State Of Up vs Nanhe Lal And Another
2022 Latest Caselaw 14840 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on :08.08.2022
 
Delivered on: 21.10.2022
 
Court No. - 48
 
Case :- GOVERNMENT APPEAL No. - 71 of 2021
 
Appellant :- State of U.P.
 
Respondent :- Nanhe Lal And Another
 
Counsel for Appellant :- G.A.
 
Counsel for Respondent :- Dhananjay Singh
 
Hon'ble Suneet Kumar,J.

Hon'ble Syed Waiz Mian,J.

Per Hon'ble Syed Waiz Mian,J.

1. By means of this Government Appeal, on behalf of the State,

challenge has been made to the validity and legality of judgment and

order of acquittal dated 11.11.2020, having been passed by the

learned Additional Sessions Judge, Fast Track Court, Bareilly, in

connection with Session trial No. 275 of 2017, State vs. Nanhe Lal

and another, arising out of Case Crime No. 89 of 2017, under

Sections-302, 376, 394 and 411 I.P.C., Police Station-Bhamora,

District-Bareilly.

2. Heard Shri Vikas Goswami learned A.G.A. and perused the

record.

3. Brief facts emerge from the the First Information Report are that

the complainant presented a written complaint at the concerned

police Station, stating therein that he had solemnized marriage of his

daughter with one Morpal and thereafter, on the occasion of festival

of Holi she was present at her parental house on 15.03.2017; she

went to the house of accused respondent to watch television but she

did not return till the evening; search was made but she could not be

traced out; on 16.03.2017, at about 7 a.m. dead body of daughter of

informant was found in a wheat field near river.

4. On presentation of the application of complainant/informant a

criminal case being Case Crime No. 89 of 2017, under

Sections-302, 376, 394, and 411 I.P.C. Police Station-

Bhamaura, District-Bareilly, came to be registered against

one Nanhe Lal and his wife Smt. Nisha Devi.

5. Upon investigation, statements of informant, constable

and another were recorded on 17.03.2017. In charge, Sub

Inspector Ajab Singh, with police team, was patrolling in

search of the accused. On reaching Devchara, they got

information from the police informer that accused, who had

killed the deceased, are standing at Devchara square;

believing the information, I.O. Ajab Singh, along with his

police team, reached at the place where accused persons

were standing; upon inquiry one told his name as Nand Lal

and another Nisha Devi, R/o Village Sirohi, Police Station-

Bhamaura, District-Bareilly; they told that a criminal case,

against them, is registered, at the police station. With

regard to the occurrence it was apprised by the informant

that his daughter went to watch T.V. at their house;

accused admitted that Sunita d/o Veerpal, who lives in their

neighbour, had come to their house to watch T.V.; she was

wearing golden earrings (kundals) in her ears and one

locket on her neck; they out of greed, murdered the

deceased by strangulation by her Dupatta and snatched

jewellery from her and kept them in the Almirah placed in

the room; they had thrown her dead body in the wheat

field on 15.03.2017 at around 12 at night; to save them,

they offered the Investigating Officer and Police Team that

they can get recovered the jewellery wore by the deceased;

Investigating Officer and police team were brought by both

the accused to their house and they opened the room in

their house and the Almirah and the jewellery was got

recovered from there; the recovered articles were identified

by the Rajendra and Rajdulari and these articles were sealed

on the spot, in the presence of the accused as well as

witnesses; memo of recovery of articles was written and it

was signed by all the witnesses, accused, investigating

Officer and police constable etc, accompanying the

investigating officer.

6. Inquest of the dead body of the deceased was

conducted by the Sub Inspector, in the presence of Panchan

and he prepared an inquest report, Exhibit-Ka-3, to

ascertain the real cause of death of the deceased, dead body

along with necessary papers were forwarded for conducting

the autopsy on the dead body to District Mortuary,

wherein, autopsy was conducted, and an autopsy report,

Exhibit-Ka-9 by the Doctor was prepared. In this autopsy

report the details have been recorded and the cause of

death of the deceased has been opined as Asphyxia due to

strangulation.

7. During investigation, the investigating officer has

recorded the statements of rest of witnesses and accused

under Section 161 Cr.P.C.; during investigation clothes wore

by the deceased and her other belongings were also taken

so that scientific examination can be done and the same

were forwarded to Joint Director Forensic Scientific

Laboratory, Moradabad, and the office of Joint Director,

Forensic Science Laboratory, has sent examination report

dated 17.06.2017 (Exhibit-Ka-17) to C.O. Aonla (Bareilly)

which is on record.

8. On the strength of incriminating evidence collected by

the Investigating Officer, the investigating officer forwarded

a police report for offences punishable under Sections 302,

376, 394 and 411 I.P.C. against the accused Nanhe Lal and

Nisha Devi to the Court concerned.

9. Learned Chief Judicial Magistrate, Bareilly, upon

taking cognizance in exercise of powers enshrined under

Sections-190 (1) Cr.P.C. has found ample evidence under

aforementioned offences against both accused and thus took

cognizance and summoned the accused. After completing the

formalities, the learned Chief Judicial Magistrate, vide order

dated 11.08.2017 committed the criminal case which came

to be registered as criminal case No. 275 of 2017 to the

Court of District District and Sessions Judge, Bareilly, for

necessary action.

10. In the Court of District and Sessions Judge, the said

case was registered as S.T. No. 275 of 2017, which was

transferred to Additional Sessions Judge, Fast Tack Court,

and vide order dated 21.09.2017, charges for offences under

Sections 302/34, 376, 394 and 411 I.P.C. against both the

accused were framed the charges for offences under Sections

302/34, 376, 394 and 411 I.P.C. against both the accused,

they denied the charges and claimed trial, hence their trial

commenced.

11. In order to prove charges against the respondents,

under above sections of I.P.C. the witnesses P.W.-1 Veerpal,

informant who approved his written First Information

Report, P.W.-2 Rajdulari, P.W.-3 Rajendra, inquest report,

as exhibit Ka1-2, P.W.-5, Tejpal, also proved inquest report

and also identified his signature thereon and P.W.6

Yaduveer Singh, who proved First Information Report Chik

as Exhibit Ka-4 and G.D. Exhibit Ka-Kha-Ka 5, respectively,

were examined.

12. Thereafter, accused admitted the genuineness of

prosecution papers, however, vide Court order dated

11.09.2020 C.W. 1, Sub Inspector-Ajab Singh, was

summoned, who proved site plan of place of occurrence and

memo of recovery of articles as Exhibit Ka-7, Exhibit-Ka-8,

inquest report Exhibit-Ka 3, Foresnsic Science Laboratory

report, Exhibit Ka-17, two gold earrings as material Exhibit-

Ka-1, locket as material, Exhibit-Ka 2. Further, the accused

also admitted the genuineness of the police report and other

police papers as Exhibit Ka-6, to Exhibit Ka-16.

13. After closure of evidence, on behalf of the prosecution,

statements of accused under Section 313 Cr.P.C. were

recorded.

14. Accused Nanhe Lal and Smt. Nisha Devi stated that

the evidence of P.W.-1, and recovery memo and evidence of

P.W.-4, P.W. 5 are false. They further stated that the

recovered articles and other belongings of the deceased

were planted on account of enmity of political rivalry and

they have been falsely implicated in this case and they

declined to adduce any evidence in their defence.

15. Learned Additional Sessions Judge, Fast Track Court,

Bareilly, vide judgment and order dated 11.11.2020 did not

find sufficient evidence against the accused and extended

the benefit of doubt to the accused and accordingly,

acquitted them from the charges under aforementioned

offences.

16. Feeling aggrieved by the judgment and order dated

11.11.2020, rendered by learned Additional Sessions Judge,

Fast Track Court, Bareilly, instant Government Appeal on

behalf of the State of U.P. has been preferred challenging

the impugned judgment and order on the grounds that the

accused respondents have committed offences of murder,

rape and robbery and also stated that the robbed gold

articles were recovered at the instance of accused from the

Almirah kept in the room of their house and the same were

handed over to the Investigating Officer and police

personnel in the presence of the witnesses; learned lower

Court has not properly appreciated the evidence on record

and the impugned judgment and order is based on

conjuncture and surmises; the trial Court despite cogent and

clinching evidence against the accused has committed gross

illegality and perversity by acquitting the accused, thus, the

impugned judgment and order is erroneous in the eyes of

law and not sustainable, therefore, it is urged that the

impugned judgment and order dated 11.11.2020 be set aside

and respondent/accused convicted and sentenced in

accordance with law.

Analysis

17. P.W.-1 Veerpal, in his examination in chief recorded

on 09.11.2017 has stated that his daughter was married to

one Morpal and she had come to his house to celebrate the

festival of Holi; she had gone to the house of his neighbour

Nanhe Lal at about 1.00 p.m. to watch T.V. but till evening

she did not return, whereupon, he searched her daughter

but she could not be traced out; on the following day at

about 7 O clock, her dead body was found in the wheat

field near canal which flows in the western side of the

village. Under suspicion, that his neighbour Nanhe Lal and

his wife had murdered her daughter, he presented a written

First Information Report at the concerned police station.

18. P.W.-1, Veerpal states that he has not found jewellery,

which was wore by the deceased, on her dead body. In his

remaining examination in chief, P.W.-1 Veerpal, was

recorded before the learned Court below on 17.04.2019,

wherein, he had stated that the recovered jewellery articles

were not before him.

19. P.W.-1, Veerpal, in his cross examination which was

on 09.11.2017 has deposed that house of the accused is

opposite to his house and they enjoy good relation with

them; they also exchange visits to their houses; he has not

seen her daughter to have gone to house of Nanhe Lal to

watch Television. On his dictation one Raj Kumar had

written his First Information Report and Partibandi prior to

the alleged incident was existing between Nanhe Lal and

Rajkumar.

20. P.W.-1 Veerpal, next states that scribe Rajkumar is a

home guard, and was posted in Police Station-Bhamora;

Rajkumar, had said to him that he will write his First

Information Report; he, does not know as to what is written

in the First Information Report; in the First Information

Report he did not read that the murder of his daughter had

taken place in his presence; he had not told Rajkumar to

nominate accused Nanhe Lal and Smt. Nisha Devi; accused

cannot murder his daughter; his previous statement in the

Court was given due to fear of police and the statement he

is giving today is true because it is not the result of any

fear.

21. P.W.-1-Veerpal, who has got the First Information

Report written by Rajkumar has not mentioned in the First

Information Report that his daughter, in his presence on

15.03.2017 at around 1 p.m., had gone from his house, to

watch television, to the house of accused Nanhe Lal; he

has also not stated in his examination in chief that his

daughter had gone to the house of the accused in his

presence and in this connection he has specifically deposed

that he merely on the basis of suspicion had named both

the accused in the First Information Report; he in his cross

examination has categorically denied the involvement/

complicity of both the accused in the murder of his

daughter and he has deposed that accused are friendly to

him and enjoys good relations with them. He has said that

he can not even imagine that accused can kill his daughter.

P.W.-1 Veerpal has also admitted that out of enmity

existing between Raj Kumar and accused Nanhe Lal, prior

to alleged incident, Rajkumar at his own has noted the

name of both accused. P.W.-1 Veerpal has not cast doubt

upon accused about their complicity in the alleged

incident.

22. P.W.-1 Veerpal, in his entire testimony has not

deposed to have seen the commission of the incident.

23. P.W.-2, Rajdulari, who is wife of P.W.-1, Veerpal and

mother of the deceased states in her examination in chief

that she has not seen her daughter going to the house of

accused to watch Television; they had tried to search and

trace out their daughter as she had not returned to their

house till evening; on the following day her dead body was

found in the wheat field. She also has candidly denied in

her deposition that accused had killed her daughter by

strangulation.

24. P.W.-2 Rajdulari, on being declared hostile was on the

request of the prosecution put to cross examination,

wherein, she has specifically denied that her daughter had

gone to the house of accused to watch Television; however,

she admits that she had not seen her daughter while she

had gone out of their house; she also expresses her

ignorance as to who had called her daughter but she

unequivocally deposes that accused had not called her

daughter.

25. P.W.-5 Rajendra, also feigns ignorance in his statement

by saying daughter of his brother Veerpal had gone to the

house of the accused to watch Television because on that

date, he was out of the village and when he had returned

on the next day he had came to know about the dead body

of victim was lying in the wheat field. He also deposes that

it is true that his brother on the basis of suspicion has

registered the case against both accused.

26. P.W.-4 Rajkumar in his examination in chief has also

stated that his house is situated at a distance from the

house of Veerpal; On 16.08.2017 dead body of the deceased

was found in the wheat filed.

27. Like P.W.-3 Rajendra, P.W.-4-Rajkumar, as well has

turned hostile and they were also cross examined on behalf

of the prosecution but in their cross examination too, they

have not supported the prosecution story against the

accused.

28. P.W.-1-Veerpal, in his examination in chief, has

deposed that on the pointing out of the Nanhe Lal and Smt.

Nisha Devi, earrings (Kundal), which the deceased had wore

on the date of occurrence and one locket was also

recovered from the Almirah in the room of their house in

the presence of Rajendra and his wife Rajdulari and in this

respect both accused had confessed to have called his

daughter and they had also confessed that they had got

recovered the articles they had snatched from the deceased

Daroga Ji had prepared a memo of recovery, which was not

only witnessed by him but other police personnel

accompanied Daroga Ji were also present.

29. P.W.-1 Veerpal, had also stated that the memo of

recovery, paper No. 6Ka/A was prepared in his presence

and after being readover he had signed the said paper. He

also next states that the recovered jewellery was also taken

by Daroga Ji, in his possession and the same was sealed at

the place of recovery.

30. Due to paucity of time complete statement of P.W.-1

Veerpal could have not been recorded on 09.11.2017,

therefore, for remaining statement he was again examined

on 17.04.2019 and in his cross examination he contradicted

his aforementioned statement given in his examination in

chief by saying that on the pointing out of accused Nanhe

Lal and Smt. Nisha Devi no recovery of jewellery,

belongings of his daughter, was made in his presence; nor

Daroga Ji had prepared recovery memo in his, or his wife,

or in presence of his brother; Daroga Ji had taken their

signatures and thumb impression on a plain paper.

31. He also denies that the recovered articles were sealed

in his presence. He also expresses his ignorance as to how

the memo of recovery came to be written, as such, P.W.-1,

Veerpal, with regard to alleged recovery of jewellery and,

belongings of the deceased, has given contradictory and

inconsistent statement.

32. P.W.-2 Rajdulari, P.W.-3 Rajendra and P.W.-4

Rajkumar, have also made somersault over their statements

stated to have been recorded by the Investigating Officer,

during investigation and have stated that Daroga Ji, during

investigation, did not record their statements and no

recovery of jewellery etc. was made in their presence by

Daroga ji, on the pointing out of the accused. These

witnesses have also claimed in their ocular evidence that

their signatures/ thumb impression were having been taken

by Daroga Ji on a plain paper and they also deny the

memo of recovery to have been written in their presence by

Daroga Ji.

33. It transpires from the analysis and scrutiny of the

ocular evidence of P.W.-1 to P.W.-5 that none of them have

admitted to have seen the deceased, to have gone in their

presence, to the house of accused to watch T.V. and have

also denied that the deceased was strangulated or killed by

the accused. All witnesses of facts have also categorically

denied the complicity of the accused in alleged incident.

34. All the witnesses have also admitted in their ocular

evidence that they are on good terms with accused.

35. Hon'ble Apex Court has observed consistently that in a

criminal case based on the strength of circumstantial

evidence, chain of circumstances must be complete and on

completion of such chain only one conclusion can be drawn

that it is only the accused who had committed the crime.

36. In Suraj Singh vs. State of U.P., reported in 2008 (11)

SCR 286 the Hon'ble Apex Court has held as follows:

"The evidence must be tested for its inherent consistency and the

inherent probability of the story; consistency with the account of

other witnesses held to be creditworthy; consistency with the

undisputed facts, the "credit" of the witnesses; their performance in

the witness box; their power of observation etc. Then the probative

value of such evidence becomes eligible to be put into the scales for a

cumulative evaluation."

37. In C. Magesh & Ors.v/s State of Karnataka, Criminal

Appeal Nos. 1028-1029 OF 2008, decided On 30 April

2010, the Apex Court has held as under:

"In a criminal trial, evidence of the eye witness requires a careful

assessment and must be evaluated for its creditability. Since the

fundamental aspect of criminal jurisprudence rests upon the stated

principle that "no man is guilty until proven so", hence utmost

caution is required to be exercised in dealing with situations where

there are multiple testimonies and equally large number of witnesses

testifying before the court. There must be a string that should join the

evidence of all the witnesses and thereby satisfying the test of

consistency in evidence amongst all the witnesses."

38. Section 27 of the Evidence Act laws down as follows:

"When any fact is deposed to as discovered in consequence of

information received from a person accused of any offence, in the

custody of police officer, so much of such information, whether it

amounts to a confession or not, as relates distinctly to the fact

thereby discovered, may be proved."

39. Hon'ble Apex Court in Silash Singh Kurid vs. The

State, reported in 2018 Cr.L.J. 3944 had held that;

" Where no eye witness is available in a murder case and the case is

only based on circumstantial evidence, recovery of weapon and

evidence on the basis of disclosure of the accused alone would not

automatically lead the conclusion that offence was also committed by

the accused. Ho'ble Supreme Court further held that in fact burden

lies on the prosecution to establish close link between the discovery of

the material objects and its use in the commission of offence and

what is admissible under Section 27 of the Evidence Act is the

information leading to discovery and not any opinion formed on it by

the prosecution."

40. Present case rests upon the circumstantial evidence. In

the case of Sharad Birdhi Chand Sarda vs. State of

Maharasthra (1984) 4 SCC 116, in paragrah 153, Hon'ble

Apex Court has laid down five golden principles

(Panchsheel). Para 153 is reproduced as follows:

"A close analysis of this decision would show that the following

conditions must be fulfilled before a case against an accused can be

said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be

drawn should be fully established.

It may be noted here that this Court indicated that the circumstances

concerned 'must or should' and not 'may be' established. There is not

only a grammatical but a legal distinction between 'may be proved'

and 'must be or should be proved' as was held by this Court in

Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the

following observations were made:

"Certainly, it is a primary principle that the accused must be and not

merely may be guilty before a court can convict and the mental

distance between 'may be' and 'must be' is long and divides vague

conjectures from sure conclusions."

(2) The facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say. they should not

be explainable on any other hypothesis except that the accused is

guilty.

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

(4) they should exclude every possible hypothesis except the one to be

proved, and

(5) there must be a chain of evidence so complete as not to leave any

reasonable ground for the conclusion consistent with the innocence of

the accused and must show that in all human probability the act must

have been done by the accused."

41. C.W.-1, Ajab Singh, Investigating Officer, deposed in

support of the memo of recovery but that does not find

corroboration from any witness of fact, on the contrary

P.W-1 to P.W.-4 have categorically denied the alleged

recovery of belonging of the deceased from the Alimarh in

the room of the house of the accused. They have also

deposed that their signatures, thumb impression were taken

by Daroga Ji on plain paper, therefore, it is not safe and

expedient in the interest of justice to place reliance upon

the testimony of C.W.-1 to the extent that conviction of the

accused for offences under afore stated sections could be

held.

42. P.W.-1 to P.W.-4, in their cross examinations have

said that it would be wrong to suggest that they are not

supporting the prosecution case on account of any

compromise having been arrived at between them and

accused.

43. P.W.-6, H.M. 474 Yaduvir Singh, has proved First

Information Report Chik and copy of GD as Exhibit Ka-4

and Ka-5 thus only the First Information Report Chik and

G.D. stand proved, however, the deposition of this witness

does not help to prove charges against the accused.

44. This case rests on circumstantial evidence; no witness

has come forward to depose that she or he had seen the

deceased going to the house of the accused-respondent to

watch Television. Even P.W.-1, Veerpal, on whose instance

First Information Report came to be lodged and crime was

investigated has turned hostile and he has not supported the

allegations in this respect contained in his written First

Information Report. P.W.-2 Rajdulari w/o P.W.-1 has also

turned hostile. It has also emerged from the above

discussion that independent witnesses have also turned

hostile and these witnesses in their cross examination have

not stated any thing which may support the prosecution

story. Even the witnesses, stated to have seen the alleged

recovery of jewellery, said to have been worn by the

deceased have not supported the prosecution story.

However, the recovery memo, prepared by the Investigating

Officer who stated that the alleged recovery was made, at

the instance of the accused, from the Almirah in a room

owned by accused. P.W.-1 is an interested witness of fact,

has not supported his evidence, declared hostile, therefore,

alleged recovery of articles from the Almirah of the accused

is also not proved.

45. In the light of foregoing discussion, we are of the

opinion that learned trial Court has held and recorded the

findings on considering each and every aspect of the case,

both factual, as well as, legal. In this case, there is no

worthy evidence which may connect the accused with the

commission of crime except the testimony of CW-1 Ajab

Sigh, I.O., thus, we find that the impugned judgment and

order dated 11.11.2020, passed by the learned Additional

Sessions Judge, Fast Track Court, Bareilly, in connection

with Session trial No. 275 of 2017, is not erroneous or

perverse and we also find that the same is sustainable in

the eyes of law.

46. Accordingly, the judgment and order dated 11.11.2020,

passed by the learned Additional Sessions Judge, Fast Track

Court, Bareilly, in Session trial No. 275 of 2017, State vs.

Nanhe Lal and another, arising out of Case Crime No. 89 of

2017, under Sections-302, 376, 394 and 411 I.P.C., Police

Station-Bhamora, District-Bareilly is affirmed and upheld.

47. In the result the instant appeal is dismissed.

48. Registry to return the record to the Court below along

with this order.

Order Date : 21.10.2022

Deepak/

(Suneet Kumar, J.)

(Syed Waiz Mian, J.)