Vinod And Another vs State Of U.P.
2022 Latest Caselaw 6308 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

"A. F. R."
 
Judgement Reserved On 26.05.2022
 
Judgment Delivered On 08.07.2022
 
Court No. - 45
 
Case :- CRIMINAL APPEAL No. - 1507 of 2015
 
Appellant:- Vinod And Another
 
Respondent:- State of U.P.
 
Counsel for Appellant:- A.K. Tripathi, Ashok Kumar Tripathi, Namit Kumar Sharma
 
Counsel for Respondent:- Govt.Advocate
 

 
Hon'ble Manoj Misra, J.

Hon'ble Syed Aftab Husain Rizvi, J.

(Delivered by Syed Aftab Husain Rizvi,J.)

1. We have heard Sri Ashok Kumar Tripathi, learned counsel for the appellants, and Sri Pankaj Saxena learned AGA for the State.

2. This criminal appeal has been filed against the judgment and order dated 17.03.2015 passed by the Additional Sessions Judge, Court No.4, Mathura, in Sessions Trial No.254 of 2013, arising out of Case Crime No.522 of 2012, Police Station Kosikala, District Mathura, convicting and sentencing the accused-appellants Vinod and Karmveer as under:-

"Imprisonment for life and fine of Rs.10,000/- each, under section 302 read with section 34 IPC; 10 years rigorous imprisonment and fine of Rs.5,000/-each under section 364 IPC; 7 years rigorous imprisonment and fine of Rs.5,000/- each under section 201 IPC; and 3 years rigorous imprisonment and fine of Rs.5,000/- each under section 404 IPC.

INTRODUCTORY FACTS

3. The Factual matrix is as follows:-

(i) Complainant Nawal Singh (P.W.-1) gave a written information at the Police Station Kosikala, District Mathura on 19.08.2012, alleging therein that his uncle Narayan Singh(the deceased), aged 60 years, on receiving a phone call, left his house on 11.08.2012 at 1.30 PM taking Rs.70,000/- with him but did not return, thereafter; and that his phone number 8683094403 is not responding. The aforesaid information was entered in G.D. No.23 at 9.10 AM on 29.08.2012 as a missing report.

(ii) On the same date, the complainant Nawal Singh gave another application at Police Station Kosikala, alleging therein that on 11.08.2012 at about 1.30 PM Narayan Singh (the deceased), the uncle of the complainant had gone to Hodal with Karmveer, taking Rs.70,000/- with him; that neither he has returned nor his phone number 8683094403 is responding; that after a thorough search, he lodged a missing report on 19.08.2012; that Vijan and Prahlad had seen Narayan Singh with his servant Karmveer, going on a motorcycle on the way to Hodal; that the complainant believes that Karmveer has kidnapped his uncle and committed murder in greed for money. On the aforesaid written information (Ex. Ka.-1) an FIR Crime No.522 of 2012, under sections 364, 302, 201 IPC, was registered at Police Station Kosikala, District Mathura on 19.08.2020 at 20.30 hours.

(iii) Santosh Singh(P.W.-10), SO, Police Station Kosikala, District Mathura, took up the investigation. He recorded the statement of the complainant. On the information received from the informer, he arrested the named accused Karmveer on 20.10.2012 at 12.05 noon from Korvan Tiraha. On interrogation, accused Karmveer confessed his crime and disclosed that he has committed the murder of Narayan Singh on 19.08.2012 with the help of his cousin Vinod for Rs.70,000/-; that he assaulted Narayan Singh with a spade causing his death and buried the body in his field; that, Rs.50,000/- which came in his share, had been kept by him at the house of his sister Lakshmi, resident of Balghadi, Police Station Kosikala; and that he could get recovered the dead body from the field as also the cash. The gist of the interrogation was entered in the G.D. on the same date at 12:45. PM The investigating officer accompanying other police personnel and Karamveer arrived at the field of the deceased Narayan Singh and at the pointing out of accused Karmveer the dead body of Narayan Singh was recovered after digging a pit. A spade was also recovered at the pointing out of accused Karmveer at about 15.30 PM from the bushes near the hut situated in the field of the deceased Narayan Singh. Its recovery memo was prepared. The investigating officer prepared the site plan of both places, took plain soil and blood-stained soil and sealed it, and prepared its memo. The body was sent for postmortem. Thereafter, the SO accompanying police personnel, Karamveer, and witnesses, namely, Bittan and Vijan, came to the village Balghadi at the house of Lakshmi, the sister of the accused Karamveer, and at his pointing out recovered Rs.50,000/- comprising 25 notes of Rs.1,000/- denomination and 50 notes of Rs.500/- denomination, kept in a purse inside a box. A recovery memo of this was prepared. The SO returned to the Police Station Kosikala and deposited the articles there and also added section 404 IPC, vide G.D. No.41 dated 20.08.2012. Thereafter, investigating officer recorded the statements of other witnesses, arrested the co-accused Vinod, and after completion of the investigation submitted the charge sheet.

4. The learned trial court framed charges under sections 364, 302 read with sections 34 IPC, 201, and 404 IPC against both the accused-appellants Vinod and Karmveer. They pleaded not guilty. The prosecution produced 10 witnesses who had proved 27 prosecution papers (Ex. Ka-1 to Ex. Ka-27).

The accused-appellants Vinod and Karmveer in their statements under section 313 Cr.P.C. had denied the prosecution story and incriminating circumstances against them and had also submitted that witnesses had given false evidence against them. The accused Karmveer had also said that the SO asked his father to pay Rs.50,000/- to release his son. Later on, he showed the recovery of aforesaid Rs.50,000/- from him to falsely implicate him. One defense witness Gopal(D.W.-1), the father of accused Karmveer, had also been produced.

The trial court found both the accused guilty and sentenced them as above.

5. According to the autopsy report, the postmortem was conducted on 20.08.2012 at 7.15 PM.

EXTERNAL EXAMINATION

The age of the deceased was about 47 years. The body was average built, and the sign of decomposition was present. Scrotum was swollen, hairs easily pulled out, teeth loose in sockets. Discoloration of iliac fossa, lower abdomen, peeling of skin at places, Rigor Mortis passed from the entire body. Following Antemortem injuries were found on the body:-

"1. Lacerated wound 8 CM X 4 CM on back of the head. The occipital bone was fractured.

2. Lacerated wound 4 CM X 2 CM on the left side of the head. The left parietal bone was fractured.

3. Lacerated wound 3 CM X 2 CM on the left side of the head. The temporal region was fractured.

4. Lacerated wound 8 CM X 2 CM on the lower side of the waist on the left side.

5. Lacerated wound 6 CM X 1 CM on the left elbow.

6. Lacerated wound 2 CM X 0.12 CM X .5 C.M. on the upper side of the left shoulder region.

7. Lacerated wound 3 CM X 2 CM on the left side of the back scapular region. 10 C.M. from scapular spine.

INTERNAL EXAMINATION

The occipital, left parietal, and left temporal bone were fractured and clotted blood was present. The brain was pale and brain material was coming out partially. The lungs were pale. Both the chambers of the heart were empty. Stomach was empty. The liver, Pancreas, Spleen, and both kidneys were pale. The gallbladder was half pale. The cause of death was haemorrhage due to antemortem injuries. The duration of death was about 3 days.

The aforesaid autopsy report has been proved by Doctor Lal Singh (P.W.-8) as Ex.Ka-6.

TESTIMONY OF PROSECUTION WITNESSES

6. Besides Dr. Lal Singh (P.W.-8) prosecution has produced nine other witnesses. Nawal Singh, P.W.-1 is the complainant and nephew of the deceased. In his examination-in-chief, the witness has said that his uncle Narayan Singh was kidnapped on 11.08.2012 at 1.30 Noon. Narayan Singh, Nepal Singh, Kailash, Tejvir, and his wife Kushwalwati were present at the house. Karmveer was employed as a servant of Narayan Singh and drove his tempo. Vinod is the cousin of Karmveer. His uncle Narayan Singh has gone with Karmveer and Vinod to purchase a tractor taking Rs.70,000/- cash. When his uncle did not come back in the evening, then he made a call on his phone. It was switched off. When the Witnesses Vijan and Prahlad Singh came to his house, then they told that they have seen Narayan Singh going with Karmveer and Vinod. He searched Narayan Singh, Karmveer, and Vinod in the village, but could not find them, then he lodged the FIR at the Police Station. The witness has proved the written information Ex. Ka-1. He has also said that on 20.08.2012 after getting the dead body of his uncle Narayan Singh, he gave an application to the District Magistrate, Mathura, and proved it as Ex. Ka-2. The witness has further said that the dead body of his uncle was recovered on 20.08.2012 at the pointing out of Karmveer from the field of Narayan Singh after digging a pit. One spade was also recovered at his pointing out. Karamveer told that he and Vinod killed Narayan Singh by hitting his head with a spade. The spade was also recovered from the field of Narayan Singh. Karmveer and Vinod have committed the murder of Narayan Singh in greed of Rs.70,000/-. Witness also stated that he gave a missing report on 11.08.2012, which was proved as Ex. Ka.-3. He further stated that Rs.50,000/- was got recovered at the pointing out of Karamveer from the house of his sister in village Balgarhi, Police State Kosikala.

7. Prahlad Singh, P.W.-2 in his examination-in-chief has stated that the deceased Narayan Singh was his neighbour. On 11.08.2012 at 1-1:30 PM, Narayan Singh was going on a motorcycle with Karamveer. The motorcycle was driven by Karamveer. Narayan Singh was sitting on the pillion. Karamveer was employed at the house of Narayan Singh for the last 2-3 years. When he along with Vijan was grazing his buffalo, then he saw Karamveer and Narayan Singh, going on a motorcycle on the way leading to Hodal. On this way, the field of Narayan Singh is situated. He informed Nawal that he has seen Narayan Singh and Karamveer going on the way leading to Hodal. Witness has further said that the dead body of Narayan Singh was got recovered by Karamveer in front of him after digging a pit. Co-villagers and police personnel were also present there. Narayan Singh has gone with Karamveer to purchase a Tractor, taking Rs.70,000/- cash. Karamveer also got recovered Rs.50,000/- from the house of his sister. He has also told that Vinod was with him and the remaining amount has been given to Vinod. Vinod is also involved in the murder of Narayan Singh. Murder was committed with a spade, which was recovered at the instance of Karamveer from inside the hut. Witness has further said that after taking out the dead body from the pit, the inquest proceeding was conducted, and he signed on it. The witness identified his signature on the inquest report.

8. Vijan(P.W.-3) in his examination-in-chief has stated that the deceased Narayan Singh was his co-villager. He was murdered. On 11.08.2012 at 1.30 PM he was grazing his buffalo beside the way leading to Hodal. At that time Narayan Singh and his servant Karamveer were going towards Hodal on a motorcycle. Karamveer was driving the motorcycle while Narayan Singh was sitting on the pillion. When in the evening he returned back to the village he came to know that Narayan Singh is missing. Then he told Nawal Singh that he has seen Narayan Singh and Karamveer going on the way leading to Hodal. When Nawal Singh called Karamveer, he told him that he had left Narayan Singh at Hodal bypass and he does not know where he has gone. When he made a call to Narayan Singh, the phone did not respond. Then Karamveer was caught and he got the dead body of Narayan Singh recovered from a pit, situated in front of the hut. Witness has further said that Karamveer Singh accompanying police personnel got recovered Rs.50,000/- From a box kept inside the room of his sister's house at village Balgadhi. Karamveer also told that this is the cash that has come in his share. The cash was in a purse which was kept inside the box in between the clothes. The cash along with the purse was sealed and a memo was prepared and his signature was obtained on it. The witness has proved his signature on the recovery memo. Witness has further said that Karamveer told that he along with Vinod have committed the murder of Narayan Singh in greed for money and had buried the dead body of Narayan Singh in his field in a pit in front of the hut. Witness has also said that he knew the accused Vinod because he used to come to the house of Narayan Singh and Karamveer.

9. Parmanand (P.W.-4) in his examination-in-chief has stated that the field of the deceased was beside his field. At about noon of 11.08.2012, he was present at his field when he saw Karamveer and Vinod going towards the field of Narayan Singh. Narayan Singh did not return in the evening. After a day or two, he came to know that Narayan Singh has been kidnapped or had died. After two days police came and interrogated the villagers. On 20.08.2012 the dead body of Narayan Singh was recovered at the pointing out of Karamveer from the field of Narayan Singh, near the hut. An inquest report was prepared and he signed it. The witness has proved his signature on the inquest report. The witness has further said that Karamveer in front of him and other villagers has confessed that he and Vinod have committed the murder of Narayan Singh.

10. Dharam Singh (P.W..-5) in his examination-in-chief has stated that the deceased Narayan Singh was his co-villager. Accused Karamveer was employed by Narayan Singh, to drive his tempo. On 11.08.2012 Narayan Singh has gone with Karamveer to purchase buffalo. Thereafter, Karamveer returned back but Narayan Singh did not return. When 8 to 9 days passed and Narayan Singh did not come back then they became worried. Police were informed and Karamveer was arrested by the police. On the next day on 20.08.2012 police brought Karamveer to the field of Narayan Singh, where Narayan Singh was killed. Karamveer told that he along with his cousin Vinod has committed the murder of Narayan Singh. He got recovered one spade from the bushes in the field of Narayan Singh and told that he and Vinod have killed Narayan Singh and concealed the dead body of Narayan Singh in a pit. Karamveer after digging the pit got recovered the dead body of Narayan Singh. The recovery memo was prepared by the sub-inspector and he signed it. The witness has identified his signature on the recovery memo as well as on the inquest report.

11. Bittan (P.W.-6) in his examination-in-chief has stated that deceased Narayan Singh was of his village. Karamveer was his servant and used to drive his tempo. P.W.-6, whose statement was recorded on 06.09.2014, stated that about two years ago police along with Karamveer came to the village. Thereafter, police with Vijan, Karamveer, and the witness including him went to village Balghadi at the house of Lakshmi, the sister of Karamveer. From there at the pointing out of Karamveer Rs.50,000/- cash was recovered from a box. Karamveer told that the money belongs to Narayan Singh. Police prepared a memo of it and got his signature on it.

12. Head Constable, Daya Sharan, P.W.-7 in his examination-in-chief has proved the chik report No.510 of 2012 dated 19.08.2012 at 20.30 PM registered on written information given by Nawal Singh. He has also proved G.D. Entry No.54, at 20.30 hours of the same. These documents were exhibited as Ex. Ka-4 and Ka-5.

13. Narendra Pal Singh, P.W.-9 in his examination-in-chief has stated that on 20.08.2012 he was posted as Sub-inspector at Police Station Kosikala. On that day with other police personnel including S.I. Santosh Kumar and the arrested accused Karamveer arrived at the field of Narayan Singh to recover the dead body of Narayan Singh. The dead body of the deceased Narayan Singh was recovered from a pit situated in front of a hut in the field of Narayan Singh. On the direction of S.I. Santosh Kumar, he prepared inquest report of the dead body. Witness proved the inquest report (Ex. Ka.-15).

14. Sub-Inspector Santosh Singh, P.W.-10, the investigating officer in his examination-in-chief has stated that Crime No.522 of 2012, under sections 364, 302, 201, IPC was registered at Police Station Kosikala, District Mathura. He started the investigation and recorded the statement of the complainant. On the information of the informer, he arrested the accused Karamveer from Korvan Tiraha at 12.05 Noon and lodged the accused at Police Station through G.D. Entry No.22 at 12.30 Noon. He interrogated the accused Karamveer, who confessed his crime and said that on 11.08.2012 he with the help of his cousin Vinod has committed the murder of Narayan Singh in greed of Rs.70,000/- and buried the dead body in the field of Narayan Singh. He also confessed that Narayan Singh was hit on the head by a spade, his dead body was buried by digging a pit with the spade. He confessed that Rs.50,000/- came in his share while Rs.20,000/- was taken by his cousin Vinod; and that Rs.50,000/- has been concealed and kept in the house of his sister Lakshmi, resident of Balghadi. The gist of the interrogation was entered in the G.D. No.23 at 12.45 Noon. Thereafter the police party along with Karamveer came to the field of Narayan Singh at Village Lalpur from where the accused Karamveer, after digging the pit, got the dead body of Narayan Sigh recovered. The inquest report of the dead body was prepared by Sub-inspector Narendra Singh. Accused Karamveer also got recovered the spade used in the murder of Narayan Singh from the bushes near the hut situated in the field of deceased Narayan Singh at about 15.30 PM. Its memo was prepared by him. Witness has proved it as Ex. Ka-16. At the instance of the complainant and the accused Karamveer, the site plan of the aforesaid place was prepared by him. He has proved it as Ex. Ka-17. He also collected plain soil and blood-stained soil and prepared its memo and has proved it as Ex. Ka-18. Thereafter, he along with witnesses Bittan and Vijan and the accompanying police force came to village Balghadi at the house of Lakshmi, the sister of the accused Karamveer, from where the accused got recovered Rs.50,000/- cash contained in a box and kept in a purse, comprising 50 notes of Rs.500/- denomination and 25 notes of Rs.1,000/- denomination. Its recovery memo was also prepared. Witness has proved it as Ex.Ka-19. He also prepared the site plan of this place Ex. Ka-20. Witness has further stated that he recorded the statement of other witnesses. Co-accused Vinod was arrested on 05.10.2012. After completion of the investigation, he submitted the charge sheet Ex. Ka-21. The witness also proved the forensic science laboratory report, Ex. Ka-27 and material exhibit, spade, blood-stained earth, and plain earth, a purse containing 25 notes of Rs.1,000/- denomination and 50 notes Rs.500/- denomination, as material Exhibits.1 to 71.

TESTIMONY OF DEFENCE WITNESS

15. One witness Gopal, D.W.-1 has also been produced by the defence. This witness in his examination-in-chief has stated that his son Karamveer was employed in the house of Narayan Singh and was paid Rs.3,000/- per month and was also provided food and lodging. Narayan Singh used to pay accumulated salary in lump sum. On 09.08.2012 his son Karamveer had given him Rs.50,000/-. After 9 to 10 days a policeman came to his house and said that his son Karamveer has been detained by the police. He asked him (D.W.-1) to bring some money so that his son may be released. On 19.08.2012 at 6.30 PM he came to Police Station Kosikala and negotiated with the police, then they asked him to pay Rs.50,000/- for the release of his son. He paid Rs.50,000/- to the SO who said that his son will be released in the morning. He went back after giving the cash but his son was not released. Later on, he came to know that this cash amount was planted and his son has been falsely implicated. The cash belongs to him.

SUBMISSIONS ON BEHALF OF APPELLANTS

16. The learned counsel for the applicant contended that there is no eyewitness of the incident. The prosecution has relied only on circumstantial evidence. The chain of circumstances as alleged by the prosecution is not complete. The FIR has been lodged on 19.08.2012 after a delay of 8 days and there is no plausible explanation for the delay. The conduct of the complainant is highly doubtful. There are major contradictions between the allegations of the FIR and the statement of the complainant. In the FIR only Karamveer, the accused has been named and it is alleged that Narayan Singh has left the house with Karamveer, but the complainant in his statement before the court has also implicated the other accused Vinod, and has said that Narayan Singh has left the house with Karamveer and Vinod and was seen by the witnesses going with them on a motorcycle. It is further contended that the arrest of the accused Karamveer has been shown in the record as on 20.08.2012 at 12.05 Noon, which is not supported by the public witnesses. According to public witnesses, the Karamveer was present in the village and was handed over to the police on 19.08.2012 or earlier. It also destroys the entire prosecution evidence of recovery of the dead body, spade, and cash at the pointing out of Karamveer. It is further contended that Karamveer never absconded and he remained present in the village itself, which shows his innocence. The recovery of the cash amount is also fabricated. The real fact is that Karamveer was detained by the police and the police demanded money to release him. The father of Karamveer paid Rs.50,000/- for that and the police planted it on Karamveer, showing the recovery of cash. The accused in his statement under section 313 Cr.P.C. has put up the above defence and has also produced his father, Gopal(D.W.-1) in support of it. Learned counsel for the applicant also contended that the investigating officer has not conducted the investigation in a fair and impartial manner and in collusion with the complainant has falsely implicated the appellant-accused. It is also contended that there is no evidence against the appellant Vinod. The evidence against the co-accused Karamveer is untrustworthy and unbelievable. The learned trial court has failed to appreciate the evidence and has ignored the major discrepancies and contradictions of the prosecution evidence. The finding of conviction recorded by the trial court is perverse and illegal.

SUBMISSIONS ON BEHALF OF THE STATE

17. Per contra, the learned AGA for the State submitted that the deceased was missing and the complainant after making a thorough search at his level has given a missing report at the police station and thereafter lodged the FIR. So there is a plausible explanation for the delay in lodging the FIR. Learned AGA for the State conceded that there is no sufficient evidence against the appellant-accused Vinod, but submitted that so far as the appellant-accused Karamveer is concerned there is sufficient and cogent evidence against him. There is a chain of evidence so complete that it conclusively points to the guilt of the appellant Karamveer by leaving no reasonable doubt for the conclusion that the accused Karamveer is guilty. It is proved from the evidence that the deceased has left the house with the accused Karamveer. It also stands proved that he was last seen by the public witnesses in the company of accused Karamveer going on a motorcycle towards Hodal. The dead body has been recovered, buried in the field of the deceased, at the pointing out of accused Karamveer. This fact can be in the knowledge of the culprit only. The spade used in committing the murder of the deceased has also been recovered at the pointing out of accused Karamveer from the bushes near the field. From the statements of public witnesses, it stands fully proved that the dead body and the spade have been recovered at the pointing out of accused Karamveer. The motive of the crime is also proved. The deceased was having Rs.70,000/- with him and in greed for that money, his murder has been committed. Out of this money, Rs.50,000/- has been recovered from the house of the Karamveer's sister at the pointing of the accused Karamveer. It is admitted by the defense witness Gopal DW-1 that this money belongs to the deceased. Merely because the accused Karamveer has not absconded after the incident does not indicate his innocence. He may not have done so to avoid any suspicion being raised against him. So from the prosecution evidence, a complete chain of circumstances is established, which clearly points toward the guilt of the accused. The finding of conviction of accused Karamveer recorded by the trial court is just and proper and there is no illegality in it.

A N A L Y S I S

18. There is no eyewitness account of the incident and the prosecution case is based on circumstantial evidence.

In Sharad Birdhichand Sarda AIR 1984 SC 1622, the Hon'ble Supreme Court has laid down the following five golden principles to prove 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 unerringly point towards the guilt of the accused.

(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."

In the case of Haresh Mohandas Rajput v. State of Maharashtra 2011 (12) SCC 56 following its earlier decisions, the Hon'ble Apex Court held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-

"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of a definite tendency unerringly pointing toward the guilt of the accused.

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

19. The prosecution has relied on the following chain of circumstances:-

(i) On 11.08.2012 the deceased, Narayan Singh went from his home accompanying Karamveer and Vinod taking Rs.70,000/- cash and since then he was missing.

(ii) Deceased Narayan Singh was last seen going with Karamveer and Vinod on the way leading to Hodal.

(iii) On 20.08.2012 at 12.05 Noon Karamveer was arrested by the police and on his interrogation, he confessed his crime and stated that he along with his cousin Vinod has committed the murder of Narayan Singh in greed of Rs.70,000/-.

(v) The dead body of the deceased Narayan Singh was recovered at the instance of accused Karamveer, buried in the field of deceased Narayan Singh at Village Lalpur.

(vi) The spade used in the crime was also got recovered at the instance of accused Karamveer.

(vii) Rs.50,000/- cash was also recovered at the instance of accused Karamveer from the house of his sister Lakshmi from the village Balghadi contained in a box and kept in a purse.

20. According to the prosecution case, Narayan Singh left his house on 11-08-2012 at 1:30 PM with his servant Karamveer for Hodal with rupees seventy thousand. He was seen by the witnesses Prahlad Singh and Vijan, going on a motorcycle with Karamveer and Vinod on way to Hodal at the noon of 11-08-2012. The first information that Narayan Singh is missing was given to the police by Naval Singh the nephew of the deceased on 19-08-2012 and it was entered in the G.D. at 09:10 AM In this report, it is mentioned that on 11-08-2012 at 01:30 PM after a phone call from someone Narayan Singh left the house with Rupees seventy thousand where after he did not return nor his phone responded. Later, on the same day, Naval Singh gave another application on the basis of which F.I.R. was registered at 20:30 hours. In this application, it was alleged that on 11-08-2012 at 01:30 P.M. Narayan Singh had gone to Hodal with Karamveer taking Rs.70,000/- with him. In this report it was alleged that his uncle was last seen by Vijan and Prahlad going on a motorcycle on the way to Hodal. In the first missing report, the fact that Narayan Singh had left the house with Karamveer and that witnesses Vijan and Prahlad had seen them going on a motorcycle is not mentioned. It is established from the statements of witnesses that the aforesaid fact was well within the knowledge of complainant Naval Singh at the time when he gave the missing report to the police. Rather, the aforesaid fact was well within the knowledge of the complainant from the date of the incident itself. Naval Singh (P.W.-1) in his examination in chief has said that when his uncle did not return in the evening then he made a call on his mobile which was switched off. When Vijan and Prahlad came to his house, they told him that they have seen Narayan Singh, his uncle going with Kramveer and Vinod. Prahlad Singh P.W. 2 in his cross-examination has said that he grazed his cattle till 04:00 PM. At another place, the witness said that he met Naval at his house then he told that he had seen Narayan going with Karamveer. Quarter to an hour after reaching home he went to the house of Naval Singh. Vijan P.W. 3 in his examination in chief has said that when he came back to his village in the evening and heard that Narayan Singh is missing then he told Naval that he had seen Narayan Singh going with Karamveer on way to Hodal. So it is fully established from the prosecution evidence that the fact that Narayan Singh had left the house with Karamveer and was last seen by Prahlad and Vijan going on a motorcycle with Karamveer and Vinod on way to Hodal was well within the knowledge of the complainant from the very beginning but neither he gave any information to the police earlier nor he disclosed these facts in the missing report which was given on the morning of 19-08-2012. The aforesaid fact being in the knowledge of the complainant yet not finding a place in the missing report clearly reflect that the facts mentioned in the FIR later were an after thought may be in consultation with or at the behest of the police. There is no plausible explanation for informing the police or lodging the F.I.R. with so much delay i.e. after eight days of the incident. There are also major discrepancies in the statements of complainant Naval Singh and other witnesses in relation to the lodging of the missing report and the F.I.R. Complainant Naval Singh has given different versions. At one place he has said that he has lodged the missing report after 2-3 days. He has further said that he had lodged this report at about 4-4:30 pm while the missing report had been lodged after 8 days in the morning at 9:10 am. In his cross-examination, the witness has said that FIR was lodged on 11-08-2012. Correcting himself he has again said that FIR was lodged on 19-08-2012 but has further said that the two reports were not lodged on the same day while the missing report as well as FIR both have been lodged on the same day i.e. on 19-08-2012. He has further said that he had returned home at 5:30 pm after lodging the FIR, while, according to the record, the FIR was lodged on 19-08-2012 at 20:30 hours. Changing his statement the witness has further said that he met a police person on 18-08-2012 at the police station. Prahlad Singh PW-2 in his cross-examination has said that the missing report was lodged on the date when he last saw Narayan Singh going with Karamveer, so according to him, the missing report was lodged on 11-08-2012.

21. There are also other discrepancies in the statement of complainant Naval Singh. In his examination-in-chief, the witness reiterating the version of the FIR has said that his uncle Narayan Singh has left the house at 1:30 pm but in his cross-examination, the witness has put a different version and has said that his uncle and Karamveer has left the house at 9-9:30 am. At one place in his cross-examination, the witness has said that he and his uncle lived in the same house and that Narayan Singh had left the house in front of him while at another place the witness has said that the house of his uncle is separate from his house and it is situated at some distance and in between the two houses, there are houses of others, namely, Ramphool, Vijan, Omi, and Ran Singh. In the FIR only the accused Karamveer is named and it is alleged that Narayan Singh had gone with Karamveer while in his statement the witness Naval Singh PW-1 has also implicated accused Vinod by saying that his uncle Narayan Singh had gone with Karamveer and Vinod. From the appreciation of the statement of complainant Naval Singh PW-1, it transpires that his oral testimony is very inconsistent. He has changed his statements according to his convenience and in doing so he has made contradictory statements. There are major discrepancies in his oral testimony.

22. According to the prosecution case accused Karamveer was arrested on 20-08-2012 at 12:05 noon from Korvan Tiraha by SO Santosh Singh and his companions. He was interrogated by SO Santosh Singh. He confessed his crime and told that on 11-08-2012 he along with his cousin Vinod had committed the murder of Narayan Singh in greed of Rupees 70,000 and buried his dead body in his field. The gist of this interrogation was entered in G.D No. 23 at 12:45 pm. Thereafter, SO Santosh Singh accompanying police personnel and accused Karamveer came to village Lalpur at the field of Narayan Singh and at the pointing out of the accused Karamveer the dead body of Narayan Singh was recovered after digging a pit in the field. One spade used in committing the murder was also recovered from the bushes. Sub-inspector Santosh Singh PW-10 in his examination-in-chief has supported the aforesaid prosecution version. From the statements of the public witnesses produced by the prosecution, the aforesaid prosecution story of arrest and recovery does not find support. There are major contradictions regarding the date and time of arrest and recovery. Prahlad Singh PW-2 in his cross-examination has said that after 11-08-2012 he had seen Karamveer in the morning of 19-08-2012 at 10:00 am. In the evening at 5:00 pm, he asked about Narayan Singh from Naval Singh. He and Naval Singh inquired about Narayan Singh from Karamveer and handed him over to the police. The police came to the village at 6:00 pm and stayed there for a while, made some inquiries, and then took away Karamveer. Parmanand PW-4 has said that he had seen Karamveer in the village when police came on 18-08-2012 at 12 o'clock. The police came at 12'o clock and in front of him took away Karamveer. Dharam Singh PW-5 has said that police arrested Karamveer in the evening of 19-08-2012 from the house. Vijan PW-3 has stated that he told Naval Singh that he had seen Narayan Singh going with Karamveer, then Naval Singh called Karamveer who told him that he had left Narayan Singh at Hodal bypass and he did not know where he had gone. When a phone call was made to Narayan Singh it was not received, then Karamveer was arrested. The statements of public witnesses clearly establish that Karamveer was not arrested on 20-08-2012 at 12:05 noon as alleged by the police but earlier.

23. No separate memo of the recovery of the dead body has been prepared. In the inquest report itself, the description of the recovery has been entered by S.I. Narendra Pal Singh (PW-9) who has conducted the inquest proceedings. PW-9 in his examination-in-chief has said that on 20-08-2012 he along with SO Santosh Singh, accompanying police personnel and the arrested accused Karamveer arrived at the field of Narayan Singh, and at the pointing out of accused Karamveer, after digging a pit, the dead body of Narayan Singh was recovered. The witness has not disclosed the timing of recovery. So neither in the document nor in the oral evidence the time of recovery of the dead body has been revealed. In the inquest report time 13:30 hrs is mentioned as the time of commencement of inquest proceedings. So it appears that the dead body has been recovered on 20-08-2012 sometime before 1:30 PM. This also does not match with the date and time stated by the public witnesses in their oral testimony. Parmanand (PW-4), Prahlad Singh (PW-2), Dharam Singh (PW-5), and Vijan (PW-3) are the panch witnesses of the inquest. Prahlad Singh PW-2 in his cross-examination has said that he met the police at the hut built in the field of Narayan Singh on 20-08-2012 at 10:00 AM. Karamveer was accompanying the police. He located the place where the dead body was buried. Firstly, Karamveer took out a spade and then he exhumed the dead body. So according to this witness, the dead body was recovered at about 10:00 AM. Vijan PW-3 has said that in the morning of 20-08-2012 he was called to the police station. He reached the police station at 7:30 AM. Vittan was also there. After some minutes they proceeded to Balghari in a jeep and returned from there at 9:00 AM. Thereafter he did not return to his house and proceeded with police in a jeep and reached the field at 10:00 am and remained there for 2 hours. So according to this witness, the timing of the recovery is sometime after 10:00 AM. Dharam Singh PW-5 has said that Karamveer was arrested by police on 19-08-2012 after 4:00 PM. The witness has further said that on the next morning at about 10:00 AM the police with Karamveer came to the village and then proceeded to the field of Narayan Singh from where at the pointing out of Karamveer, the dead body of Narayan Singh was recovered. So the aforesaid oral statements of the public witnesses fully demolish the prosecution case that accused Karamveer was arrested at 12:05 noon and was lodged in the lock-up of the police station at 12:30 PM and on his confession and disclosure statement, which was entered into G.D. at 12:45 PM, the police party recovered the body at the pointing out of Karamaveer.

24. According to the prosecution case, the spade used in the crime was also recovered at the pointing out of accused Karamveer. Its recovery memo is Ext Ka 16. S.I. Santosh Singh PW-10 has said that after recovery of the dead body the spade used in committing the murder was recovered at the pointing out of Karamveer at 15:30 hours. Two public persons, namely, Ram Singh and Dharam Singh, are witnesses of this recovery memo. Dharam Singh has been produced as PW-5 but his statement is not in consonance with the oral statement of S.I. Santosh Singh PW-10 as well as the prosecution case. According to the statement of Dharam Singh PW-5 first, the spade was recovered, and thereafter the dead body was exhumed. Dharam Singh PW-5 in his cross-examination has said that police with Karamveer reached the field of Narayan Singh at 10:00 AM. There is a drain near the field of Narayan Singh, Karamveer took out a spade from its bushes. He dug the pit from the same spade and exhumed the dead body. So according to this witness, the recovery of the spade was made at about 10:00 AM, and the dead body was recovered after the recovery of the spade, and the body was exhumed by the same spade which is again contradictory to the statement of S.I. Santosh Singh PW-10. Prahlad Singh PW-2 also in his cross-examination said that first Karamveer took out the spade and then he dug the pit to recover the dead body. While Dharam Singh PW-5 has stated that the spade was recovered from the bushes of the drain. The other witness Parmanand PW-4 in his cross-examination has said that the spade was recovered from the jowar field of Narayan Singh. On this issue, the statement of Prahlad Singh PW-2 is different. In his examination-in-chief, the witness has said that Karamveer got the spade recovered from the hut. The spade was kept in the hut. S.I. Narendra Pal Singh PW-9 has not said any fact about the recovery of the spade while according to the prosecution he was present on the spot at the relevant time. Although the presence of complainant Naval Singh PW-1 at the time of recovery of the dead body is not disclosed either in the documents or in the statement of S.I. Santosh Singh but the complainant Naval Singh PW-1 himself has said that he was present there at the relevant time but he has not made any statement about the recovery of the spade. From the analysis of the entire evidence on record, it transpires that the timing of arrest and recovery of the dead body and the spade as stated by the investigating officer S.I. Santosh Singh does not stand corroborated by the oral testimony of the public witnesses and there are major contradictions in this regard. According to public witnesses, the timing of recovery of the dead body and the spade is much before the arrest of the accused as disclosed in the documents which makes the recovery of the dead body and the spade at the pointing out of accused Karamveer highly doubtful.

25. The prosecution has also produced evidence of recovery of Rs.50,000/- cash at the pointing out of accused Karamveer from his sister's house at village Balghadi. Its recovery memo is Ex.Ka.-19. In the recovery memo, no time of recovery is mentioned. Investigating officer, Sub-Inspector Santosh Sinh(P.W.-10) has proved this recovery memo. His oral statement is also silent about the time of recovery. But from his statement, it appears that the said recovery has been made in the evening/night of 20.08.2012. According to Sub-Inspector Santosh Sinh(P.W.-10) after the recovery of the dead body and spade, the investigating officer prepared the recovery memo of the spade. He also prepared the site plan of the recovery place, collected blood-stained soil, and plain soil, sealed it in a container, and prepared its memo. He recorded the statements of inquest witnesses. Thereafter the investigating officer accompanying the police force, accused Karamveer, and witnesses Vittan and Vijan proceeded for Balghadi from where at the pointing out of accused Karamveer Rs.50,000/- cash was recovered from a purse kept in a box. Witness has further said that he prepared its memo on the spot, got it signed by the witnesses, provided a copy to the accused Karamveer, sealed the cash, and thereafter returned to the police station and deposited the cash and containers of blood-stained and plain earth in the Malkhana, vide G.D. entry No.41 at 20:10 hours. The aforesaid statement of Sub-Inspector Santosh Sinh(P.W.-10) is not supported by statements of witnesses of recovery memo Vittan and Vijan. Both the aforesaid witnesses have also not said about the time of recovery in their examination in chief. From their statements during cross-examination, it is established that the said recovery is not of the evening of 20.08.2012, as stated by Sub-Inspector Santosh Sinh(P.W.-10). Vittan (P.W.-6) in his cross-examination has said that Karamveer was brought by police at 9.00 AM Changing his aforesaid statement the witness has further said that Karamveer was brought to the police station from the village by the police. He does not know the date. He also does not know for how many days the police detained him. On the same day in the morning, they proceeded to Balghadi from the police station in a police vehicle. He and Vijan went to Balghadi with the police. At another place the witness has said that immediately after recovery they returned to the police station, its memo was prepared at the police station and their signatures were obtained on it. The witness has further said that they returned to the police station at 9.00 AM So according to this witness the recovery of the cash was made in the morning and no recovery memo was prepared on the spot. It was prepared at the police station, where signatures of witnesses were obtained on it. On this point, Vijan P.W.-3 in his cross-examination has said that on 20.08.2012 he was called to the police station in the morning. He along with Vittan reached the police station at 7.30 AM, stayed for some time there, and thereafter proceeded for Balghadi by a Jeep, reached Balghadi at 8.00 AM, half an hour was spent at Balghadi and returned to the police station at 9.00 AM. So according to this witness also the recovery of cash was made in the morning of 20.08.2012 and they returned at the police station at 9.00 AM, whereas, as stated above, according to prosecution version the accused was arrested at 12.05 PM on 20.08.2012. If it was so, the timing of recovery of cash comes prior to arrest of the accused,which renders the recovery of cash completely doubtful.

26. There are also other discrepancies and contradictions in the evidence of prosecution in this respect. Vittan (P.W.-6) has failed to answer relevant questions on this point and has shown his ignorance. He has failed to tell the distance of the village Balghadi from his village. He has also failed to tell the time of reaching Balghadi. He has failed to disclose the direction in which village Balghadi is situated.

According to the prosecution at the time of recovery, only Vijan and Vittan public witnesses were present, but other witnesses produced by the prosecution have also given evidence about the recovery of cash in their statements. Nawal Singh (P.W.-1), the complainant in his cross-examination has said that police has taken him to Balghadi by a Jeep. They reached Balghadi at 4.30 PM on 19.08.2012. He, Praveen, Vijan, and 4-5 police personnel were present. Only these persons have gone there. So this witness has not taken the name of Vittan, the other witness of the recovery memo, and instead, he has disclosed the name of Praveen as a witness whose presence is not mentioned either in the recovery memo Ex. Ka-19 or in the statements of other witnesses. The witness has further said that the cash was given by the sister of Karamveer from a box. Witness has further said that after taking currency notes they came back and a memo was prepared and notes were sealed at Kosikala. He also got it signed. The signature of this witness is nowhere on the recovery memo. Witness has further said that thereafter police along with him came to his village at about 4.00 PM and arrested Karamveer. Karamveer was arrested from the house in front of the witness. The aforesaid statement of the witness also demolishes the entire prosecution case of arrest of accused Karamveer and recovery of cash at his pointing out. Prahlad Singh(P.W.-2) in his cross-examination on this point has stated that Vijan and police have got recovered Rs.50,000/- from the house of Karamveer's sister at village Balghadi. Police have shown the cash and have not sealed it. So prosecution evidence regarding recovery of Rs.50,000/- cash at the pointing out of Karamveer from his sister's house at village Balghadi has major contradictions on material points and cannot be relied upon.

Gopal (D.W.-1) in his statement has only said that his son Karamveer was employed at the house of Narayan Singh on a monthly salary of Rs.3,000/- and Narayan Singh used to pay him accumulated salary in lump sum. He has further said that on 09.08.2012 his son Karamveer had given him Rs.50,000/-. After 9 to 10 days a policeman came to his house and said that his son has been detained so he should come with some money so that he may be released. On 19.08.2012 at 6.30 PM he came to Police Station, Kosikala, where the police settled for a sum of Rs.50,000/- to release his son. He paid Rs.50,000/- to the SO, Police Station, Kosikala who stated that his son will be released in the morning, but his son was not released. Later on, it came to his notice that the same currency notes were planted to show false recovery from his son. So the witness has not admitted the fact of recovery, he has only said that the money was paid by Narayan Singh (the deceased) to Karamveer in lieu of his salary. He has explained the entire facts about the payment of money and recovery.

The aforesaid statement cannot be treated as an admission of recovery of cash at the pointing out of accused Karamveer and it does not help the prosecution in any manner as from the evidence on record it is established that the alleged recovery of money is prior to the arrest of the accused and, therefore, insignificant. In the case of S. K. Yusuf v. State of West Bengal, AIR 2011 SC 2283, the Apex Court in paragraph no.26 has held:-

"Undoubtedly, a conviction can be based solely on circumstantial evidence. However, the Court must bear in mind while deciding the case involving the commission of a serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established."

27. According to the prosecution the incident occurred on 11.08.2012. The deceased left his house at 1.30 PM and he was last seen in the company of accused Karamveer and Vinod at about 01.30-02.00 PM According to post-mortem report (Ex.Ka.-6), the autopsy of the dead body of Narayan Singh was conducted on 20.08.2012 at 07.15 PM The Autopsy surgeon, doctor Lal Singh (P.W.-8), in this report has mentioned the duration of death, about three days. In his examination in chief, he has not disclosed the duration of death. Instead he stated that the cause of death was haemorrhage due to ante-mortem injuries, which may have come on 11.08.2012 from a spade. The opinion of the doctor that ante-mortem injuries may come on 11.08.2012 is not relevant because the autopsy surgeon cannot give any opinion about the time of infliction of ante-mortem injuries. He may give his opinion only about the time of death. In his cross-examination, doctor Lal Singh (P.W.-8) has categorically stated that according to his report the death of the deceased might have occurred about three days earlier. He has further said that if the death had occurred four days earlier then he should not have written it about three days earlier. He also said that the duration of three days may be two days or two & a half-day. So according to the statement of the Autopsy surgeon the death of the deceased would not have occurred more than three days earlier. This does not match with the timing of death as alleged by the prosecution and there is a big difference between the two.

28. From the analysis of the statement of P.W.-1 Nawal Singh, it is clear that the statement of this witness is highly inconsistent. The witness has changed his version regularly and has made contradictory statements at different places as per his convenience. The two reports lodged by him are also doubtful. The witness being the complainant and nephew of the deceased is also an interested witness and hence a cautious approach is required while scrutinizing his testimony. His statement does not fulfill the standard of reliability. The statements of witnesses of last seen evidence are also inconsistent and there are major contradictions in it and they are also not reliable. The evidence of recovery of the dead body, spade, and Rs. 50,000/- cash at the pointing out of Karamveer also becomes doubtful from the statement of the investigating officer, Santosh Singh PW-10. The timing of recovery of the dead body and spade and Rs. 50,000/- cash precedes the timing of the arrest and disclosure statement, which demolishes the entire evidence of recovery of the dead body, spade, and cash at the pointing out of the accused Karamveer. The conduct of the complainant Nawal Singh is also not above board. It is established from the evidence that the deceased has only three female issues and a suggestion has been put to him that to grab the property of his uncle he has falsely implicated the accused. In the circumstances of the case, this possibility cannot be ruled out.

29. From the analysis of prosecution evidence, it is clear that there is no evidence against the accused Vinod. With regard to accused Karamveer, there are serious infirmities in prosecution evidence. The statements of witnesses are highly inconsistent and there are major contradictions and discrepancies in it on material points. Due to the above reasons, the prosecution evidence is not reliable.

30. In C Chenga Reddy v. State of A.P., 1996 SCC (Crl.) 1205, it has been held:-

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn, should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

In the case of Satni Bai v. State of M.P., (2010) 2 SCC 646, the Hon'ble Supreme Court observed, thus:-

"It has been consistently laid down by this court, that when a case rests only on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable done and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances."

Therefore, there are various judicial pronouncements of the Hon'ble Apex Court, and the law is settled that the conviction can be based on circumstantial evidence, but those circumstances must be fully proved and must be conclusive in nature.

31. Applying the aforesaid proposition of law on the present set of facts and evidence we are of the opinion that the prosecution evidence is not of the standard as to say that the prosecution has succeeded in proving the charges beyond reasonable doubt. In the given circumstances, it will not be safe to rely on the prosecution evidence and it will be just and proper to extend the benefit of the doubt to the accused Karamveer.

32. Before parting with the judgment it appears necessary to make some observations with regard to latches on part of the investigating officer. Very surprisingly he has not recorded the statement of the wife of the deceased, who is a natural witness, because the deceased had gone from his house with cash. The investigating officer has only recorded the statements of the complainant Nawal Singh, the nephew of the deceased, and others and proceeded. He has also not interrogated the complainant about the information given in the missing report, in which it is stated that after receipt of some phone call, the deceased had left his house. Neither the mobile of the deceased has been recovered nor its call details record has been collected by the investigating officer. Even the accused has not been interrogated about the mobile of the deceased, while it is established from the prosecution evidence that the deceased was in possession of a mobile at the time of the incident. Further, from the evidence on record, it is fully established that the arrest of the accused as shown in the record by the investigating officer is wholly manipulated and it has destroyed the whole prosecution case. So there are serious latches on the part of the investigating officer and it appears that he has not performed his duty diligently and honestly.

33. The appeal stands allowed. The judgment and order of conviction dated 17.03.2015, passed by the Additional Sessions Judge, Court No. 4, Mathura, in Sessions Trial No. 254 of 2013 Crime No. 522 of 2012, Police Station Kosikala, District Mathura is hereby set aside. The appellant accused Vinod and Karamveer are hereby acquitted of the charges for which they have been tried and convicted.

34. The appellant Vinod is on bail. His bail bonds are hereby canceled and sureties stand discharged. He need not surrender, subject to compliance of the provisions of section 437-A Cr.P.C. The appellant Karamveer is in jail. He shall be set at liberty forthwith, if not wanted in any other case, subject to compliance of the provisions of section 437-A, Cr.P.C. The order be communicated to all concerned for necessary compliance.

35. Copy of the judgment and lower court record be transmitted to the trial court immediately.

 
Order Date :- 08.07.2022     
 
VKG
 

 
(Syed Aftab Husain Rizvi,J.)    (Manoj Misra,J.)