Sandeep @ Pintu vs State Of U.P.
2021 Latest Caselaw 11375 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

						                                   A.F.R.
 
						       Reserved on 12.11.2021
 
						       Delivered on 26.11.2021
 
Court No. - 10
 
Case :- CRIMINAL APPEAL No. - 256 of 2010
 
Appellant :- Sandeep @ Pintu
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Vinod Kumar Yadav,Anil Kumar Tiwari,Jitendra Mohan,Krishna Bhushan Tripathi,Manjusha Kapil,Pawan Nigam,Rakesh Kumar Nayak
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Attau Rahman Masoodi,J.

Hon'ble Manish Kumar,J.

(Per Manish Kumar, J.)

1. This criminal appeal has been filed by the appellant against the judgment and order dated 16.01.2010 passed by the Additional Sessions Judge, Ambedkar Nagar in Sessions Trial No. 24 of 2003, arising out of Crime No. 192 of 2002 under Section 302/34 of the Indian Penal Code (hereinafter referred to as, the IPC), registered at Police Station Kotwali Tanda, District Ambedkar Nagar convicting the appellant Sandeep @ Pintu and sentencing him for imprisonment for life.

2. Heard Shri Anil Kumar Tiwari, learned counsel for the appellant and Shri Umesh Verma, learned AGA for the State and perused the impugned judgment and order passed by the trial court and also the lower court record.

3. As per the prosecution case, on 02.09.2002, an FIR was lodged by the complainant, who is the brother of the injured/deceased under Section 307 IPC which was subsequently, converted to Section 302 IPC on 03.09.2002 against the appellant and one unknown person stating therein, that on 02.09.2002, his younger brother Aditya Kumar left the home at 8.00 PM for attending some party. At around 9.45 PM, he came home with injuries on his body and on inquiring about the injuries, it was told by him that "right now Sandeep @ Pintu (present appellant) and one unknown person stabbed him by knife near Atithi Villa". There were injuries on the chest and other parts of the body of the injured.

4. After investigation, the charge sheet was filed under Section 302/34 IPC in the Court against the present appellant and one accused person namely, Saurabh Srivastava.

5. The trial court framed charges against the co-accused Saurabh Srivastava and Sandeep @ Pintu (present appellant) under Section 302/34 IPC. The accused persons denied the charges and claimed to be tried.

6. The prosecution in order to prove its case examined Atul Kumar Gupta, the friend of the deceased as PW-1, Kamlesh Kumar, the complainant and the brother of the deceased-Aditya Kumar as PW-2, Anil Kumar Gupta, owner of the Juice Corner as PW-3, Vijay Shanker Singh, witness of recovery as PW-4, Kaushal Kishore, witness of recovery as PW-5, Inspector Sarnath Singh as PW-6, Dr. Atal Verma as PW-7, SI J.K. Singh as PW-8, SI Ramesh Chand as PW-9.

7. As documentary evidence, the prosecution has proved a copy of the FIR as exhibit Ka-1, Chik Shankhya 125/02 as exhibit Ka-15, Report No. 42 for lodging the FIR and registering the Case Crime No. 192 of 2002 in Rojnamacha Aam as exhibit Ka-16-carbon copy, Report No. 20 in Rojnamcha Aam for conversion of the case from Section 307 to Section 302 IPC as exhibit Ka-17-carbon copy, site plan as exhibit Ka-8, the blood-stained and plain soil and two pairs of slippers recovered as exhibit ka-2, the inquest report as exhibit Ka-9, photo of the body of the deceased challan nash, namoona mohar letter by CMO as exhibit Ka 10 and ka-14 respectively. The post mortem report prepared by Dr. Atal Verma in his hand writing and signature as exhibit Ka-7, the recovery memo of the knife recovered used in the crime as exhibit Ka-3, recovery memo of recovery of one pant, t-shirt (blood stained) as exhibit Ka-17. The recovery of blood stained one pant and t-shirt as exhibit Ka-4, the site plan of the place of recovery of knife recovered as exhibit Ka-5, the Charge sheet as exhibit Ka-6 and the FSL report as exhibit Ka-18.

8. The statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure (in short, the Cr.P.C.) wherein, they had denied the commission of crime and stated that the case has been registered falsely due to enmity and in connivance with the conspiracy of the persons against the appellant and also denied the recovery. It is not the case of the appellant that the trial court, while affording opportunity to the accused under Section 313 Cr.P.C. has not questioned him on any aspect of the evidence that would have caused any prejudice to him. It is equally not the case of the appellant that any material has gone unnoticed as he has not led any evidence in defence. The accused persons were asked to give defence evidence but they did not choose to adduce any.

9. The trial court on the appreciation of evidence before it found that the FIR was lodged promptly by the complainant on the basis of the information given by the victim-deceased which fact was duly proved by the oral testimony of P.W-2. The trial court treated the statement of victim/deceased to PW.2/brother, as oral dying declaration.

10. According to the trial court that the injuries of the victim deceased as stated about by PW. 2 is corrroborated by the post-mortem report as proved in evidence by PW 7- Dr. Atal Verma.

11. The trial court did not accept the argument that the victim/deceased with injuries on his person could not walk down to his house which is hardly 300-400 metres/121 steps away from the place of incident.

12. The trial court also found that nothing could be shown from the cross-examination of the witnesses to doubt their testimony, the recoveries of the knife and blood-stained items were also found to be proved.

13. The co-accused Saurabh Srivastava was though acquitted by the trial court but on the ground that his name was not taken by the victim-deceased nor by his brother PW. 2, therefore, the trial court extended him the benefit of doubt. Even otherwise it is well settled in the case of Gurcharan Singh and Anr. vs. State of Punjab [AIR 1956 SC 460] that a co-accused acquitted on the strength of same set of facts and evidence does not entail a consequence of parity where the benefit of doubt is extended to the co-accused on some clinching distinction, as is the case at hand.

14. The evidence of the case proved against the accused convicted and sentenced him as mentioned above.

15. Learned counsel for the appellant has submitted that due to several injuries inflicted upon the body of the Aditya Kumar, it was improbable for him to go home on his own and it was also not possible to state anything to his brother as recorded in the FIR and from the place of incident till the house of injured, even no trail of blood was found.

16. It is further contended that before treating any statement as a dying declaration, the mental and physical health is to be certified by a doctor but in the present case, the same was not done. In support of his submission, learned counsel for the appellant has relied on the judgments rendered by the Hon'ble Supreme Court in the cases of Nawab Singh Vs. Others Vs. State of Uttar Pradesh [2008 (1) ALJ (NOC) 89 (ALL.)] , Surinder Kumar Vs. State of Haryana [(2011) 10 SCC 173] and Sampat Babso Kale and another Vs. State of Maharashtra [ (2019) 4 SCC 739].

17. Learned counsel for the appellant next argued that the recovery made is not admissible under Section 27 of the Evidence Act, 1872 for the reason that the human blood found on the clothes of the appellant was not matched with the blood sample of the deceased. It is further contended that the prosecution has failed to allege or prove any motive for the appellant to commit the crime and in support of his submission, relied upon para no. 19 of the judgment of Hon'ble Supreme Court in the case of Balaji Vs. State of Maharashtra [ (2019) 15 SCC 575]. Learned counsel for the appellant has further relied upon para no. 5 of the judgment rendered by Hon'ble Supreme Court in the case of State of Gujarat Vs. Mohan Bhai Raghbhai Patel and another [ (1992) Supp (3) SCC 87]. Learned counsel for the appellant has also relied upon the para no. 5 of the judgment in the case of State of Maharashtra Vs. Sanjay S/o Digambar Rao Rajhans [(2004) 13 SCC 314] rendered by Hon'ble Supreme Court to support his case on the above aspect.

18. On the other hand, learned AGA conceding the fact that the case, at hand, is a case of circumstantial evidence has ably demonstrated that the last oral dying declaration of the deceased has since been corroborated by the witness (P.W. 2) word by word, therefore, the prosecution has discharged the burden of proof beyond reasonable doubt. It has been further submitted that the FIR was lodged by PW 2 naming the appellant in pursuance of the statement/information given by his brother Aditya Kumar (deceased), immediately after the occurrence, falls under the purview of oral dying declaration and an oral dying declaration can form basis of conviction, provided the same is reliable in evidence. The creditworthiness of the oral dying declaration was well tested in the trial and reproduction of the exact words in the oral testimony of P.W.-2 have sanctified its truthfulness beyond a reasonable doubt.

19. The aforesaid dying declaration has not been impeached during the cross examination of the PW -2. In support of his submissions, learned AGA has relied upon the judgment of Hon'ble the Apex Court in the case of Darshana Devi Vs. State of Punjab [1996 SCC (Cri) 38]. In the light of the judgment of the Apex Court, it is argued that the veracity of dying declaration is to be tested on triple test i.e. the dying declaration is not as a result of either tutoring or prompting or a product of imagination and in support of his submissions, relied upon the judgment in the case of Laxman Vs. State of Maharashtra [ AIR 2002 SC 2973]. It has further been argued by learned AGA that doubting the prosecution case by the appellant that the injured/ deceased-Aditya Kumar could not reach his home on his own is against the weight of evidence on record and is wholly misplaced. In support of the judgment impugned, learned AGA has relied upon the statement of Investigating Officer (PW 8), who had made a statement that the blood stains were found on the wall of the house and when the same may be read along with the statement of the PW 2, it is clear that the oral testimony of P.W. 2 lends complete support to the credence of P.W. 8 that the blood stains were found on the stairs and wall of the house linking the trail upto the place of occurrence, as mentioned in the site plan.

20. It is further submitted that the statement given by the Investigating Officer is an admissible piece of evidence as the same is not on the basis of hearsay but the Investigating Officer recorded the same after he had observed the blood on the stairs and wall while preparing the site plan. In support of his submissions, he relied upon the judgment rendered by Hon'ble Supreme Court in the case of Jagdish Narain and anothers Vs. State of Uttar Pradesh [1996 SCC (Cri) 565]. Taking us through the suggestions made to PW-2 that he was not at home when his injured brother reached home, meaning thereby, reaching of the injured at home was not disputed or denied but the doubt or dispute which was suggested regarding the presence of PW-2 at home during night hours rather lends support to the case of prosecution about reaching of the deceased at home on his own.

21. Learned AGA has submitted that the oral testimony of the doctor who conducted the post-mortem, in his cross examination, has not suggested anything that the injured was not in a position to reach home on his own and was unable to state anything. The injuries mentioned in the post-mortem report would not alone discredit the last oral dying declaration unless the defence had succeeded to fish out any doubt in the cross-examination. Learned AGA has further submitted that as per the site plan, it has specifically been shown that the trail of blood was found on the road from the place of incident till the house of the injured and his physical condition to make the last oral declaration being doubtless has rightly been construed in view of the evidence on record.

22. It is further contended that the recovery was not disputed and the same has been proved but the submissions raised before this Court that the recovery made is not admissible under Section 27 of the Evidence Act, 1872 is also unacceptable. It was submitted that if for the sake of argument, it is accepted that the recovery alleged is not admissible under Section 27 of the Evidence Act, yet the pointing out of the accused leading to recovery may be a conduct admissible under Section 8 of the Evidence Act, and in support of his submissions learned AGA has relied upon several judgments reported in Himachal Pradesh Administration vs. Shri Om Prakash [(1972) 1 SCC 249], Prakash Chand vs. State (Delhi Administration) [1979 SCC (Cri) 656], A.N. Venkatesh and another vs. State of Karnataka [2005 SCC (Cri) 1938].

23. It is further contended that the submissions of the learned counsel for the appellant that the human blood found on the clothes of the appellant was not matched with the blood of the deceased; in certain cases, where the blood is disintegrated and matching of the same is not possible and it could not give any advantage to the accused. In the FSL report, it has specifically been mentioned that the blood was disintegrated and in support of his submissions relied upon the judgment of Hon'ble Supreme Court in the case of Prabhu Dayal vs. State of Rajasthan [2018 2 JIC 642 (SC)].

24. After hearing the learned counsel for the respective parties and examining the lower court record, as per the prosecution story, naming the appellant in the FIR along with an unknown person was on the basis of the statement made by the injured Aditya Kumar (deceased) to the complainant/PW-2. It is to be seen whether such a revelation may be treated as oral dying declaration or not. The argument put-forth by learned counsel for the appellant that the doctor had not certified the medical condition of the injured to give dying declaration, is wholly misplaced and the judgments relied upon are inapplicable in the facts and circumstances of the present case. The argument advanced by learned counsel for the appellant on the strength of the judgment in the case of Chacko vs. State of Kerala [(2003) 1 SCC 112]. The relevant extract of the case of Chacko (supra) is being reproduced hereinbelow:-

"Having heard learned counsel for the parties and perused the records, we find it difficult to accept the prosecution case based on the dying declaration allegedly made by the deceased. As pointed out by the learned counsel for the appellant, it is very difficult to accept the prosecution case that the deceased who was of about 70 years, and had suffered 80% burns could make a detailed dying declaration after 8 to 9 hours of the burning giving minute particulars as to the motive, the manner in which she suffered the injuries. This, in our opinion, itself creates a doubt in our mind apart as to the genuineness of the declaration [See : Munnu Raja & Anr. vs. State of Madhya Pradesh, (AIR 1976 SC 2199 para 6)]. Further in the absence of any certificate by a competent doctor as to the mental and physical condition of the deceased to make such a dying declaration, we think it is not safe to rely on the same. We are aware of the judicial pronouncements of this Court that it is not always necessary that a dying declaration should be certified by a doctor before reliance could be placed on the same. But then in the absence of any such certificate, the courts should be satisfied that from the material on record it is safe to place reliance on such uncertified declaration. (emphasis laid by us) [See : Ram Bai vs. State of Chhattisgarh (2002 (8) SCC 83)]. In the instant case it is not as if the doctor was not available. As a matter of fact, PW-3 who treated the deceased in the first instance was available at the time when the deceased allegedly made the dying declaration, still we find he has neither given a certificate as to the condition of the deceased nor has he attested the said document. That apart, a perusal of the dying declaration as per Ex. P-4 shows that the contents of the documents are so arranged so as to accommodate the space which is above the thumb impression which we think is not a normal way of recording a statement if the same was genuine. This is also a ground to suspect the genuineness of the document. Then again as complained by the learned counsel for the appellant, we notice that on 28.7.1996 at about 5.30 p.m. the Police had known that it was the appellant who had committed this crime but in the inquest report which was drawn on 29.7.1996 in Column No.12 corresponding to the name of the suspect, it is specifically mentioned 'No' meaning thereby that the officer who drew this document did not have the knowledge that it is the appellant who had caused the injury. This is the very same person (PW-5) who has scribed Ex. P-4. The above factor coupled with the manner in which the incident has been recorded in Ex. P-4 certainly creates a grave doubt in our mind as to the genuineness of the dying declaration Ex. P-4. The fact that PW-3, the doctor, had recorded that "patient conscious, talking" in the wound certificate by itself would not in any manner further the prosecution case as to the condition of the patient to make the dying declaration nor does his oral evidence as also that of the investigating officer made in the court for the first time would in any manner improve the prosecution case."

25. With the aforesaid judgment cited by the learned counsel for the appellant, the judgment cited by the learned AGA in the case of Darshna Devi (supra) relating to the validity and the authenticity of the oral dying declaration is also to be seen and the relevant para is being quoted hereinbelow:-

"There is variance in the statements of the two witnesses with regard to the exact words allegedly used by the deceased. According to PW 2, the deceased had stated that the appellant had sprinkled kerosene on him when he was lying asleep and had burnt him, while Lachhmi Devi, PW 1 did not attribute any such statement to the deceased. PW 1 reiterated in her cross-examination "all that Madan Lal told me was that he had been burnt by Darshana Devi by sprinkling koresene" Even though an oral dying declaration can form basis of conviction in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence. The reproduction of the exact words of the oral declaration in such cases is very important. The difference in the exact words of the declaration in this case detract materially from the value of the oral dying declaration." (emphasis laid by us)

26. After going through the submissions and the judgments of the Hon'ble Supreme Court, it has come out that an oral dying declaration can form a basis of conviction, if the same is established trustworthy and free from every blemish and inspires confidence. The reproduction of the exact words of the oral dying declaration in such cases is very important and here the information given by the injured to his brother/PW-2/complainant narrated in the FIR, in the statement and in the cross examination, by reproduction of exact words and the same was also not impeached at the time of cross examination.

27. The witness reproduced in the exact words used by his deceased brother in all the places i.e. in the FIR, statement and at the time of cross-examination. For convenience, the same is quoted below:-

"कि मुझे अभी अतिथि विला के पास संदीप उर्फ़ पिंटू व उनको एक अज्ञात साथी ने चाकू मार दिया है"

28. Similarly, the case law in the case of Chako (supra) relied by the learned counsel for the appellant has held that in absence of any certificate by a competent doctor as the mental and physical condition of the deceased to make such a dying declaration, is not safe to rely but it can be acted upon in absence of any such certificate, if the Court would be satisfied that from the material on record, it is safe to place reliance on such uncertified declaration. In the present case, the information/intimation given by the injured Aditya Kumar (deceased) is an oral dying declaration as the reproduction of the exact words at every stage of trial and nothing could be brought out in the cross-examination of PW. 2 to doubt the truthfulness and veracity of his statement.

29. As per the judgment of Hon'ble Supreme Court in the case of Laxman (supra), the dying declaration should be of such a nature as to inspire full confidence and and in its truthfulness and correctness and must qualify triple test that statement of deceased was not as a result of either tutoring or prompting or a product of imagination. Here in the present case, it is nowhere the case of the prosecution that the oral dying declaration of the deceased is a result of either tutoring or prompting or a product of imagination. Hence, the oral dying declaration inspire full confidence in its truthfulness and correctness.

30. At the same time, the material on record i.e. the recovery of blood stained clothes and the FSL Report pointing out that the blood was found on the clothes of the appellant was a human blood. The submission on behalf of the appellant that the injured Aditya Kumar could not reach his house on his own and was also not in a position to state anything and there is no blood found in between the place of incident and the house of the injured makes the prosecution story false. The submission put-forth by learned counsel for the appellant are untenable. As per the site plan prepared by the Investigating Officer the blood trail was found from the place of incident to the house of injured Aditya Kumar. This falsifies the argument of learned counsel for the appellant that no blood trail was found rather it lends support to the prosecution case, as an independent circumstance that the deceased had gone to his house from the place of incident. The Investigating Officer while preparing the site plan has shown blood stains on the walls of the house which is admissible as per the law settled by the Hon'ble Apex Court and PW 2 had also made a statement that the blood was there on the walls of his house, it also lends support to the prosecution case. Apart from that, at the time of cross examination, no such suggestion was made to the Doctor that the injured could not be in a position to reach his home with injuries on his body.

31. As far as the submissions that the blood found on the clothes of the appellant were not matched with the blood of the deceased is of no avail as per the law settled by the Hon'ble Apex Court in the case of Prabhu Dayal (Supra). The relevant extract is being quoted hereinbelow:-

"The reports of the Forensic Science Laboratory as well as those of the Ballistic Experts have been perused by us. The Forensic Science Laboratory report discloses that the samples collected from the scene of the offence had bloodstains of human origin. However, since the bloodstains were disintegrated by the time the bloodstains were examined by the Forensic Science Laboratory, the blood group could not be determined. For the same, the accused cannot be unpunished, more particularly when the bloodstains were found of human origin. (emphasis laid by us)

In State of Rajasthan v. Teja Ram, (1999) 3 SCC 507, this Court concluded that even when the origin of the blood cannot be determined, it does not necessarily prove fatal to the case of the prosecution. In that case, the murder weapons had been recovered with blood on them, and the origin of the blood on one of the weapons could not be determined. Therein, the Court held as follows:

"25. Failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.

26. Learned counsel for the accused made an effort to sustain the rejection of the abovesaid evidence for which he cited the decisions in Prabhu Babaji Navle v. State of Bombay [AIR 1956 SC 51 : 1956 Cri LJ 147] and Raghav Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1 Cri LJ 70] In the former, Vivian Bose, J. has observed that the chemical examiner's duty is to indicate the number of bloodstains found by him on each exhibit and the extent of each stain unless they are too minute or too numerous to be described in detail. It was a case in which one circumstance projected by the prosecution was just one spot of blood on a dhoti. Their Lordships felt that "blood could equally have spurted on the dhoti of a wholly innocent person passing through in the circumstances described by us earlier in the judgment". In the latter decision, this Court observed regarding the certificate of a chemical examiner that inasmuch as the bloodstain is not proved to be of human origin the circumstance has no evidentiary value "in the circumstances" connecting the accused with the murder. The further part of the circumstance in that case showed that a shirt was seized from a dry cleaning establishment and the proprietor of the said establishment had testified that when the shirt was given to him for dry cleaning, it was not bloodstained.

27. We are unable to find out from the aforesaid decisions any legal ratio that in all cases where there was failure of detecting the origin of the blood, the circumstance arising from recovery of the weapon would stand relegated to disutility. The observations in the aforesaid cases were made on the fact situation existing therein. They cannot be imported to a case where the facts are materially different."

32. From perusal of the above judgment, it is clear where the blood stains were disintegrated by lapse of time the blood stains were examined by the FSL, as it is in the present case, the blood group could not be determined. For the same, the accused could not be unpunished, more particularly, when the blood stains found were of human origin and it is an undisputed position in the present case, as per the FSL report that the blood was disintegrated and the blood which was found on the clothes of the appellant was human blood.

33. As far as the contention raised by learned counsel for the appellant regarding admissibility of the recovery memo as an admissible piece of evidence, it is also not accepted as per law laid down by the Hon'ble Supreme Court, where the recovery made on the pointing out of the accused person would be admissible under Section 8 of the Evidence Act, 1872. The relevant extracts of the judgments are quoted hereinbelow:-

Para 14 of the judgment rendered in the case of Himachal Pradesh Administration (supra) is quoted hereinbelow, for ready reference:-

"14. In the Full Bench judgment of seven Judges in Sukhan v. The Crown, which was approved by the Privy Council in Pulkuri Kotayya's case, Shadi Lal, C.J., as he then was speaking for the majority pointed out that the expression 'fact' as defined by Sec. 3 of the Evidence Act includes not only the physical fact which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious and that it is in the former sense that the word used by the Legislature refers to a material and not to a mental fact. It is clear therefore that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the 'cause and effect'. That information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Sec. 27 and cannot be proved. As explained by this Court as well as by the Privy Council, normally Sec. 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the, crime of which the informant is the accused. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen' 'property or other in eliminating article is not hidden sold or kept and which is unknown to the Police can be said to be discovered as a consequence of the information furnished by the accused. These examples however are only by way of illustration and are not exhaustive. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the. information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible. (emphasis laid by us) But even apart from- the admissibility of the information under Sec. 27, the evidence of the Investigating Officer and the panchas that the accused had taken them to P.W. 11 and pointed him out and as corroborated by P.W. 11 himself would be admissible under Sec. 8 of the Evidence Act as conduct of the accused."

Para 8 of the judgment rendered by Hon'ble Supreme Court in the case of Prakash Chand (supra) is reproduced hereinbelow, for ready reference:-

"8. It was contended by the learned Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by Section 167 Criminal Procedure Code. He relied on a decision of the Andhra Pradesh High Court in D. V. Narasimhan v. State.(1) We do not agree with the submissions of Shri Anthony. There is a clear distinction between The conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police officer in the course of an investigating which is hit by Section 162 Criminal Procedure Code. What is excluded by Section 162 Criminal Procedure Code is the statement made to a Police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act (emphasis laid by us) (vide Himachal Pradesh Administration v. Om Prakash)."

Para 9 of the judgment rendered by Hon'ble Supreme Court in the case of A.N.Venkatesh (supra), is reproduced hereinbelow, for ready reference:-

"9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simplicitor, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand Vs. State (AIR 1979 SC 400). Even if we hold that the disclosure statement made by the accused appellants(Ex. P14 and P15) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. (emphasis laid by us) The evidence of the investigating officer and PWs 1, 2, 7 and PW4 the spot mazhar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act."

34. Learned counsel for the appellant has further submitted that the prosecution has improved its case and has placed reliance upon para 19 of the judgment rendered in the case of Balaji (supra), which is being reproduced hereunder for ready reference:-

"19. Having regard to the aforementioned discussion and other material on record, we find that the origin and genensis of the prosecution is shrouded in mystery; the prosecution has tried to improve its case from stage to stage. In our considered opinion, the prosecution has not proved its case beyond reasonable doubt against the accused. Hence, benefit of doubt will go in favour of the accused."

35. The case of Balaji (supra) relied above is also not applicable for the reason that in the said case the prosecution has improved its case from stage to stage whereas in the present case, the version of the FIR, the examination in chief of PW-2 (complainant/brother of the deceased) and in the cross examination, the version is the same about the dying declaration and except that the father was also present when the statement was given. Nothing has been tried to improve in the prosecution case.

36. The submission raised by learned counsel for the appellant regarding no motive was attributed against the appellant and in support of his submissions, placed reliance upon para 5 of the judgment rendered by Hon'ble Supreme Court in the case of State of Gujarat (supra), which is being quoted hereunder for ready reference:-

"5. In this case we find absolutely no motive for accused 1 to cause the death of the deceased. According to the prosecution, accused 1's younger brother was having illicit intimacy with accused 2 with the connivance of accused 1 and the deceased was objecting to the same. In such a situation it is rather opposed to human nature to suggest that accused 1 would think of causing the death of the deceased. According to the witnesses, particularly P.W. 2, the deceased was found under a mattress and accused 1 was pressing the same on her and in the process he also got burns. The High Court has rightly observed that the culprits who had decided to put an end to the life of the deceased would never go to the extent of extinguishing the fire after throwing a mattress on her, and in this view, according to the High Court, the prosecution has not proved beyond reasonable doubt that this was a case of homicide and not suicide. In this context it is also pertinent to note that in the earlier stages the deceased did not implicate the accused. Even when the Doctor P.W. 10 asked her she did not give any reply and it is only at a later stage she came out with this story. According to the prosecution case, the occurrence took place in the bathroom and the deceased stated in Ex. P. 58 that she was filling the water tank in the bathroom and that accused 1 came and poured kerosene. But panchnama of the scene of occurrence does not make any mention about kerosene in the bathroom but kerosine was found outside the bathroom. The clothes of accused 2, who was holding the deceased when accused 1 poured kerosene did not show any smell of kerosene. Therefore, it becomes doubtful whether accused 2 held the deceased in the manner alleged. The High Court has adverted to number of these details and doubted the prosecution case. The High Court has rightly held that these features would not lend any corroboration to the dying declaration but, on the other hand, cause suspicion. There is no other corroboration coming forth. The conduct of the accused in throwing the mattress over the burning woman is an important circumstance which creates a doubt about the prosecution version. Having regard to these circumstances the High Court has given the benefit of doubt to the accused. We have also gone through the details of the dying declaration recorded by the police officer. We are unable to persuade ourselves to disagree with the findings of the High Court particularly when this is an appeal against acquittal. We do not find any strong ground as laid down by this Court in some of the cases cited above which warrants interference. The appeal is accordingly dismissed."

37. Learned counsel for the appellant has also relied upon the para 5 of the judgment in the case of State of Maharashtra (supra) rendered by Hon'ble Supreme Court, which is being reproduced hereunder for ready reference:-

"5. Excepting the alleged statements of the deceased and the statement of the accused in the Court, there is no direct evidence relating to the occurrence, though it happened on a public road in a busy locality. No motive had been established. The circumstances emerging from record would reveal that the incident must have been a sudden affair. It looks mysterious as well. In the alleged dying declaration given to the Executive Magistrate, she stated that the accused quarrelled with her for no reason. That means, it was a sort of petty quarrel, if we go by that dying declaration. However, in Ext.39 which is said to be her earliest revelation, it is mentioned that the accused was doubting her character which goes contrary to the version recorded by the Executive Magistrate. The conduct of the accused soon after and subsequent to the incident does not in any way point to his guilt. At this stage, it should also be noted that the accused, who remained in the hospital for about 11 hours after the dying declaration was recorded by the Executive Magistrate, was not interrogated or arrested, though by that time the incriminating evidence was said to be available with the police. He was allowed to be discharged at 2.30 p.m. and was arrested only at 7.20 p.m. These factors ought to be kept in view in testing the prosecution case. We must also have regard to the fact that this is an appeal against acquittal and this Court ought not to interfere unless the Court is convinced that the decision of the High Court is vitiated by perversity, wrong legal approach or non consideration of material evidence. If two views are reasonably possible, this Court cannot but uphold the verdict of acquittal."

38. The arguments raised is that the prosecution failed to allege or prove any motive for the appellant against the victim. It is not necessary that in every case some motive must be alleged or proved before recording any conviction against any accused person, where the prosecution evidence is trustworthy, proving the allegation of prosecution and which inspires confidence in truthfulness of the prosecution case and in the unimpeachable evidence of the prosecution the question of motive remains no more essential or relevant. The judgment relied by learned counsel for the appellant in the case of State of Gujarat (supra) is not applicable in the present case as in the said case that features would not lend any corroboration to the dying declaration, on the other hand, cause suspicion. There is no other corroborating coming forth whereas in the present case, the other evidence is corroborating with the prosecution story. The judgment in the case of State of Maharashtra (supra) relied by learne4d counsel for the appellant is also not applicable in the present case as there is mysterious and suspicious circumstances and it has been held that there is no element of doubt that Exhibit -86 is a manipulated document introduced by an overzealous Investigating Officer to buttress the prosecution case.

39. In view of the discussions held above, we find that there is no merit in the contentions raised by the learned counsel for the appellant. The prosecution proved its case beyond reasonable doubt against the appellant and nothing could be shown so as to call for interference in the judgment of learned trial court. In the result, the appeal is dismissed.

Order date: 26.11.2021

Nitesh/Ashish

(Manish Kumar,J.) (Attau Rahman Masoodi,J.)