Chetram vs State Of U.P.
2023 Latest Caselaw 6479 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
High Court of Judicature at Allahabad
 
(Lucknow)
 
**********
 
Reserved on: 18.10.2022
 
Delivered on: 01.03.2023
 
Reserved
 

 
Case :- JAIL APPEAL No. - 1126 of 2017
 

 
Appellant :- Chetram
 
Respondent :- State of U.P.
 
Counsel for Appellant :- In Person Jail Appeal,Rajesh Kumar Dwivedi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Rajan Roy,J.

Hon'ble Sanjay Kumar Pachori,J.

(Per: Rajan Roy, J.)

1) Heard Sri Rajesh Kumkar Dwivedi, learned Amicus for the appellant and Sri Chandra Shekhar Pandey, learned A.G.A. for the State.

2) This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 18.05.2017 passed by Addl. Session Judge, Court no.9, Sitapur convicting the appellant under Section 302 I.P.C. and sentencing him to life imprisonment with fine of Rs.10,000/-, failing which, he would have to undergo an additional simple imprisonment for one year.

3) Prosecution case is that in the night of 13/14.08.2014, the deceased-Rakesh Mishra left his house at about 09:00 P.M. to go to the house of the accused-appellant. When he did not return even after 45 minutes, his younger brother-Informant, namely, Koyali along with his brother-in-law, namely, Yugya Dutt and cousin Rama Shanker went to look for him. When they reached the doors of the accused/appellant and entered a few steps, they saw in the light of a torch being carried by the Informant that the accused/ appellant-Chetram who was not covering his face, was striking a blow with a 'Banka' upon his wife, namely, Meena Devi who was lying on a cot. By her side, on another cot, elder brother of the Informant was lying. It is said that in the light of the torch, the three alleged eye-witnesses saw that after striking his wife, the accused-appellant struck seven or eight blows upon the deceased-Rakesh Mishra. The eye witnesses did not intervene nor did they protest. After about five minutes, they raised an alarm whereupon the accused-appellant Chetram along with his three accomplices, who were masked and who did not carry any weapon nor did they deliver any blow upon the two deceased, ran away. Thereafter, at about 04:00 A.M. in the morning of 14.08.2014, F.I.R. was lodged on a written tehrir submitted by the Informant- Koyali(P.W.1) at Police Station-Than Gaon, Sub-district- Biswa, District- Sitapur. The police station was 7 Km away from the scene of crime. Investigation was conducted by the Investigating Officer, namely, Vijay Kumar Yadav and after his transfer, the same was conducted by his successor, namely, Sri Manoj Kumar Yadav. Bodies of the two deceased were found in the house of the appellant-accused Chetram. Siteplan was prepared by the Investigating Officer which is exhibited as Ex.Ka.7. Inquest was started with regard to the deceased-Rakesh Mishra at about 05:30 A.M. on 14.08.2014 and the same was completed at about 7:45 A.M. when the body was sent for post-mortem. Inquest with regard to deceased- Meena Devi was started at 6:30 A.M. on 14.08.2014 and was completed at 07:45 A.M. on the same day. Inquest Report pertaining to two deceased is Ex.Ka.12 and Ex.Ka.18.

4) Bodies of the two deceased were received in the mortuary/ hospital at 03:50 P.M. on 14.08.2014 and post-mortem was conducted at 04:15 P.M. on the same date by Dr. S. Bhardwaj (P.W.3). Three incise wounds were detected on the body of the deceased-wife of the appellant-accused, namely, Smt. Meena Devi and cause of death was mentioned as shock and hemorrhage due to ante-mortem injuries. Stomach of deceased-Meena Devi contained 150 ml semi-digested food material, small intestine was full at places and the upper portion of large intestine was full. Post-mortem report of deceased-Meena Devi is Ex.Ka.2. As per the post-mortem report relating to the deceased- Rakesh Mishra, he had nine incise wounds on his body and cause of death was mentioned as shock and hemorrhage due to ante-mortem injuries. His stomach contained 200 ml semi-digested food material, small intestine was full at places and upper portion of large intestine was full. Post-mortem report of deceased-Rakesh Mishra is Ex.Ka.3.

5) The accused-appellant is said to have been arrested from Village-Chainpurwa while he was sleeping in the precincts of a primary school at about 04:30 P.M. on 14.08.2014. As per the prosecution, on his pointing while the accused was in police custody, weapon used in crime i.e. Banka was recovered from a sugarcane field near the place from where he was arrested. Recovery memo pertaining to weapon of crime is Ex.Ka.8. On 15.08.2014 i.e. a day after he had been arrested, some blood was detected on his shirt and shawl which was on his body and accordingly the same was recovered.. The weapon allegedly used in crime i.e. Banka and shirt & shawl of the accused-appellant which was recovered from him a day after his arrest were also sent for forensic examination and the same is exhibited as Ex.Ka.24. The forensic report is dated 27.04.2016 and is on record. The blood stained soil and plain soil collected from the scene of crime as also other items pertaining to the cot on which the two deceased were lying and the clothes & other items which were on their body were collected and they were sent for forensic examination. Recovery memo pertaining to blood stained soil and simple soil are Ex.Ka.9 and Ex.Ka.10 respectively with regard to two deceased. Ex.Ka.11 is memo of recovery of the clothes of the accused-appellant.

6) After completing the investigation, chargesheet was submitted by the Investigating Officer and the case was committed by the Chief Judicial Magistrate, Sitapur to Session Court on 18.10.2014. Charge was framed against the accused-appellant on 07.07.2015 by learned trial court/ Addl. District & Sessions Judge, Court no.9, Sitapur wherein he was charged with the offence punishable under Section 302 I.P.C. He denied the charge and was put to trial.

7) The prosecution witnesses produced six witnesses. P.W.1- Koyali is the alleged eye-witness and Informant. Statement of P.W.1 was recorded by learned trial court on 17.11.2015. P.W.2 - Rama Shanker is cousin of the Informant and the alleged eye-witness of the incident. Statement of P.W.2 was recorded by trial court on 18.04.2016. P.W.3- Dr. S Bhardwaj is the doctor who conducted the autopsy/ post mortem on the body of the deceased. Statement of P.W.3 was recorded by trial court on 02.09.2016. P.W.4 is the Head Constable, namely, Ram Lakhan Verma who had prepared the chik F.I.R. and made necessary entries regarding the first information of the crime. Statement of P.W.4 was recorded by trial court on 17.09.2016. P.W.5- Manoj Kumar Yadav is the Investigating Officer who took over the investigating subsequently after transfer of the earlier Investigating Officer, namely, Sri Vijay Kumar Yadav (P.W.6), he completed the investigating and filed the chargesheet. Statement of P.W.5 was recorded by trial court on 28.11.2016. P.W.6-Vijay Kumar Yadav is the first Investigating Officer. Statement of P.W.6 was recorded by trial court on 19.04.2017.

8) Statement of the accused-appellant, namely, Chetram under Section 313 Cr.P.C. was recorded by learned trial court on 26.04.2017. In his statement under Section 313 Cr.P.C., he submitted that he was in job at Lucknow since much prior to the incident and he was at Lucknow at the time of incident. Meena Devi-his wife had illicit relations with several villagers, therefore, for these reasons and on account of political enmity, somebody had committed the crime. He denied the charge.

9) The trial court on a consideration of the evidence found the prosecution case which was based on direct evidence as proved and also that the oral testimonies tallied with medical evidence on record. The accused-appellant had raised a plea of alibi but did not lead any evidence to prove the same.

10) The submission on behalf of the appellant was that there was inordinate delay in lodging of the F.I.R. and the intervening time was utilized for deliberations and consultations in order to falsely implicate him. The scribe of the alleged report was not produced by the prosecution as a witness. Recovery of the alleged weapon of crime has not been proved in terms of Section 27 of the Indian Evidence Act. No site-plan was prepared by the Investigating Officer about the alleged discovery of the said weapon on the alleged pointing of the accused-appellant which creates a serious doubt on the entire exercise. There are no independent/ public witnesses to the arrest of the appellant and/ or recovery of the alleged weapon of crime which creates a doubt about the same. The recovery is fake. No separate disclosure statement of the accused-appellant was recorded by the police nor was it got exhibited. No finger prints of the accused were collected from the weapon of assault. The weapon of assault (Banka) was not produced before trial court nor shown to the autopsy surgeon nor the eye-witnesses. The Autopsy Surgeon (P.W.3) has not mentioned any specific weapon which could have been used in committing the crime. The clothes of the accused were collected one day after his arrest which creates a serious doubt on arrest of the accused on 14.08.2014 and recovery of the cloth from him on 15.08.2014, especially as, the accused-appellant was not supplied any other clothes to wear and there is no proof in this regard. None of the witnesses of recovery as are mentioned in Ex.Ka.9, Ex.Ka.10 and Ex.Ka.11 were produced before the trial court to prove that the said recovery was affected in their presence. The seizure/ recovery memos are thus fake. There are major contradictions in the testimonies of prosecution witnesses. P.W.1 and P.W.2 are related and interested witnesses. No effort was made by the Investigating Officer to trace out and arrest or investigate the three unknown accused cited in the F.I.R. which also belies the prosecution story, which is cooked up. Both the inquest reports i.e. Ex.ka.12 and Ex.Ka.18 were prepared by the same person at the same time which is improbable and impermissible which creates a doubt upon preparation of the inquest report by Sub-Inspector Bhawani Shanker Singh on 14.08.2014 on the spot. Suspicion, however, strong cannot take the place of proof. Prosecution has failed to prove its case beyond reasonable doubt. The accused is innocent and has been falsely implicated. He relies upon the decisions reported in 1980 SCC (Cri) 985 'Marudanal Augusti VS State OF Kerela'; AIR 1976 Sc 2423 'Ishwar Singh vs the State of Uttar Pradesh'; AIR 1976 SC 2263 'Lakshmi Singh & Ors. vs. State of Bihar'; 2000 (41) ACC 181 (All HC D.B.) 'Nawazish Ali & Ors. vs. the State'; AIR (34) 1947 PC 67 'Pulukuri Kottaya & Ors. vs. Emperor'; AIR 1979 Sc 1262 'Bahadul vs. State of Orissa'; 2011 (1) JIC 381 (ALL. D.B.) 'Sonu Sharma vs. State of U.P.'; (2004) 10 SCC 657 'Anter Singh vs. State of Rajasthan'; AIR 2018 SC 2027 'Navaneethkrishnan vs. State by Inspector of Police'; 2019 (106) ACC 964 'Kusal Toppo & Anr. vs. State of Jharkhand'; 2013 (3) JIC 548 (SC) 'Joydeb Patra & Ors. vs. State of West Bengal' in support of his contention.

11) On the other hand, Sri Chandra Shekhar Pandey, learned A.G.A. for the State submitted that double murder having been committed in the night, F.I.R. was lodged promptly at 04:00 A.M. as such it cannot be said that there was any delay. There were three eye-witnesses to the incident, out of which, two were produced and have supported the prosecution case. Based on this direct ocular evidence, learned trial court has rightly convicted the accused-appellant, especially as, bodies of the two deceased were found in the house of the accused-appellant, therefore, burden was upon the accused-appellant to offer an explanation in terms of Section 106 of the Indian Evidence Act. The accused-appellant did not prove the plea of alibi and also that his wife was a woman of easy virtue. The testimonies of eye-witnesses tally with the siteplans and as also the medical evidence. The recovery memo i.e. Ex.Ka.8 clearly mentions arrest of the accused and also that on his pointing out while he was in police custody, the weapon of assault was recovered, therefore, the ingredients of Section 27 of the Indian Evidence Act are satisfied and his statement before the police to this extent can be read in evidence. The accused was arrested from Primary Pathshala, Village-Chainpurwa i.e. another village. Therefore, he submitted that learned trial court has rightly convicted the appellant.

12) We have heard learned counsel for the parties and perused the records.

13) From the medical report and the condition of body, no doubt the deceased were murdered but the moot point is whether the accused murdered them.

14) Prosecution case is one of direct evidence. There were three alleged eye-witnesses, out of which, P.W.1, namely, Koyali and P.W.2, namely, Rama Shanker have been produced. Rama Shanker (P.W.2) is cousin of P.W.1- Koyali. Brother-in-law, Yagya Dutt, the third eye witness, has not been produced.

15) The first information of the crime was given by P.W.1-Koyali i.e. brother of the deceased in the form of a written tehrir. When his brother did not return even after 45 minutes of leaving the house then P.W.1-Koyali, P.W.2-Rama Shanker and Yugya Dutt who were of the same village went to house of Chetram. P.W.1 had three cell jeep torch light in his hand. When he reached house of Chetram then he lit the torch and saw in its light that Chetram i.e. the accused struck his wife-Meena Devi who was lying in the cot in the courtyard, once, with a Banka, and thereafter, he struck seven or eight blows with the Banka upon his brother- Rakesh Mishra who was on a cot lying by the side of Meena Devi i.e. another cot. When they i.e. eye witnesses shouted then the accused and three unknown persons ran away. The three unknown persons did not strike any blow upon Meena Devi or Rakesh Mishra. When the eye-witnesses went near the body of the deceased, they found that both had died. Both the bodies were lying on two different cots side by side. Thereafter, he lodged the F.I.R. at 04:00 A.M. in the morning.

16) As per statement of P.W.1, he had got the tehrir written by a shop owner who had a copy/ book shop outside the police station and from whom he had taken the paper for the said purpose and then had dictated it orally to him. In his testimony, he has stated that he does not know name of the said person. Now, it is pertinent to notice that crime is alleged to have been committed some time between 09:00-10:00 P.M. in the night intervening 13-14.08.2014 and the F.I.R. has been lodged at 04:00 A.M. No copy/ bookshop would be open at 04:00 A.M. P.W.1 was unable to give the name of the scribe. The scribe has not been produced by the prosecution as a witness whose testimony could have thrown some more light on the time of writing of tehrir and lodging of F.I.R. There is no explanation by the prosecution about this aspect of the matter. The crime having been committed after 09:00 P.M. as per statements of P.W.1 and P.W.2, it is difficult to accept that any copy/ bookshop would be open in a village at such a time i.e. 04:00 A.M. This is relevant in the context of submission of learned counsel for the appellant that F.I.R. was lodged after deliberations and consultations. This creates a doubt about the time of lodging of F.I.R. Possibility of the F.I.R having been ante-timed after deliberations and consultations cannot be ruled out.

17) Even otherwise, in a case of double murder of which there are eye-witnesses and villagers had also collected at the scene of crime within 10-15 minutes as stated by P.W.2, even if the police station was 7 Kms away and it was night, a delay of almost six hours is unexplained.

18) Further, when we examine the testimony of P.W.1 as to the factum of deceased- Rakesh Mishra leaving the house, we find that in the examination-in-chief P.W.1 has stated that at 09:00 P.M. his brother- Rakesh Mishra had left the house saying that he was going to the accused-appellant i.e. Chetram's house and that he would return soon. However, in cross-examination, he has stated that his family members had told him that Chetram had come and taken away Rakesh with him. This had been told to him (P.W.1) by his mother. Thereafter, he has stated that when Chetram-accused had come to call Rakesh then all the family members were present. This statement of his is self-contradictory and is at variance with his statement in examination-in-chief wherein he has said that Rakesh Mishra had himself left the house saying that he was going to the house of the accused-Chetram. This creates a doubt about presence of the Informant-Koyali at the time of Rakesh Mishra i.e. his elder brother leaving his house.

19) P.W.1-Koyali has stated that his deceased brother left the house at 09:00 P.M. and when he did not return even after 45 minutes then he went to Chetram's house along with Rama Shanker (P.W.2) and Yagya Dutt. Thus, P.W.1 left his home not before 09:45 P.M. whereas P.W.2 says in his examination-in-chief that P.W.1 came to his home at about 09:00 P.M. and then in his cross-examination he says that he came at about 08:30 P.M. and stayed at his home for 15 minutes and that he had stated that his brother-Rakesh Mishra was not traceable. P.W.2 has stated that they then went to Vijay Shanker's house and stayed there for 5 minutes but P.W.1 does not say so. P.W.2 has stated that they reached house of accused-Chetram at 09:00 P.M. The testimony of P.W.1 and P.W.2 are at variance as to when P.W.1 left his house, reached house of P.W.2, and the time of reaching accused's house.

20) Most important, P.W.1 has stated that Meena Devi was wearing a saree at the time of incident. There is no mention of saree having been recovered from the body of the deceased-Meena Devi or from the site in the inquest report to which P.W.1 is a signatory nor is there any such mention about a saree on the body of the deceased-Meena Devi in the post-mortem report, nor is there any such mention in the testimony of the Investigating Officer (P.W.6) who had initially conducted the investigation nor in the testimony of P.W.3-the autopsy surgeon. The Investigating Officer i.e. P.W.6 who had initially conducted the investigation and got the inquest report prepared through S.I. has categorically stated that Meena Devi was wearing a petticoat and blouse, she was not wearing anything other than these clothes. This clearly belies the testimonies of P.W.1 and P.W.2 that she was wearing a saree and creates a doubt about their presence at the scene of crime. P.W.3- the Autopsy Surgeon has clearly stated that there was no saree on the body of Meena Devi. Therefore, this part of the testimonies of P.W.1 and P.W.2 also appear to be suspect and creates a doubt upon their testimonies as eye-witnesses and their presence at the time of commission of crime. No such saree is mentioned in the items sent for forensic examination also. No explanation has been offered by the prosecution in this regard.

21) Now, when we once again examine the testimony of P.W.1, we find that in his cross-examination, he has stated that in the family of the accused, there was his wife and three children and his father. His father did not live in the house but used to live at somebody else's house in the village six months prior to the incident. In the night also, the father used to live elsewhere. But his (accused's) wife, the accused and three children lived there. His (P.W.1) brother was friendly to the accused and used the visit the accused in his presence. His brother-Rakesh had gone to the house of the accused in the night for the first time. Now, in this context, if the accused was present in the village then obviously in the night at or after 09:00 P.M., he would be in his house as in the villages, residents go to sleep early. Now, it is highly improbable and unlikely that deceased- Rakesh Mishra would visit house of the accused at night after 9 P.M. and would be found on a cot in undergarments only with the wife of the accused who was owner of the house lying on another cot by his side, in petticoat, blouse etc and without any saree, as, no saree was recovered from her body or site. This is not natural behaviour between two persons who are not husband and wife and especially who are having married spouse living. This would be possible only when they were in a relationship and were aware that husband of the deceased-Meena Devi was not present in the house on the said night. This creates a doubt about the entire prosecution story and presence of the accused at his home.

22) Now, when we further examine the testimony of P.W.1, we find that he has mentioned about three other persons present with the accused at the time when accused was striking the blows, therefore, they were also accused with the aid of Section 34 or 120 IPC etc but there is no evidence led by the prosecution as to what efforts were made to trace out those three persons and who were they.

23) It has come in the testimonies of P.W.1 and P.W.2 that the three eye witnesses entered four steps inside the doorway of the house of the accused. Now as per the siteplan prepared on the statement of P.W.1, the eye witnesses had seen the crime being committed from point-(C). Point-(C) in the siteplan is inside the entry point or doorway. This tallies with the statement of P.W.2 that they had entered three or four steps inside the house / courtyard. As per the siteplan, the distance between point-(C) and point-(B) i.e. the place where body of Meena Devi was lying was about five steps and the distance between point-(C) to point-(A) i.e. the point where the body of Rakesh Mishra was lying, was about seven steps. Now, as per testimonies of P.W.1 and P.W.2, P.W.1 lit the torch which was a three cell jeep torch and must have been a powerful one and, in the light of the torch, they saw the crime being committed by the accused from a distance of about five to seven steps. This distance is quite short. If the eye-witnesses had lit the torch then the accused along with his accomplices would have also seen the witnesses. In this scenario, they would have either attacked them as the eye witnesses claim that they were not armed whereas the accused -Chetram was carrying a Banka and had three accomplices, or they would have fled so as to avoid identification. Instead, if the testimonies of P.W.1 and P.W.2 are to be believed, while the eye-witnesses were watching them from such short distance in the light of torch, the accused struck one blow on Meena Devi with his Banka and thereafter struck seven or eight blows on Rakesh Mishra who was lying on another cot by her side. Now, this would have taken some time and it appears to be quite unnatural, that, if there are three witnesses with a torch in their hand, the accused would stay there and strike these blows. Of course, after doing so or, in this process, if they had attacked the eye-witnesses, it would have been understandable or if the accused and his accomplices had fled on seeing them then this would also have been natural, but when there are three eye witnesses from such a short distance, it is highly improbable and unbelievable that the accused will commit the crime as stated and only after the witnesses raise an alarm, which they did after five minutes as has come in the testimony of P.W.2, that they would flee leaving the eye-witnesses who could identify at least the main accused whose face was not covered. Such conduct is not natural.

24) In this context, it is also relevant to point out that in his cross-examination, P.W.1 has stated that when the accused struck the blow on the body of Meena Devi and Rakesh Mishra, they did not shout, meaning thereby, they had already died. If it was so, then, all the more reason that on seeing the eye-witnesses, either the accused would have attacked them as the accused and his accomplices were four in number or they would have fled but nothing of this sort happened and it is said that the accused struck seven or eight more blows upon the body of Rakesh Kumar Mishra. Eyewitnesses saw the incident for five minutes, only thereafter they raised an alarm and during this period, the accused committed the crime barely five or seven steps from where the three eye-witnesses were present that, too, in their full view inside the courtyard where the crime was being committed and neither of the accused fled nor attacked them. This entire story of the prosecution about a torch being carried and crime being seen by P.W.1 and P.W.2 from a distance of about five or seven steps inside the house while the torch was on is not believable in view of the above discussion. The three cell jeep torch was never recovered nor there is any such recovery memo on record nor has it been exhibited.

25) P.W.2 has stated in his cross-examination that when the accused struck a blow from his 'Banka' upon his wife-Meena Devi then out of fear he did not make an effort to stop him and to save Meena Devi. Five minutes after the accused had struck the blow on his wife-Meena Devi, they, i.e. the eye-witnesses raised an alarm. For five minutes, they just stood still. This is also highly unnatural and improbable. Even if, the three eye-witnesses were not armed and out of the four accomplices, the accused was armed with a Banka, even if, out of fear, the eye-witnesses were not in a position to resist and stop the crime, they would have in natural course fled from the scene and raised an alarm immediately so that the culprits could be caught there and then. It is unnatural that they would stand there for five minutes seeing commission of the crime that too when they had lit the torch light and in that torch light, they were seeing the crime being committed and, obviously, the accused would also have seen them, as already discussed. He has stated that ten minutes after an alarm being raised, Shiv Lal, Bahelia, Guddu and other villagers came but none has been produced to support the prosecution case.

26) No doubt, the body of the two deceased was found in the house of the accused, therefore, in ordinary course, burden would be upon him to offer an explanation in terms of Section 106 of Indian Evidence Act but it has come in the testimony of P.W.1 that there was no door on the doorway/ entry point of the house of the accused and P.W.2 has stated that the door was open when he entered the house. Apart from this variance in their statement, this is clearly suggestive of the possibility of outside entry into the house just as the eye-witnesses entered without any hindrance, therefore, the argument based on Section 106 of Indian Evidence Act is not acceptable.

27) In cross-examination, P.W.1 has stated that the three children of the accused and his wife-Meena Devi were sleeping towards south of cot of Meena Devi on another cot at a distance of three or four steps but there is no mention of this in the sitemap which P.W.1 claims to have been prepared on his directions.

28) As regards the testimonies of P.W.1 and P.W.2 with regard to situation of the bodies and the directions, this is not of much relevance because anybody who would have visited the spot after commission of the crime would have seen the bodies and the scene of crime. It is the part of their testimonies as eye-witnesses of the crime which is relevant but there are improbabilities therein as already noticed hereinabove.

29) As regards timing of crime, well, Rakesh Kumar Mishra must have left the house after having dinner because villagers have their dinner a little early than city folk and therefore, the statement of P.W.1 in this regard tallies with the contents of the post-mortem report but this by itself does not prove commission of crime by the accused on the basis of statements of P.W.1 and P.W.2.

30) At this stage, it is important to mention that P.W.1 has mentioned the length of Banka as 2 feet and the front portion of the knife i.e other than the butt, according to him, was about one and a half Bitta (front of the palm). The weapon of crime which is said to have been recovered allegedly on the pointing of the accused was not shown to P.W.1 during trial. In the statement of P.W.6- Investigating Officer, it has come that the length of the knife was 15 inches which does not tally with the recovery memo, according to which, it was about 2 feet (24 inches) i.e. Ex.Ka.8 prepared by P.W.6. There are no public witnesses of recovery of Banka. No doubt, reason given by the Investigating Officer in the recovery memo in this regard is that nobody was ready to be a witness but there are also no public witnesses of arrest of accused from verandah of a primary school.

31) If there were three eye witnesses who had seen the accused committing the crime in torch light then obviously the accused would have also seen them and being of the same village, living barely few houses away, the accused would have identified them. In these circumstances, it is not believable that the accused would be found sleeping in a nearby/ adjacent village in a primary school. Natural conduct would be to flee to a place where he could not be caught.

32) Considered holistically in light of the discussions made above, absence of public witnesses of recovery of Banka and at the time of arrest of accused is relevant in the facts of this case especially as no human blood could be ascertained on the Banka. In the facts and circumstances of this case, in the absence of any public witnesses of recovery of Banka, the said recovery allegedly on the pointing of the accused-appellant is not reliable. In any case, it has not been established by the prosecution that Banka which was recovered was the one which was used for commission of crime. The forensic report does not support this case and the testimonies of P.W.1 and 2 are full of discrepancies and improbabilities making it unreliable on this count also. The said Banka was not shown to P.W.1 and P.W.2 nor to the autopsy surgeon during trial.

33) As per forensic report, blood was found on the Banka but it could not be determined as to whether it was human blood or not. This becomes relevant in the totality of facts and circumstances discussed hereinabove.

34) In this context, it is also relevant that shirt and shawl of the accused was recovered from him on 15.08.2014 whereas he was arrested on 14.08.2014 at 4:30 P.M. The recovery was made while he was in police custody. Two public witnesses are mentioned in Recovery Memo (Ex.Ka.11) but none have been examined. Recovery of shirt a day after his arrest itself makes the recovery unreliable. This apart, the shirt and shawl are item nos.7 and 8 respectively in the forensic report dated 29.04.2016. The origin of blood could not be determined as regards the shawl allegedly recovered from the accused. Forensic report mentions that human blood was found on item nos.2, 3, 5 to 7, 10 to 13, 20 and 21. Thereafter, it is mentioned that no definite opinion could be formed on an examination of item nos.5 and 7 (shirt of accused) for categorization of blood. Thus, the blood allegedly found on the shirt of the petitioner could not be ascertained so as to arrive at a conclusive opinion as to whether it matched with that of the deceased or not. No specific query was put to the accused with regard to the blood being allegedly found on his shirt, under Section 313 Cr.P.C, instead, a general query was put as to what did he have to say about the forensic report which is Ex.Ka.24, to which, he responded that he had no knowledge about it. The query put by the court to the accused as aforesaid under Section 313 Cr.P.C. was not in letter and spirit of the said provision of law and the object behind it especially considering the fact that petitioner was an illiterate labourer. Considered in the totality of facts and circumstances discussed in this judgment, this does not help the cause of the prosecution at all.

35) Though P.W.1 has denied any illicit relationship between the two deceased but as already discussed the clothes being worn by the two deceased and the time when they were present in the home at the time of the incident are suggestive of a relationship between them. P.W.2 has stated in his cross-examination that the accused had stopped cultivating the fields of deceased- Rakesh Mishra a year ago. Motive in this case could cut both ways. Rakesh Mishra-the deceased was married and had a wife and children. Wife of Rakesh Mishra had died three years ago. His house was close to the house of Meena Devi i.e. wife of accused. The family of the deceased-Rakesh, if they knew about this relationship would certainly not approve of such relationship. The only eye-witnesses are the brother and cousin of deceased whose testimony we have not found to be reliable. We leave it at that.

36) The prosecution case set up on the basis of testimonies of P.W.1 and P.W.2 is not believable as their presence at the time of commission of the crime is highly doubtful for the reasons already given earlier.

37) Prosecution has failed to prove its case beyond doubt. The trial court has failed to consider relevant aspects of the matter as discussed above. The trial court has also not properly appreciated the statements of P.W.1 and P.W.2 and the discrepancies and improbabilities in this regard as discussed hereinabove. The trial court has accepted the prosecution case as it is without proper scrutiny of the testimonies of eye-witnesses as to assess their reliability, especially with regard to their presence at the time of commission of the crime. In our opinion, the prosecution has failed to prove its case beyond reasonable doubt and the accused is liable to be given benefit of doubt. Accordingly, we set-aside the judgment of the trial court and direct release of the appellant who is in jail.

38) The appellant is directed to file a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437-A of the Code of Criminal Procedure within six weeks from the date of release.

39) Accordingly, the appeal is allowed.

40) The original records shall be remitted back to the trial court for necessary action, if any.

41) Learned Amicus, Sri Rajesh Kumar Dwivedi shall be entitled to Rs.25,000/- (Rupees Twenty Five Thousand Only) from the High Court as fee for his services.

(Sanjay Kumar Pachori,J.) (Rajan Roy,J.)

Order Date :-01.03.2023

Shanu/-