A.F.R.

Court No. - 49

Case :- JAIL APPEAL No. - 7441 of 2008

Appellant :- Shaki

Respondent :- State

Counsel for Appellant :- From Jail,Amit Daga A/C,Ashok Kumar

Pandey A/C

Counsel for Respondent :- A.G.A.

Hon'ble Siddhartha Varma,J.

Hon'ble Umesh Chandra Sharma,J.

(Per: Umesh Chandra Sharma,J.)

Heard Sri Amit Daga (Amicus Curiae) assisted by the Sri

Abhishek Kumar Jaiswal learned counsel for the appellant and Sri

Vikas Goswami learned Government Advocate.

This jail appeal has been filed against the judgement and

order dated 20.3.2008 passed by the Additional Sessions Judge,

Court No. 6, Muzaffarnagar, in Session Trial No. 854 of 2007

arising out of Case Crime No. 7 of 2007, under Section 302 and

201 IPC, Thana – Bhaunrakala, District – Muzaffarnagar, wherein

the appellant – Shaki- was tried and punished for the offences under

Sections 302 and 201 IPC. Under Section 302 IPC, the appellant

was awarded life sentence and a fine of Rs. 10,000/-. In the event of

non-deposit of fine, the appellant was to undergo further two years’

of rigorous imprisonment and under Section 201 IPC, the appellant

was to undergo three years of rigorous imprisonment and a fine of

Rs. 2,000/- was also imposed. In the event of non-deposit of fine,

the appellant was to undergo a further rigorous imprisonment of

three months. All the punishments were directed to run

concurrently.

The father of the deceased Shiva had lodged a first

information report on 24.1.2007 alleging that his son Shiva, aged

about five years, on the previous day i.e. 23.1.2007, at around 4-

5pm, was seen with the appellant – Shaki s/o Somdatt Harijan. It

has been alleged in the first information report that when the son of

the first informant had not returned, then the first informant tried to

search for his son and when the son of the first informant and the

accused were not found till the morning of the next day, a first

information report was lodged. It has been stated in the F.I.R. that

the first informant along with other villagers had commenced a

search in the adjoining jungle and then in the sugar cane field of

one Satendra s/o Kitepal, the dead body of his son was found buried

in a pit which was covered with mud. However, his legs were

protruding out. In the first information report itself, the first

informant had alleged that the accused had a motive to kill the son

of the appellant as earlier the appellant had done some dirty work

with Deepak, another son of the first informant who was elder to

the one who had died. Since the first informant had, two or three

days prior, threatened the appellant with dire consequences, the

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appellant had taken a revenge. He had also stated in the F.I.R. that

when the appellant had taken away his son Shiva, his brother

Satyaveer and certain other villagers had also seen the appellant

taking the boy with him. He stated that the body of his child Shiva

had been exhumed from where the accused-appellant had buried

him and the dead body was lying over there. He, therefore, had

prayed that the State might proceed against the accused-appellant

and take action for the commission of the crime. Thereafter, when

the first information report was lodged on 24.1.2007, the police

started the investigation. Amongst other investigations, postmortem

was also done on the body of the deceased. Thereafter, the Police

submitted a charge sheet and upon the submission of the charge

sheet, the Court of District and Sessions Judge, Court No. 6,

Muzaffarnagar, framed charges against the accused-appellant under

Sections 302 read with Section 201 of the IPC. The accused

pleaded not guilty and demanded a trial.

From the side of the prosecution, P.W. - 1, i.e. the first

informant, was examined, Satyaveer, the brother of the first

informant was examined as P.W. - 2, the Doctor who had conducted

the postmortem was examined as P.W.- 3, the P.W. - 4 Vijendra

Singh was the signatory on the Punchnama, the P.W. - 5 & 6 were

the investigating officers who had conducted the investigation and

the P.W. 7 was the chik writer who was produced to prove the chik.

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From the defence side, no one was produced. However, the

appellant was confronted with certain questions and situations

under Section 313 Cr.P.C., which questions were, however, denied

by the accused-appellant on 12.11.2007. Thereafter, the Trial Court,

after assessing all the evidence and after hearing all the parties

passed the judgement and order dated 20.3.2008 convicting the

accused-appellant under Section 302 IPC for life imprisonment. A

fine of Rs. 10,000/- was also imposed (in the event of non-deposit

of fine, the accused-appellant was to undergo a further rigorous

imprisonment of two years). He was also convicted under Section

201 IPC for three years of rigorous imprisonment and a fine of Rs.

2,000/- was also imposed (in the event of non-deposit of fine, the

accused-appellant was to undergo a further three months of

rigorous imprisonment).

It has been contended by the learned counsel for the accused-

appellant that appellant was innocent and had been wrongly

convicted as the assessment of evidence was not done properly by

the Trial Court. The following were the arguments advanced by the

learned counsel for the accused-appellant:-

I.The appellant was seen with the victim by the first informant at

around 4 – 5pm on 23.1.2007 and, thereafter, the dead-body was

found on the next day i.e. on 24.1.2007 at around 12:30pm. There is

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absolutely no connecting evidence to suggest that the appellant

alone was guilty of murdering the child Shiva.

Learned counsel for the accused-appellant, therefore,

submitted that the evidence on the basis of which the punishment

had taken place was circumstantial in nature and the circumstances

from which the conclusion of guilt was drawn were not such by

which, at the first instance, it could be fully established that the

accused-appellant was guilty of the crime. He further submitted that

the circumstances should have been of such a nature and tendency

that they should have excluded every other hypothesis but the one

proposed to be proved by the prosecution.

He submits that even otherwise, there ought to have been a

chain of evidence so 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 within human probability

that the act must have been done by the accused-appellant alone

and no one else. He further submits that conviction could have been

possible only if the prosecution, after it had led its evidence, would

have connected the chain of circumstances in such a manner that

the circumstances would have led to no other conclusion other than

the conclusion that the accused-appellant was guilty.

Learned counsel for the accused-appellant, therefore, submits

that after the first informant had seen the accused with the deceased

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at around 4 - 5 pm in the evening of 23.1.2007, there was

absolutely no other evidence which could lead to the conclusion

that the accused and the accused alone had killed the deceased and

had buried him in the sugar cane field of Satendra s/o Kitepal.

Learned counsel for the accused-appellant submitted that

there is no clear and specific evidence that the place where the body

of the deceased was recovered was accessible only to the accused

and no one else. He, therefore, submits that there was absolute lack

of evidence with regard to the fact that the accused was last seen

with the deceased and furthermore there was no connection with

the evidence of the fact that even if the accused was last seen with

the victim he had in fact perpetrated the crime. Learned counsel,

therefore, submits that it would be very unsafe to conclude that the

appellant was guilty of the murder.

Learned counsel for the accused-appellant to bolster his

argument relied upon A.I.R. 1952 SC 343 : Hanumant Govind

Nargundkar and another vs. State of Madhya Pradesh, 1984 (4)

SCC 116 : Sharad Birdhichand Sarda vs. State of Maharashtra,

2006 (13) SCC 116 : Bablu alias Mubarik Hussain vs. State of

Rajasthan, 2015 (12) SCC 644 : Vijay Shankar vs. State of

Haryana, 2017 (100) ACC 913 : Anjan Kumar Sharma and

others vs. State of Assam, 2016 (1) SCC 501 : State of

Karnataka vs. Chand Basha, 2015 (9) SCC 44 : State of Uttar

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Pradesh vs. Satveer and others, 2012 (79) ACC 713 : Baliya @

Bal Krishan vs. State of M.P. and the Criminal Appeal No. 5824

of 2010 (Satish Sharma and another vs. State of U.P.).

Learned counsel for the accused-appellant, therefore,

submitted that the chain of evidence from the time the appellant

was last seen with the deceased and till the body of the deceased

was found was definitely not complete and, therefore, it could

definitely not be said that the evidence was such which could make

the prosecution to reach the only conclusion that the appellant was

the perpetrator of the crime.

II.Learned counsel for the accused-appellant has submitted that in the

first information report the father of the deceased, Sri Karan Singh

had stated that the appellant had a motive to kill his son on account

of the fact that the first informant had threatened the appellant with

dire consequences because of the fact that he had a few days earlier

done some dirty work with another son of his, namely, Deepak.

Learned counsel for the appellant submits that the attribution

of this motive to the appellant was absolutely misplaced as the

learned counsel for the accused-appellant submitted that if the

appellant had done any dirty work on the person of the son of the

first informant then upon seeing the deceased/victim with the

appellant, the father/first informant would definitely have

reprimanded both his child and also appellant for being together.

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Learned counsel for the appellant submitted that no father in

his proper senses would allow any child of his to be with a person

who had on an earlier occasion tried to do something dirty on the

person of any one of his children and, therefore, learned counsel for

the appellant submits that the first informant had for no reason

whatsoever tried to implicate the appellant.

III.Learned counsel for the accused-appellant submitted that there

were many contradiction in the statements made by the prosecution

witnesses. He submits that P.W.-1 i.e. the first informant had stated

in the F.I.R. that the witnesses of fact were he himself and

Satyaveer. However, in his cross-examination, he has stated that

along with him Satyaveer, his brother and one Surendra had also

seen the appellant taking away the child. Here, by Surendra he had

meant Surendra s/o Rahtu Harijan which name finds place in the

list of witnesses in the charge sheet.

Learned counsel for the accused-appellant submits that while

at one place in his testimony, he has stated that he himself, his

brother Satyaveer and Surendra s/o Rahtu had seen the child being

taking away at around 4-5pm, in his cross-examination he had

stated that he, Surendra s/o Shree pal and Kripal s/o Kadam had

also seen the child being taking away by the appellant on

23.1.2007. Learned counsel states that the father in his cross-

examination has further stated that on that date both Surendra and

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Kripal had come back from work after 6:30 pm in the evening after

it was dark. Learned counsel, therefore, states that there is a

contradiction in what the first informant says in the F.I.R. from

what he says in the examination in chief and further he has taken a

different stand in the cross-examination.

Learned counsel for the accused-appellant further submitted

that even though the first informant had stated in the first

information report that after 4 to 5 pm when the appellant was last

seen with the child the accused was not seen thereafter till his arrest

but P.W. -2 i.e. that the brother of the first informant Satyaveer in

his statement had stated that Shiva’s body was found at around

12:30pm and the first person to find the body of the deceased was

Shaki, that is the accused along with four other boys, namely,

Vipin, Sonu, Pradeep and Ankit. Learned counsel for the accused-

appellant, therefore, submits that, in fact, Shaki as per the statement

of P.W. -2 was throughout searching for the child Shiva. Since

learned counsel for the appellant had heavily relied upon this part

of the statement of P.W. 2, the same is being reproduced here as

under:- ^^f’kok dh yk’k djhc lk<s ckjg cts fnu esa feyh FkhA lcls

igys yk’k ds ikl 'kkdh vfHk0 pkj yMdks dks ysdj ftuesa vafdr]

fofiu] lksuw o iznhi Fks ryk’k djkus ys x;k FkkA mu yMdksa dks gh

'kkdh us crk;k Fkk f’kok dh yk’k xUus ds [ksr esa gSA mlds ckn ;s ikapksa

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xkao es x;s FksA vkSj fQj xkao okys buds lkFk x;s FksA lkdh ;g ckr

crkdj xkao ls Qjkj gks x;k FkkA^^

Learned counsel for the accused-appellant further submitted

that to disprove the fact that Shaki had seen the dead body along

with his four friends, namely, Ankit, Vipin, Sonu and Pradeep the

four friend were never produced in the witness box.

In this case, the accused-appellant has not absconded and his

conduct was not suspicious but was bonafide as he was also

searching the deceased along with other boys. Absconding may

lead to suspicion against the person who is suspected and has

absconded after occurrence but in this case it is not so.

‘Absconding’ is a telltale circumstance of a guilty mind,

unless the accused can offer a reasonable explanation for his

absence for several days at his normal place of residence or work or

at places where he would normally be expected to be found. It is

only one link in the chain of evidence and not the determining link.

Hiding in his own house may be absconding. It is hiding to evade

process of law. In Thimma vs. State of Mysore, AIR 1971 SC 1871

the Supreme Court held that even innocent persons may, when

suspected of grave crimes, be tempted to evade arrest. Unnatural

conduct of accused can strengthen prosecution version.

Learned counsel for the appellant further submitted that if the

P.W. 1 i.e. the first informant was of the view that Shaki, the

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accused and the deceased were together after they were last seen on

23.1.2007 in between 4-5pm till the incident had occured then the

first informant should have got at least some report registered with

the Police with regard to the fact that his son was not being found.

IV.Learned counsel for the accused-appellant still further has argued

that if the post mortem report was seen then there was no sign of

any dirty work (as mentioned in Section 377 IPC) having been done

on the body of the deceased. He specifically pointed out to column

4 of the postmortem report which is to the effect that there was no

abrasion and laceration wound around the anus and, therefore,

learned counsel for the appellant submitted that for no reason the

appellant was implicated and, thereafter, punished.

Learned counsel for the appellant while assailing the

judgement of the Trial Court submits that the trial court had only

presumed on the basis of suspicion that the deceased was taken

away by the appellant after he was last seen on 23.1.2007 at around

4 to 5 pm and he submitted that suspicion cannot take the place of

proof. He submits that just because there was an enmity it could not

be said that it had to be concluded that the appellant had killed the

son of the first informant.

Learned counsel for the accused-appellant, thereafter, has

also pointed out to the delay in the filing of the first information

report. He has drawn the attention of the Court to the statements

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made by other witnesses wherein it was evident that they had seen

the child till very late in the evening much after 4 to 5 pm. It is

noteworthy that the presence of the finger prints on the neck of the

deceased with the fingers of the accused was not matched.

Similarly, the footprints of the actual accused may have been

present on the spot, but those footprints were not matched with the

footprints of the accused.

Learned Additional Government Advocate Sri Vikas

Goswami, however, in his reply has submitted that when the

appellant was last seen with the deceased at around 4 to 5 pm and,

thereafter, when the body was found around 12:30 pm on the next

date i.e. 24.1.2007, the prosecution could come to only one

conclusion and that was that the appellant had taken away the child

and had killed him and buried him in the sugar cane fields. Thus, it

was established that the deceased was seen with the accused before

the death and, therefore, he was responsible for the death.

Learned AGA further submitted that minor discrepancies in

the statements of various witnesses with regard to seeing the child

playing with the appellant were of no consequence and they should

be ignored.

Learned AGA submits that the P.W. -1 & 2 were rustic

witnesses and if there were certain contradictions in their

statements then they were of no value and should be ignored. He

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vehemently submitted that the hyoid bone of the child was

fractured and, therefore, the only conclusion was that the child was

murdered by strangulation by the appellant, with whom he was last

seen.

Learned AGA also tried to fix the time of occurrence by

drawing the attention of the Court to the rigour mortis which had

set in and he submitted that the stage of rigour mortis was such that

it definitely suggested that the child had been murdered on the

previous evening at around 4 to 5 pm and, therefore, when the

appellant was seen last at around 4 to 5 pm i.e. around the time

when the child was killed it could be safely concluded that the

appellant alone had killed the child. The Hon’ble Supreme Court

has opined in various cases that no doctor can determine the exact

time of death as there can be a variation of six hours on both sides.

In the case of State of U.P. vs. Mohd. Iqram reported in

(2011) 3 SCC (Cri) 354, the Hon’ble Supreme Court has held that

“the post mortem report is not a substantive piece of evidence.

Substantive piece of evidence is that statement which is given by

witness in Court. If the post mortem is proved but that does not

meant that its each and every content thereof also proved or can be

held admissible.”

The decision passed in the case of Kunju Mohammad v.

State of Kerala reported in 2004 SCC (Cri) 1425 is relevant in

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respect of rigor morits and its evidence for ascertaining the time of

death. It has been observed that “ according to the prosecution the

incident took place at 8.15 on 03.11.1991. Post Mortem of the

deceased was conducted at 13.30 on the same day. Doctor opined

in P.M.R. that rigor mortis was present all over the body. Doctor in

his evidence stated that rigor mortis sets in 4 to 7 hours after

death. The Supreme Court on the basis of rigor mortis observed

that the death in question must have occurred before 6.30 am on

03.11.1991 not at 8.15 a.m. as per prosecution.”

The time of occurrence can be determined by some other

means also such as food found while conducting post mortem.

In the instant case, 400ml liquid food was found in the

stomach. The autopsy was conducted on 25.1.2007 at 2:30pm.

According to the prosecution case, the deceased was killed in the

night of 23/24.1.2007. Thus, the post mortem had been conducted

after about two days from the time of probable death.

According to P.W.-3, Dr. Ashwani Kumar Sharma, who did

the post mortem has opined that there is possibility that the

deceased was killed in between the evening of 23.1.2007 at 4:00pm

to 12:00am. The deceased was killed between 4:00pm to 12:00am

of night of 23.1.2007 and 24.1.2007.

In the cross-examination, the P.W. - 3, has opined that food

remains in the stomach of alive person can be there for six to eight

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hours. He deposed that the deceased died after 6 to 8 hours after

taking the food. He has agreed that there is a possibility of variation

of around 6 to 8 hours about the time of death. The hon’ble

Supreme Court in the case of Pattipati Venkaiah vs. State of A.P.

reported in 1985 4 SCC 80 has observed that “the medical science

is not yet so perfect as to determine the exact time of death, nor can

the same be determined in a computerized or mathematical fashion

so as to the last record. The state of the contents of the stomach

found at the time of medical examination is not a safe guide for

determining the time of occurrence, because that would be matter

of speculation. The time required for digestion may depend upon

the nature of the food, digestive capacity of a person, and quality

and quantity of food and atmospheres and condition etc.

So argument raised on behalf of appellant rejected.”

Having heard Sri Amit Daga (Amicus Curiae) assisted by the

Sri Abhishek Kumar Jaiswal learned counsel for the appellant and

Sri Vikas Goswami learned Government Advocate, we are of the

view that the order of conviction which was passed by the

Additional Sessions Judge, Court No. 6, Muzaffarnagar, was

erroneously passed. The judgement and order dated 20.3.2008 was

passed on the testimony of various prosecution witnesses. After the

examination-in-chief and the cross-examination of the P.W. - 1 i.e.

the first informant is perused, the Court finds that it could be said

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that the first informant had seen the appellant along with the first

informant’s son Shiva at around 4 to 5 pm. As per the P.W. -1, the

brother of the P.W. -1 who was produced as P.W. -2 and one

Surendra son of Rahtu Harijan had also seen the appellant playing

with the deceased at around 4 to 5 pm on 23.1.2007. Thereafter,

they were not to be found. As per the P.W. - 1 both the appellant

and the deceased had absolutely disappeared after they were last

seen and the child after being killed was found buried at 12:30pm

on the next date on 24.1.2007. In the cross-examination, we find

that the P.W. -1 has also stated that it was Surendra son of Shree Pal

who had actually seen the child playing with the appellant. This

prosecution witness (P.W.-1) has not been able to, with any

certainty, come up with any evidence which would lead one to

reach a conclusion that the appellant and the appellant alone had

murdered the child. His statement of fact that the appellant was not

to be found after he was seen last at 4 to 5 pm was in direct

contradiction to the statement made by P.W. - 2 that the appellant

himself was searching for the missing child Shiva and the appellant

along with 4 other boys, namley, Ankit, Vipin, Sonu and Pradeep

had found the dead body. This not only makes the statement of the

P.W. - 1 unreliable but in fact a suspicion is raised in the mind of

the Court that the first informant was trying to falsely implicate the

appellant. The P.W. - 1 has also not tried to disprove the statement

of the P.W. - 2 by producing the four boys, namely, Ankit, Sonu,

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Vipin and Pradeep. He has also not questioned the P.W. - 2 with

regard to the fact as to whether he had actually seen the appellant

Shaki searching for the missing child. The Court, therefore, finds

that conviction on the basis of the fact that the appellant was last

seen with the deceased has no ground to stand as there are many

missing links between the time the first informant (P.W.-1), the P.W.

- 2 and Surendra had seen the appellant last with the child and the

time when the body of the deceased was found.

Further, we find substance in the argument of the learned

counsel for the accused-appellant that if only a few days back the

appellant had done some dirty work with the elder son of the first

informant who was named Deepak then it was a natural behaviour

of any father not to trust the younger son of his with that person.

We have earlier already found that this case is totally based

on circumstantial evidence and not on direct evidence. In the case

of State of U.P. vs. Satish reported in 2005 (3) SCC 114, the

Supreme Court has held that “there is no doubt that conviction can

be based solely on circumstantial evidence but it should be tested

by the touchstone of law relating to circumstantial evidence laid

down by this Court as far back in 1952.”

Further, in the case of Sharad Birdichand Sarda vs. State

of Maharashtra reported in AIR 1984 SC 1622, the Supreme

Court has held that “before conviction could be based on

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circumstantial evidence the following conditions must be fully

established and they are:

1.The circumstances from which the conclusion of guilt is to be

drawn should be fully established.

2.The fact so established should be consistent only with the

hypothesis of the guilt of the accused.

3.The circumstances should be of conclusive nature and

tendency.

4.They should exclude every possible hypothesis except one to

be proved.

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 conditions have been called as the ‘Five golden

principles’ or to say’ constitute the panchsheel of the proof of a case

based on circumstantial evidence.’

Recently, in Nathiya vs. State Rep. By Inspector of Police,

Bagayam Police Station, Vellore, (Crim. Appeal No. 1015 of

2010, date of judgement 08.11.2016), the Hon’ble Court has

approvingly referred to Sujit Biswas vs. State of Assam, (2013) 12

SCC 406 and Raja @ Rajednra vs. State of Haryana (2015) 11

SCC 43. The proposition laid down is to the effect that in

scrutinising circumstantial evidence, a court is required to evaluate

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it to ensure that the chain of events is established clearly and

completely, to rule out any reasonable likelihood of the innocence

of the accused. Whether the chain is complete or not would depend

on facts of each case emanating from the evidence and no universal

yardstick should ever be attempted.

More recently in Ganpat Singh vs. State of Madhya

Pradesh (2018) 2 SCC (Cri) 159, it has been reiterated that

circumstances from which an inference of guilt is sought to be

drawn, must be cogently and firmly established. 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 accused and they should be incapable

of explanation on any hypothesis other than that of guilt of accused

and inconsistent with his innocence.”

Where a case rests squarely on circumstantial evidence, the

inference of guilt can be justified only when all the incriminating

facts and circumstances are found to be incompatible with the

innocence of the accused or the guilt of any other person. (Raju vs.

State, by Inspector of Police, AIR 2009 SC 2171). Onus is on the

prosecution to prove that the chain is complete and false defence or

plea cannot cure the infirmity or lacuna in the prosecution case. If

the evidence relied on is reasonably capable of two inferences, the

one in favour of the accused must be accepted.(Vithal E Adlinge

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vs. State of Maharashtra, AIR 2009 SC 2067). The circumstances

from which an inference as to the guilt of the accused is drawn have

to be proved beyond reasonable doubt and have to be shown to be

closely connected with the principal fact sought to be inferred from

those circumstances (Krishna Ghose vs. State of W.B., AIR 2009

SC 2279).

In Dev Kanya Tiwari vs. State of U.P., (2018) 5 SCC 734,

it has been held that when there is no eye witness to an incident and

the case is entirely based upon circumstantial evidence, then court

is expected to be more careful and cautious while analyzing the

evidence and while convicting the accused. In other words, in all

probabilities chain of circumstances should lead to an irresistible

conclusion that the accused participated in the commission of the

crime and committed the offence.

In the instant case, if the first informant had in his mind the

dirty work which was done by the appellant with Deepak his elder

son then he would definitely not have allowed the appellant to play

with the child of the first informant who was later on murdered. On

these grounds we, therefore, conclude that the appeal deserves to be

allowed and the appellant deserves to be acquitted.

The appeal is, therefore, allowed and the judgement and

order dated 20.3.2008 passed by the Additional Sessions Judge,

Court No. 6, Muzaffarnagar, in Session Trial No. 854 of 2007

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arising out of Case Crime No. 7 of 2007, under Section 302 and

201 IPC, Thana – Bhaunrakala, District – Muzaffarnagar, is

quashed and is set aside.

Since the appellant is reported to be in jail, he be set free

forthwith, if he is not required in any other case.

We appreciate the hard work which has been put in by the

Amicus Curiae and quantify the fee to be Rs. 35,000/- which may

be paid to him.

Order Date :- 26.5.2022

PK

(Umesh Chandra Sharma,J.)……..(Siddhartha Varma,J.)

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