant as mentioned aforesaid. Being aggrieved and dissatisfied with the impugned judgment, the appellant has preferred this appeal.

11. Learned counsel for the appellant has contended that there are several missing links and the learned judge has committed a grave error in convicting the accused on the basis of the statements made by witnesses who are not reliable.

12. Learned counsel for the appellant has relied on the decision in Nizam and Anr. Vs. State of Rajasthan reported in 2015 LawSuit (SC) 826 and has contended that the circumstantial chain was full of gaps; there is no consistency in their depositions and convection is based on mere hypothesis of the facts that the accused was working at the place where the dead bodies of the deceased were found.

13. He has further submitted that no incriminating circumstances have been proved against the accused also except the one wherein he was alleged to working in the house of deceased. It is submitted by the learned counsel for the appellant that the learned Judge below could not have convicted the accused as there was no dacoity or loot or robbery and nothing was recovered from the accused. Learned counsel for the appellant has further submitted that the learned judge had gone on the basis that it might be that the accused could have tried to hide the dead bodies of the deceased. It is further submitted that the conviction is based solely on these hypothesis.

14. As against this, learned A.G.A for the State has taken us through the record and has submitted that it was not a suicidal death but it was a murder. Circumstantial evidence proves to the hilt that the accused alone was the perpetrator of murder and he has relied on the decisions in Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681, State of Rajasthan Vs. Kashi Ram, 2007 (Suppl.) ACC 485, Ram Nath vs. State of U.P. and others, 2007 (Suppl.) ACC 495, Kalu alias Laxminarayan Vs. State of Madhya Pradesh, (2019) 10 SCC 211 and has contended that the circumstantial chain is complete and points only towards accused.

15. P.W.1, Prem Shankarm has deposed that he is aware that the deceased was staying in the house from where dead bodies of the two ladies were found.

16. We conclude that ligature mark on the dead bodies showed that it was a homicidal death. We are not delving further on this aspect as we have come to the conclusion that it was homicidal death but question is whether it was caused by the accused and accused alone?

17. In his oral testimony, P.W.3 has opined that he had received information on 2.9.1992 at 9:30 p.m. about fact that Ram Beti wife of late Tulsiram Mishra and Draupadi alias Bauna daughter of late Tulsiram were missing from home. It was registered as missing application and was thereafter turned into a G.D. entry and S.I. M.B. Lal taken the statements. After the dead body was recovered, it was sent for postmortem. The broken lock and the cloth with which both were done to death, was also recovered at the place of incidence. The prosecution witness No.4, Ram Nandani, has also in his ocular version stated that the incident occurred about 18 years before and has stated that the accused used to work at her place and therefore she knew him and she had sent him to her mother's place and he has ran away. P.W. 5, Ram Ratan, also opined that the incident occurred 19 years back. Ram Beti and her daughter were staying together. Rampal was a carpenter at their place and for sometimes Ram Beti, her daughter and accused-Ram Pal were not seen. He did not see clothes with which they were done to death. According to the other witnesses also, similar facts are mentioned.

18. The statement of accused under section 313 Cr.P.C. was one of denial and the accused specifically stated that he was falsely implicated. He has stated that he was not there on the place of the incidents as the son of the deceased has conveyed to him that he would call him after a certain period of time and when he would come back on leave, he would call him and, therefore, he had gone away.

19. On appreciation of the depositions of the prosecution witnesses, there are certain facts which emerge namely there is no eye witness and can we convict the accused on the basis of oral testimony of being working at the place of deceased?

20. The circumstances of last seen together is one of the chain of circumstances which has to be corroborated by other factual data. None of the witnesses have remotely conveyed that death occurred when the accused was in the house. The son of the deceased, P.W.1, is also not aware as the death took place in his absence. None of them had given any name to anybody and when he came to his house on 3rd December his house was open and the lock in the internal rooms were not broken but the main door was brought down.

21. Hence, the learned judge has committed an error which can be said to be an error apparent on the face of record as there is no connecting link between the accused and the death of the two ladies. We are fortified in our view by the decision of the Apex Court in Rambraksh alias Jalim Vs. State of Chattisgarh, (2016) 12 SCC 251. Only on the basis of last seen, conviction cannot sustained and the accused had acquitted. Similar is the case here in our case. No one has seen the accused with the deceased. The only evidence is that he was staying in the said house.

22. Reference to a recent decision of this Court in Criminal Appeal No.2183 of 2011 (Kanti Lal Vs. State of U.P) decided on 19.1.2021 can be made.

23. We can safely rely on the decision of the Gujarat High Court in Criminal Appeal No. 437 of 2003 (Chetankumar Dahyabhai Patel Vs. State of Gujarat) decided on 3.9.2013 where in the Court has held as under:

"16. Thus, from the discussion of the evidence of the aforesaid witnesses following aspects emerges;

(1) Nobody has seen the crime actually being committed;

(2) There is no material on record to suggest that whether Sonali has expired or not or whether the death of Sonali was accidental, suicidal or homicidal;

(3) The case of the prosecution is based solely on the alleged disclosure made by the appellant, while he was in custody of the police in connection with the complaint made by P.W.-1;

(4) Even, as per the evidence of P.W.-8, when he made inquires about the discovery of body of a female from the river about the time of the incident, he was informed that no such body was discovered during the said time period and the aforesaid fact shakes the very basis of the case of the prosecution that the appellant had pushed Sonali from over the bridge;

(5) Though, P.W.-8 stated, in his evidence, that he had recorded the statement of the Manager of Relief Theater, Bharuch, to verify the aspect of running of movie "Meri Aan" on the date of the alleged offence, the Manager was not examined as a witness. Moreover, though, P.W.-8 stated that he had obtained evidence with regard to absence of the appellant from his duty on the date of the alleged incident, there is neither any document produced on the record of the case nor any witness was examined by the prosecution to establish the said aspect;

(6) P.W.-1 failed to explain as to why he did not made any inquires about Sonali for two years and as to what prompted him to lodge the complaint, Dated : 20.04.1996, after a period of about two years before the PI,Ankleshwar;

(7) In view of the fact that the body of Sonali was never recovered, it was incumbent on the prosecution to show as to on what basis Section 302 of the IPC was applied against the appellant;

(8) The prosecution has not been able to prove, even, the aspect of lastseen together, since, there is no witness was examined nor any material was produced to establish the same;

(9) The prosecution has not been able to establish the motive for the crime. Insofar as the aspect of doubt about the character of Sonali on the part of the appellant is concerned, there is no material on record was produced to substantiate the same.

Moreover, though, in the complaint it is stated that on the date of the alleged offence, the appellant had spotted Sonali talking with some unknown male at Relief Theater, Bharuch, which prompted him to commit the alleged offence, the aforesaid male was not examined by the prosecution to establish the said fact, and thus, the motive for commission of the alleged offence by the appellant remains shrouded in mystery.

17. Thus, from the above discussion it becomes clear that merely relying on the confession alleged to be made by the appellant, while he was in custody of P.W.-8, the trial Court came to the conclusion that the appellant was guilty of the alleged offence. It is very well-known that a statement made by an accused before the police, while in custody of police,cannot be used against him. We are, therefore, of the opinion that the trial Court committed an error in solely relying on the alleged statement made by the appellant before the police, while in custody of police. It is no doubt true that there are certain circumstances, which raises suspicion about the involvement of the appellant in the alleged offence. But, there is a well settled principle of law that the suspicion howsoever strong it may be, cannot be substituted for the evidence. In the case on hand, in view of the above discussion, it cannot be said that the chain of events stands completed and it points towards the guilt of the appellant only and that it is not possible to take a different view, then, the one taken by the trial Court. We are,therefore, inclined to accept the submissions made by Mr. A. D. Shah, learned Sr. Advocate for the appellant that the appellant requires to be granted the benefit of doubt.

18. In the result, the appeal is ALLOWED. The judgment and order of the trial Court, Dated : 05.04.2003, rendered in Sessions Case No. 134 of 1998, is quashed and set aside. The appellant - original accused is given the benefit of doubt and is ordered to be acquitted. The appellant is on bail, and hence, his bail bond stands canceled. The amount of fine, if any, paid, be refunded to the appellant. A copy of this order be sent to the concerned jail authorities, immediately."

24. In this case there are certain aspects which requires to be seen namely there is no recovery from the accused of any incriminating article, he was named after considerable period of time, his fingerprints have not been sent for DNA examination and there is no forensic science report which would permit us to concur with the learned Sessions Judge in holding the appellant guilty.

25. The submission of the learned A.G.A for the State is that this was a cold blooded murder and the circumstantial evidence goes to show that it was the accused and accused alone who had perpetrated the murder.

26. The decisions cited by the learned A.G.A. are threadbare considered by us and the difference in those decisions are that there are no incriminating substances which are clearly established against the appellant. Explanations were given by the accused-appellant and, therefore, the judgment in Kashi Ram (Supra) cannot be made applicable. The accused has given cogent explanation. Unfortunately, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. In this case, there is nothing which point to the guilt of the accused leave apart cumulative chain. Hence, judgment in Trimukh Maroti Kirkan (Supra) will not apply. As far as the judgment in Kalu alias Laxminarayan (Supra) is concerned, the factual data will not permit us to confirm the conviction.

27. Recently, in Mohd. Younus Ali Tarafdar Vs. State of West Bengal (2020) 3 SCC 747, the dead body of the deceased was found floating in the well, postmortem was conducted and it was partially decomposed. Investigation led to the arrest of the appellant therein and there was a confession made by the appellant. Appellant alone was convicted by the courts below which has been upturned by the Hon'ble apex court. The circumstantial evidence which prosecution has relied has to prove the guilt of the appellant beyond all human probability. It must point out that it was the accused and accused alone who had perpetrated the offence. In our case there was no recovery from the accused, hence, we are unable to agree with the learned A.G.A. that section 114 of Indian Evidence Act, 1872 be read into and that the decision which have been cited would apply to the facts of this case.

28. Hence, we are unable to concur with the learned Sessions Judge. A further mention to the decision of this Court in Surendra Singh Vs. State of U.P., 2018 0 Supreme (All) 2467 would also not permit us to concur with the learned judge.

29. The appeal is allowed. The conviction under Section 302 read with Sections 201 and & 394 of I.P.C. cannot be sustained. The accused will have to be set free.

30. Record and proceedings be sent back to the trial court forthwith.

Order Date :- 29.1.2021

DKS