Vishwa Nath And Others vs State Of U.P.
2023 Latest Caselaw 6022 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on: 01.02.2023
 
Delivered on: 24.02.2023
 
Court No. - 14
 

 
Case :- CRIMINAL APPEAL No. - 88 of 1998
 

 
Appellant :- Vishwa Nath And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Subodh K.Shukla
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Suresh Kumar Gupta,J. 

1. This criminal appeal has been filed under Section 374 (2) Cr.P.C. against the judgment and order dated 17.12.1997 passed by Additional Sessions Judge IVth, Bahraich in Sessions Trial No. 41 of 1996 relating to Police Station- Kaiserganj, District- Bahraich, whereby convicted and sentenced the appellants for the offence under Section- 201 I.P.C. for four years simple imprisonment with fine of Rs. 2,000/- each and in default of payment of fine, two months additional imprisonment each.

2. During pendency of the appeal, the appellant no.2 namely, Lalta died and as such the appeal has already been abated qua him vide order dated 29.1.2020.

3. The prosecution story, in brief, is that the complainant Panchu Prasad lodged the FIR against the accused-appellants with the allegations that on 6.9.1994, his nephew (Bhanja) namely, Harnam resided in the house of the first informant since childhood. Before fourteen days of the lodging of the FIR, the nephew of the first informant was taken away from home by the accused-appellant Vishwanath. Till that day, the said nephew of the first informant did not return. When the grand mother (Nani) of the nephew asked the accused-appellant about her grand son Harnam, then he clearly refused saying that he did not take away the nephew of the first informant. On this allegation, on the basis of written report the FIR was registered against the accused-appellants as suspected accused U/s 344,347,506 IPC on 13.11.1994 at 10.50 Hours.

4. During course of investigation, on the basis of exculpatory statement of the appellants before Village Pradhan Rajendra Prasad, in which the appellant confessed his guilt, the case was converted U/s 364,506 IPC. In presence of the witnesses namely, Rajendra Prasad and Ram Gopal, skeleton of the deceased was recovered, which was duly identified by cloth and watch of the deceased worn by him. During course of confession, the appellant stated that on his pointing out, the dead body was taken out from the pit, which was duly identified on the basis of cloth and watch worn by the deceased Harnam. Thereafter, recovery memo was prepared on the spot by the investigating officer. A signature of the appellant as the recovery witnesses was put on recovery memo and on the same day, the investigating officer proved the recovery memo as Ex-ka-3. During course of investigation, the investigating officer collected the clay of the agricultural field and on the same day, inquest report of the deceased as Ex-ka-5 and papers relating to the postmortem were prepared as well. The site plan regarding the place of recovery was also prepared and proved as Ex-ka-8 and Ex-ka-9.

5. After collecting the entire evidence, the charge-sheet against the accused-appellants was submitted U/s 364,302,201,506 IPC before the CJM on 1.12.1995. Thereafter, the case was committed to the court of sessions where it was registered as S.T. No. 41/1996 and ultimately, it was transferred to court of Additional Sessions Judge. The charges were framed against the appellants namely, Vishwa Nath, Lalta and Dukhi Ram U/s 364,302/34,201 IPC. The charges were read over to the accused-appellants in Hindi, but they denied the charges levelled against them and claimed to be tried.

6. The prosecution in order to prove its case following prosecution witnesses were examined:

(i) PW-1, Mahraja who is the grand mother (Nani) of the deceased. She clearly stated that on pretext of visiting fair, the appellants and other co-accused took away the deceased Harnam and after three months of the alleged incident, the dead body of the deceased was recovered from the sugarcane field. Thus, she fully supported the prosecution version.

(ii) PW-2, Paras Nath (villager), who did not support the prosecution version and was declared hostile.

(iii) PW-3 Panchu Prasad who is the first informant as well as maternal uncle (Mama) of the deceased. He stated that on pointing out of the appellants, he recovered the dead body/skeleton of the deceased Harnam in the sugarcane filed and the deceased was identified on the basis of cloth and watch worn by him.

(iv) PW-4, Rajendra Prasad who is the erstwhile Village Pradhan of Village- Burhanpur. He supported the prosecution version and stated that the appellants by force took away the deceased on pretext of visiting fair and they hid the dead body. He further stated that the skeleton of the deceased was recovered from the sugarcane field in presence of the witnesses. In the exculpatory statement, the appellants confessed their guilt in presence of police persons.

(v) PW-5, Dr. S.P. Pathak who conducted the postmortem of the skeleton of the deceased. The Doctor stated that the dead body was recovered from the sugarcane field in decayed condition. The bones, hand and foot of the dead body were missing. On perusal of the bones, the age of the deceased was found to be 25 years. No any internal injury was present. Only bundle of skeletal bones was present and the dead body wore shirt, vest, dhoti and under garments. The doctor proved the postmortem report as Ex-ka-5 and opined that cause of death could not be ascertained.

(vi) PW-6, Jagmal Singh, Investigating Officer who conducted the investigation and prepared all the police papers.

7. Thus, the prosecution relied on the oral evidence of PW-1 to PW-6 as well as documentary evidence of Ex-ka-1 to Ex-ka-12.

8. After completion of the prosecution evidence, the statement of the appellants was recorded U/s 313 CrPC in which they stated that all the evidence adduced by the prosecution is totally wrong and they have been falsely implicated in the case by the first informant due to enmity with the Village Pradhan Rajendra Prasad. However, the appellants did not choose to lead any evidence in their defence.

9. Learned counsel for the appellants submitted that there was neither circumstantial nor direct evidence available against the appellants. It is further submitted that in order to establish the charge U/s 201 IPC, it is essential to prove that an offence has been committed to that extent that the accused knew or had reason to believe that such offence had been committed and with the requisite knowledge. In support of his submissions, the learned counsel has placed reliance on the judgement of the Apex Court in the case of Palvinder Kaur vs. The State of Punjab (I), AIR 1952 SC 354, the relevant paragraphs of which are being reproduced hereunder:

"14. In order to establish the charge under section 201, Indian Penal Code, it is essential to prove that an offence has been committed-mere suspicion that it has been committed is not sufficient,that the accused knew or had reason to believe that such offence had been committed- and with the requisite-knowledge and with the intent to screen the offender from legal punishment causes the evidence thereof to disappear or gives false information respecting such offences knowing or having reason to believe the same to be false. It was essential in these circumstances for the prosecution to establish affirmatively that the death of Jaspal was caused by the administration of potassium cyanide by some person (the appellant having been acquitted of this charge) and that she had reason to believe that it was so caused and with that knowledge she took part in the concealment and 'disposal of the dead body. There is no evidence whatsoever this point. The following facts, that Jaspal died, that his body was found in a trunk and was discovered from a well and that the appellant took part in the disposal of the body do not establish the cause of his death or the manner and circumstances in which it came about. As already stated, there is no direct evidence to prove that potassium cyanide was administered to him by any person. The best evidence this question would have been that of the doctor who performed the postmortem examination. That evidence does not prove that Jaspal died as a result of administration of potassium cyanide. the other hand, the doctor was of the opinion that there were no positive postmortem signs which could suggest poisoning. He stated that potassium cyanide being corrosive poison, would produce hypermia, softening and ulceration of the gastro-intestinal track and that in this case he did not notice any such signs. He further said that potassium cyanide corrodes the lips and the mouth, and none of these signs was the body. This evidence (1) [1952] S.C.R, 1091 therefore instead of proving that death was caused by administration of potassium cyanide, to the extent it. goes, negatives that fact.

16. The statement read as a whole is of an exculpatory character. It does not suggest or prove the commission of any offence under the Indian Penal Code by any one. It not only exculpates her from the commission of an offence but also exculpates Mohinderpal. It states that the death of Jaspal was accidental. The statement does not amount to a confession and is thus inadmissible in evidence. It was observed by their Lordships of the Privy Council in Narayanaswami v. Emperor (1) that the word "confession" as used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. A confession must either admit in terms the offence, or at any rate substantially all the 'facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively, incriminating fact, is not of itself a confession. A statement that contains self-exculpatory matter 'cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed. In this view of the law the High Court (1) (1939) 66 I.A. 66; A.I.R. 1939 P.C. 47: was in error in treating the statement of Palvinder as the most important piece of evidence in support of the charge under section 201, Indian Penal Code. The learned Judges in one part of their judgment observed that strictly speaking exculpatory statements in which the prisoner denies her guilt cannot be regarded as confessions, but went to say that such statements are often used as circumstantial evidence of guilty consciousness by showing them to be false and fabricated. With great respect we have not been able,to follow the meaning of these observations and the learned counsel appearing at the Bar for the prosecution was unable to explain what these words exactly indicated. The statement not being a confession and being of an exculpatory nature in which the guilt had been denied by the prisoner, it could not be used as evidence in the case to prove her guilt."

10. Learned AGA vehemently opposed and submitted that the learned trial court has rightly convicted the appellants. It is further submitted that on pointing out of the appellants, the dead body of the deceased was recovered, which shows that the appellants had full knowledge that the dead body was buried/hidden inside the pit. Thus, the prosecution has been able to prove that the appellant disappeared the evidence with the intention of screening from the legal punishment and thus, the trial court after appreciating the evidence available on record rightly convicted the appellants.

11. The ingredients of an offence under Section 201, IPC are four fold. The first thing that is to be established is that some offence had already been committed. The second thing then is to be proved is that the accused knew or had reason to believe the commission of that offence and the third thing is that with such knowledge or belief he gave an information relating to that offence which he then knew or believed to be false. Fourthly it should be shown that he did so with the intention of screening the offender from legal punishment.

12. Considering the entire facts and circumstances of the case, I am of the view that the dead body was recovered after about three months of alleged incident. Thus, it is not fully established that the skeleton was recovered by the police on pointing out of the appellants. Prior to the said recovery, exculpatory statement of the appellant was made before the Village Pradhan Rajendra Prasad. This independent exculpatory statement is not admissible in law, unless it is supported by material evidence.

13. In this matter, the recovery of the skeleton after three months of the incident is totally doubtful. It is improbable that after a span of three months, on the basis of cloth and watch worn by the deceased is identifiable by the family member of the deceased. Thus, it cannot be said that the dead body belongs to the deceased (Harnam). Even the DNA report was also not obtained during course of investigation. The ingredient U/s 201 IPC as discussed above was also not established by the prosecution. Thus, the prosecution miserably failed to prove the offence U/s 201 IPC and all the appellants deserve to be acquitted.

14. The appeal is, accordingly, allowed. The impugned judgment and order of the Trial Court dated 17.12.1997 convicting and sentencing the appellants is hereby set aside and the appellants are acquitted of the charges levelled against them. The accused-appellants namely, Vishwa Nath and Dukhi Ram are already on bail, their personal bond is cancelled and sureties are discharged.

15. Let this order be communicated to the trial court concerned for necessary compliance. The trial court record be sent back.

Order Date :- 24.2.2023

Shravan