Ramswaroop And Another vs State Of U.P.
2022 Latest Caselaw 12913 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 4093 of 2015
 
Appellant :- Ramswaroop And Rambabu
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rakesh Dubey,Lal Mani Singh,Manu Raj Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per Hon'ble Dr. Kaushal Jayendra Thaker, J)

1. This appeal is preferred against the judgment and order dated 03.09.2015 and 07.09.2015 passed by Additional District & Sessions Judge, Court No.1, Kanpur Nagar in S.T. No. 154 of 2009 arising out of Crime No. 439 of 2007 under Section 302 read with 34 I.P.C. at P.S.- Ghatampur, Kanpur Nagar whereby the appellants have been convicted under Section 302 read with 34 I.P.C. and sentenced to life imprisonment and have also awarded fine of Rs.20,000/- each in default thereof, 6 months additional imprisonment is awarded against them. It is further directed that all the sentences awarded against them are run concurrently.

2. The brief facts of the case as culled out from the record are that the informant had kept the criminal machinery into motion after the learned Magistrate passed orders under Section 156 (3) of Cr.P.C. The informant belonged to Ghatampur, District- Kanpur Nagar. He had a brother Kalicharan who was unmarried and was staying with the informant and the informant used to look after him. On 2nd of December 2006 an application under Section 156 (3) of the Cr.P.C. was given, however the death had occurred much before that and the post mortem report is of 10th November 2006. After an order under Section 156 (3) of Cr.P.C the police proceeded to treat it as an FIR but before that police had already started investigation. The incident occurred on 9/10.11.2006. Apart from this the informant informed that his brother Kalicharan who was unmarried from the beginning was staying with the informant. The informant had gone to his another daughter on 9.9.2006 and that time Kalicharan, Rajesh, Lotan, Ram Babu, Phul Singh kidnapped his brother Kalicharan despite protest of his other dauther Prema and did not permit her to meet his brother Kalicharan. Kalicharan was about 85 years of age and he was not mentally stable. The informant had a fear that the accused and the other persons may not by force make Kalicharan enter into an agreement of sale for which the informant had moved to the Civil Judge and also got it published in the news papers. It is informed that after Kalicharan was abducted he was kept at an unknown place. The informant tried to search for his brother but he could not find him. On 28.9.2006 the accused after threatening his brother got a forged agreement to sale. On 9/10.11.2006 at night so that Kalicharan may reveal that the agreement to sale was entered into by coercion they administered poison and he died. On coming to know about the death of his brother the informant informed the nearby chowki and post mortem and panchayatnama were prepared but the G.D. entry never culminated into FIR for the reasons best known to the police authorities and the accused were neither napped nor the FIR was lodged. He had strong belief that all the accused had killed his brother. A letter was even written to the Superintendent of Police on 15.11.2006 of Kanpur Nagar by registered post A.D. but his report has not culminated into any further investigation. This was treated as an FIR much after the investigation had started and post mortem was already with the police, panchayatnama was also prepared. The informant had moved the learned Judge on 2.12.2006 who kept the matter pending and after a long duration directed inquiry under Section 156 (3) Cr.P.C.

3. Pursuant to the said FIR the police submitted the charge sheet before the concerned Judicial Magistrate. The accused being summoned was committed to the Court of Sessions as the case was triable exclusively by the Court of Sessions.

4. The accused on being read over the charge with commission of offence under Section 147, 302/149, 368/364 I.P.C. On 24.7.2010 pleaded not guilty and wanted to be tried.

5. The prosecution so as to bring home the charges, examined 8 witnesses, namely:-

1.

Shiv Charan Yadav

PW1

2.

Kaptan Singh

PW2

3.

Smt. Prema Devi

PW3

4.

Balwan Singh

PW4

5.

Dr. Ashok Chandra

PW5

6.

Hriday Narayan Tiwari

PW6

7.

Mahesh Chandra

PW7

8.

Dori Lal

PW8

6. The accused was examined under Section 313 of Cr.P.C. by putting evidence against him. Accused denied the evidence against him. In his defence the accused examined two witnesses, namely, Monu (DW1) and Rameshwar (DW2).

7. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:-

1.

F.I.R.

Ex.Ka-9

2.

Application U/S 156 (3) Cr.P.C.

Ex.Ka-1

3.

Post Mortem Report

Ex.Ka-2

4.

Panchayatnama

Ex.Ka-3

5.

Papers for post mortem

Ex.Ka-4 to Ka-7

6.

Letter to CFL

Ex. Ka-8

7.

FIR

Ex.Ka-9

8.

G.D.

Ex.Ka-10

9.

Site plac

Ex.Ka-11

10.

Charge-Sheet

Ex.Ka-12

8. Heard Shri Lal Mani Singh, learned counsel for the appellants, Shri Mishra learned A.G.A.for the State as well as perused the record.

9. It is submitted by Shri Lal Mani Singh, learned counsel for the appellant that Ram Swaroop who is arrayed as the main accused and who had conspired the death of the deceased, is no more and that is an admitted position of fact. As far as the accused who is alive is concerned the only set of evidence against him is that he occasionally used to come home and, therefore also he has been arrayed as an accused and that is why he is punished and he is in jail since more than 7 years and during trial he was on bail. The FIR is lodged after more than 8 months of the occurrence and no post mortem report is produced on record. It is submitted that it is a case of circumstantial evidence and chain does not point out at the guilt of accused and the accused alone who is in jail. The general allegations against the accused who is in jail on the set of evidence is the same on which the other three accused who have been acquitted. It is submitted by Shri Lal Mani Singh that the said evidence is led against the accused who is alive.

10. In the cross examination P.W.1, the complainant has accepted the fact that if properties are given to him which belong to his brother he would compromise the matter.

11. It appears that application under Section 156 (3) was an after thought as it was filed after 8 months. Provisions of Section 156 (3) Cr.P.C. read as under:

156. Police officer' s power to investigate cognizable case.

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.

12. P.W.1, who is the original informant in his ocular version has stated that on 9.9.2006 five people Rajesh, Lotan, Ram Babu, Phool Singh and Ram Swaroop had come to his residence and despite the fact that his daughter objected they took Kalicharan who was 85 years of age, with them. The genesis of taking the brother with them was a peace of land which belonged to both, the informant and Kalicharan. He even informed the Tehsildar about this. On 9th at night all the five named persons were trying to take the dead body of the deceased and they were stopped by that after his relatives came and the dead body could not be taken. When his relatives came they saw that the body had become greenish. It is further alleged in the ocular version that on 28.09.2006 a forged agreement to sale was entered into by the accused with the deceased. On 9/10.11.2006 despite the fact that information was given to the police authorities, he with the aid of his advocate, as his FIR was not lodged, moved the Chief Judicial Magistrate, Kanpur Dehat. The application under Section 156 (3) Cr.P.C. was numbered as 754/2006. He recognized the said document which he had got typed and he has identified his thumb impression on the said document which thereafter was exhibited. In his cross examination he has accepted that Shiv Charan, Kalicharan and Mangli are real brothers and are children of Umrao Yadav, who is no more. Kalicharan had not married. Accused Ram Saran is the son of Mangli and Ram Swaroop has four children Rajesh, Lotan, Ram Babu and Phool Singh, all the four are married.

13. According to the informant Kalicharan was about 10-11 years elder to him. Between his house and house of his elder brother Mangli, there was only one residential house and residence of the Kalicharan was between the house of Mangli and the informant. Ram Swaroop used to stay in the old house of Mangli and it is in the possession of Ram Swaroop. The informant has negatived all the suggestions put to him that there was a bad relation between him and Kalicharan and it was he who wanted the property of Kalicharan. He has in his cross examination affirmatively mentioned that Ram Swaroop got Kalicharan's property registered in his name. The evidence of this witness except narrating his family dispute does show that he has not even seen the deceased been taken away by any of the accused. According to his cross examination Kalicharan was not sick, he could walk but according to him he was not mentally stable, however, no medicine or treatment was being taken. He has denied the fact that Kalicharan was being taken to hospital. He has accepted the fact that if Ram Swaroop and his children give the property to him he would withdraw the litigation. It is accepted by him that when settlement did not take place, he filed the application under Section 156 (3) Cr.P.C. which was also after considerable period of time. Kaptan Singh who is the near relative of informant has deposed as P.W.2.

14. It is submitted by Shri Mishra, learned counsel for the State that the role is assigned to all accused persons as Section 147 and 149 I.P.C. are also invoked and there was a common object to do away with the deceased. The plan was to get the properties and the rights to the properties belonging to deceased.

15. It is submitted by Shri Mishra, learned A.G.A that the evidence of P.W.-3 clinches the issue, who has in his ocular version before the Court stood by his statement recorded Section 161 Cr.P.C. that the accused took the deceased from his home and after about 12 days administered poison to the deceased who died due to consuming poison. It was a homicidal death as per post mortem report and the dead body was found from the house of Ram Swaroop, therefore, according to Shri Mishra the provisions of Section 106 of Evidence Act have been rightly made applicable by the learned trial Judge and this Court should concur with the Court below.

16. Shri Lal Mani Singh, learned counsel for the appellant relies on the following judgements:

(i) In Anwar Ali and another vs. State of Himanchal Pradesh, (2020) 10 SCC 166, it was held by the Supreme Court that in case of circumstantial evidence, circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the cirme was committed by the accused and by none else and the circumstantial evidence in order to sustain the conviction must be complete and incapable of explanation to any other hypothesis than that of a 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. He has also relied on following judgements:

(ii) Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan (2013) 5 Supreme Court Cases 722

(iii) Rohtash Kumar Vs. State of Haryana JT 2013 (8) SC 181

(iv) Malleshappa Vs. State of Karnataka 2007 (4) Crimes, Page 112 (SC)

(v) Vikramjit Singh @ Vicky Vs. State of Punjab 2006 (12) SCC 306

17. In a case based on circumstantial evidence, motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning [See Kundula Bala Subrahmanyam and Anr. v. State of AndrhaPradesh [Jt 1993 (2) SC 559 : 1993(2) SCC 684]].

18. This case, as per the factual matrix, would go to show that the case of the prosecution rests on circumstantial evidence, the circumstance from which an inference of guilt is sought to be drawn, has to be cogently and firmly established. They must be of definite tendency which would point to the guilt of the accused and accused alone, the circumstances which would be taken cumulatively must and must form a chain unbroken and no escapism from the conclusion that the crime was committed by the accused and accused alone has to be proved. This principle has been annunciated way back by the Apex Court in the case of Padala Veera Reddy v. State of M.P. reported in JT 1989 (4) SC 223.

19. While considering the facts of the case in Kanti Lal Vs. State of U.P. , criminal appeal no. 2183 of 2020 one of us has held as follows:

..... 15. This is a case which hinges on circumstantial evidence as well as the oral testimony. The death of the deceased can be said to be homicidal death which was proved by the medical evidence and there is no doubt in our mind that the weapon used was scissor which was found near the dead body. Having answered the first question in favour of the prosecution, we would now venture on the other two questions namely (a) whether it was the accused and accused alone who by chain of circumstances is proved to have committed the murder and (b) can we hold the accused guilty only on the basis of suspicion? It is on record that P.W.2 to P.W.5, who are family members of deceased and in-laws of the appellant, have not supported the prosecution evidence and they have been declared hostile. It is rightly submitted by learned A.G.A. that the evidence of hostile witnesses as far as it supports prosecution can be looked into. From the depositions of the prosecution witnesses who are hostile and that of P.W.1 who takes different stand even before the Court below, only one thing emerges that the accused was found at the house of deceased which was the house of his in-laws but would that be sufficient to convict him? The other chain of evidence is absent. We are unable to persuade ourselves that the finding of fact recorded by the Court below that the accused was the only person who was concerned with the crime and the chain of circumstances unequivocally points at him and him alone, is correct. Statement of the accused under Section 313 Cr.P.C. has also not been considered by the Court below.

20. We can safely rely on the decision of the Gujarat High Court in Criminal Appeal No. 437 of 2003 (Chetankumar Dahyabhai Patel Vs. State of Gujarat) decided on 3.9.2013 where in the Court has held as under:

"16. Thus, from the discussion of the evidence of the aforesaid witnesses following aspects emerges;

(1) Nobody has seen the crime actually being committed;

(2) There is no material on record to suggest that whether Sonali has expired or not or whether the death of Sonali was accidental, suicidal or homicidal;

(3) The case of the prosecution is based solely on the alleged disclosure made by the appellant, while he was in custody of the police in connection with the complaint made by P.W.-1;

(4) Even, as per the evidence of P.W.-8, when he made inquires about the discovery of body of a female from the river about the time of the incident, he was informed that no such body was discovered during the said time period and the aforesaid fact shakes the very basis of the case of the prosecution that the appellant had pushed Sonali from over the bridge;

(5) Though, P.W.-8 stated, in his evidence, that he had recorded the statement of the Manager of Relief Theater, Bharuch, to verify the aspect of running of movie "Meri Aan" on the date of the alleged offence, the Manager was not examined as a witness. Moreover, though, P.W.-8 stated that he had obtained evidence with regard to absence of the appellant from his duty on the date of the alleged incident, there is neither any document produced on the record of the case nor any witness was examined by the prosecution to establish the said aspect;

(6) P.W.-1 failed to explain as to why he did not made any inquires about Sonali for two years and as to what prompted him to lodge the complaint, Dated : 20.04.1996, after a period of about two years before the PI,Ankleshwar;

(7) In view of the fact that the body of Sonali was never recovered, it was incumbent on the prosecution to show as to on what basis Section 302 of the IPC was applied against the appellant;

(8) The prosecution has not been able to prove, even, the aspect of lastseen together, since, there is no witness was examined nor any material was produced to establish the same;

(9) The prosecution has not been able to establish the motive for the crime. Insofar as the aspect of doubt about the character of Sonali on the part of the appellant is concerned, there is no material on record was produced to substantiate the same.

Moreover, though, in the complaint it is stated that on the date of the alleged offence, the appellant had spotted Sonali talking with some unknown male at Relief Theater, Bharuch, which prompted him to commit the alleged offence, the aforesaid male was not examined by the prosecution to establish the said fact, and thus, the motive for commission of the alleged offence by the appellant remains shrouded in mystery.

17. Thus, from the above discussion it becomes clear that merely relying on the confession alleged to be made by the appellant, while he was in custody of P.W.-8, the trial Court came to the conclusion that the appellant was guilty of the alleged offence. It is very well-known that a statement made by an accused before the police, while in custody of police,cannot be used against him. We are, therefore, of the opinion that the trial Court committed an error in solely relying on the alleged statement made by the appellant before the police, while in custody of police. It is no doubt true that there are certain circumstances, which raises suspicion about the involvement of the appellant in the alleged offence. But, there is a well settled principle of law that the suspicion howsoever strong it may be, cannot be substituted for the evidence. In the case on hand, in view of the above discussion, it cannot be said that the chain of events stands completed and it points towards the guilt of the appellant only and that it is not possible to take a different view, then, the one taken by the trial Court. We are,therefore, inclined to accept the submissions made by Mr. A. D. Shah, learned Sr. Advocate for the appellant that the appellant requires to be granted the benefit of doubt.

18. In the result, the appeal is ALLOWED. The judgment and order of the trial Court, Dated : 05.04.2003, rendered in Sessions Case No. 134 of 1998, is quashed and set aside. The appellant - original accused is given the benefit of doubt and is ordered to be acquitted. The appellant is on bail, and hence, his bail bond stands canceled. The amount of fine, if any, paid, be refunded to the appellant. A copy of this order be sent to the concerned jail authorities, immediately."

19. One more aspect which goes to the root of the matter is that there is no forensic expert's evidence which would show that the scissors was used by the accused and accused alone.

20. In this case there is no eye witness, rather, P.W.1 nowhere states in his deposition that the appellant had run away with the bloodstained clothes from the residence of P.W.1. The reliance by Trial Court on the judgment in Salim Vs. State of U.P., J.I.C. 2010 (1) (Alld.) 44 is also bad in eye of law as, in the case in hand, no one has seen the appellant to have fled away with bloodstained clothes.

21. Looking into the factual scenario as it emerges from the aforesaid judgements, allegations against the present appellants are not proved. No one has seen them with the old man of 85 years. Therefore, the criminal appeal is liable to be allowed and the conviction is liable to be set aside as the reasoning given by the learned Judge cannot be accepted. The judgement of Kanti Lal (supra) will endorse the benefit to the appellants, however, the learned trial Judge has tried to show that the chain was complete but in our opinion the same has missing links and the accused are required to be acquitted.

22. The criminal appeal is, accordingly, allowed. The conviction is set aside. The appellant-Ram Babu is acquitted from the charges. He be released forthwith, if not needed in any other offence. The main culprit, Ram Swaroop if, at all, has already passed away.

23. Record and proceedings be sent back to the trial Court.

Order Date :- 14.9.2022

Fhd