Ghanshyam @ Maidhoo vs State Of U.P.
2022 Latest Caselaw 22384 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
(Lucknow)
 
**********
 
Reserved on: 29.09.2022
 
Delivered on: 22.12.2022
 

 
Reserved
 

 
Case :- JAIL APPEAL No. - 1086 of 2009
 

 
Appellant :- Ghanshyam @ Maidhoo
 
Respondent :- State of U.P.
 
Counsel for Appellant :- In Person,Vaibhav Kalia
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Rajan Roy,J.

Hon'ble Sanjay Kumar Pachori,J.

(Per :- Hon'ble Rajan Roy,J.)

1. Heard Sri Vaibhav Kalia, learned Amicus for the appellant and Sri Chandra Shekhar Pandey, learned Addl. Government Advocate for the State.

2. This is an appeal challenging the judgment and order passed by learned Additional Sessions Judge, Court No.1, Barabanki dated 26.03.2009 by which the appellant has been convicted of an offence under Section 302 I.P.C. and sentenced to undergo life imprisonment with fine of Rs. 5,000/-, failing which, he will have to undergo additional simple imprisonment for six months, conviction under Section 201 I.P.C. and sentence of three years imprisonment with fine of Rs. 3,000/-, failing which, he will have to undergo additional three months' simple imprisonment as also conviction and sentence under Section 4/25 of the Arms Act, 1959 to three years imprisonment with fine of Rs.1,000/-, failing which, he will have to undergo additional one month imprisonment.

3. Sri Chandra Shekhar Pandey, learned A.G.A. has informed us that sentence of the appellant has been remitted in exercise of the powers under Article 161 of the Constitution of India and other relevant provisions vide order dated 02.05.2022.

4. The prosecution case in nutshell is that on 17.12.2005 at about 11 A.M., the police of Police Station-Zaidpur, District- Barabanki received information from the Chaukidar, Village-Machauchi, P.S.-Zaidpur, District-Barabanki that he had discovered a dead body on the northern bank of river Rari in the morning whose neck had been slit by half at the front. The police recovered the body and held the inquest on the same date at 11:30 A.M. which ended at 12:55 P.M. The body was sent for post-mortem at about 3:10 P.M. on 17.12.2005. The post-mortem was conducted on the next date i.e. on 18.12.2005 at about 03:10 P.M. The post-mortem report is Ex.Ka.1. The body was thereafter cremated as nobody came to claim it.

5. On 22.12.2005, Ram Harakh-P.W.3 gave a written tehrir that his son-Mangal had gone with his brother-in-law-Ghanshyam at about 11:30 A.M. on 16.12.2005 and had not returned since then. He tried to find him but could not locate him. On coming to know about recovery of a body on the banks of river Rari, he and his Samdhi Ram Naresh-P.W.4 and his son-in-law Radhey Shyam went to P.S.-Zaidpur, District-Barabanki and saw photograph of the body which had been recovered and it was identified by him as his son Mangal. In the said written tehrir, it was stated that he was sure that his son had been murdered by his brother-in-law Ghanshyam with the intent of taking his land and he had thrown the body near the river. The accused- Ghanshyam had also mortgaged ten biswa of his land. On 23.12.2005 at about 06.10 A.M., the accused-appellant was arrested. After conducting the investigation, P.W.13- Investigating Officer filed charge-sheet against the accused-appellant on 31.12.2005 before the Chief Judicial Magistrate who took cognizance of the case on 17.01.2006. After committal to the Session Court, charges were framed on 27.05.2006 under Sections 302, 201 I.P.C. and Section-4/25 of the Arms Act, 1959.

6. Ex.Ka.1 is the post-mortem report. Ex.Ka.2 is the written report submitted by Chowkidar- P.W.2 whereas Ex.Ka.3 is the written report (Tehrir) submitted by P.W.3-Ram Harakh i.e. father of the deceased. Ex.Ka.4 is the inquest report. Ex.Ka.18 is the forensic report. Ex.Ka.10 is the site plan regarding recovery of the body. Ex.Ka.11 is the recovery memo regarding recovery of items from body of the deceased and near it. Ex.Ka.12 is the recovery memo regarding recovery of blood stained soil and plain soil. Ex.Ka.13 is the recovery memo pertaining to the alleged weapon of crime i.e. knife, under Section 27 of the Indian Evidence Act. Ex.Ka.14 is the site plan pertaining to recovery of the alleged weapon i.e. the knife used in commission of crime. Ex.Ka.16 is the F.I.R.

7. The prosecution produced thirteen witnesses. P.W.1 is the Autopsy Surgeon. P.W.2 is the Chaukidar who found the body of the deceased. P.W.3 is father of the deceased i.e. Ram Harakh. P.W.4 is father-in-law of the deceased and Samdhi of P.W.3. P.W.5 is the eye witness who is alleged to have last seen the deceased with the accused. P.W.6 is the witness of recovery of knife. P.W.7 is the witness regarding alleged mortgage of land of P.W.3 (father of the deceased) by accused-appellant. He is son of Parmeshwar. P.W.8 is a witness who is also alleged to have seen the accused-appellant with the deceased at a liquor shop but has not supported the prosecution case and has turned hostile. P.W.9 is a witness of extra-judicial confession by the accused-appellant. P.W.10 is also a witness who is said to have last seen the accused-appellant with the deceased. P.W.11 is the Police Constable who had accompanied the S.H.O. on receiving information of the dead body to the banks of River Rari. P.W.12 is the Sub-Inspector posted at Police Station-Zaidpur and had also visited the spot. P.W.13 is the S.H.O., Zaidpur and Investigating Officer of the case.

8. The statement of the accused was recorded by the court below under Section 313 Cr.P.C. on 20.02.2009. The accused-appellant was convicted and sentenced by the trial court as already stated on 26.03.2009.

9. Learned counsel for the appellant submitted that the present case is a case of circumstantial evidence, where there is no direct evidence/ocular account. The prosecution has relied upon the circumstantial evidence of Last Seen i.e. (PW-3 Ram Harak) (PW-8 Maiku Lal) (PW-10 Bhageerath); Extra Judicial Confession i.e. (PW-9 Hanoman); Recovery of Weapon i.e. (PW-6 Heera Lal); Motive Witness (PW-3 Ram Harak).

10. He further submitted that Last Seen Witness (PW-8 Maiku Lal) was declared Hostile by the Prosecution. Whereas the Statement of the other two Witnesses ie. (PW-3 Ram Harak) & (PW-10 Bhagirath), does not inspire confidence as the witnesses are interested witnesses, being the father of the deceased and also the brother of Deceased's Father. The Statements are flooded with major omissions and contradictions on the point of motive, recovery, arrest of the Appellant as well as are silent as to the date of the incident i.e. the date when the deceased was last seen going along with the Appellant, hence since there is no mention as to when the deceased was last seen (time and date) with the Appellant hence the Statements of Last seen cannot be relied upon for the reason that the essential ingredient of the Time Gap cannot be calculated. Also the father of the deceased PW-3 Ram Harak has in his evidence categorically stated (Page 21) that " प्रदर्श क-3 लिखवाया जो दरोगा ने बोलकर लिखवाया था, जिसपर मेरे व नरेश का व राधेश्याम का अंगूठा लगा है" in the light of the aforesaid statement categorically made by the PW-3, the application allegedly given by the said witness (प्रदर्श क-3) implicating the appellant also cannot be relied upon as the same is not the version of the witness rather the same has been authored by the police person.

11. He submitted that there are major and decisive contradictions with regard to the claim of the prosecution with regard to the arrest of the appellant i.e, the date, the place shown by the prosecution with regard to the arrest of the appellant i.e. on 23.12.2005 from the Village-Bhitaura Parwan (Page No. 54, 57 of PW-13 S.H.O. Girija Shankar Tripathi), whereas the perusal of the statement PW-3 (Page No. 22) and PW-10 (Page No. 46), proves that these witnesses have categorically stated that the Appellant was arrested from Village Zainabad, his house on the date when for the first time the father PW-3 had gone to the Police Station on 22.12.2005. Hence, the story set forth by the prosecution with regard to the arrest of the appellant from the date and time alleged is completely false and learned Trial Judge has erred in law in placing reliance and based the conviction on the said aspect of arrest of the appellant as well as the alleged recovery of the weapon on the same day on the pointing out of the appellant.

12. That the alleged recovery of the weapon (knife) shown and proved against the appellant too is false and fabricated and cannot be relied upon for the reason that there are no independent witnesses of the alleged recovery of knife. The only witness of recovery as examined by the Prosecution is PW-6 Heera Lal. The said witness is an interested witness as he in his evidence (Page No. 46) had categorically stated that both he and PW-3 are resident of same village and PW-3 (father of the deceased) is related to him as his brother. No date whatsoever with regard to the date and day of the alleged recovery has been stated, mentioned by this witness, in his evidence (Page No. 34 & 36). Hence his evidence as well as the alleged recovery lacks credence, the same is no evidence in the eyes of law. The evidence is full of material and decisive contradictions and omissions.

13. The alleged recovery of knife has not been connected with the incident in question. The FSL Report dated 25.05.2006 (प्रदर्श क-18) is on record (Page 6). A perusal of the same shows that NO HUMAN BLOOD was found by the expert on the said knife, nor the blood found on the said knife could be examined for the reason that the Blood allegedly found was DISINTEGRATED.

14. A perusal of the (izn'kZ QnZ d&13) (Page No.9) clearly shows that there is no Disclosure Statement available on record of the appellant, so as to bring in the alleged recovery of the Weapon within the meaning and scope of Section 27 of the Indian Evidence Act. In absence of Disclosure Statement, the alleged recovery shown is hit by Section 25 and 26 of the Indian Evidence Act. The alleged recovery shown is not covered under the Section 27 hence the same cannot be read against the appellant.

15. That there is no motive whatsoever against the appellant in the present case, nor is any motive clearly spelled out, proved beyond reasonable doubt by the prosecution. The evidence with regard to motive has been allegedly brought in the evidences of PW-3 and PW-7 Awadh Ram. A perusal of the aforesaid Evidences of theses witnesses in no unambiguous terms proves that the same are contradictory with regard to the date of the alleged hypothecation of the land of PW-3 by the Appellant in favour of one Parmeshwar. Also it has come in the evidence of PW-7 that the land was still in possession of the owner i.e. PW-3 and the same was not in his possession as was claimed by the PW-3. The present case being a case of circumstantial evidence, the proof of motive is must for the purposes of corroboration.

16. He submitted that the prosecution has further placed reliance on the Evidence of PW-9 Hanoman projecting him as a witness of Extra Judicial Confession. The said statement too is no evidence in the eyes of law for the reasons that the said witness is not an independent witness, he is a relative of PW-3 (Page No 43 first line); in his examination-in-chief the said witness has not stated as to any specific date of the incident. There are major and decisive omissions and contradictions in his evidence, hence the evidence of the witness, who is interested witness who is a relative of the deceased cannot be considered, based reliance. The evidence needs greater scrutiny as well as corroboration and in absence of other corroborative evidence the same cannot be relied upon.

17. The Hon'ble Apex Court in catena of Judgment has been pleased to hold that the prosecution must stand or fall on its own leg and its cannot derive any strength from the weaknesses of the defense. The lacuna in the prosecution case cannot be cured from the weaknesses of defense.

18. As per the mandate of the Hon'ble Apex Court the evidence of Last Seen is a weak piece of evidence, hence cannot form the basis of conviction unless it is corroborated by the other necessary, relevant and unimpeachable evidences. Also it has been held that if on perusal of the evidences of the prosecution two views are possible then the one favouring the accused must be upheld.

19. He submitted that in the present case the prosecution has failed to discharge its burden of proof, so as to prove its case against the Appellant beyond all reasonable Doubts. The chain of circumstances has not been proved, is missing/not connected in the present case against the Appellant, thus the conviction and sentence awarded by the Learned Trial Court are grossly illegal and perverse; hence the same may kindly be set aside.

20. On the other hand, Sri Chandra Shekhar Pandey, learned A.G.A. has submitted that P.W.3 has clearly proved the written tehrir submitted in his examination-in-chief and in the written tehrir, the date and time of the incident is mentioned when the appellant-accused was seen lastly with the deceased, therefore, the last seen theory is clearly proved. Motive is also proved from the testimony of various witnesses especially of P.W.3 Ram Harakh wherein he has stated that appellant wanted his property. It has come in the testimony of witnesses that P.W.3 was not keeping good health, therefore, he could not challenge the mortgage of his land by the appellant. There is no reason for false implication of the appellant by P.W.3. The Investigating Officer was not cross-examined on the question of arrest of the appellant. The recovery of weapon used in crime has been proved by the police officer and there is no reason to disbelieve his testimony in this regard. The recovery memo itself contains disclosure statement, therefore, the contention that recovery has not been proved as per Section 27 of the Indian Evidence Act, 1872 is not acceptable. Once the last seen theory was proved then it was incumbent upon the appellant-accused to offer some explanation which he has failed to do and as such the burden imposed upon him under Section 106 of the Indian Evidence Act has not been discharged by him. Consequently, this by itself is sufficient to sustain his conviction and learned trial court has not committed any error in doing so. The chain of events is complete and it points only towards the guilty of the appellant. Merely because blood was found to be disintegrated in the forensic examination would not make much of a difference. Inconsistencies and contradictions alleged in the testimony of the witnesses are inconsequential and minor which do not adversely affect the prosecution case which has been proved beyond reasonable doubt and is supported by medical evidence. P.W.3 is a rustic villager who had been searching for his son for five to six days and thereafter submitted the written tehrir and lodged the F.I.R. and there is nothing unnatural in this regard. The appeal is liable to be dismissed.

21. The case of the prosecution is one of circumstantial evidence but before considering the same, we may refer to the medical evidence.

22. The post-mortem report Ex.Ka.1 has been proved by the Autopsy Surgeon i.e. P.W.1- Dr. D.S. Negi. The probable time of death mentioned in the post-mortem report is one and a half days. Post-mortem was conducted on 18.12.2005 at about 03:00 P.M. The deceased was of average weight. His stomach was found full of food material. Small Intestine had semi-digested food and gases. Large Intestine had faecal matter and gases. This is indicative of death having occurred soon after having food. No abnormality was detected in the organs of generation. Only one ante-mortem injury was found which was as under:-

"ANTEMORTEM INJURIES

1. Incised wound 9 cms X 4.5 cm on front of neck 4.5 cms below chin and 3 cms below both the ears. Wound is oesophagus and trachea deep. Trachea and oesophagus are cut. Internal & External carotid artery and jugular veins are also incised alongwith neck muscles. On opening ecchymosis present underneath the injury."

23. The cause of death is mentioned as due to shock and Hemorrhage as a result of ante-mortem injuries. P.W.1-the Autopsy Surgeon has proved the post-mortem report and ante-mortem injuries mentioned therein. In his examination-in-chief, he has stated that death could have been caused any time after the noon of 16.12.2005. It could have been caused by a sharp edged weapon including a knife. In his cross-examination, he has stated that he was not in a position to state whether injury on the neck had been caused by puncture by knife or by slitting the throat. Such injury could also be caused by Gadansa. There could be a difference of six hours both ways in the time of death.

24. The items collected from the body of the deceased etc. as also the knife were sent for forensic examination. Ex.Ka.18 is the forensic report. Blood was found on the knife and blood stained soil. However, the origin of blood could not be ascertained as it was disintegrated. Human blood was found on the clothes worn by the deceased. From the above evidence, it is evident that it is a case of culpable homicide amounting to murder. The only question is who murdered the deceased?

25. As regards the scene of crime, P.W.2-Chowkidar who had found the body has mentioned that it appeared that somebody had murdered the deceased and thrown the body on the banks of the river. There is no evidence to establish that murder was committed at the place where the body was found. P.W.2-Chowkidar has proved his written report and is a witness of recovery of the body but has not seen the commission of crime.

26. The case of the prosecution is largely based on last seen theory. In the written tehrir of P.W.3 dated 22.12.2005, it has come that the accused was with Mangal in the presence of P.W.3 and two other persons on 16.12.2005 at about 11:30 A.M. Mangal went away with the accused-Ghanshyam and thereafter, he had not been seen. This is the genesis of the prosecution's case. In this context, there are three witnesses in support of this last seen theory i.e. P.W.3- Ram Harakh and P.W.5- Amit Kumar Sharma. P.W.10- Bhageerath is witness of another last seen theory which will be discussed subsequently.

27. Sarvesh, the other person who is said to have been present when Ghanshyam had visited Ram Harakh and was seen with Mangal, has not been examined.

28. P.W.3- Ram Harakh has stated in his examination-in-chief that about one and a half years ago at about 11:00 A.M. he and his son Mangal, residents of his village, Sarvesh and Ashok, were at the door of his house, having tea. He has not disclosed any specific date or time when the appellant-Ghanshyam was seen by him with Mangal. At this stage, it is pertinent to mention that Ashok is father of P.W.5- Amit Kumar Sharma and subsequently in his cross-examination, he (P.W.3) has stated that he, his son Mangal, Amit Kumar Sharma and Sarvesh were having tea, therefore, reference to Ashok seems to be out of place and, in fact, he (P.W.3) has referred to presence of Amit Kumar Sharma -P.W.5 at the relevant time in his testimony subsequently.

29. P.W.3 has further stated in his examination-in-chief that after having tea, Ghanshyam asked Mangal to accompany him to the Mela and took him along. When Mangal did not return for two days then he went to the accused's house. The accused is brother-in-law of P.W.3. There, he was told that Mangal had come with Ghanshyam two days ago and had said that they were going to a feast. Since then, they had not returned. P.W.3 further stated in examination-in-chief that he started looking for his son at the place of his relatives and acquaintances. After six days, he came to know about recovery of a dead body near Village- Machauchi by the banks of river Rari. He went to P.S.- Zaidpur along with his Samdhi-Ram Naresh and son-in-law Radhey Shyam and informed the Sub-Inspector that his son was missing since past six days whereupon the Sub-Inspector opened a bag which revealed the blood soiled clothes of his son which he had been wearing while leaving the house. He was also shown photographs of the dead body and he identified it as his son's i.e. Mangal's. He has stated that he became sure that Mangal has been murdered by his brother-in-law i.e. Ghanshyam. He got a tehrir written by a person and gave it in the police station. The scribe of the report had written what he (P.W.3) had dictated to him. The scribe had read out the report to him and thereafter, he put his thumb impression thereon. P.W.3 was shown his written tehrir i.e. Ex.Ka.2 and was read out its contents whereupon he stated before the court that he had given this application at P.S.- Zaidpur.

30. However, in his cross-examination, he has stated that he had gone to P.S.-Zaidpur on the third day after Mangal went missing. He had got a report written at the gate of the police station by one person and thereafter went inside the police station with the said report. He had got the report prepared at about 08:00-09:00 A.M. in the morning. He has reiterated having been read out the contents of the report and having put his thumb impression thereon. He gave the report to the Constable who gave him a copy thereof. He has stated that he did not meet any police personnel till submission of such report. In his examination-in-chief, he had spoken about going to P.S.- Zaidpur after six days of his son having gone missing but, in cross-examination, he says that he went to the police station on the third day. Even if this discrepancy is ignored, we find that in his cross examination, he has stated that it is the Sub-Inspector who had dictated the report on which he along with Ram Naresh and Radhey Shyam put their thumb impression. To quote his testimony "tks njksxk us cksydj fy[kok;k Fkk] ftl ij esjk o ujs'k dk o jk/ks ';ke dk vWxwBk yxk gSA". In view of his statement in cross examination that it is the Sub-Inspector who had got the report written as per his (Sub-Inspector's) dictation, on which, P.W.3- Ram Harakh, Ram Naresh and Radhey Shyam had put their signatures, not only this belies his statement in examination-in-chief and initial statement in cross examination that he had got the report written before entering the police station, it creates a doubt about the prosecution story mentioned in the Report. The scribe who had written the tehrir and whose testimony could have thrown some light in this context, has not been examined. In fact, his name has not been disclosed by P.W.3. P.W.3 i.e. father of the deceased, has stated in his cross examination as under:-

ßesjk yM+dk eaxy tc ugha feyk] rc eSa Fkkus x;k FkkA yM+dk u feyus ds rhljs fnu eSa Fkkus x;k FkkA le; X;kjg cts fnu dk FkkA eSa Fkkus vius le/kh ujs'k o nkekn jk/ksyky ds lkFk x;k FkkA ge yksx Fkkuk tSniqj x;s FksA Fkkus ds xsV ij eSaus ,d vkneh ls nj[okLr fy[kok;h] rc eSa nj[okLr ysdj Fkkus ds vUnj x;k FkkA eSaus nj[okLr djhc 8&9 cts lqcg fy[kok;h FkhA fy[kus okys us eq>dks nj[okLr i<+dj lquk fn;k FkkA ml nj[okLr ij eSaus viuk vaxwBk yxk;k FkkA nj[okLr eSaus flikgh dks fn;k FkkA nj[okLr fy[kkus esa 10&15 feuV yxk FkkA eaq'kh th us eq>dks fjiksVZ dh udy fn;k FkkA mlds ckn eSa pyk vk;k Fkk yM+dk xk;c gksus ds ckn fjiksVZ fy[kkus rd esjh eqykdkr fdlh iqfyl okys ls ugha gqbZ FkhA esjs yM+ds ds xk;c gksus ds djhc 5&6 fnu ds ckn njksxk ls esjh eqykdkr gqbZ Fkh] tc ?ku';ke mQZ eSyw dks njksxk us idM+ fy;k FkkA njksxk us vfHk;qDr dks tSukckn xzke esa idM+k FkkA ftldk Fkkuk lrfj[k gS ml le; djhc X;kjg cts fnu dk le; Fkk eSa njksxk th ds lkFk ugha Fkk tc eqyfte ugha idM+k x;k Fkk] rc eSa njksxk th ds lkFk ugha FkkA eqyfte dks idM+us ds ckn eSa tSukckn x;k FkkA ml le; njksxk o eqyfte ekStwn FksA eSa eqyfte ds lkFk Fkkus ugha x;k FkkA esjk njksxk us c;ku ugha fy;k Fkk] tc rd eqyfte idM+k ugha x;k Fkk] blds ckn nwljs fnu Fkkus esjs le/kh ujs'k o nkekn jk/ksyky Fkkus ij x;s FksA X;kjg cts fnu dk le; Fkk] tc Fkkus ij x;s FksA

eSaus Fkkus ij diM+s o vius yM+ds dh QksVks ns[kus ds ckn izn'kZ d&3 fy[kok;kA tks njksxk us cksydj fy[kok;k Fkk] ftl ij esjk o ujs'k dk o jk/ks ';ke dk vaxwBk yxk gSA

bl nj[okLr izn'kZ d&3 ds igys esjh fdlh njksxk ;k iqfyl ls eqykdkr ugha gqbZAß

31. Thereafter, he has stated in his cross-examination as under:-

ßeqyfte esjs lkeus ugha idM+k x;k FkkA tc iqfyl okys eqyfte ?ku';ke dks idM+s Fks] rc eSa ogka fcuk lwpuk ds egknsou iqjok x;k FkkA tc eSaus eqyfte dks iqfyl }kjk idM+k gqvk ns[kk Fkk] ml le; X;kjg cts fnu dk le; Fkk] eSaus eqyfte dks Fkkuk tSniqj esa ns[kk Fkk] tc njksxk th eqyfte idM+s FksA eqyfte us eq>ls ;g ckr ugha crk;h Fkh fd eSaus eaxy dh gR;k dh gSA eqyfte esjs lkFk eaxy dks ryk'kus ds fy, pkanwiqj] fuckgjk o tSukckn x;k FkkA eqyfte esjs lkFk yM+dk eaxy [kksus ds N% lkr fnu ryk'kus x;k FkkA vkf[kjh ckj eSa eqyfte ds lkFk tSukckn x;k FkkA mlh fnu iqfyl okys ?ku';ke dks tSukckn esa idM+ fy;k FkkAß

32. Thus, in his cross-examination though initially he has reiterated his stand in the examination in chief that he had got the written Tehrir prepared outside the police station and had given it to the Police Constable, subsequently he has stated that after seeing the clothes and photo he had got Exbibit 3 written which the Sub-Inspector had got written on his oral dictation. In this very context his statement in cross-examination that he had not met any police personnel since the date his son went missing till lodging of the report is relevant as thereafter he has stated :- "esjs yM+ds ds xk;c gksus ds djhc 5&6 fnu ds ckn njksxk ls esjh eqykdkr gqbZ Fkh] tc ?ku';ke mQZ edw dks njksxk us idM+ fy;k FkkA" This indicates that P.W.3-Informant met the Sub-Inspector when appellant was arrested, not prior to it. As per P.W.13, appellant-accused was arrested on 23.12.2005 and written Tehrir was given on 22.12.2005, a day earlier but the testimony of P.W.3 belies this assertion. Further, though P.W.13 has stated that appellant was arrested from Bhitaura Lakhan Chauraha, P.W.3 has in his cross-examination initially stated that he was arrested from Village-Zainabad, P.S.- Satrikh just as P.W.10 has stated, then he (PW3) has stated that he was not present at the time of arrest but he has thereafter stated that after arrest of appellant he had gone to Zainabad and the Sub-Inspector and appellant were there. He has also stated that the Sub-Inspector had not recorded his statement (U/s 161 Cr.P.C.) till the appellant was arrested. He has further stated in his cross-examination on 22.05.2007 that for the last time he had gone with the accused to Zainabad to search for the deceased, on the same day police had arrested the accused in Zainabad.

33. In this regard, P.W.10- Bhageerath has stated that he along with other villagers had also gone to the police station. First of all, photograph was shown. The photograph was identified. Thereafter, police investigated and arrested the accused Ghanshyam who was sitting with P.W.3- Ram Harakh. His arrest was made on the same day from the house of P.W.3- Ram Harakh (which is at Zainabad). P.W.4- Ram Naresh has stated that they i.e. (P.W.4, P.W.1 and Radhey Shyam, (who has not been examined) went to the police station- Zaidpur on coming to know of a dead body having been found and they were shown clothes and photo which were identified (as that of Mangal) whereupon they came out of the police station. Thereafter, his Samdhi i.e. P.W.3 got a Report written and gave it at the Police Station. The testimony of P.W.3, P.W.10 and P.W.4 is inconsistent as to whether P.W.3 got the written Tehrir prepared through someone outside the police station or the Sub-Inspector dictated it. All this creates doubt about the written report alleged to have been given by P.W.3 on 22.12.2005 and the last seen story set up therein based on the testimony of P.W.3. In these circumstances, it cannot be said that Ex.Ka.3 has been proved by P.W.3 as the one which he had got written and submitted to the police.

34. Moreover, P.W.10 has also stated that he had seen the accused with P.W.3-Ram Harakh at his house a day after the latter had informed about Mangal being missing. In his cross-examination, P.W.3 has himself stated that the accused had gone with him to search for Mangal at Chandupur, Nibahara and Zainabad. He has also stated that for the last time he had gone with the accused to Zainabad when the police arrested Ghanshyam. He had gone with him six days after Mangal went missing. P.W.10 has also stated that the accused-Ghanshyam and his (Bhageerath's) brother, had gone to Sasural of the deceased Mangal to look for him. The sister of Ram Harakh i.e wife of the accused, was with him i.e. with Bhageerath while they were looking for Mangal. If the accused was accompanying the deceased father i.e. P.W.3 in search of Mangal then obviously at least till the sixth day, P.W.3 did not suspect him of having committed the crime. For six days, he did not even lodge a missing report.

35. All this clearly adds up to the possibility that the entire story has been cooked up after the arrest of Ghanshyam, on the dictates of the police especially in view of P.W.3's own statement that it is the Sub-Inspector who had dictated the Report and got it written as per his oral dictation which creates a reasonable doubt as to the veracity of contents of the said report and last seen case setup therein.

36. Most important, P.W.3 has not mentioned in his testimony the date and time when he had last seen Ghanshyam with Mangal at his doorstep. He, like all other witnesses, has stated that the incident had occurred about one and a half years ago. Had P.W.3 proved Ex.Ka.3 as the report written on his dictates or information, then, based on a conjoint reading of his testimony with the said written tehrir, the date and time could have been held to be proved, but, as already opined hereinabove, Ex.Ka.3 itself has not been proved as the one based on P.W.3's dictation as it has been stated by P.W.3 in his cross examination that it was written on the oral dictation of Sub-Inspector. The Scribe of the report has not been examined, therefore, its contents are highly doubtful for the reasons already given above. In these circumstances, non-mentioning of date and time when accused was last seen with the deceased in his testimony before the trial court prejudices the case of prosecution materially as far as last seen theory is concerned. The testimony of P.W.3 is full of contradictions in itself. The testimony of P.W.3 is not reliable to prove the event of last seen.

37. P.W.5-Amit Kumar Sharma is said to have been present at the door of P.W.3 where Mangal was also present. He has stated in his testimony that about one and a half years ago at about 11-12 in the day, he and Sarvesh were on the way to their fields when they reached the door of P.W.3-Ram Harakh, they saw P.W.3-Ram Harakh, his son-Mangal and brother-in-law of Ram Harakh (Ghanshyam) i.e. the accused, who were having tea. He was offered tea by Ram Harakh but he did not drink it. The accused had spoken about taking Mangal to the Mela after having tea. Mangal had gone along with Ghanshyam. Thereafter, he and Sarvesh went to their fields. In cross-examination, he has inter alia stated that he had good relations with Ram Harakh and had never visited the house of the accused but knew him. He has, however, stated that he did not remember the day on which he had seen Ghanshyam at the doors of Ram Harakh in the presence of Mangal. He did not remember the date, day or year. In view of this statement in cross-examination, his testimony so far as last seen theory is concerned is not of much consequence as unless he disclosed at least the date and time on which he saw Ghanshyam at the door of Ram Harakh, his testimony would be of no help.

38. We may also discuss another last seen theory set up by the prosecution based on the testimony of P.W.8- Maiku Lal and P.W.10- Bhageerath. P.W.10- Bhageerath has inter alia testified in his examination-in-chief that about one and a half years ago in the month of December, he and Maiku Lal (P.W.8), resident of Village- Lakhaicha had gone in the evening to the temple situated at Village- Bibipur to offer Prasad. After offering Prasad when they were returning at about 06:30 P.M. they saw the deceased-Mangal and the accused-Ghanshyam at the liquor shop. He had asked them as to what were they doing at the shop to which the accused-Ghanshyam responded that they had felt like drinking liquor the said day and thereafter, they would go to see movie at Zaidpur and stay there. He had heard after three or four days that Mangal had died. P.W.10 has not mentioned the date on which he had seen the accused with the deceased, therefore, his testimony also looses its significance so far as last seen theory is concerned. Moreover, his statement even in cross-examination that he and Maiku Lal had seen Mangal and Ghanshyam at the liquor shop in the circumstances mentioned hereinabove is contradicted by the testimony of Maiku Lal-P.W.8 who has denied having seen them and has turned hostile, therefore, this 'second last seen case' set-up by the prosecution is also not credible. Moreover, in his examination-in-chief he has stated that he had seen Mangal with Ghanshyam three or four days prior to hearing about murder of Mangal. He must have heard about murder of Mangal on or after 22.12.2005 when his body was identified by P.W.3, therefore, he must have seen them three or four days prior to it i.e. on 18.12.2005 or 19.12.2005. This is impossible as dead body of deceased was discovered in the morning of 17.12.2005 by the Chowkidar. Further, if as stated by him, P.W.10 had met Ram Harakh two or three days after Mangal went missing and had told Ram Harakh i.e. P.W.3 about having seen Mangal and Ghanshyam at the liquor shop at Bibipur Village then Ram Harakh (P.W.3) would have mentioned this fact in his written tehrir submitted on 22.12.2005 but he has not done so nor has he stated this fact in his testimony. Testimony of P.W.10 is not at all reliable.

39. As it is a case of circumstantial evidence, therefore, motive also becomes relevant. In his testimony, P.W.3 has stated firstly that the accused had an eye on his land and had requested him to write it in his name. Secondly, that he had mortgaged some of his land with Parmeshwar of Rahamlipur for Rs. 3,000/- and Parmeshwar had taken possession of the said land since then and was still in possession. The accused had mortgaged his land without his permission. He was greatly pained by this act of the accused but no fight ensued between them on this count. It has come in testimony of P.W.5- Amit Kumar Sharma that the accused used to look after the land of P.W.3, however, as far as mortgage is concerned, the son of Parmeshwar i.e. Awadh Ram has been examind as P.W.7. In his testimony, he has denied taking possession of the land mortgaged by the accused-Ghanshyam which belies the testimony of P.W.3 to the contrary. He has stated that Ghanshyam had mortgaged the land of P.W.3 i.e. Ram Harakh on the pretext that he was not keeping good health and was in need of money. He had mortgaged it for Rs. 3,000/- out of which Rs.1,000/- had been given by him (P.W.7) to the accused. However, when he verified it from Ram Harakh-P.W.3, the latter denied having permitted the accused to mortgage the said land, therefore, P.W.7 did not give rest of the money to the accused. Rs.1,000/- given by him to the accused-Ghanshyam was not returned, which pained him. The testimony of P.W.7 belies the contention of P.W.3 that possession of the mortgaged land had been taken by Parmeshwar i.e. father of P.W.7. In fact, P.W.7 says that the accused had come to him i.e. Awadh Ram (and not Parmeshwar), for mortgaging the land. Parmeshwar-his father has not been examined. In any case, in view of the facts and evidence discussed hereinabove, these facts could not constitute motive for the accused to murder P.W.3's son as there was nothing to gain from it. P.W.3 has himself stated that no fight ensued between P.W.3 and the accused on account of the aforesaid attempted mortgage.

40. As regards the other statement by P.W.3 that accused had requested him to get his land registered in his i.e. accused name, we fail to understand as to how if Mangal was murdered, the land would become that of the accused as it was recorded in the name of P.W.3 and as P.W.3 also has a daughter and she would be the next in line of succession as per the statutory laws pertaining to succession in case of agricultural holdings unless it was a case of testamentary succession. The accused or his wife (married sister of P.W.3) would not succeed to the estate of P.W.3 by murdering his son Mangal. Even if it is taken into consideration that P.W.3 was old and infirm, and the accused looked after his land and wanted P.W.3 to give him his land, nothing would be gained in this context by murdering Mangal.

41. As regards recovery of knife allegedly used in commission of the crime, no doubt P.W.13-the Investigating Officer has spoken about its recovery on the basis of information provided by the appellant in police custody and on his subsequent pointing as is mentioned in the recovery memo and one public witness Heera Lal- P.W.6 has also been examined and said P.W.6- Heera Lal has given an explanation about his presence 8 Km away from his village (Zaidanpur) at Zaidpur Chauraha from where he was picked up by the police and was then taken along with them and the accused, we find that there were two alleged witnesses to such recovery, the other witness Ram Milan has not been examined, which, by itself, is not significant, but, P.W.6 has spoken about his (P.W.6's) presence along with Ram Milan at Zaidpur Chauraha, Ram Milan is maternal uncle of deceased and brother-in-law of P.W.3-Informant (father of the deceased). Ram Milan is brother-in-law of P.W.6-Heera Lal, thus, they are all related. Going by relationships in rural areas, P.W.6 is also related to P.W.3 and deceased. P.W.6 has himself stated that he had good relations with the deceased's family and belonged to the same village-Zainabad. He has stated that by virtue of belonging to the same village, P.W.3 was his brother. P.W.6 has stated that the place where police personnel met him was 8 Km from his village. He has stated that he did know the Sub-Inspector but he has also stated that the Sub-Inspector knew Ram Milan and that is why he had called him. No one else other than he (P.W.6) and Ram Milan were called by the Sub-Inspector to be witnesses to the recovery. He had gone to the Sub-Inspector on asking of Ram Milan. Now Ram Milan is closely related to the deceased's family. P.W.6 is related to Ram Milan. He is present 8 Km away from his house. No local witness is called by the police. P.W.6 was unable to tell the date of recovery of knife. He expressed ignorance as to how the Sub-Inspector had mentioned the date and time of recovery of knife in his statement. He did not remember the date of recovery. He has stated that the knife was not before him i.e. it was not shown to him during trial so as to ascertain whether it was the same knife which had been recovered allegedly in his presence. Moreover, when the Autopsy Surgeon (P.W.1) was examined, he was also not shown the knife to get his opinion as to whether injuries on the body of the deceased could have been caused by the such knife. Origin of the blood detected on the knife could not be determined. All this is relevant as it is not a case of direct evidence but of circumstantial evidence and other events in the chain of circumstances required to be proved have also not been proved as already discussed. In view of the above discussion, alleged recovery of the knife is not reliable.

42. Now, we may examine the testimony of P.W.9- Hanoman. He is a witness to the alleged extra-judicial confession. He has stated in his examination-in-chief that the accused-Ghanshyam had visited him two to three days after having murdered Mangal. He has stated that the accused is his relative, so is Ram Harakh i.e. P.W.3. He has stated that two to three days after murdering Mangal, the accused-Ghanshyam came to his house and told him that he had murdered Mangal and that he had committed a big mistake. He asked P.W.9 to help him as he was a relative of Ram Harakh-P.W.3. He has also stated that he informed Ram Harakh about the same. In his cross-examination, he has stated that he had visited Ram Harakh on the second day after the accused confessed his crime. Ram Harakh informed him that he had got the report lodged on the basis of information supplied by P.W.9. However, surprisingly, P.W.3 in his examination-in-chief has nowhere stated that Hanoman-P.W.9 had informed him about the aforesaid fact. If the statement of P.W.9 is correct i.e two to three days after murdering Mangal, the accused-Ghanshyam had confessed his crime before him and that he i.e. P.W.9 had informed P.W.3-Ram Harakh the next day i.e. on the third or fourth day from the murder, then, there is no explanation by the prosecution as to why P.W.3 gave the written tehrir on the sixth day i.e. on 22.12.2005 and why there is no mention of these facts therein. Extra-judicial confession is not reliable. In view of the reasons discussed hereinabove, the testimony of P.W.9 is not at all reliable nor credible.

43. It seems that prosecution has tried to create a three pronged story - firstly, the last seen theory based on the testimony of P.W.3 and P.W.5, secondly, another last seen theory on the testimony of P.W.10 and P.W.8 and thirdly, a case based on extra-judicial confession before P.W.9. We are constrained to observe that in view of the discussion already made, the prosecution has failed to prove all the three theories beyond reasonable doubt.

44. We may also examine the testimony of P.W.4-Ram Naresh who is the father-in-law of deceased-Mangal. Mangal had been married but Gauna had not taken place. P.W.4 has neither seen the crime being committed nor is he a witness of last seen theory, He is only a signatory to the written Tehrir submitted along with P.W.3, an aspect which we have already dealt with earlier.

45. P.W.11 is the Constable-Mahendra Bahadur who was posted at P.S.-Zaidpur at the relevant time. He has proved having seen the deceased body at the place of its discovery, preparation of inquest and also body being sent for post-mortem. He has stated that body was cremated as its identity unknown.

46. P.W.12 is the Sub-Inspector who was posted at the relevant time i.e. on 17.12.2005 at P.S.- Zaidpur. He had also visited the spot where the body was found. He has stated that he does not remember as to whether blood was present on the spot or not. He has stated about discovery of two delux condoms along with publicity materials in 'chor pocket' of the pant worn by the deceased.

47. P.W.13-the Investigating Officer has spoken about arrest of the accused on 23.12.2005 from Bithora Lakhan. He has also proved recovery of knife but we have discussed this aspect in the context of independent witness-P.W.6 and have already disbelieved the recovery. The I.O. has stated in his cross-examination that he had not sent blood sample on the items recovered by him for its categorization as no such dispute had been raised by the accused in this regard. Most important, he has stated that on the date of incident there was no Mela in the Village- Mahadevan Purwa i.e. the village of the accused. Even at the cost of repetition, it needs to be mentioned that in furtherance of the last seen theory it was stated by P.W.1 that Ghanshyam had taken Mangal on the pretext of seeing Mela. There is no evidence of any Mela being held anywhere in the near vicinity or in the village- Mahadevan Purwa. In fact, P.W.13 has categorically stated that there was no such Mela at Village- Mahadevan Purwa. P.W.13 has also stated that he did not examine any villager of Village-Mahadevan Purwa. He has denied the suggestion that the accused was arrested from P.W.3's house, an aspect which has already been considered earlier.

48. In view of the above discussion, we are of the opinion that the prosecution has failed to prove its case based on circumstantial evidence beyond reasonable doubt. The possibility of the entire story having been cooked up after arrest of the accused and the written report itself having been prepared thereafter and having been ante-dated cannot be ruled out. We have also perused the judgment of the trial court and find that it is based on conjectures and surmises. The prosecution story has been believed as it is, without any application of mind to relevant aspects as discussed hereinabove. In fact, there has been a misreading of some of the evidences, for example,:- while discussing the testimony of P.W.5-Amit Kumar Sharma, it has been mentioned that "bl le; eq>s ?kVuk dk fnu] rkjh[k o lu~ ;kn ugha gSA" whereas on a perusal of testimony of P.W.5 from the lower court record, we do not find the words "bl le;" The trial court has overlooked the fact that the date and time when Mangal was last seen with Ghanshyam in the presence of P.W.3 and two others namely Amit and Sarvesh itself has not been proved. There is no discussion by the trial court on the question of motive. In a case of circumstantial evidence, the chain of events should not only be complete but they should only point towards the guilt of the accused and there should be no possibility of anybody else being involved. There is no discussion of motive at all in the trial court judgment nor is there any discussion about the law of circumstantial evidence as to how the chain of events is to be complete and each event has to be proved and thereafter the case has to be seen as to whether it has been proved beyond doubt. In fact, there is no such discussion as should have been made in a case based on circumstantial evidence. The trial court has simply believed the prosecution case without proper scrutiny and evaluation of evidence including the ocular testimony, its reliability and credibility, as is required in law.

49. We are accordingly of the view that the chain of events have neither been proved nor are they complete so as to point only towards the guilt of the appellant. The appeal is liable to succeed. It is accordingly allowed. The judgment of the trial court is set aside. The appellant is acquitted of the charges levelled against him under Sections 302, 201 I.P.C. and Section -4/25 of the Arms Act in view of the above. The sentence of the appellant has already been remitted vide order dated 02.05.2022 which had been placed before us by learned A.G.A. and he is not in jail. The appellant is given a months' time from the date of his release to furnish the bonds etc in terms of Section 437A Cr.P.C.

50. Let lower court records be remitted to learned trial court/ Chief Judicial Magistrate concerned as the case may be for necessary action.

51. For the services rendered by Sri Vaibhab Kalia, learned Amicus Curaie, he shall be paid Rs.25,000/- (Rupees Twenty Five Thousand Only) by the High Court.

(Sanjay Kumar Pachori,J.) (Rajan Roy,J.)

Order Date :-22.12.2022

Shanu/-