This jail appeal arises out of impugned judgment and order dated 31.10.2005 passed by Additional Sessions Judge/F.T.C.,Court No.2, Gorakhpur in Sessions Trial No.76 of 2004,convicting the appellant under Sections 364, ...
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AFR
RESERVED
COURT NO.48
JAIL APPEAL No. 24 of 2019
Raj Kumar Appellant
versus
State of Uttar Pradesh Respondent
________________________________________________________
For Appellant : Ms. Mary Puncha (Sheeb Jose), Amicus
For Respondent/State : Mr. Amit Sinha, AGA
Hon'ble Pritinker Diwaker, J.
Hon'ble Shekhar Kumar Yadav, J.
(Per: Shekhar Kumar Yadav, J.)
1.This jail appeal arises out of impugned judgment and order
dated 31.10.2005 passed by Additional Sessions Judge/F.T.C.,
Court No.2, Gorakhpur in Sessions Trial No.76 of 2004,
convicting the appellant under Sections 364, 302/34 and 201 of
IPC and sentencing him to undergo ten years rigorous
imprisonment under Section 364 of IPC, with a fine of
Rs.1,000/; imprisonment for life under Section 302/34 of IPC,
with a fine of Rs.5,000/; and five years rigorous imprisonment
under Section 201 of IPC, with a fine of Rs.1,000/, in default
thereof, one years' simple imprisonment. All sentences shall run
concurrently.
2.The facts, in brief, are that on 23.09.2003, complainant Sri
Ram Chandar submitted a written report (Ex. Ka.1) at Police
Station Campiyar Ganj, Gorakhpur. The contents of the written
report read as under:
Neutral Citation No. - 2020:AHC:45974-DB
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“Humbly informed that the applicant Ram
Chandar Kevat S/o Hansraj is the resident of Vill
Laxmi (page torn) LaPatarki, P.S.Campiyar
Ganj, Dist: Gorukhpur. The applicant was married
around 6 years ago with Dhanpati @ Jhinki D/o
Sheshman S/o Vindhyachal, VillDharampur, Tola
Sikandarpur, P.S.Campiyar Ganj, Dist:
Gorukhpur, who was blind with both eyes. Around
2 months ago, I left my wife and both sons in my
inlaw's house. A day before yesterday, when I went
to my inlaw's house, my fatherinlaw told that
'Your elder son was not well, your wife Dhanpati,
in order to get him treated, went along with
Kawalwasi W/o Raj Kumar R/o Janakpur Tola
Karathari with both sons who were aged around 5
years and 1 year respectively' to Ramchaura
around 1520 days ago, and have not come back to
home till date. Then I started looking for them. But
nothing could be find out till now. My Sadhuvain
(sisterinlaw) Kawalwasi is of unsound mind. I
have apprehension that Kawalwasi may have killed
my wife and both sons. My report may kindly be
lodged and legal action be taken up.”
(English translation by Court)
3.On the basis of aforesaid written report, a First
Information Report (Ex. Ka.3) was registered as Crime No.298 of
2003 contemplating offences punishable under Section 364 of
IPC against coaccused Smt. Kawalwasi w/o Raj Kumar and
during investigation, accused Raj Kumar came in light and they
have made confessional statement about the death of deceased
persons, therefore, Sections 302 and 201 of IPC were added.
4.Immediately after registration of the F.I.R., the
investigation was undertaken by Sub Inspector Sri Ramayan Giri
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(PW13). Thereafter, the investigation was transferred to Sub
Inspector Sri Atul Narayan Singh (PW14), who sought
permission from the concerned Magistrate; proceeded to recover
the incriminating articles; and at the instance of accused
appellant, the police got recovered the cloths (Ex. Ka2) of
Dhanpati @ Jhinki and her two sons, which were hidden under
soil. The accused persons confessed their guilt and said that they
had killed Dhanpati @ Jhinki and her two sons by drowning
them in Rapti River. The recovered cloths of the deceased
persons were seized by the police. Police also tried to get out the
dead bodies from the river, but they could not succeed since the
dead bodies had been floated away in river stream.
5.The Investigating Officer after completing the
investigation, submitted a charge sheet (Ex Ka5) against both
the accused persons under Sections 364, 302 and 201 of IPC on
31.01.2004.
6.The case, being a Sessions Triable, was committed to the
Court of Sessions Judge. On 29.05.2004, the Sessions Judge
heard the arguments and after considering the entire material
available on record, has framed charge against appellant Raj
Kumar and coaccused Smt. Kawalwasi under Sections 364,
302/34 and 201 of IPC. The aforesaid charges were read over
and also explained to both the accused persons. On denial of the
same, trial commenced.
7.During the course of trial, the prosecution supported its
case with the aid of fourteen witnesses. After completing the
prosecution evidence, the accused persons were examined under
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Section 313 Cr.P.C. in which they have pleaded their innocence
and false implication and claimed trial.
8.Learned trial Court, relying upon the statements of PWs,
recorded the conviction of the accused persons for the offence
punishable under Sections 364, 302/34 and 201 of IPC and
sentenced them, as mentioned in paragraph no.1 of this
judgment. Hence, this appeal.
9.In appeal, the argument advanced by Ms. Mary Punch
(Sheeb Jose), learned Amicus, is as under:
(i)that the appellant has been convicted solely on the
basis of weak circumstantial evidence, and the nature of
circumstantial evidence is not as such, which can be made
basis for his conviction.
(ii)that there is no independent eye witness account to
the incident.
(iii)that the other piece of evidence against the
appellant is the recovery of cloths of the deceased at his
instance.
10.On the other hand, learned A.G.A, in support of the
impugned judgment, interalia, submitted that the conviction of
the appellant is strictly in accordance with law. He further
submitted that the trial Court has rightly passed the impugned
order after due and proper consideration of the evidence
available on record; hence, the order impugned does not
warrant any interference.
11.We have heard learned counsel for the respective parties
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and perused the material on record.
12.Before we proceed to deal with the merits of the instant
case, it would be appropriate to have a glance at the statements
of the prosecution witnesses for better appreciation of the
evidence adduced by the prosecution.
13.Ram Chander (PW1), is the husband of Dhanpati @
Jhinki. He supported the prosecution version and has stated that
he married to Dhanpati @ Jhinki around 6 years before the
incident. Jhinki was daughter of Sheshmani, who belonged to
MouzaDharampur, TolaSikandarpu, P.S.Campiyar Ganj. He
states that Jhinki was blind with both eyes and he had dropped
his wife and both sons, namely, Shrawan Kumar and Avneesh at
his inlaw's house two months before the incident. He has
further stated that two days before lodging this case, i.e. on
23.09.2000, he went to his inlaw's house; his fatherinlaw
informed him that “your elder son Shrawan Kumar is not well
and that Smt. Kawalwasi W/o Raj Kumar took Dhanpati @
Jhinki alongwith both sons to Ramchaura. They have been taken
for treatment around 1520 days back and have not come back
after the treatment”. He has further stated that then he started
searching his family, but nothing could be found. He has further
stated that my sadhuain (sisterinlaw) is of unsound mind and
she and her husband Raj Kumar may kill his wife and sons.
14.Smt. Sonarwasi Devi (PW2), is the sister of Dhanpati @
Jhinki. She deposed that she live with her father in Dharampur;
she has 56 sisters; her younger sister, namely, Dhanpati @
Jhinki was blind with both eyes and she had two sons, namely,
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Shravan and Avneesh. Sharavan was 5 years old and Avneesh
was 1 year old. She states that Ram Chandar (her brotherin
law) had dropped his wife Dhanpati @ Jhinki to her father's
house. Thereafter, Jhinki's elder son Shravan got sick, and in
order to treat him, Kawalwasi took my sister Jhinki and her
children to Ramchaura for treatment of Shravan. Since then,
they have not come back to my father's house and she made
efforts to search them alongwith her father, but in vain. She
states that she and her father went to Ram Chaukasi and Naat
Baat also, but no whereabouts of anyone could be found. She
further states that Kawalwasi's husband Raj Kumar works in a
teastall in Pipiganj and we also searched them, but Raj Kumar
and Kawalwasi could not be found. Thereafter, my bahnoi
(brotherinlaw) Ram Chandar came to my father's house to find
the whereabouts of his family and we told him about the
incident. She states that she has apprehended that Kawalwasi
and his husband Raj Kumar might have killed Jhinki and her two
children.
15.Sheshmani (PW3), is the father of accused Kawalwasi as
well as deceased Dhanpati @ Jhinki. He supported the
prosecution version. He has stated that he has 6 daughters,
namely, Ishrawati, Kawalwasi, Jhina, Manmati, Sonwarsi and
Dhanpati @ Jhinki. All are married. Around 2
½ years have
passed since his wife died; his daughter cooks food and serves
him; his daughters used to visit him and look after his farms
also; he has around 2
¾ acres of farms; he has 6
beegha of
farms in Dharmpur and 3 beeghas in Rasoolpur, Maharajganj.
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Dhanpati @ Jhinki was married with Ram Chandar R/o village
Patarki, P.S.Campiyar Ganj; she had two sons, namely, Shravan
aged 5 years and second Avneesh aged 1 year. He states that
Kawalwasi is my another daughter and was married with Raj
Kumar. He has further stated that around 14 months ago from
today, Dhanpati @ Jhinki disappeared and around 15 days
before her disappearance, she came to my house with her two
sons. Her husband after dropping her at my house, went back
immediately. When Dhanpati came to my house, Kawalwasi was
already here in my house with her children; and at that time,
Kawalwasi had two daughters and one son. Almost 14 months
ago when Dhanpati's son Shravan fell ill, Kawalwasi, in order to
get Dhanpati's son Shravan treated, took Dhanpati, Shravan and
Avneesh to Ramchaura and, thereafter, neither Dhanpati,
Kawalwasi nor two kids came back. After waiting for 23 days,
he went here and there to find out their location, but nothing
could be found. He has further stated that after 1215 days,
Dhanpati's husband Ram Chandar came to my house and asked
about welfare of Dhanpati and he narrated him the entire
incident. He also tried to search them, but in vain. Then he went
to the police station and lodged a case.
16.Dinesh Kumar ( PW4) son of Ram Ashrey; Ram Nayan
Sharma (PW5) son of late Bhagwati Sharma; Bechan Yadav
(PW8) son of Sri Dulare Yadav; Suresh Kumar Chaudhary (PW
9) son of Shahdev Chaudhary; and Vijay Prakash (PW9) son of
Kedarnath, were examined and have been declared hostile.
17.Adalat (PW6), is the son of Rajai, who had lastly seen the
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accused persons and deceased persons. He stated that he had
seen one man along with two women out of which, one was
blind along with five children, who were going towards Ramkola
village and since he remained standing at Bhagwa Chauraha till
evening, he saw that the man came back, but the blind women
and two children were not with him rather one woman and
three children had accompanied them. Subsequently, he came to
know from the newspaper that blind lady and two children were
kidnapped by her sister and brotherinlaw. He identified
Kawalwasi and her husband Raj Kumar and stated that he had
seen them at Bhagva Chauraha. In his crossexamination, he
remained firm.
18.Sri Ram (PW7) son of Kishun has stated that about 1213
months ago, Kawalwasi and Raj Kumar came to his house and
called him for help since police was chasing them. They accepted
their guilt of commission of murder of wife of Ram Chandra and
her two children. However, in crossexamination, he did not
support such version.
19.Sakshi Tapsi Singh (PW11) daughter of Chumman Singh,
has been examined and she denied of having any knowledge of
the incident.
20.Shiv Shankar Tiwari (PW12), Ramayan Giri (PW13) and
Sri Atul Narayan Singh (PW14) were the formal witnesses, who
had been the police officers, had certified their steps at the
several stages from the stage of lodging FIR till filing of charge
sheet.
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21. Admittedly, there is no direct evidence against the
appellant to prove his complicity in commission of crime and his
conviction rests upon weak circumstantial evidence i.e. recovery
of cloths at his instance.
22.In the present case, there is no eye witness to the
occurrence and it is only based on circumstantial evidence.
Before moving further, it would be appropriate to refer to the
law regarding reliability of circumstantial evidence to acquit or
convict an accused. The law regarding circumstantial evidence
was aptly dealt with in Padala Veera Reddy vs. State of Andhra
Pradesh and others
1
, wherein the Court has observed as under:
“10. x x x x (1) The circumstances from which an
inference of guilt is sought to be drawn, must be
cogently and firmly established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively, should
form a chain so complete that there is no escape from
the conclusion that within all human probability the
crime was committed by the accused and none else;
and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of guilt
of the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence.”
23.In the matter of Sattatiya @ Satish Rajanna Kartalla Vs.
State of Maharashtra
2
, the Supreme Court, while dealing with
11989 Sup. 2 SCC 706
2(2008) 3 SCC 210
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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.”
24.In Padala Veera Reddy (supra), the court further 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; and (4) the circumstantial evidence in
order to sustain conviction must be complete and
incapable of explanation of any other hypothesis
than that of the guilt of the accused and such
evidence should not only be consistent with the guilt
of the accused but should be inconsistent with his
innocence.”
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25.In Sharad Birdhichand Sarda vs. State of Maharashtra
3
,
it was held that the onus was on the prosecution to prove that
the chain is complete and falsity 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.”
26.Recently, the Hon'ble Apex Court in the case of
Navaneethakrishnan vs The State By Inspector of Police
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the
Court has observed as follows:
“The law is well settled that each and every
incriminating circumstance must be clearly
established by reliable and clinching evidence and
the circumstances so proved must form a chain of
events from which the only irresistible conclusion
3(1984) 4 SCC 116
4(2018) 16 SCC 161
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about the guilt of the accused can be safely drawn
and no other hypothesis against the guilt is
possible. In a case depending largely upon
circumstantial evidence, there is always a danger
that conjecture or suspicion may take the place of
legal proof. The court must satisfy itself that
various circumstances in the chain of events must
be such as to rule out a reasonable likelihood of the
innocence of the accused. When the important link
goes, the chain of circumstances gets snapped and
the other circumstances cannot, in any manner,
establish the guilt of the accused beyond all
reasonable doubt. The court has to be watchful and
avoid the danger of allowing the suspicion to take
the place of legal proof for sometimes,
unconsciously it may happen to be a short step
between moral certainty and legal proof. There is a
long mental distance between “may be true” and
“must be true” and the same divides conjectures
from sure conclusions. The Court in mindful of
caution by the settled principles of law and the
decisions rendered by this Court that in a given case
like this, where the prosecution rests on the
circumstantial evidence, the prosecution must place
and prove all the necessary circumstances, which
would constitute a complete chain without a snap
and pointing to the hypothesis that except the
accused, no one had committed the offence, which
in the present case, the prosecution has failed to
prove.”
27.The next thing, which is to be seen is whether the evidence
of recovery of cloths of the deceased at the instance of appellant,
is credible and could be relied on for proving the charge of
culpable homicide against the appellant. The recovery of cloths
of the deceased cannot be the only ground to prove the guilt of
the accusedappellant. The recovery of cloths is said to have
been shown on 18.12.2003, i.e. after three months of the
incident. Thus, the case of the accusedappellant being based on
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circumstantial evidence, needs the complete chain to establish
the guilt of the accused, whereas in the present case, none of the
witnesses had deposed that after taking over the deceased and
her children for treatment of her elder son, the accused had
proceeded to commit the offence.
28.Undisputedly, the place from which cloths are said to have
been recovered is an open place. So far as recovery of
incriminating article, i.e. cloths at the instance of the appellant,
is concerned, the witnesses to memorandum and seizure have
not fully supported the prosecution case. Adalat (PW6), in his
deposition, stated that he had disclosed this evidence when the
police had interrogated him after about three and half months.
Except him, no other witness had deposed about the last seen
evidence. The contents of the impugned FIR do not satisfy the
ingredients of the provisions of Section 364 of IPC. The incident
had taken place between 01.09.2003 to 07.09.2003, whereas the
recovery of cloths was shown on 18.12.2003, i.e. after three
months of the incident. The accused had taken away deceased
Dhanpati @ Jhinki and her two children for treatment of her
elder son. The FIR was lodged on 23.09.2003, which discloses
that informant had left her wife and two children in his inlaws
house about two months ago and about 15 to 20 days ago, co
accused Kawalwasi had taken away the deceased to Ramchaura,
but thereafter, she had not turned up. Ram Chander (PW1),
who is the husband of Dhanpati @ Jhinki, has stated that the
cloths were not stained with blood. He had identified those
cloths of his wife.
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29.Except the recovery of cloths of the deceased, there was no
other incriminating evidence to arrive at a conclusion that the
deceased were murdered by the accused persons, therefore, we
are of the view that unless the direct connection of the accused
persons for commission of murder of the deceased is established
beyond reasonable doubt, the appellant cannot be held guilty
only on the ground that at his instance, the cloths of the
deceased were recovered.
30.Keeping in view the aforesaid principle of law relating to
circumstantial evidence, if we examine the facts and evidence of
the present case, it emerges that there is no legally admissible
evidence against the appellant connecting him with the crime in
question, except last seen of evidence of Adalat (PW6).
However, statement of PW6 is not corroborated with other
evidence. There is no other incriminating evidence except the
recovery of cloths of the deceased to complete the chain of
circumstance that it is the accused, who had taken away the
deceased persons for committing their murder and, therefore, it
cannot be said that the accused had murdered the deceased.
31.Thus, considering the overall facts and circumstances of
the case, in particular, the nature and quality of evidence
adduced by the prosecution, in light of the aforesaid principle of
law, we are of the considered opinion that the prosecution has
failed to prove the guilt of the appellant. This being the position,
benefit of doubt must be credited to the appellant and he
deserves to be acquitted of the charges leveled against him.
32.Accordingly, the appeal is allowed. Conviction and
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sentence awarded to the appellant under Sections 364, 302/34
and 201 of IPC is hereby set aside.
33.The appellant is acquitted of all the charges. He is reported
to be in jail, he be released forthwith, if not required in any
other case.
34.We appreciate the assistance rendered by Ms. Mary Punch
(Sheeb Jose), learned Amicus and we direct the State
Government to pay Rs.10,000/ as her remuneration.
35.Let a certified copy of this order alongwith lower court
record be sent to the Court concerned for information and
necessary compliance.
Order Date:17.03.2020
Ajeet
(Shekhar Kumar Yadav,J) (Pritinker Diwaker,J)
Legal Notes
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