Bakshraj vs State Of U.P.
2021 Latest Caselaw 5550 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 
Reserved 
 

 

 
Case :- CRIMINAL APPEAL No. - 2027 of 2013
 
Appellant :- Bakshraj
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Amit Kumar Srivastava,Ramesh Kumar Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bachchoo Lal,J.

Hon'ble Subhash Chandra Sharma,J.

(Delivered by Hon'ble Subhash Chandra Sharma, J.)

1. The present Criminal Appeal is being preferred against the judgment and order dated 30.04.2013 passed by Additional Sessions Judge, (Ex Cadre Post) II, Fatehpur in Session Trial No.43 of 2010 (State vs. Bakshraj) arising out of Case Crime No.106 of 2009, under Section 302 I.P.C., Police Station Dhata, District Fatehpur, whereby the appellant was convicted and sentenced for life imprisonment and fine of Rs.10,000/- in default of payment of fine to undergo for six months additional simple imprisonment.

2. The prosecution case in brief is that on 09.10.2009 Rajan aged about 45 years (deceased) the brother of informant Bachcha Lal @ Chapra went to look after his fishes kept in tank namely Balram Pond in the evening at about 9:00 P.M. but he did not return till the next day morning. Thereafter, the informant his brother Kallu and Suraj were going to search about him towards the tank meanwhile they saw some blood lying near the chuck road in the garden of Iqbal Bahadur Singh. They made search near that place and found dead body of their brother drenched with blood, under a mango tree in the North East with marks of sharp weapon injuries on his head. On this they suspected that on account of old enmity Bakshraj s/o Binga and unknown persons had committed murder of their brother. Thereafter, informant Bachcha Lal @ Chapra went to police station Dhata at about 7:30 A.M on 10.10.2009 and by giving a written taharir lodged an F.I.R. as Crime No.106 of 2009, under Section 302 I.P.C.

3. Sub-Inspector Sri Vipin Kumar Trivedi proceeded to the place of occurrence and conducted inquest of deceased Rajan Pasi in presence of witnesses. He prepared inquest report and other essential papers for post mortem of deceased and sealed the dead body. It was handed over to constable Sunil Narain and constable Pramil Vivek to carry it for post mortem with essential papers.

4. Post mortem of dead body of decased Rajan Pasi was conducted on 11.10.2009 at mortuary Fatehpur. Dr. R.K. Verma conducted the autopsy of the dead body of deceased Rajan Pasi on the same day at about 2:15 P.M. and prepared post mortem report which is Exibit Ka 2. Details of post mortem report are as under:

External Examination

Aged about 45 years; after death about one and half day average built body rigor mortis was present on upper and lower extremities, eyes closed, mouth half open.

Ante Mortem Injuries

(i) incised wound at occipital area of head size 17cm x 2cm bone deep 6cm above the right ear;

(ii) incised wound at right side of neck size 3cm x 1cm bone deep, 7cm back to right ear;

(iii) incised wound at head posterior area size 3cm x 5cm bone deep, 8cm below to injury no.1;

(iv) incised wound at upper back at chin size 3 cm x 1 cm muscle deep, 3 cm below the 7th vertebra;

(v) incised wound at uper back size 4cm x 1cm muscle deep, 7cm below the right shoulder joint;

(vi) multiple abrasions at back size 5cm back to left shoulder joint size 10cm x 5cm;

(vii) abraded contusion at left elbow area posterior aspect in an area of 4cm x 3cm with dislocation of elbow joint;

Enternal Examination

Neck- as mentioned above

Skull- occipital and right temporal Bone- fractured

Membrane- lacerated

Brain- lacerated and about 100 ml clotted blood present in cavity

Base- NAD

Vertebrae- NAD

Spinal Cord- not opened

Thorax

Walls, Ribs & Cartilages- NAD

Pleuss- NAD

Larynx, Trachea & Bronchai- NAD

Right and Left Lungs- Pale

Pericardium- NAD

Heart- Empty Both Side

Vessels- NAD

Abdomen

Walls- NAD

Peritoneum- NAD

Cavity- NAD

Buccle Cavity- Teeth, Tongue and Pharyad 16/16

Oesophagus- NAD

Contents in stomach- about 500ml semi digested food material present

Small Intestine- Empty

Large Intestine and its content- half filled with gases and faecel material

Liver and Gall Bladder- Pale, Full

Pancreas- NAD

Spleen- Pale

Kidenys- Both Pale

Urinary Bladder- Half filled

Genetic Organs- NAD

Cause of Death- Shock and hemorrhage as a result of ante-mortem injuries.

5. Investigating Officer collected blood stained and plain soil from the place of occurrence and putting into separate boxes, sealed them and prepared fard on 10.10.2009 which is Exibit Ka 6. On 30.10.2009, he arrested the appellant who made disclosure statement about the hiding place of knife used in the commission of murder of deceased. On the instance of appellant knife was recovered from the turf lying on the back side of his house and it was taken into possession and sealed at the spot. Recovery memo Exibit Ka 8 was prepared in the presence of witnesses. Even site plan of place of recovery was also prepared.

6. During investigation the site plan, where the incident took place, was prepared which is Exibit Ka-7 on 10.10.2009. Statements of witnesses conversant to the facts of the case were recorded by Investigating Officer and he concluded the investigation and found a prima facie case made out under Section 302 I.P.C. against the appellant only. After preparing the charge-sheet he submitted it before the court concerned.

7. Learned C.J.M. Concerned took cognizance of the offence and provided copies of essential prosecution papers to accused/appellant in compliance of provisions of Section 207 Cr.P.C. and committed the case to the court of sessions for trial.

8. Learned trial court framed charge under Section 302 I.P.C. against the appellant on the basis of material on record after giving opportunity of hearing to the appellant and charge was read over and explained to the appellant. He did not plead guilty but denied it and claimed for trial. Consequently, case was fixed for prosecution witnesses.

9. The prosecution examined PW-1 Bachcha Lal @ Chapra, PW-2 Shambhar Pasi, PW-3 Badal Harijan, PW-5 Kallu and PW-7 Ghur Patiya, PW-8 Suraj Singh as witnesses of fact out of which PW-2 and PW-3 turned hostile. PW-4 Dr. Rajesh Kumar Verma who conducted the post mortem of deceased Rajan Pasi, PW-6 Head Constable Nanhe Lal who prepared chick F.I.R. on the basis of a written taharir and entered the substance into the G.D. PW-9 Sub-Inspector Vipin Kumar Trivedi who investigated the case, conducted inquest of deceased and prepared site plan, PW-10 S.O. Pradeep Kumar Yadav who conducted remaining part of investigation and prepared charge-sheet.

10. After conclusion of prosecution evidence statement of appellant was recorded u/s 313 Cr.P.C. in which he negated the statements made by witnesses before the Court and said that witnesses have implicated him falsely due to enmity. He further stated that witnesses are relatives. Recovery of knife had been shown to be fabricated after making his arrest from home. He had further stated that deceased went to look after the tank in which fishes were kept with 5-6 people. They committed his murder on account of village party bandi and family enmity. He was arrested from his house and booked in this case after showing fabricated recovery. Appellant was given an opportunity for defense but he did not adduce evidence in his support.

11. Learned trial court heard the arguments for prosecution as well as for appellant, passed the judgment and order dated 30.04.2013 in which he found the appellant guilty u/s 302 I.P.C. and sentenced him for life imprisonment with fine amounting to Rs.10,000/- and in default of payment of fine to undergo 6 months additional imprisonment. Against the said judgment and order present appeal has been preferred.

12. We have heard Sri Amit Kumar Srivastava and Sri Ramesh Kumar Mishra, learned counsel for the appellant and Sri Ratan Singh, learned A.G.A. for the State and perused the record.

13. Learned counsel for the appellant submits that the judgment and order dated 30.04.2013 passed by the learned trial court is against the evidence available on record which is bad in the eyes of law and based on the testimony of interested witnesses who are close relatives of deceased. No any independent witness has been examined. PW-2 and PW-3 turned hostile those were planned as witnesses of extra judicial confession of appellant. No one had seen the occurrence and only on the basis of suspicion appellant has been named by the informant. PW-1, informant, PW-5 and PW-8 are brothers of deceased and they had also not seen the occurrence. Even PW-7 who is wife of deceased was also not an eye witness. In addition to this, there is no other witness who can be said to have seen the incident. The suspicion created in the minds of informant and other witnesses has been related to 14-15 years prior enmity in which it has been said that brother of appellant namely Buakhal was murdered by the deceased Rajan Pasi when both of them went to commit a dacoity somewhere and villagers killed Baukhal but there is no any evidence of such incident of dacoity on record even the Investigating Officer has also not disclosed such event to have taken place as per the police record as has been alleged. There is no blood stain found on the knife and it was also not sent to F.S.L. for serological analysis as a result it cannot be said that the recovered knife was used in the commission of murder of deceased. There is no any witness who can be said to have last seen the appellant in company of deceased and at last the theory of extra judicial confession comes on the ground because PW-2 & 3 witnesses of alleged extra judicial confession have not supported the said theory but turned hostile.

14. In this way, the conviction and sentence as awarded by the learned trial court is not based on solid and clinching evidence but is totally hypothetical and is outcome of conjectures and suspicion which is against the established principles of criminal law. In this way, the prosecution could not prove its case beyond reasonable doubt as a result appellant is entitled for benefit of doubt and appeal is liable to be allowed.

15. Learned A.G.A. opposed the submissions made by learned counsel for the appellant and urged that in this case appellant had motive to commit murder of the deceased Rajan Pasi because 14-15 years ago Buakhal brother of appellant went to commit dacoity with the deceased Rajan Pasi where he was killed by some people of the village and Rajan Pasi fled away from there. On this informant and members of his family come to know that deceased Rajan Pasi had plotted the murder of Baukhal and since then appellant was planning to take revenge of murder of his brother and consequently he committed his murder. This was the strong motive with the appellant to commit murder of deceased Rajan Pasi. This has been established with the evidence on record as deposed by prosecution witnesses. In addition to this, the knife used in commission of murder has also been recovered on the instance of appellant and post mortem report supports that murder was committed with the sharp weapon like knife. Extra judicial confession was also made before PW-2 & 3 but on account of village rivalry and fear witnesses turned hostile. Learned trial court has well considered the evidence on record and found the appellant guilty under Section 302 I.P.C. and sentenced him for imprisonment of life which is right in the eyes of law. There is no illegality or impropriety in the said judgment and order. The appeal is devoid of merit and is liable to be dismissed.

16. From the submissions of learned counsel for parties and perusal of record, the following questions emerge for consideration before this Court as to whether motive is absent and witnesses are close relatives. There is no eye witness account of witnesses who have seen the occurrence. There is no last seen. The knife recovered on the instance of the appellant is not blood stained and cannot be said to have been used in commission of crime. This is blind murder and no one has seen the incident but the whole prosecution story runs on suspicion and conjectures that cannot be made base for convicting the appellant.

17. Before we deal with the contentions raised by the learned counsel for the appellant, it will be convenient to take note of witnesses account as adduced by the prosecution.

18. PW-1 Bachcha Lal @ Chapra is the informant and brother of deceased who deposed that on the day of incident after taking food his brother Rajan Pasi went to look after the tank having fish at about 9 O'clock in the night. In the morning when he did not return home then he, Kallu and Suraj went in search of his brother. They saw blood on the chak road of garden of Iqbal Bahadur Singh. On search they found dead body of Rajan Pasi drenched with blood, having marks of injuries, under the mango tree in the North East. Murder of his brother has been caused by Bakshraj on account of old enmity. His brother Rajan Pasi and brother of Bakshraj namely Baukhal had gone to commit dacoity at Godwapar about 14-15 years ago where villagers caught Baukhal and murdered him. Then Bakshraj was young and after having grown up he made the wife of Baukhal as his own wife. Bakshraj suspected that his brother Rajan Pasi had plotted the murder of Baukhal. This was the enmity and on account of this enmity to take revenge he had committed murder of his brother Rajan Pasi. There was no enmity with any other person. He has also proved the written taharir given by him to the police station as Exibit Ka-1. This witness was subjected to gruel cross-examination by learned counsel for the appellant. During the cross-examination he has stated clearly that he had not seen anyone to commit murder of his brother.

19. PW-2 Sambhar Pasi has deposed that he did not know as to how Rajan Pasi died or murdered. Accused Bakshraj did not come to him on 12.10.2009. He did not disclose before him that he had taken revenge so he could manage to help him with police. Bakshraj never made confession regarding murder of Rajan Pasi before him. Later on this witness was declared hostile and subjected to cross-examination by learned prosecutor in which he has also denied the fact of enmity between Rajan Pasi and Bakshraj.

20. PW-3 Badal Harijan has also deposed that on 11.10.2009 after the murder of Rajan Pasi, accused Bakshraj did not come to him and he did not say to him that he could help him with the police because he had committed murder of Rajan Pasi. Bakshraj never made confession before him about the murder of Rajan Pasi. This witness was also declared hostile and subjected to cross-examination by the prosecutor. During cross-examination he expressed inability to know about the enmity between Rajan Pasi and Bakshraj.

21. PW-5 Kallu is brother of deceased who has deposed that Bakshraj is resident of his village. There was enmity between accused Bakshraj and Rajan Pasi because Baukhal brother of accused and Rajan Pasi had gone to commit dacoity somewhere and Baukhal was murdered there on which the accused suspected that Rajan Pasi had plotted the murder of Baukhal. On the day of incident his brother Rajan after taking food went to look after his fishes at about 9 O'clock in the night and he did not return in the morning. He and his brother Surajpal and Bachcha Lal @ Chapra went to search him meanwhile near kachcha road blood was seen. So, they made search near about that place. They saw dead body of their brother Rajan Pasi under a mango tree. There were injuries on his head and hand. He told that on account of old enmity Bakshraj had committed murder of his brother. Bakshraj married the wife of his brother Baukhal and said to take revenge. After incident Sub-Inspector caught Brajesh and left him after query then after 13-14 days arrested Bakshraj and brought him to the village where a knife was recovered on the instance of the appellant from the back of his house before us. He also said to the police that he had committed murder of Rajan with that knife. The knife was sealed by Sub-Inspector at the spot and fard was prepared and he got affixed thumb impression of the appellant on it. This witness has also been subjected to cross-examination by learned counsel for the appellant in which he has stated clearly that he did not know when Baukhal was murdered. As had been told to him by the members of his family he was telling. He had not seen Buakhal and he could not tell as to how many years ago Baukhal was murdered.

22. PW-7 Ghur Patiya who is wife of deceased Rajan Pasi has deposed that on the date of incident at about 7:30 O'clock in the evening his husband went to look after the tank of fish after having food and did not return in the morning. Her brother-in-law Chapra, Sukhlal, Kallu and Suraj went in search of her husband whose dead body was found under a tree in the garden of Iqbal Bahadur Singh. Accused Bakshraj was threatening from before to commit murder of her husband. Prior to the incident her husband and Baukhal brother of Bakshraj had gone to commit dacoity in Bodhwapur where Baukhal was murdered by either police or public. Bakshraj threatened before her husband and brother-in-laws that he (Rajan Pasi) plotted murder of his brother Baukhal so he would also murder him. On account of that enmity Bakshraj committed murder of her husband. This witness was also subjected to cross-examination in which she has stated that no such case was proceeded against her husband and near about 14-15 years have been passed after the incident of Bodhwapar. Her husband did not go to the jail in that incident.

23. PW-8 Suraj Singh who is also brother of the deceased has deposed that deceased Rajan Pasi was his real brother. He went to look after his fishes in the tank at about 9 O'clock after taking food. On the next day when he did not return then while searching for him he went to the garden of Iqbal Bahadur Singh where blood was seen on the chak road. On a short distance under the tree of mango dead body of Rajan Pasi was lying with injuries on the head and person. He believed that accused Bakshraj had committed murder of his brother Rajan Pasi on account of old enmity. Brother of Bakshraj namely Baukhal was murdered during a dacoity in the village Godhwapar by the villagers. Bakshraj told him that his brother Rajan Pasi had plotted the murder of his brother (Bakshraj) and he would kill his brother Rajan Pasi. Afterwards accused Bakshraj married with the wife of Baukhal and said that he would take revenge of his brother's death by committing murder of Rajan Pasi. This witness was also subjected to cross-examination by the learned counsel for the appellant.

24. PW-6 H.M. Nanhe Lal who, lodged F.I.R. on the basis of written taharir given by the informant has proved the F.I.R. as Exibit Ka-3 and the entry made in the G.D. as Exibit Ka-4 dated 10.10.2009 in his hand writing and signature.

25. PW-9 Vipin Kumar Trivedi is the Investigating Officer who visited the place of occurrence and prepared site plan Ex. Ka-7 on the instance of informant and also conducted inquest of deceased and prepared inquest report as Ex Ka-5. He has also proved the fard related to taking into possession of blood stained as well as plain soil and also proved the recovery of knife on the instance of appellant and recovery memo as Exibit Ka-8 with site plan as Exibit Ka-9 in his hand writing and signature.

26. PW-10 S.O. Pradeep Kumar Yadav is second Investigating Officer who has proved the charge-sheet as Exibit Ka-10 to be in his hand writing and signature.

27. There is no dispute about the fact of murder of deceased Rajan Pasi with some sharp weapon and also about the place of occurrence as shown in the site plan which is Exibit Ka- 7 and as stated by the prosecution witnesses including the Investigating Officer.

28. There is also no dispute about the fact that no one has seen the commission of murder of deceased by the appellant. PW-1, PW-5, Pw-7 & PW-8 have nowhere asserted the fact that they have seen the appellant committing the murder of deceased Rajan Pasi on 09.10.2009 in the night. Even PW-9 Sub-Inspector Vipin Kumar Trivedi who investigated the case has also stated during his cross-examination that during investigation no any witness had told him about the fact that he had seen the appellant committing murder of deceased Rajan Pasi.

29. Likewise PW-10 S.O. Pradeep Kumar Yadav has also stated during his cross-examination that no such statement has been recorded by him as well as by his predecessor about the fact of witnessing the murder of deceased by the appellant. In this way, it is well established on the basis of evidence on record that there is no eye-witness account of the said incident. No any prosecution witness has deposed about the presence of any last seen witness of the incident also.

30. It may be stated at the outset that there is no ocular evidence of the commission of the offence and the prosecution case is based entirely on circumstantial evidence.

31. The legal position regarding the standard of proof and the test which the circumstantial evidence must satisfy is well-settled by a long line of decisions by the Hon'ble Apex Court. It is unnecessary to burden this judgment by making reference to all such decisions. We are content with reference to some of those decisions. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, Hon'ble The Supreme Court laid down the following five tests to be satisfied in a case based on circumstantial evidence:

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

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

(3) The circumstances should be of a conclusive nature and tendency.

(4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

32. The decision of Hon'ble The Supreme Court in Aftab Ahmad Ansari v. State of Uttaranchal (2010) 2 SCC 583 is a timely reminder of the abovementioned requirements in the following words:

"In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be."

33. Coming to the facts of the present case, there are three circumstances relied upon by the prosecution and accepted by the trial court to hold the appellants guilty of the offence. These are as under:

I. Appellant Bakshraj made an extra judicial confession before PW-2 Sambhar Pasi & PW-3 Badal Harijan.

II. The recovery of the blood-stained knife (Ex. 8) on the instance of appellant Bakshraj on the basis of his disclosure statement before I.O.

III. There was motive for the accused to commit murder of deceased Rajan Pasi.

34. Let us now examine the evidences in support of each of the three circumstances enumerated above.

35. So far as the fact of extra judicial confession made by appellant before PW-2 and PW-3 is concerned, it is not supported by the testimony of these witnesses. They have denied about this fact straightway that appellant has made any confession before them about the murder of deceased Rajan Pasi and he has not asked him to manage help with the police. They turned hostile and subjected to cross-examination by learned prosecutor but nothing was found to support the prosecution version. Therefore, the evidence about extra judicial confession also goes out and not established by the evidence on record to support the prosecution version. Therefore, the evidence about extra judicial confession also goes out and not established by the evidence on record.

36. Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of informations given by the accused while in custody. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Indian Evidence Act, 1872 (in short the Evidence Act' ) is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused, This position was succuinctly dealt with by Hon'ble the Supreme Court in Delhi Admn v, Balakrishan. AIR (1972) SC 3 and Md. Inayatullah v. State of Maharashtra AIR (1976) SC 483. The words "so much of such information" as relates distinctly to the fact thereby discovered. are very important and the whole force of the section concentrates on them. 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, The ban as imposed by the preceding sections 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. If al! 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. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken in to custody and becomes an accused. after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact. in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did come from a person not in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. in other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. !t is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any Information obtained from a prisoner. such a discovery is a guarantee that the Information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. it is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor AIR (1947) PC 67, is the most quoted authority of supporting the interpretat ion that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see State of Maharashtra v. Dam Gopinath Shirde and Ors, (2000) Crl.L.J 2301. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered.'' But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.

37. Now the recovery of knife on the instance of appellant is to be taken into consideration as to whether this was used in commission of murder of deceased. Exibit Ka- 8 is fard recovery of one knife said to be used in the commission of crime as per the statement of appellant after his arrest by the police. There is no mention in the fard Exibit Ka- 8 that the recovered knife was blood stained. Even PW-9 Sub-Inspector Vipin Kumar Trivedi who made recovery of knife has also not disclosed this fact about the presence of blood stains on the knife during his examination before the court even at the time of this knife was produced before the court as material Exibit- 3. The report obtained from F.S.L. Has not been proved by the prosecution. It also does not mention that there was human blood found on the knife.

38. In the aforesaid circumstances, the recovery of the knife on its own is a circumstance too fragile to bear the burden of the appellant's conviction for murder.

39. So far as the version of prosecution related to the motive that there was enmity between the deceased and appellant is concerned, it is noteworthy that no F.I.R. was lodged in relation to that incident of dacoity in the village Godwapar and murder of Baukhal (brother of appellant) by the villagers or by the police which is said to be the cause of enmity between deceased and appellant. PW-9 Sub-Inspector Vipin Kumar Trivedi who investigated the case has stated during his cross-examination that he inspected the records relating to the dacoity of Godwapar at local police station but he has not mentioned it in case diary because he did not found evidence relating to that incident in record. Thus the incident of dacoity prior to 14-15 years from the instant incident does not get support from any police record. It appears improbable as to whether such type of incident, in which one criminal likely to commit dacoity is get murdered by the police or public, takes place, remained unregistered at the police station. The testimony of other witnesses those are related to deceased Rajan Pasi in this regard remains uncorroborated and unsupported with any other reliable evidence, therefore, motive for committing murder of deceased Rajan Pasi by the appellant cannot be said to be proved. In any event, motive alone can hardly be a ground for conviction.

40. In N.J. Suraj vs. State represented by Inspector of Police (2004) 11 SCC 346, the prosecution case was based entirely upon circumstantial evidence and a motive. Having discussed the circumstances relied upon by the prosecution, the Hon'ble Supreme Court rejected motive which was the only remaining circumstance relied upon by the prosecution stating that the presence of a motive was not enough for supporting a conviction, for it is well-settled that the chain of circumstances should be such as to lead to an irresistible conclusion, that is incompatible with the innocence of the accused.

41. To the same effect is the decision of the Hon'ble Supreme Court in Santosh Kumar Singh v. State through CBI. (2010) 9 SCC 747 and Rukia Begum v. State of Karnataka AIR 2011 SC 1585 where the Hon'ble Supreme Court held that motive alone in the absence of any other circumstantial evidence would not be sufficient to convict the appellant. Reference may also be made to the decision in Sunil Rai @ Paua and Ors. v. Union Territory, Chandigarh (AIR 2011 SC 2545) where Hon'ble The Supreme Court explained the legal position as follows :

"In any event, motive alone can hardly be a ground for conviction. On the materials on record, there may be some suspicion against the accused but as is often said suspicion, howsoever, strong cannot take the place of proof."

42. In case of Sampat Kumar v. Inspector of Police, Krishnagiri in Criminal Appeal No.1950 of 2009 decided on 02.03.2012 Honb'le The Supreme Court has held in Para No.15 which is as follows:

"Suffice it to say although, according to the appellants the question of the appellant-Velu having the motive to harm the deceased-Senthil for falling in love with his sister, Usha did not survive once the family had decided to offer Usha in matrimony to the deceased-Senthil. Yet even assuming that the appellant- Velu had not reconciled to the idea of Usha getting married to the deceased-Senthil, all that can be said was that the appellant-Velu had a motive for physically harming the deceased. That may be an important circumstance in a case based on circumstantial evidence but cannot take the place of conclusive proof that the person concerned was the author of the crime. One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the appellant but suspicion, howsoever strong, also cannot be a substitute for proof of the guilt of the accused beyond a reasonable doubt."

43. On the materials on record, there may be some suspicion against the accused but as is often said suspicion, howsoever, strong cannot take the place of proof. We, therefore, find and hold that the conviction of the appellants is based on completely insufficient evidence and is wholly unsustainable.

44. It is seen above that the quality of the prosecution evidence is too poor to satisfactorily establish any of the three circumstances for holding the appellants guilty of the offence of murder. As none of the three circumstances were sufficiently proved, there is no question of taking them as links forming an unbroken chain that would lead to the only possible inference regarding the appellant's guilt. But before parting with the records of the case, we must sadly observe that so far as appellant is concerned, it's a case of no evidence at all.

45. Thus, seen for any angle the conviction of the appellant cannot be sustained. The judgment and order of the trial court is completely unsustainable. The judgment and order is set aside. The appellant is acquitted of the charges and is directed to be released forthwith unless required in connection with any other case.

46. In the result, the appeal is allowed.

47. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.

Order Date :- 20.05.2021

Ashok Gupta

(Subhash Chandra Sharma, J.) (Bachchoo Lal, J.)