Per-contra learned A.G.A. while placing reliance upon AIR 2002 Supreme Court 1965 (Krishna Mochi and others. vs. State of Bihar) has submitted that non examination of the informant does not in any manner effect the prosecution case. Thus, we conclude that the non examination of the scribe of the written report namely Kalloo Ram is not fatal for the prosecution case.
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Case :- CRIMINAL APPEAL No. - 407 of 1982
Ram Raj V State Of U.P.
Corum:- Hon'ble Arvind Kumar Tripathi,J.
Hon'ble Mrs. Ranjana Pandya,J.
Citation: 2016 CRLJ(NOC)326 ALL
1. The present appeal has been preferred against the judgment dated 06.05.1982 passed by First Additional Sessions Judge, Bahraich, whereby the accused appellant was found guilty under Section 302 and 392 I.P.C. and was convicted and sentenced to undergo life imprisonment under Section 302 I.P.C., and three years R.I. under Section 392 I.P.C. Both the sentences were to run concurrently.
2. Brief facts of the case as unfolded in the first information report and the prosecution case is that the informant Barati Lal presented a written report dated 18.12.1979 to the S.O., P.S. Hardi, District Bahraich stating that he is resident of Katkauiya, P.S. Hardi, District Bahraich. On 17.12.1979 at about 12 O'clock in the day time, he had gone to the market for some purchase, when after sun set, he returned from the market to his house he found that his mother was not present in the house. His mother was aged about 60 years. He tried to trace his mother but he could not trace her. On the next date i.e. on 18.12.1979 in the morning, he left his house to find his mother he was being accompanied by Ram Naresh and Pyare Lal. While searching his mother, at about 12 O'clock in the day time when he reached the Arhar field of Nankau, he found that the dead body of his mother was lying there. Her neck was slitted. The informant left the dead body of his mother under the supervision of the villagers and went to the police station to lodge his report. This written report was proved by informant PW-1 Barati Lal as Exhibit Ka-1. Later on the same day i.e. 18.12.1979, the informant submitted information about the missing of jewellery of his mother. On the basis of this first information report, chick report was lodged by Head Constable Jagdish Singh. This chick report was proved by I.O. Hari Nath Tiwari as Exhibit Ka-3. Head Moharrir Jagdish also entered the ingredients of the chick report in the G.D. which was proved by PW-5 as Exhibit Ka-4.
3. Investigation was entrusted to PW-5 Hari Nath Tiwari who recorded the statement of the informant at the police station. After that he proceeded for the spot. The dead body of the deceased was lying in the field of Nankau. This witness appointed the Panch and prepared the inquest report. Photo and challan of dead body were proved as Exhibits Ka-5 to Exhibit Ka-7. This witness had further sealed the dead body and sent it for post-mortem along with necessary papers. He further collected the blood stained and ordinary earth from the place of occurrence. Again recorded the statement of the informant on the spot. Further recorded the statements of Radhey Shyam and Maula on 20.12.1979.
4. The I.O. tried to apprehend the accused on 19.12.1979 but he could not be traced. On 26.12.1979, he got information from the informer that the accused was likely to come from the side of Vanshpurva. At this, the I.O. took two public witnesses and after some time when the accused came from the side of Vanshpurva, he was apprehended by the I.O. The accused revealed to the I.O. that he had buried the ornaments of the deceased inside his 'Madha' and he could take them out and hand it over to the I.O. The accused was taken to the relevant place and on his pointing out there was recovery of one 'Hasuli' and Bangles of the deceased which were proved as Exhibits 1 to 7. This witness prepared the memo of recovery on the spot and proved it as Exhibit Ka-2. On 19.12.1979, this witness inspected the spot, prepared the site plan and proved it as Exhibit Ka-8. On 26.12.1979, the statement of Bankey Lal witness was recorded and after investigation on 24.01.1980, charge sheet was submitted against the accused which was proved as Exhibit Ka-9.
5. Witness Bankey Lal PW-3 has proved the recovery memo as Exhibit Ka-2. Radhey Shyam was produced by the prosecution who identified the jewellery worn by the deceased. PW-3 Bankey Lal was also produced by the prosecution who proved the recovery memo. PW-4 is Maula who saw the accused coming out of the Arhar field on the fateful day. The genuineness of the postmortem report was admitted by the counsel for the defence before the trial court. After production of five witnesses the prosecution closed its evidence.
6. The statement of the accused was recorded under Section 313 Cr.P.C., in which he denied the occurrence. Further he has stated that he has been falsely implicated due to enmity. The I.O. apprehended him on the next day of recovery of the body of the deceased. I.O. had also apprehended other villagers of the same village. He also kept under custody for eight days. He was inimical to Bankey and Maula. Besides, he has further stated that the case under Section 332 I.P.C., launched against his father by the police of P.S. Hardi is pending, due to this enmity, he has been falsely implicated in this case.
7. The defence produced two papers in defence. Exhibit Kha-1 is statement of Nari Nath Tiwari under Section 161 Cr.P.C. and Exhibit Kha-2 is the question-answer application.
8. Learned lower court after hearing counsel for the parties and after perusing the record, convicted the accused as aforesaid.
9. Feeling aggrieved, the appellant have come in this present appeal.
10. We have heard Sri Rajesh Kumar Dwivedi, Amicus Curiae on behalf of the appellant, Sri Sharad Dixit, learned A.G.A. On behalf of State and have carefully gone through the original record.
11. The points for determination in the matter are as follows:-
There is inordinate delay in lodging the first information report which strikes at the root of the prosecution.
Necessary details are wanting in the first information report.
The scribe of the written report namely Kalloo Ram has not been produced which is fatal for the prosecution.
There was no motive for the accused to commit the crime.
The witnesses are interested and related, hence they are not reliable.
The weapon of assault has not been recovered.
The alleged recovery of jewellery is fake.
The investigation is defective inasmuch as the blood stained earth and the plain earth and the blood stained clothes of the deceased were not sent for chemical examination and the identification of the sloten articles were not done.
(i)+(ii) There is inordinate delay in lodging the first information report which strikes at the root of the prosecution and necessary details are wanting in the first information report) are interconnected, hence they can be decided together
It has been submitted on behalf of the appellant that the first informant did not mention the ornaments which were being worn by the deceased and were missing from the corpse thus, the first information report is lacking in details. He has further submitted the non mentioning of the details of the jewellery in the first information report goes to show that no jewellery was taken away from the body of the deceased or alternatively she was not wearing any jewellery.
No doubt the written report does not bear any details about the jewellery of the deceased but it is well settled law that the first information report is not an encyclopedia, although there is an application on record showing about the details of the jewellery which were missing from the body of the deceased but since this paper was not proved, hence, it could not be looked into, but PW-1, informant Barati Lal has specifically stated that his mother's neck was slitted. The place of occurrence was blood stained. His mother used to wear three silver bangles in each hand and a 'Hasuli' in the neck. All these jeweleries were missing from her body. This witness identified the ornaments of his mother as Exhibit 1 to 7. This witness was not cross-examined on the point as to why he did not mention the details in the F.I.R. of the jewellery which were missing from the body of his mother being the deceased.
It has also been submitted on behalf of the appellants that there is inordinate delay in lodging the first information report which strikes at the root of the case. The first information report is the backbone of a criminal case and the police machinery is set into motion by lodging of the first information report.
In 2012 CRI.L.J. 2713 (Mahesh & Anr. vs. State of Madhya Pradesh) it has been held that it is an established law that so far as the first information report is concerned, it is only a report submitted informing the police about the commission of the crime. It is not required that the first information report should contain a detailed and vivid description of the entire incident. Further, it cannot be expected from the informant, especially, when the informant is a relative of the injured / deceased to give each and every minute details of the incident in the first information report.
Perusal of the chick report Exhibit Ka-3 shows that the incident is said to have been committed somewhere between 17.12.1979 and 18.12.1979. Since the time of murder of the deceased was unknown and the report was lodged on 17.12.1979 at 20:30 hours. The distance of the police station from the place of occurrence being 11 miles. As far as delay in lodging the first information report is concerned, the informant has said that on 17.12.1979 he had gone to the market. When he returned home his mother was not in the house. He tried to find his mother in the evening but she could not be found. Next day again he went to search his mother and eventually found the dead body of his mother in the Arahar fields of Nankau. He got the report written by Kalloo Ram. In cross-examination, he has said that he started for the police station at 03:00 P.M. and reached there at 08:00 P.M. This finds support from the chick report (Exhibit Ka-3). It has further been stated that the whole night he remained at the police station when he got the report lodged, the Sub-Insector was present at the police station who had a talk with him. He was not cross-examined as to how he went to the police station, whether on cycle or by foot or by four wheeler, hence we conclude that the delay in lodging the first information report has been explained.
Sri Rajesh Kumar Dwivedi, Amicus Curiae on behalf of the appellant has further submitted that omission to mention the details of the jewellery and unexplained delay in dispatch of the first information report to Magistrate would throw serious doubts on the prosecution case as has been held in 1980 Supreme Court Cases (Cri) 985 (Marudanal Augusti vs. State of Kerala. Reliance has also been placed on AIR 1976 Supreme Court 2423 (Ishwar Singh vs. The State of Uttar Pradesh which has dealt with the situation when there is unexplained delay in sending the first information report to the Magistrate. Thus, we find that the delay in lodging the first information report has been satisfactorily explained.
(iii) The scribe of the written report namely Kalloo Ram has not been produced which is fatal for the prosecution.
It has also been submitted on behalf of the appellant that the scribe of the written report namely Kalloo Ram has not been produced before the Court, hence, the first information report cannot be said to be proved and cannot be looked into while deciding the appeal.
Per-contra learned A.G.A. while placing reliance upon AIR 2002 Supreme Court 1965 (Krishna Mochi and others. vs. State of Bihar) has submitted that non examination of the informant does not in any manner effect the prosecution case. Thus, we conclude that the non examination of the scribe of the written report namely Kalloo Ram is not fatal for the prosecution case.
(iv) There was no motive for the accused to commit the crime
Sri Rajesh Kumar Dwivedi, Amicus Curiae on behalf of the appellant has submitted that the accused had no motive to commit the crime. Admittedly the present case in hand is based on circumstantial evidence and no doubt in cases of direct evidence, motive looses its value, but in cases of circumstantial evidence it is true that motive does assume great importance although to say that absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance is not due and (to use of cliche), the motive is in mind of the accused and can seldom be fathomed with any degree of accuracy. "Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental deposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant."
In some cases, it may not be difficult to establish motive through direct evidence, while in some other cases, inferences from circumstances may help in discerning the mental propensity of the person concerned.
It is true that where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty, but absence of clear proof of motive does not necessarily lead to the contrary conclusion. It should always be borne in mind that different motives may come into operation in the minds of different persons, for human nature has the potentiality to hide many things and that is the realistic diversity of human nature and it would be well nigh impossible for the prosecution to prove the motive behind every criminal act.
The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is well settled by a catena of decisions of the Apex Court where the prosecution relies upon circumstantial evidence. Proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Thus, it is clear that neither in the first information report nor in the evidence, the prosecution has come out with any motive. Thus, we conclude that no motive could be established against the accused.
(v) The witnesses are interested and related, hence they are not reliable
It has been submitted on behalf of the appellant that the witnesses produced by the prosecution are related and interested to the informant and inimical to the accused. Hence, they cannot be relied upon. As far as the witnesses are concerned P.W. 1 informant Barati is the son of the deceased. He is not an eye-witness. P.W. 2 is Radhey Shyam who has stated that on the fateful day, he saw the deceased going to pick twigs and wood to be used as fire wood at about 4:00 p.m. She was followed by the accused Ram Raj, who was carrying Khurpa. The deceased was wearing Hasuli and three Bangles in each hand. On the succeeding day, the dead body of Krishnawati was found. No enmity or friendship with this witness could be established by the defence. However, this witness has said that because Krishnawati used to grind eatables at his house hence, he recognized her jewelleries. It is well settled law that the evidence of interested or related witness cannot be thrown out merely on they being related to the deceased.
P.W. 4 Maula has admitted that Chunni Lal is the uncle of the informant Barati and this witness's sister was married to the nephew of Chunni Lal. This is a very distant relation which would not instigate the witness to involve himself in telling lies and falsely implicating any person.
In 1994 SCC (Criminal) Page 1390 Meharaj Singh Vs. State of U.P., it has been laid down:-
"Testimony of interested witnesses cannot be rejected on the sole ground of interestedness, but should be subjected to close scrutiny. Thus on what has been said above to conclude, neither the witnesses are interested nor related."
(vi) The weapon of assault has not been recovered
It has also been submitted on behalf of the appellant that the weapon of assault i.e. Khurpa was not recovered from the accused, hence the accused could not be held guilty. We do not think that recovery of weapon of assault is must to prove guilt against the accused. Other important aspects of the matter have also to be seen. Thus, no recovery of weapon of assault does not bear any adverse inference on the prosecution case.
(vii) The alleged recovery of jewellery is fake
The Amicus Curiae appointed on behalf of appellant has challenged the recovery of the jewellery at the pointing out of the accused. He has submitted that the statement of the accused given to the police in police custody was not at all admissible in evidence. In this regard counsel for the appellant has placed reliance upon 2001 (42) ACC Page 318 Jagdish and Another Vs. State in which this Court has laid down :
"Now the main prosecution version about the dead body recovered on the pointing out of the accused appellants will have to be scrutinised. It is important to note that the statement of Smt. Lakhu with her recitals in her report to the effect that the accused had killed her husband was imaginary, has demolished the edifice of the prosecution story. A perusal of the report Ext. Ka-4 would show that initially the accused made one excuse or the other when they were asked the whereabouts of Radhey Shyam but when the villagers cornered the appellants to disclose the truth, it was then that they revealed the fact of their having killed and buried Radhey Shyam. Smt. Lakhu disowned this version laid in the F.I.R. And stated before the trial court that the village Pradhan had scribed the report without consulting her. She added further that it was a fact that she carried and submitted the said report drafted by village Pradhan but the some was not drawn on her dictation or even with her knowledge. Not only this, she categorically stated that Jagdish and his wife had not conveyed to her or any villager that they had killed Radhey Shyam. It was only her assessment based on the disclosures made to her by the villagers about the complicity of the accused in the commission of the crime...."
In the present case it is not the case of the appellant that they were tortured or the police had compelled them to give the disclosure statement. In AIR (34) 1947 Privy Council, Page 67 Pulukuri Kottaya and Others Vs. Emperor in which it has laid down :
"The condition necessary to bring Section 27 into operation is that the discovery of fact must be deposed to and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of the information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence: but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate."
The factum of recovery of the jewellery has been stated by P.W. 5 Hari Nath Tiwari, I.O. and P.W. 4 Maula. P.W. 3 Bankey Lal has stated that about 8 to 9 days after the recovery of dead body of Krishnawati the Sub Inspector arrested the accused. After arrest the accused has stated that he would give the jewellary of the deceased. After that the accused took the police party and this witness to his house and took out the jewellary of the deceased and handed it over to the S.I. This jewellary was buried in the earth, which was dug by the accused and jewellary was taken out. This witness identified the jewellary of the deceased and proved his signature on the memo. P.W. 5 Hari Nath Tiwari has stated that when he had arrested the accused, the accused told him that he had murdered the mother of the informant and had buried her jewellary in Madaha, which he can take out and give to the I.O. After that the accused followed by the police party and witnesses went to the spot. The accused dug the earth and took out the Hasuli and Bangles Exhibit 1 to 7. The I.O. P.W. 5 has admitted that he did not hold the identification parade for identifying the jewellary. As far as identification is concerned, holding of test identification is not the rule of law, but it is only rule of prudence. Normally identification of goods, lends assurance, so that subsequent identification in the court during the trial could be safely relied upon. The law relating to the recovery under Section 27 Evidence Act has been laid down by the Hon'ble Apex Court in State of U.P. Vs. Deoman Upadhyay 1960 (SC) 1125, in which Apex Court has observed that :
"Section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation. The adjectival clause "accused of any offence" is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person, at the time of making the statement for the applicability of the ban. Section 26 of the Indian Evidence Act by its first paragraph provides that "no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against a person accused of any offence.
Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a proviso to Section 26, the two sections do not necessarily deal with the evidence of the same character. The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered. By Section 26, a confession made in the presence of a Magistrate is made provable in its entirety.
(8) Section 162 of the Code of Criminal Procedure also enacts a rule of evidence. This section in so far as it is material for purposes of this case, prohibits, but not so as to affect the admissibility of information to the extent permissible under Section 27 of the Evidence Act, use of statements by any person to a police officer in the course of an investigation under Ch. XIV of the Code, in any enquiry or trial in which such person is charged for any offence, under investigation at the time when the statement was made."
In (2015) 3 SCC (Criminal) Page 27 Pawan Kumar alias Monu Mittal Vs. State of U.P. & Another, the Hon'ble Apex Court has laid down :
"It is settled principle of law that statements made by an accused before a police official which amount to confession is barred under Section 25 of the Evidene Act. This prohibition is, however, lifted to some extent by Section 27 which reads thus :
27. How much of information received from accused may be proved-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accued of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
In light of Section 27 of the Evidence Act, whatever information given by the accused in consequence of which a fact is discovered only would be admissible in the evidence, whether such information amounts to confession or not. The basic idea embedded under Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information.
The "fact discovered" as envisaged under Section 27 of the Evidence Act embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
The same principle of law has been laid down in 1999 SCC (Criminal) Page 539 (State of Himanchal Pradesh Vs. Jeet Singh) in which it has been laid down :
"There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others. It would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For Example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows were it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. (Pulikuri Kottaya AIR 1947 PC 67). The said ratio has received unreserved approval of this Court in successive decisions. (Jaffar Hussain Dastagir vs. State of Maharashtra (1969 2 SCC 872), K.Chinnaswamy Reddy vs State of Andhra Pradesh (AIR 1962 SC 1788), Earabhadrappa @ Krishnappa vs. State of Karnataka (1983 2 SCC 330), Shamshul Kanwar vs. State of U.P. (1995 4 SCC 430), State of Rajasthan vs. Bhup Singh 1997 10 SCC 675).
What makes information leading to the discovery of the witness admissible is the discovery from him. All the things shown by him or hidden or kept with him, which the police does not know until the information was furnished to them by the accused. It cannot be said to be discovered if nothing is to be found or recovered from the accused as a consequence of the information furnished by the accused and the information which discloses the identity of the witness will not be the admissibility of the information under Section 27. The conduct of the accused is definitely admissible under Section 8 of the Indian Evidence Act as has been laid down in (1979) 3 SCC Page 90 Prakash Chandra Vs. State (Delhi Administration).
The I.O. P.W. 5 Hari Nath Tiwari prepared the recovery memo and proved it as Exhibit Ka-2 he has specified that the jewellary was taken in possession on the pointing out of the accused. This memo does not fulfill the requirements as envisaged in law inasmuch as in Exhibit Ka-2 it has not been written that the accused dug out the jewellary and handed it over to the police, whereas in the statement of P.W. 5 Hari Nath Tiwari, he has stated that the accused took out the jewellary after digging the earth.
Witness P.W. 3 Bankey Lal is also witness of recovery of the jewellary, who has stated that the accused had dug the earth and took out the jewellary of the deceased. But there is nothing on record to show that with what the earth was dug by the accused. Thus, the recovery of jewellary of the deceased has not been proved beyond all reasonable doubt.
(viii) The investigation is defective inasmuch as the blood stained earth and the plain earth and the blood stained clothes of the deceased were not sent for chemical examination and the identification of the sloten articles were not done
It has been submitted that the investigation is defective inasmuch as blood stained earth and plain earth was not sent to the Seriologist. In this regard the Amicus Curiae placed reliance upon AIR 1976 SC Page 2263 (Lakshmi Singh & Other Vs. State of Bihar), in which it has been laid down "Invariably in all criminal cases the blood stain earth is sent to the Chemical Examination." No doubt this should be done, but any lapses on the part of the I.O. will not render the prosecution case doubtful the same. Learned counsel for the appellant has also relied upon ACC 2000 (41) Page 181 Nawazish Ali Vs. State in which it has been held that, "failure on the part of the I.O. to produce the blood stained earth before the court makes the case doubtful."
As far as taking into custody the blood stained clothes and black thread of the deceased is concerned the defective investigation in the case would not entitle the accused to be acquitted. Thus, we conclude that defective investigation does not strike at the root of the prosecution case.
Admittedly, this is a case of circumstantial evidence. The prosecution has come forth with the theory that the deceased was last seen with the accused, hence it is a link to complete the chain.
In (2005) 3 SCC Page 114 State of U.P. Vs. Satish, it has been laid down :
"The last seen theory comes into play when the time-gap between the point of time when the accused and the deceases were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceases were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
12. As far as the prosecution evidence on this point is concerned P.W. 2 Radhey Shyam is the witness of last seen proved, he has stated that on the fateful day he saw Krishnawati going to pick twigs and wood, and she was followed by Ram Raj, who was carrying Khurpa. The evidence of last seen is a very week type of evidence and even if the statement of this witness is taken on its face value, even then about 24 hours passed when her body was recovered i.e. one day's time had passed when the deceased was last seen followed by the accused and when her dead body was recovered. Thus the proximity of time between the last seen and the recovery of the dead body is not so close which could lead to the conclusion that it was only the accused, who could have murdered the deceased.
13. P.W. 4 Maula has said that at about 5:00 p.m. he saw the accused wearing Dhoti come out from the field of Nankau. He had wrapped the Dhoti around his hand. This witness asked the accused as to where he had gone, but the accused did not reply and went away. On the next day, the dead body of Krishnawati was found. In cross-examination this witness has admitted that his field are about 6 fields away from the field of the Nankau. Again this evidence is very weak and shaky.
14. Admittedly, there is no direct evidence in this case about the crime and the prosecution story rests on circumstantial evidence. The Hon'ble Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra-(1984) 4 SCC 487, has formulated five golden rules -'Panchsheel' for the proof of a case based on circumstantial evidence. In Para-153 of the report it has been observed :
"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 proved' as was held by this Court in Shivaji Sahabrao Bobade & another Vs. State of Maharashtra (1973)2 SCC 793 where the following 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 conclusion."
(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."
These five gold principles, if we may say so, constitute Panchsheel of the proof of a case based on circumstantial evidence.
14. Admittedly, the doctor who conducted the postmortem report has not been examined in court although in the judgement of the lower court it has been mentioned that since the genuineness of the postmortem report was admitted, hence, it was looked into, but after critically and carefully examining the original postmortem report, we find that no endorsement was made by counsel for the defence either on the postmortem report or on the order-sheet as envisaged under Section 294 Cr.P.C. Thus, the postmortem report by no stretch of imagination could be read in evidence or relied upon.
15. We fail to understand why the trial court was mere spectator and failed in its duty in summoning the Doctor under Section 311 Cr.P.C. and getting the postmortem report proved. The crux of the matter as it stands today is that homicidal death of the deceased Krishnawati does not stand proved, thus, what to say of all the links forming a chain there are practical only a few stray links here and there. No link of chain at all has been formed by the prosecution.
16. Consequently, we conclude that the prosecution has miserably failed to prove the case against the accused and charges levelled against the accused beyond reasonable doubt, as such the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgement of conviction and sentence dated 06.05.1982 passed by First Additional Sessions Judge, Bahraich in Sessions Trial No. 47 of 1981 is hereby set aside
17. Accordingly the appeal is allowed.
18. The appellant is in jail. His bail bonds are cancelled. His sureties are discharged. He shall be released forthwith in this case. The provision of Section 437A Cr.P.C. shall be complied forthwith.
Order Date :- 13.10.2015
Print Page
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Case :- CRIMINAL APPEAL No. - 407 of 1982
Ram Raj V State Of U.P.
Corum:- Hon'ble Arvind Kumar Tripathi,J.
Hon'ble Mrs. Ranjana Pandya,J.
Citation: 2016 CRLJ(NOC)326 ALL
1. The present appeal has been preferred against the judgment dated 06.05.1982 passed by First Additional Sessions Judge, Bahraich, whereby the accused appellant was found guilty under Section 302 and 392 I.P.C. and was convicted and sentenced to undergo life imprisonment under Section 302 I.P.C., and three years R.I. under Section 392 I.P.C. Both the sentences were to run concurrently.
2. Brief facts of the case as unfolded in the first information report and the prosecution case is that the informant Barati Lal presented a written report dated 18.12.1979 to the S.O., P.S. Hardi, District Bahraich stating that he is resident of Katkauiya, P.S. Hardi, District Bahraich. On 17.12.1979 at about 12 O'clock in the day time, he had gone to the market for some purchase, when after sun set, he returned from the market to his house he found that his mother was not present in the house. His mother was aged about 60 years. He tried to trace his mother but he could not trace her. On the next date i.e. on 18.12.1979 in the morning, he left his house to find his mother he was being accompanied by Ram Naresh and Pyare Lal. While searching his mother, at about 12 O'clock in the day time when he reached the Arhar field of Nankau, he found that the dead body of his mother was lying there. Her neck was slitted. The informant left the dead body of his mother under the supervision of the villagers and went to the police station to lodge his report. This written report was proved by informant PW-1 Barati Lal as Exhibit Ka-1. Later on the same day i.e. 18.12.1979, the informant submitted information about the missing of jewellery of his mother. On the basis of this first information report, chick report was lodged by Head Constable Jagdish Singh. This chick report was proved by I.O. Hari Nath Tiwari as Exhibit Ka-3. Head Moharrir Jagdish also entered the ingredients of the chick report in the G.D. which was proved by PW-5 as Exhibit Ka-4.
3. Investigation was entrusted to PW-5 Hari Nath Tiwari who recorded the statement of the informant at the police station. After that he proceeded for the spot. The dead body of the deceased was lying in the field of Nankau. This witness appointed the Panch and prepared the inquest report. Photo and challan of dead body were proved as Exhibits Ka-5 to Exhibit Ka-7. This witness had further sealed the dead body and sent it for post-mortem along with necessary papers. He further collected the blood stained and ordinary earth from the place of occurrence. Again recorded the statement of the informant on the spot. Further recorded the statements of Radhey Shyam and Maula on 20.12.1979.
4. The I.O. tried to apprehend the accused on 19.12.1979 but he could not be traced. On 26.12.1979, he got information from the informer that the accused was likely to come from the side of Vanshpurva. At this, the I.O. took two public witnesses and after some time when the accused came from the side of Vanshpurva, he was apprehended by the I.O. The accused revealed to the I.O. that he had buried the ornaments of the deceased inside his 'Madha' and he could take them out and hand it over to the I.O. The accused was taken to the relevant place and on his pointing out there was recovery of one 'Hasuli' and Bangles of the deceased which were proved as Exhibits 1 to 7. This witness prepared the memo of recovery on the spot and proved it as Exhibit Ka-2. On 19.12.1979, this witness inspected the spot, prepared the site plan and proved it as Exhibit Ka-8. On 26.12.1979, the statement of Bankey Lal witness was recorded and after investigation on 24.01.1980, charge sheet was submitted against the accused which was proved as Exhibit Ka-9.
5. Witness Bankey Lal PW-3 has proved the recovery memo as Exhibit Ka-2. Radhey Shyam was produced by the prosecution who identified the jewellery worn by the deceased. PW-3 Bankey Lal was also produced by the prosecution who proved the recovery memo. PW-4 is Maula who saw the accused coming out of the Arhar field on the fateful day. The genuineness of the postmortem report was admitted by the counsel for the defence before the trial court. After production of five witnesses the prosecution closed its evidence.
6. The statement of the accused was recorded under Section 313 Cr.P.C., in which he denied the occurrence. Further he has stated that he has been falsely implicated due to enmity. The I.O. apprehended him on the next day of recovery of the body of the deceased. I.O. had also apprehended other villagers of the same village. He also kept under custody for eight days. He was inimical to Bankey and Maula. Besides, he has further stated that the case under Section 332 I.P.C., launched against his father by the police of P.S. Hardi is pending, due to this enmity, he has been falsely implicated in this case.
7. The defence produced two papers in defence. Exhibit Kha-1 is statement of Nari Nath Tiwari under Section 161 Cr.P.C. and Exhibit Kha-2 is the question-answer application.
8. Learned lower court after hearing counsel for the parties and after perusing the record, convicted the accused as aforesaid.
9. Feeling aggrieved, the appellant have come in this present appeal.
10. We have heard Sri Rajesh Kumar Dwivedi, Amicus Curiae on behalf of the appellant, Sri Sharad Dixit, learned A.G.A. On behalf of State and have carefully gone through the original record.
11. The points for determination in the matter are as follows:-
There is inordinate delay in lodging the first information report which strikes at the root of the prosecution.
Necessary details are wanting in the first information report.
The scribe of the written report namely Kalloo Ram has not been produced which is fatal for the prosecution.
There was no motive for the accused to commit the crime.
The witnesses are interested and related, hence they are not reliable.
The weapon of assault has not been recovered.
The alleged recovery of jewellery is fake.
The investigation is defective inasmuch as the blood stained earth and the plain earth and the blood stained clothes of the deceased were not sent for chemical examination and the identification of the sloten articles were not done.
(i)+(ii) There is inordinate delay in lodging the first information report which strikes at the root of the prosecution and necessary details are wanting in the first information report) are interconnected, hence they can be decided together
It has been submitted on behalf of the appellant that the first informant did not mention the ornaments which were being worn by the deceased and were missing from the corpse thus, the first information report is lacking in details. He has further submitted the non mentioning of the details of the jewellery in the first information report goes to show that no jewellery was taken away from the body of the deceased or alternatively she was not wearing any jewellery.
No doubt the written report does not bear any details about the jewellery of the deceased but it is well settled law that the first information report is not an encyclopedia, although there is an application on record showing about the details of the jewellery which were missing from the body of the deceased but since this paper was not proved, hence, it could not be looked into, but PW-1, informant Barati Lal has specifically stated that his mother's neck was slitted. The place of occurrence was blood stained. His mother used to wear three silver bangles in each hand and a 'Hasuli' in the neck. All these jeweleries were missing from her body. This witness identified the ornaments of his mother as Exhibit 1 to 7. This witness was not cross-examined on the point as to why he did not mention the details in the F.I.R. of the jewellery which were missing from the body of his mother being the deceased.
It has also been submitted on behalf of the appellants that there is inordinate delay in lodging the first information report which strikes at the root of the case. The first information report is the backbone of a criminal case and the police machinery is set into motion by lodging of the first information report.
In 2012 CRI.L.J. 2713 (Mahesh & Anr. vs. State of Madhya Pradesh) it has been held that it is an established law that so far as the first information report is concerned, it is only a report submitted informing the police about the commission of the crime. It is not required that the first information report should contain a detailed and vivid description of the entire incident. Further, it cannot be expected from the informant, especially, when the informant is a relative of the injured / deceased to give each and every minute details of the incident in the first information report.
Perusal of the chick report Exhibit Ka-3 shows that the incident is said to have been committed somewhere between 17.12.1979 and 18.12.1979. Since the time of murder of the deceased was unknown and the report was lodged on 17.12.1979 at 20:30 hours. The distance of the police station from the place of occurrence being 11 miles. As far as delay in lodging the first information report is concerned, the informant has said that on 17.12.1979 he had gone to the market. When he returned home his mother was not in the house. He tried to find his mother in the evening but she could not be found. Next day again he went to search his mother and eventually found the dead body of his mother in the Arahar fields of Nankau. He got the report written by Kalloo Ram. In cross-examination, he has said that he started for the police station at 03:00 P.M. and reached there at 08:00 P.M. This finds support from the chick report (Exhibit Ka-3). It has further been stated that the whole night he remained at the police station when he got the report lodged, the Sub-Insector was present at the police station who had a talk with him. He was not cross-examined as to how he went to the police station, whether on cycle or by foot or by four wheeler, hence we conclude that the delay in lodging the first information report has been explained.
Sri Rajesh Kumar Dwivedi, Amicus Curiae on behalf of the appellant has further submitted that omission to mention the details of the jewellery and unexplained delay in dispatch of the first information report to Magistrate would throw serious doubts on the prosecution case as has been held in 1980 Supreme Court Cases (Cri) 985 (Marudanal Augusti vs. State of Kerala. Reliance has also been placed on AIR 1976 Supreme Court 2423 (Ishwar Singh vs. The State of Uttar Pradesh which has dealt with the situation when there is unexplained delay in sending the first information report to the Magistrate. Thus, we find that the delay in lodging the first information report has been satisfactorily explained.
(iii) The scribe of the written report namely Kalloo Ram has not been produced which is fatal for the prosecution.
It has also been submitted on behalf of the appellant that the scribe of the written report namely Kalloo Ram has not been produced before the Court, hence, the first information report cannot be said to be proved and cannot be looked into while deciding the appeal.
Per-contra learned A.G.A. while placing reliance upon AIR 2002 Supreme Court 1965 (Krishna Mochi and others. vs. State of Bihar) has submitted that non examination of the informant does not in any manner effect the prosecution case. Thus, we conclude that the non examination of the scribe of the written report namely Kalloo Ram is not fatal for the prosecution case.
(iv) There was no motive for the accused to commit the crime
Sri Rajesh Kumar Dwivedi, Amicus Curiae on behalf of the appellant has submitted that the accused had no motive to commit the crime. Admittedly the present case in hand is based on circumstantial evidence and no doubt in cases of direct evidence, motive looses its value, but in cases of circumstantial evidence it is true that motive does assume great importance although to say that absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance is not due and (to use of cliche), the motive is in mind of the accused and can seldom be fathomed with any degree of accuracy. "Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental deposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant."
In some cases, it may not be difficult to establish motive through direct evidence, while in some other cases, inferences from circumstances may help in discerning the mental propensity of the person concerned.
It is true that where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty, but absence of clear proof of motive does not necessarily lead to the contrary conclusion. It should always be borne in mind that different motives may come into operation in the minds of different persons, for human nature has the potentiality to hide many things and that is the realistic diversity of human nature and it would be well nigh impossible for the prosecution to prove the motive behind every criminal act.
The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is well settled by a catena of decisions of the Apex Court where the prosecution relies upon circumstantial evidence. Proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Thus, it is clear that neither in the first information report nor in the evidence, the prosecution has come out with any motive. Thus, we conclude that no motive could be established against the accused.
(v) The witnesses are interested and related, hence they are not reliable
It has been submitted on behalf of the appellant that the witnesses produced by the prosecution are related and interested to the informant and inimical to the accused. Hence, they cannot be relied upon. As far as the witnesses are concerned P.W. 1 informant Barati is the son of the deceased. He is not an eye-witness. P.W. 2 is Radhey Shyam who has stated that on the fateful day, he saw the deceased going to pick twigs and wood to be used as fire wood at about 4:00 p.m. She was followed by the accused Ram Raj, who was carrying Khurpa. The deceased was wearing Hasuli and three Bangles in each hand. On the succeeding day, the dead body of Krishnawati was found. No enmity or friendship with this witness could be established by the defence. However, this witness has said that because Krishnawati used to grind eatables at his house hence, he recognized her jewelleries. It is well settled law that the evidence of interested or related witness cannot be thrown out merely on they being related to the deceased.
P.W. 4 Maula has admitted that Chunni Lal is the uncle of the informant Barati and this witness's sister was married to the nephew of Chunni Lal. This is a very distant relation which would not instigate the witness to involve himself in telling lies and falsely implicating any person.
In 1994 SCC (Criminal) Page 1390 Meharaj Singh Vs. State of U.P., it has been laid down:-
"Testimony of interested witnesses cannot be rejected on the sole ground of interestedness, but should be subjected to close scrutiny. Thus on what has been said above to conclude, neither the witnesses are interested nor related."
(vi) The weapon of assault has not been recovered
It has also been submitted on behalf of the appellant that the weapon of assault i.e. Khurpa was not recovered from the accused, hence the accused could not be held guilty. We do not think that recovery of weapon of assault is must to prove guilt against the accused. Other important aspects of the matter have also to be seen. Thus, no recovery of weapon of assault does not bear any adverse inference on the prosecution case.
(vii) The alleged recovery of jewellery is fake
The Amicus Curiae appointed on behalf of appellant has challenged the recovery of the jewellery at the pointing out of the accused. He has submitted that the statement of the accused given to the police in police custody was not at all admissible in evidence. In this regard counsel for the appellant has placed reliance upon 2001 (42) ACC Page 318 Jagdish and Another Vs. State in which this Court has laid down :
"Now the main prosecution version about the dead body recovered on the pointing out of the accused appellants will have to be scrutinised. It is important to note that the statement of Smt. Lakhu with her recitals in her report to the effect that the accused had killed her husband was imaginary, has demolished the edifice of the prosecution story. A perusal of the report Ext. Ka-4 would show that initially the accused made one excuse or the other when they were asked the whereabouts of Radhey Shyam but when the villagers cornered the appellants to disclose the truth, it was then that they revealed the fact of their having killed and buried Radhey Shyam. Smt. Lakhu disowned this version laid in the F.I.R. And stated before the trial court that the village Pradhan had scribed the report without consulting her. She added further that it was a fact that she carried and submitted the said report drafted by village Pradhan but the some was not drawn on her dictation or even with her knowledge. Not only this, she categorically stated that Jagdish and his wife had not conveyed to her or any villager that they had killed Radhey Shyam. It was only her assessment based on the disclosures made to her by the villagers about the complicity of the accused in the commission of the crime...."
In the present case it is not the case of the appellant that they were tortured or the police had compelled them to give the disclosure statement. In AIR (34) 1947 Privy Council, Page 67 Pulukuri Kottaya and Others Vs. Emperor in which it has laid down :
"The condition necessary to bring Section 27 into operation is that the discovery of fact must be deposed to and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of the information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence: but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate."
The factum of recovery of the jewellery has been stated by P.W. 5 Hari Nath Tiwari, I.O. and P.W. 4 Maula. P.W. 3 Bankey Lal has stated that about 8 to 9 days after the recovery of dead body of Krishnawati the Sub Inspector arrested the accused. After arrest the accused has stated that he would give the jewellary of the deceased. After that the accused took the police party and this witness to his house and took out the jewellary of the deceased and handed it over to the S.I. This jewellary was buried in the earth, which was dug by the accused and jewellary was taken out. This witness identified the jewellary of the deceased and proved his signature on the memo. P.W. 5 Hari Nath Tiwari has stated that when he had arrested the accused, the accused told him that he had murdered the mother of the informant and had buried her jewellary in Madaha, which he can take out and give to the I.O. After that the accused followed by the police party and witnesses went to the spot. The accused dug the earth and took out the Hasuli and Bangles Exhibit 1 to 7. The I.O. P.W. 5 has admitted that he did not hold the identification parade for identifying the jewellary. As far as identification is concerned, holding of test identification is not the rule of law, but it is only rule of prudence. Normally identification of goods, lends assurance, so that subsequent identification in the court during the trial could be safely relied upon. The law relating to the recovery under Section 27 Evidence Act has been laid down by the Hon'ble Apex Court in State of U.P. Vs. Deoman Upadhyay 1960 (SC) 1125, in which Apex Court has observed that :
"Section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation. The adjectival clause "accused of any offence" is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person, at the time of making the statement for the applicability of the ban. Section 26 of the Indian Evidence Act by its first paragraph provides that "no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against a person accused of any offence.
Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a proviso to Section 26, the two sections do not necessarily deal with the evidence of the same character. The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered. By Section 26, a confession made in the presence of a Magistrate is made provable in its entirety.
(8) Section 162 of the Code of Criminal Procedure also enacts a rule of evidence. This section in so far as it is material for purposes of this case, prohibits, but not so as to affect the admissibility of information to the extent permissible under Section 27 of the Evidence Act, use of statements by any person to a police officer in the course of an investigation under Ch. XIV of the Code, in any enquiry or trial in which such person is charged for any offence, under investigation at the time when the statement was made."
In (2015) 3 SCC (Criminal) Page 27 Pawan Kumar alias Monu Mittal Vs. State of U.P. & Another, the Hon'ble Apex Court has laid down :
"It is settled principle of law that statements made by an accused before a police official which amount to confession is barred under Section 25 of the Evidene Act. This prohibition is, however, lifted to some extent by Section 27 which reads thus :
27. How much of information received from accused may be proved-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accued of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
In light of Section 27 of the Evidence Act, whatever information given by the accused in consequence of which a fact is discovered only would be admissible in the evidence, whether such information amounts to confession or not. The basic idea embedded under Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information.
The "fact discovered" as envisaged under Section 27 of the Evidence Act embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
The same principle of law has been laid down in 1999 SCC (Criminal) Page 539 (State of Himanchal Pradesh Vs. Jeet Singh) in which it has been laid down :
"There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others. It would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For Example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows were it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. (Pulikuri Kottaya AIR 1947 PC 67). The said ratio has received unreserved approval of this Court in successive decisions. (Jaffar Hussain Dastagir vs. State of Maharashtra (1969 2 SCC 872), K.Chinnaswamy Reddy vs State of Andhra Pradesh (AIR 1962 SC 1788), Earabhadrappa @ Krishnappa vs. State of Karnataka (1983 2 SCC 330), Shamshul Kanwar vs. State of U.P. (1995 4 SCC 430), State of Rajasthan vs. Bhup Singh 1997 10 SCC 675).
What makes information leading to the discovery of the witness admissible is the discovery from him. All the things shown by him or hidden or kept with him, which the police does not know until the information was furnished to them by the accused. It cannot be said to be discovered if nothing is to be found or recovered from the accused as a consequence of the information furnished by the accused and the information which discloses the identity of the witness will not be the admissibility of the information under Section 27. The conduct of the accused is definitely admissible under Section 8 of the Indian Evidence Act as has been laid down in (1979) 3 SCC Page 90 Prakash Chandra Vs. State (Delhi Administration).
The I.O. P.W. 5 Hari Nath Tiwari prepared the recovery memo and proved it as Exhibit Ka-2 he has specified that the jewellary was taken in possession on the pointing out of the accused. This memo does not fulfill the requirements as envisaged in law inasmuch as in Exhibit Ka-2 it has not been written that the accused dug out the jewellary and handed it over to the police, whereas in the statement of P.W. 5 Hari Nath Tiwari, he has stated that the accused took out the jewellary after digging the earth.
Witness P.W. 3 Bankey Lal is also witness of recovery of the jewellary, who has stated that the accused had dug the earth and took out the jewellary of the deceased. But there is nothing on record to show that with what the earth was dug by the accused. Thus, the recovery of jewellary of the deceased has not been proved beyond all reasonable doubt.
(viii) The investigation is defective inasmuch as the blood stained earth and the plain earth and the blood stained clothes of the deceased were not sent for chemical examination and the identification of the sloten articles were not done
It has been submitted that the investigation is defective inasmuch as blood stained earth and plain earth was not sent to the Seriologist. In this regard the Amicus Curiae placed reliance upon AIR 1976 SC Page 2263 (Lakshmi Singh & Other Vs. State of Bihar), in which it has been laid down "Invariably in all criminal cases the blood stain earth is sent to the Chemical Examination." No doubt this should be done, but any lapses on the part of the I.O. will not render the prosecution case doubtful the same. Learned counsel for the appellant has also relied upon ACC 2000 (41) Page 181 Nawazish Ali Vs. State in which it has been held that, "failure on the part of the I.O. to produce the blood stained earth before the court makes the case doubtful."
As far as taking into custody the blood stained clothes and black thread of the deceased is concerned the defective investigation in the case would not entitle the accused to be acquitted. Thus, we conclude that defective investigation does not strike at the root of the prosecution case.
Admittedly, this is a case of circumstantial evidence. The prosecution has come forth with the theory that the deceased was last seen with the accused, hence it is a link to complete the chain.
In (2005) 3 SCC Page 114 State of U.P. Vs. Satish, it has been laid down :
"The last seen theory comes into play when the time-gap between the point of time when the accused and the deceases were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceases were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
12. As far as the prosecution evidence on this point is concerned P.W. 2 Radhey Shyam is the witness of last seen proved, he has stated that on the fateful day he saw Krishnawati going to pick twigs and wood, and she was followed by Ram Raj, who was carrying Khurpa. The evidence of last seen is a very week type of evidence and even if the statement of this witness is taken on its face value, even then about 24 hours passed when her body was recovered i.e. one day's time had passed when the deceased was last seen followed by the accused and when her dead body was recovered. Thus the proximity of time between the last seen and the recovery of the dead body is not so close which could lead to the conclusion that it was only the accused, who could have murdered the deceased.
13. P.W. 4 Maula has said that at about 5:00 p.m. he saw the accused wearing Dhoti come out from the field of Nankau. He had wrapped the Dhoti around his hand. This witness asked the accused as to where he had gone, but the accused did not reply and went away. On the next day, the dead body of Krishnawati was found. In cross-examination this witness has admitted that his field are about 6 fields away from the field of the Nankau. Again this evidence is very weak and shaky.
14. Admittedly, there is no direct evidence in this case about the crime and the prosecution story rests on circumstantial evidence. The Hon'ble Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra-(1984) 4 SCC 487, has formulated five golden rules -'Panchsheel' for the proof of a case based on circumstantial evidence. In Para-153 of the report it has been observed :
"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 proved' as was held by this Court in Shivaji Sahabrao Bobade & another Vs. State of Maharashtra (1973)2 SCC 793 where the following 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 conclusion."
(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."
These five gold principles, if we may say so, constitute Panchsheel of the proof of a case based on circumstantial evidence.
14. Admittedly, the doctor who conducted the postmortem report has not been examined in court although in the judgement of the lower court it has been mentioned that since the genuineness of the postmortem report was admitted, hence, it was looked into, but after critically and carefully examining the original postmortem report, we find that no endorsement was made by counsel for the defence either on the postmortem report or on the order-sheet as envisaged under Section 294 Cr.P.C. Thus, the postmortem report by no stretch of imagination could be read in evidence or relied upon.
15. We fail to understand why the trial court was mere spectator and failed in its duty in summoning the Doctor under Section 311 Cr.P.C. and getting the postmortem report proved. The crux of the matter as it stands today is that homicidal death of the deceased Krishnawati does not stand proved, thus, what to say of all the links forming a chain there are practical only a few stray links here and there. No link of chain at all has been formed by the prosecution.
16. Consequently, we conclude that the prosecution has miserably failed to prove the case against the accused and charges levelled against the accused beyond reasonable doubt, as such the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgement of conviction and sentence dated 06.05.1982 passed by First Additional Sessions Judge, Bahraich in Sessions Trial No. 47 of 1981 is hereby set aside
17. Accordingly the appeal is allowed.
18. The appellant is in jail. His bail bonds are cancelled. His sureties are discharged. He shall be released forthwith in this case. The provision of Section 437A Cr.P.C. shall be complied forthwith.
Order Date :- 13.10.2015
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