Munna @ Om Prakash vs State Of U.P.
2023 Latest Caselaw 2978 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 
Court No. - 10.
 
Case :- CRIMINAL APPEAL No. - 221 of 1988
 
Appellant :- Munna @ Om Prakash
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Subodh Kumar Shukla, Ashok Kumar Verma, R.P. Pandey
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Attau Rahman Masoodi,J.

Hon'ble Om Prakash Shukla,J.

Per Hon'ble Om Prakash Shukla, J.

The present criminal appeal has been filed assailing the judgment and order dated 02.05.1987 passed by II Additional District & Sessions Judge, Hardoi in Session Trial No. 144 of 1986 arising out of Case Crime No. 134 of 1985 under Section 419/420/364/302/201/411 IPC Police Station Pihani, District Hardoi, whereby the appellant has been convicted under Section 302/201 IPC and sentenced to undergo imprisonment for life and acquitted under Section 404 IPC.

Shorn of irrelevant details, the facts of the case are that the complainant Shyam Rastogi (PW-1) was having a shop in Pihani town where he used to provide loudspeaker on rent. On 06.06.1985 at about 4 P.M the appellant Munna came to the shop of the complainant and booked a loudspeaker for 10th June, 1985 for two days for Rs. 105/- as rental charges and deposited Rs. 10/- as advance. The set was booked for being taken from village Dhobia to village Gajua Khera for a marriage party in his relation. It is said that appellant Munna mentioned his name as Ram Prasad son of Chhotey Lal Yadav resident of Village Khakra, P.S. Maigalganj, District Kheri.

On 10.6.1985, Munna came to the shop of the complainant at about 4.30 P.M. when the complainant handed over the loudspeaker set to his Operator Vishwanath (deceased), who went with the appellant Munna to Village Gajua Khera on a bicycle belonging to the complainant. On 10.6.1985 in the evening at about 5.00 P.M. Munna (appellant) and Operator Vishwanath were seen at Shahadat Nagar Bus Stand along with cycle and loudspeaker by Chanda (PW-2) and one Ram Kishore. However, when Vishwanath did not return on 12.6.1985, the complainant made search of the operator and loudspeaker set. During search he came to know from village Gajua Khera and village Dhobia that no such Barat had come, then the complainant went to village Khakra and came to know about correct name and address of Munna. The complainant mentioned in the F.I.R. that till now he could not know the whereabouts of Vishwanath (operator) and sound system. In the report, he showed suspicion that Munna has made Vishwanath disappeared and took his cycle and set.

In the morning of 15.6.1985, the complainant Shyam Rastogi prepared a written report (Ex. Ka-1) and at 8 A.M. handed it over to the police authorities of Police Station Pihani. The Head Moharrir Jagdish Sara of Pihani police station scribed FIR (Ex. Ka-11) and registered a case under Section 419/420/364 IPC vide G.D. report no. 12 dated 15.6.1985 against the appellant Munna. The investigation of the case was entrusted to SI Suresh Chandra Gautam.

It is said that in the evening of 15.6.1985 itself, the police spotted skeleton of an unknown person in the east of village Bahadurnagar from the sugarcane field of Ram Sagar. The Sub Inspector prepared inquest report (Ex. Ka-14), challan of dead body (Ex. Ka-15), sketch map of dead body (Ex. Ka-16), two letters to CMO (Ex. Ka-17 and Ka-18) and letter to RI (Ex. Ka-19). The skeleton was sealed in a cloth and the sample seal is Ex. Ka-20. The skeleton was sent for postmortem examination through Constable Harish Chandra (PW-5) and village Chaukidar Raja Ram of village Luhar Khera. The SI also took the clothes of the deceased in custody and prepared a memo thereof (Ex. Ka-20).

On 16.5.1985 at 5.50 pm Dr M L Tandon, Medical Officer, District Hospital, Hardoi (PW-4) conducted postmortem on the unidentified body of the deceased, who was assessed to have died 5-6 days ago. It was a skeleton of an adult. Vertebra, skull bone and the bone of left hand were not present. Large number of bones were found missing. The Medical Officer noted the following ante mortem injuries on the dead body:

1. Cut mark on 4th cervical vertebra in front with sharp cuts and dried blood present on margins.

2. Cut mark in the middle of mandible and on its base.

In the opinion of the doctor, death had taken place due to shock and hemorrhage as a result of ante mortem injuries. The postmortem report is marked as Ex. Ka-5.

The police got the clothes of the deceased identified by Ram Dayal (PW-3) father of the deceased and also by the complainant. They identified the clothes recovered to be those of the deceased Vishwanath. Thereafter, the case was converted into a case under Section 419, 420, 364, 302, 201 and 411 IPC on an assumption that Vishwanath was murdered and the investigation of the case was taken over by SO Shyam Singh Parihar (PW-7) on 18.6.1985.

On 18.6.1985, Investigating Officer, SO Sri Parihar recorded the statement of Ram Sagar and conducted inspection of the spot from where the dead body was recovered. He prepared site plan (Ex. Ka-6). He attempted search of the appellant 7.7.1985, 12.7.1985, 19.7.1985, 3.8.1985, 9.8.1985, 2.8.1985, 25.8.1986 and 17.10.1985 but could not succeed. On 10.12.1985, when the Investigating Officer accompanying with the complainant Shyam Rastogi and police force while proceeding towards Maigalganj in search of the appellant Munna, at about 1 P.M. when the Investigating Officer reached at a place where Jahanikhera joins Shahjahanpur-Sitapur road with Pihani road, He saw the accused Munna coming from bicycle from Shahahanpur on Shahanpur-Sitapur road. The complainant is said to have identified the accused. The witness Ram Sewak (PW-6) and Pradeep Kumar Tandon were present on the said T-point. Chasing for about 20 paces towards east, appellant Munna was arrested and a cycle of ''Avon' brand bearing no. 403288 (Ext.-5) was recovered from his possession (Ex. ka-3). On enquiry being made, the appellant told that loudspeaker was kept by him with one Bheem (co-accused) in village Khakhra. Thereafter the Investigating Officer along with Munna and the witnesses reached village Khakhra at the house of Bheem. Two persons, namely, Chandra Pal and Moti Lal were called from the house of Bheem who witnessed the recovery of internal part of record player and seven records. The IO then inspected the place of recovery of these articles and prepared site plan (Ex. Ka-7) and recorded the statement of accused Bheem and witnesses Shyam Rastogi and Ram Sewak and went to village Jahani Khera Tiraha where he prepared site plan in respect of the recovery of cycle. The IO reached the police station Pihani and kept the recovered articles in police ''Malkhana' and accused persons in ''hawalaat' (lock-up). An entry to this effect was made in GD report no. 30, a copy of which is Ext. ka-9.

The IO after conducting due investigation and necessary formalities, submitted charge sheet in Court. After committal proceeding, the case came to be tried in Sessions court in which charges were framed on 23.8.1986 against the accused-appellant Munna alias Om Prakash and Bheem for offences under 302, 201 and 404 IPC.

The accused persons abjured their guilt pleading innocence and claimed to be tried.

The prosecution, in order to prop up its case, examined in all 7 witnesses. (PW 1) Shyam Rastogi is the complainant, (PW 2) Chanda, (PW 3) Ram Dayal, (PW 4) as witnesses of fact. Dr M.L. Tandon (PW 5), Constable Harish Chandra Misra, (PW 6) Ram Sewak and (PW 7) SO S.S. Parihar are the formal witnesses of the case.

The prosecution got the documents i.e. written report (Ext. Ka-1), recovery memo of clothes of the deceased (Ex. Ka-2), recovery memo of cycle (Ex. Ka-3) and recovery memo of record player and records (Ex. Ka-4) proved by the complainant. The complainant also proved record player without cabinet (Ex.-1), seven records (Ext. 2/1 to 2/7), Kurta of the deceased (Ex.-3), trouser of the deceased (Ex.-4) and cycle (Ex.-5). Dr M.L. Tandon (PW-4) proved postmortem report (Ex. Ka-5), PW-7 IO Sri Parihar proved site plan of the place of recovery of dead body (Ex. Ka-6), site plan of the place of recovery of cycle (Ex. Ka-8), copy of GD report no. 30 (Ex. Ka-2) and charge sheet (Ex. Ka-10).

The statement of accused appellant was recorded under Section 313 Cr.P.C. wherein he denied the case set up by the prosecution. He stated that he used to work in a hotel in Maigalganj town. Shyam Rastogi had taken meals in that hotel where altercation with regard to payment of bill took place and as such he bore grudge and has falsely implicated him in this case. The accused Bheem stated that nothing was recovered from his house. He stated that he and complainant Shyam Rastogi used to do business of renting out loudspeakers and there was professional jealousy against them which has resulted in his implication. He stated that he purchased the loudspeaker in dispute from Lallu Ram for Rs. 10000/-. The IO had taken away the articles from his house and he was also kept at the police station for two days and thereafter was challaned.

The accused persons have been charged for committing murder of the deceased Vishwanath under Section 302 IPC, for removing the evidence of crime under Section 201 IPC and for misappropriation of property possessed by the deceased at the time of his death under Section 404 IPC.

The Sessions Judge after scrutinizing and appraisal of evidence, recorded the verdict of conviction against the appellant, as stated supra. However, the co-accused Bheem was acquitted holding that prosecution has not been able to prove charge against him and gave him benefit of doubt.

The learned counsel for the appellants challenged the findings recorded by the trial court submitting that the findings are repleted with infirmities and the same are not based on correct appreciation of the evidence.

Learned counsel for the appellant has strenuously argued that the finding of guilt recorded by the Sessions Judge are wholly erroneous and unjustified. There is no direct evidence on record to establish that the appellant had committed murder of the deceased. As a matter of fact, none has seen the commission of offence in question. From the facts of the case it can easily be inferred that it is a case of circumstantial evidence and without there being a complete chain of events, the appellant has been convicted and sentenced to life imprisonment.

It is further submitted that the court below laid too much emphasis on the testimonies of the prosecution witnesses overlooking the fact that there are major contradictions and omissions which diminish the case as set up by the prosecution. As a matter of fact, the appellant has been falsely implicated by the complainant due to previous enmity as some altercation had taken place with the appellant with regard to payment of bill when he was working in a hotel at Maigalganj. Lastly, it has been argued that on the same set of evidence co-accused Bheem has been acquitted whereas appellant has been convicted. In the circumstances, the impugned judgment is liable to be set aside.

Refuting the assertions made by learned counsel for the appellants, learned AGA has submitted that the impugned judgement of conviction passed by the court below is a well discussed and reasoned order based on correction appreciation of the evidence on record.

It is further submitted that undisputedly, the case is of circumstantial evidence but it is incorrect to say that the chain of evidence is not complete. Sessions Judge while bringing home the guilt, has recorded sufficient findings on the basis of clinching evidence available on record and the same are corroborated by the medical evidence. Therefore, the appeal is liable to be dismissed.

Having considered the submissions made by the parties and perusing the material on record, one thing is crystal clear that there is no direct evidence in this case and it is a case of circumstantial evidence. The apex court in various decisions has held that the nature, character and essential proof required in a criminal case, which rests on circumstantial evidence alone, are (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established; and (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, i.e. to say should not be explainable on any other hypothesis except that the accused is guilty, the circumstances should be of a conclusive nature and tendency, that should exclude every possible hypothesis except the one to be proved and there must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused.

In this regard, it would be useful to refer the guiding principle on the subject propounded by the Hon'ble Supreme Court in the case of Padala Veera Reddy v. State of A.P. AIR 1990 SC 79, wherein the Hon'ble Supreme Court laid down the guiding principle with regard to appreciation of circumstantial evidence:-

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

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) 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

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of 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."

Similarly, in the case of State of U.P. v. Ashok Kumar Srivastava : [1992] 1 SCR 37, the apex court pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

As regard the appreciation of circumstantial evidence, the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharshtra : 1984 Cri. L.J. 178 was pleased to observe in paras-150 to 158, which are quoted below:-

"150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.

Likewise, in the case of Sanatan Naskar and Anr. v. State of West Bengal reported in (2010) 8 SCC 249, the apex court propounded as under:-

"There cannot be any dispute to the fact that it is a case of circumstantial evidence as there was no eye witness to the occurrence. It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards the involvement and guilt of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of accepted principles in that regard."

As regard the motive, the Hon'ble Supreme Court in the case of Sampath Kumar v. Inspector of Police Krishnagiri 2010 Cri. L.J. 3889 (SC), observed in paragraph 15 as under:-

"15. ........... One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the appellant but suspicion, howsoever strong, also cannot be a substitute for proof of the guilt of the accused beyond a reasonable doubt."

Apart from above, it would be useful to refer to the decision rendered by the Hon'ble Supreme Court in the case of Bhagwan Jagannath Markad v. State Of Maharashtra: (2016) 10 SCC 537 wherein the apex court summarized the principles for the appreciation of the credibility of witness where there are discrepancies or infirmaries in the statement. The relevant paragraph 19 is reproduced as under:

"19. While appreciating the evidence of a witness, the Court has to assess whether read as a whole, it is truthful. in doing so the court has to keep in mind the deficiencies, drawback and infirmaries to find out whether such discrepancies shake the truthfulness. ..Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence.. ...The Court has to sift the chaff from the grain and find out the truth. A statement may be partly partly rejected or partly accepted."

Bearing in mind the aforementioned factual and legal position in these type of the cases, the first question that requires to be answered is as to whether the prosecution was successful to prove the corpus delicti and secondly, inferential evidence was such that the doctrine of last seen could be applied in a manner that it satisfies the principle of proof beyond a reasonable doubt.

As regards the proving of Corpus delicti, a perusal of the FIR reveals that the complainant has alleged that the deceased had left with Munna (appellant) on 10.06.1985 at about 04:00 PM but he did not return till 12.06.1985. The complainant has also alleged that he tried his best to know the whereabouts of Vishwanath (deceased) but when he failed, he lodged the report. Vishwanath was missing since 12.06.1985 but the complainant lodged the report after three days on 15.06.1985 at about 08:00 AM at Police Station Pihani, District Hardoi. In the FIR, the complainant has not mentioned the date on which he was told that Chanda and Ram Kishore had seen the deceased. In order to fill this laucnae, an improvement has been made in the statement before the court that on 13.06.1995 Chanda and Ram Kishore had seen him at the Bus Station Surprisingly. Here, it may be recalled that in FIR, the Complainant has not given the description of clothes of Vishwanath or the specific time when he left the shop for going to Gajua khera along with Munna.

It may be pointed out that as per prosecution, complainant and father of the deceased had disclosed that they had identified the body of the Vishwanath on the basis of clothes which were allegedly to be found lying near the skeleton.

Merely, recognizing clothes will not establish that the said skeleton is of Vishwanath. The proper course available to the prosecution was to conduct the DNA test of the skeleton and get the same matched with the father or any other member of the family to establish beyond doubt that it was the dead body of Vishwanath alone and none else. The Investigating Officer did not take any attempt to conduct DNA analysis of bones to prove that the recovered skeleton was that of Vishwanath. In short, the prosecution has failed to prove the death of Vishwanath either being homicidal or otherwise. It is an admitted case of the prosecution that Vishwanath had gone to village Gajua Khera on 10.06.1985 and alleged skeleton claimed to be of Vishwanath was found on 15.06.1985, the date on which FIR came into existence. The postmortem of an unidentified human skeleton was conducted on 16.06.1985 at 5:50 P.M. and the doctor has mentioned in the postmortem report regarding receiving of "Skeleton of unknown human being". Thus, till the time of postmortem it was not established that Skeleton was of deceased Vishwanath. Shyam Rastogi (P.W.-1) in his Statement has testified that he had recognized the clothes of Vishwanath on 17.06.1985 which were also recognized by Ram Dayal and there after recovery memo was prepared. Surprisingly, no such statement has been given by Ram Dayal before the court, when in the court, he saw the clothes. He is stated to have only uttered that Vishwanath had gone wearing these clothes.

Apparently, the trial court has proceeded on a mere suspicion that since the clothes belonged to the deceased, the skeleton also was of the deceased, without any rational and in the absence of any scientific prove. However, this court cannot subscribe to the view of the trial court as the settled position of law is no longer res integra that a mere suspicion, however, strong it may be, cannot be a substitute for acceptable evidence, as also held by the apex court in the case of Chandrakant Ganpat Sovitkar v. State of Maharashtra, (1975) 3 SCC 16.

"16. ......It is well settled that no one can be convicted on the basis of mere suspicion, however strong it may be......"

Ram Dayal (PW-3) is the father of the deceased, who deposed before the court that his son used to work at the shop of the Shyam Rastogi. On 10.06.1985 he had gone to repair the sound system and did not return. He has further deposed that Vishwanath was wearing kurta and pyjama (Ex. Ka 3 & 4).

One of the glaring discrepancies and contradictions which makes the story doubtful is regarding colour of the clothes of the deceased, which he was wearing when last seen. Shyam Rastogi (P.W.-1) before the court has stated that when Vishwanath left the shop, he was wearing brown colour kurta with embroidery and white pyjama (lower). Whereas, Panchnama (Ex. ka-14) shows recovery of white colour "कुर्ता कलीदार सफेद मिट्टी में सना हुआ व फटा हुआ व पैजामा सफेद"। In view of the discrepancies and shortcoming cited above, in our considered opinion, the trial court has erred in believing that the alleged Skeleton was of Vishwanath, particularly in absence of DNA analysis having being conducted.

Here, it is relevant to point out that the prosecution is silent as to why Ram Dayal, whose son was missing since 12.06.1985 had not come forward to inform the Police regarding missing of his son or to lodge report and even made no effort to trace his son as emerges out from his deposition. Ram Dayal (P.W.-3) had also not disclosed as to when and how he came to know about the death of his son. As per the version of Shyam Rastogi (PW-1), he and Ram Dayal (father of the deceased) had recognised the clothes of Vishwanath on 17.06.1985. Again, it is not clear as to how and on whose information he reached at the Police Station on 17.06.1985.

As regard, the last seen evidence, the prosecution case is that complainant had stated that Chanda (P.W.-2) and Ram Kishore had seen the deceased along with Munna at Shahadat Nagar Bus Stand on 10.06.1985. He told this fact to the complainant on 13.06.1985 when they met him, as Chanda was known to him. On the contrary, Chanda (P.W.-2) in his statement before the court had deposed that on Monday when he went along with Ram Kishore to Shahdat Nagar market, at about 5:30 P.M. He had seen Vishwanath (deceased) and appellant Munna. Vishwanath was carrying loudspeaker set on the cycle. In his cross-examination, (PW-2) Chanda gave altogether a different story and said that he had gone to Shahadat Nagar to see Dr. Moharram Ali but had not disclosed this fact to Sub-Inspector. He had gone to Shahadat Nagar by bus from Pihani. He further stated that when he was coming back after meeting the doctor, he met Ram Kishore in the market and he came to Pihani by cycle along with Ram Kishore. At the bus-station they had stopped to drink water where he saw Vishwanath (deceased), who was known to him from much before. This witness had admitted that he used to take loudspeaker on rent. However, he denied the suggestion that he used to take set from Shyam Rastogi and was giving false testimony on his saying. Thus, at the best, Chanda (P.W.-2) can be described as partisan and chance witness whose testimony could not be treated as credible and he cannot be termed as trustworthy witness. The court below fell into error in relying heavily on the testimony of Chanda (P.W.-2). Moreover, there is one more glaring feature which makes the prosecution story doubtful viz. Ram Kishore, who is alleged to be in the company of (P.W.-2), has not been produced to corroborate the version as given by Chanda (P.W.-2).

One more fact which needs to be noticed is that shop of Shyam Rastogi where deceased was working is situated in Pihani town. The sound system was said to be booked for 10.06.1985 which was to be taken from village Dhobia to village Gajua Khera. Neither the Complainant nor any other witness has deposed that Shahadat Nagar Bus Stand will fall in the way while going from Pihani town to Gajua Khera via village Dhobia. Such statement was vital to prove the presence of deceased at Shahadat Nagar Bus Stand.

Apart from above discrepancies it would be useful to point out that with respect to the recovery of sound system and loudspeaker, PW-7 Station Officer Sri Ram Singh Parihar had stated that accused Munna had disclosed that loudspeaker and other articles are kept in the house of Bheem in village Khakra. On this information, he along with police personnel and witnesses went to the house of accused Bheem. However, in the cross-examination the Station Officer admitted that he has not taken the witnesses from Village Khakra but had taken Chandra Bhan and Motilal who were passers-by. Thus, it is clear that no witness adjoining to the house of Bheem or any other witness belonging to village Khakra was present at the time of recovery of sound system and other articles from the house of Bheem.

As regard the arrest of the accused (appellant), Shyam Rastogi (PW-1) stated that on 10.12.1985 i.e after a lapse of six months the Station Officer, Pihani along with him went in search of Munna from Pihani to Sitapur. Munna was seen on the cycle and the complainant told the Station Officer that he is the same person who had taken the sound system. Thereafter, accused was arrested. He also identified that the cycle which Vishwanath was carrying belongs to him. On the other hand, in his cross-examination this witness deposed that on the day of arrest he went to the Police Station at about 11:00 AM. from where, two Sub-Inspectors and four constables went in a jeep and when they reached at a T-point, the accused had suddenly appeared who was traced by the police personnel and was arrested. It is very surprising that for a long period of six months, the police continued to remain in hectic search to arrest the accused and it creates some doubt when the arrest of the appellant has been shown in the same area without any specific information.

At this juncture, we would like to refer the case of Ram Prakash @ Jalim Vs State of Chattisgarh (Criminal Appeal No. 462 of 2016 decided by the Hon'ble Supreme Court on 12.05.2016) which has been relied upon by the Counsel for the appellant wherein the prosecution case was that some skeleton remains alleged to be of one Ram Sewak were found, who had gone with the appellant Ram Prakash @ Jalim on 07.10.1992. This case was also of circumstantial evidence. The Hon'ble Supreme Court after scrutinizing the evidence on record held as under:-

"It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstances of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused."

In the case of Ram Pratap Vs State of Haryana (Criminal Appeal No. 804 of 2011) decided on 1.12.2022 by the Hon'ble Supreme Court the accused-appellant was convicted under Section 302 IPC by the trial court, which was confirmed by the High Court. When the matter reached to the Supreme Court, it held that it is a case of circumstantial evidence and while acquitting-appellant observed in paragraph 9 as under -

"It has been held by this Court in a catena of cases including Sharad Birdhichand Sard vs. State of Maharastra reported at (1984) 4 SCC 116, that suspicion, howsoever strong, cannot substitute proof beyond reasonable doubt. This Court has held that there is not only a grammatical but also a legal distinction between ''may' and ''must'. For proving a case based on circumstance beyond reasonable doubt, and further, that the circumstances so proved must from a complete chain of evidence so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show, in all human probability, that the act has been done by the accused. Further, it has been held that the facts so established must exclude every hypothesis except the guilt of the accused."

In the backdrop of the aforesaid factual and legal position, the conviction cannot be based only on the circumstance of last seen together with the deceased. Last seen alone will not complete the chain of circumstances in order to record the finding that it is consistent only with the hypothesis of the guilt of accused-appellant. Needless to say, that last seen theory comes into play where the time gap between the point when the accused and the deceased were last seen alive and when the deceased is found dead is so narrow that possibility of any person other than the accused being the author of crime becomes impossible.

Moreover, the trial court missed on the aspect that motive in the present case could not be proved by the prosecution. Although, motive may pale into insignificance in a case involving eyewitnesses, however it may not be so when an accused is implicated based upon the circumstantial evidence. This position of law has been dealt with by the Apex Court in the case of Tarsem Kumar v. Delhi Administration (1994) Supp 3 SCC 367 in the following terms:

"8. ​Normally, there is a motive behind every criminal act and that is why investigating agency as well as the court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question. ......."

Lastly, we may add that there is unexplained delay in lodging the FIR, which has been lodged by the owner of the shop where deceased was said to be working after three days of incident. Surprisingly, Ram Dayal (P.W.-3) who is the father of the deceased, did not make any attempt to search his son Vishwanath and inform the police about his missing which itself creates doubt on the prosecution story. Moreover, the complainant's testimony as regards the implication of Bheem was disbelieved, hence he had lost the credibility of being a reliable witness.

In view of the aforesaid detail discussions, the impugned judgement and order of Conviction dated 02.05.1987 passed by II Additional Session Judge, Hardoi is hereby set-aside. The appellant is on bail. The appellant need not surrender and his bonds are cancelled and sureties discharged.

The appeal stands allowed accordingly.

Let a copy of this order be sent to the Court concerned for information and compliance.

Order Date :- January 30, 2023

Fahim/-