Virendra Singh And Another vs State Of U.P.
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Allahabad High Court

Virendra Singh And Another vs State Of U.P. on 1 August, 2024

Author: Siddharth

Bench: Siddharth

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:125070-DB
 
Court No. - 48
 

 
Case :- CRIMINAL APPEAL No. - 6626 of 2010
 

 
Appellant :- Virendra Singh And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Nasiruzzaman,Akhilesh Singh,Arvind Kumar Singh,Dinesh Kumar Misra,Jagdish Singh Sengar,Manoj Kumar Pandey
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Siddharth,J.
 

Hon'ble Brij Raj Singh,J.

1. Present appeal has been filed by the appellants, namely, Virendra Singh and Charat Singh, against the judgement and order dated 21.09.2010, passed by Additional District and Sessions Judge, Court No.2, Agra in S.T. No.649 of 2007, (State versus Virendra Singh and Charat Singh), arising out of Case Crime No. 15 of 2007, under Section 302 and 201 IPC, Police Station Vah, District Agra, whereby, appellant No.1-Virendra Singh has been convicted under Section 302 IPC for life imprisonment as well as fine of Rs.10,000/- along-with default clause and three years imprisonment under Section 201 IPC as well as fine of Rs.3,000/- along-with default clause. Appellant No.2-Charat Singh, has been convicted under Section 201 IPC with three years imprisonment as well as fine of Rs.3,000/- along-with default clause.

2. Appellant No.-2, namely, Charat Singh S/o Barelal had died on 12.10.2019 during pendency of this appeal and the present appeal has already been abated on his behalf vide order dated 19.01.2024. Hence, the appeal is being decided only with regard to appellant no.1, namely, Virendra Singh S/o Late Sri Ramlal.

3. Heard Sri Arvind Kumar Singh, learned Amicus Curiea for the appellant no.1-Virendra Singh, and Sri G.N. Kannaujiya, AGA-I for the State.

4. Prosecution case, in short, is that the daughter of informant, Nawab Singh, namely, Smt. Ram Sakhi, was married to appellant no.1 Virendra Singh, on 22.05.1993. Thereafter the appellant no.1 used to harass her for fulfilling further demand of dowry. On 28.07.2006, informant received telephonic information that Ramveer Singh S/o Pratap Singh has been informed that his daughter had died. When the informant and others reached the matrimonial home of Smt. Ram Sakhi, the house was found locked and the villagers informed that the entire family along-with their cattle have left the place.

5. Initially seven persons were implicated in the FIR. The prosecution examined PW-1 Nawab Singh; PW-2 Lakshmi Tiwari; PW-3 Shiv Veer Singh; PW-4 S.I. Jamadar Singh; PW-5 Ranveer Singh; PW-6 Vishambhar Singh; PW-7 Rajveer Singh; PW-8 Inspector Maharaj Singh and PW-9 Ramveer Singh to prove the case.

6. The statements of the appellants were recorded under Section 313 Cr.P.C., wherein, they denied the prosecution case and alleged false implication.

7. Learned counsel for the appellant has submitted that it is a case of circumstantial evidence, only PW-2 Lakshmi Tiwari and PW-9 Ramveer Singh were the prosecution witnesses of fact. They claimed themselves to be eye witnesses of the incident. He has submitted that both the aforesaid witnesses have only stated that on the night of the incident dated 28.07.2006 two persons passed before their eyes on a motorcycle keeping something between them and after sometime they returned back but without any thing kept by them on the motorcycle. They neither named the appellants nor could point out the number of the motorcycle. He has submitted that there is no other eye witness of the incident. Trial court has relied upon their statements while convicting the appellants assuming that the two persons seen by PW 2 and PW 9 on motorcycle were the appellants. He has submitted that none of the other prosecution witnesses claimed that they saw the incident. Trial court has also drawn inference from the fact that the house of the appellants was found locked when the PW-1 and others reached there after getting the information of the death of the deceased. Learned counsel for the appellant has further submitted that the appellant is in jail since the date of conviction i.e., 21.09.2010 and prior to commencement of trial proceedings he has also undergone incarceration in jail. He has no other criminal history to his credit.

8. Learned AGA has opposed the arguments advanced by the learned Amicus Curies appearing on behalf of appellant and has submitted that the finding of the trial court is in accordance with law. Keeping in view entire facts and circumstances of the case and the statements of the witnesses the implication and conviction of the appellant was in accordance with law. The judgement of conviction recorded by the trial Court is justified and may not be interfered.

9. After hearing the rival contentions, this Court finds that the date of incident was 28.07.2006 and even though the dead body of the deceased was never recovered but on the basis of confessional statement of the appellants before the two witnesses, the prosecution case of throwing the dead body of the deceased in the river was built up. It is a case of circumstantial evidence, there was heavy burden on the prosecution to prove the prosecution case beyond all reasonable doubts. The FIR of the incident was only lodged on 13.01.2007, when the missing report was lodged on 28.07.2006. PWs 3 and 7 have not supported the prosecution case and were declared hostile. The entire prosecution evidence is based on hearsay. Prior to the incident, no report regarding the demand of dowry by the appellant from the deceased was lodged. The motive of the crime has also not been proved by any independent witness. PW 2 and PW 9 who claimed that they saw two persons on motorcycle on the fateful night carrying something in between have also not been able to identifying the appellants or motorcycle.

10. Close scrutiny of the evidence makes it clear that there is no eyewitness account to the incident and the entire case of the prosecution is based on circumstantial evidence. Law in relation to the circumstantial evidence is well settled. In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra reported in (2008) 3 SCC 210, the Supreme Court, while dealing with circumstantial evidence, observed as under:

"11. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343], which is one of the earliest decisions on the subject, this court observed as under:

"10. ...... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

12. In Padala Veera Reddy v. State of AP [(1989) Supp (2) SCC 706], this held that when a case rests upon circumstantial evidence, the following tests must be satisfied:

"(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."

13. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

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

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

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

Recently, in Devi Lal vs. State of Rajasthan decided on 08.01.2019 in Criminal Appeal No.148 of 2010, the Supreme Court, while dealing with circumstantial evidence, observed as under:

14. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116. The relevant excerpts from para 153 of the decision is assuredly apposite:

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra [(1973) 2 SCC 793 where the observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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

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

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

15. It has further been considered by this Court in Sujit Biswas Vs. State of Assam 2013(12) SCC 406 and Raja alias Rajinder Vs. State of Haryana 2015(11) SCC 43. It has been propounded that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused."

11. It is a settled position of law that in criminal trial, suspicion howsoever grave, cannot substitute proof. In Devi Lal vs. State of Rajasthan (supra), the Apex Court, while dealing with a case, observed as under:

"On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof."

12. In view of the above consideration, the judgement and order of the trial court cannot be sustained and is hereby set aside. Appellant-Virendra Singh is acquitted of all charges.

13. The present criminal appeal is allowed.

14. Let the lower court record be remitted to the trial court.

15. Sri Arvind Kumar Singh, learned Amicus Curiae for the appellant is directed to be paid his professional fees, within a period of two weeks from raising on bill, by the High Court Legal Services Authority.

Order Date :- 1.8.2024

I.A.Siddiqui