The Allahabad High Court has acquitted two accused in a 28-year-old murder case of Kotwali Shahar police station of Bijnor.
The Division Bench of Justice Sunita Agarwal and Justice Shamim Ahmed passed this order while hearing a Criminal Appeal filed by Suresh alias Chaveney.
The appeals have been preferred under Section 374(2) of the Code of Criminal Procedure against the judgment and order dated 28.01.1997 passed by the Fifth Additional District & Sessions Judge, Bijnor in Session Trial, arising out of Case under Sections 302/201 I.P.C, Police Station Kotwali Shahar, District Bijnor, whereby the Additional District & Sessions Judge, Bijnor has convicted and sentenced the appellants to undergo life imprisonment under Section 302 read with section 34 IPC and to undergo five years rigorous imprisonment under Section 201 IPC.
The prosecution case is that one Roshal Lal, the informant, the brother of the deceased, submitted a written report dated 13.10.1994 to In-charge Kotwali Shahar, Bijnor stating therein that his elder brother Surendra Singh had given testimony against Sumer (elder brother of appellant Suresh alias Chaveney) in a murder case in which Sumer was convicted.
Since then the family members of Sumer were having grudges with him. For the last few days, accused/appellant Suresh alias Chaveney used to take away his elder brother Rajendra (deceased) for buying lottery tickets and was developing friendship with him.
On 12.10.1994 at about 6.30 PM, his elder brother Rajendra (deceased) was standing with Raju at the Ramlila ground then accused/appellant Mukesh came while pulling a rickshaw on which accused/appellant Suresh alias Chaveney was sitting. Both the appellants took away his brother Rajendra in the presence of Raju saying that they will enjoy the party of meat and wine at the hotel of Virendra situated at Chamarpeda as they had won the lottery.
It was around 6.30 p.m, Prem Chand, son of Ramswaroop, and Tilak Raj had witnessed the accused/appellants with Rajendra (deceased) at the hotel of Virendra.
Following day, i.e on 13.10.1994 in the early morning at about 4.00 AM, Yadram went to the house of accused/ appellant Suresh alias Chaveney to book a car and there he saw that the accused/appellants were keeping a corpse in a sack whose legs were protruding outside. Both the appellants took out the said sack from the house and kept it on a rickshaw. Yadram asked them as to what was in the sack, on which appellant Suresh alias Chaveney replied to him that he took the revenge of enmity. They warned him not to tell anyone about it, otherwise consequences would be bad to him.
On 13.10.1994 itself, when Roshan Lal and his family members were searching for Rajendra then aforesaid persons disclosed the above facts and while searching for Rajendra the first informant reached near Singhal Dharam Kanta where some women, men and children were standing. He had identified the dead body of his brother which was lying behind the Singhal Dharam Kanta. .
After completion of the prosecution evidence, the statements of the accused appellants were recorded under Section 313 Cr.P.C. They were confronted with the incriminating evidence adduced against them during the course of trial, which they denied and pleaded innocence and stated that they were falsely implicated.
The trial court after examining the evidence available on record believed the evidence of the prosecution witnesses as trustworthy and reliable, hence, by means of the order convicted and sentenced the accused appellants for the offence as stated hereinabove.
Counsel for the appellants has submitted that the accused/ appellants have been convicted and sentenced under Sections 302/34 and 201 IPC without there being any concrete evidence against them. The judgment of the trial court is based on surmises and conjectures. It was a case of circumstantial evidence and without there being a complete chain of circumstances, the appellants have been convicted.
To substantiate the aforesaid submission, it has been argued by the counsel for the appellants that informant Roshan Lal had lodged the first information report against the accused appellants on a false story as disclosed by Raju, Premchand (not examined) and Yadram. Informant Roshan Lal is not a witness of any circumstance related to the alleged incident. There are discrepancies in the testimonies of the witnesses.
Counsel for the appellants further submitted that the deceased had sustained 14 injuries on his person caused by danda but there is no injury on the vital part of the body. In the post mortem report, as per the doctor the death would have been occurred in between 9-10 PM till 4.00 AM in the morning of 12.10.1994, whereas in the cross examination Dr R. K Maheshwari had stated that there was a possibility of death at 4.00 PM in the evening on 12.10.1994, therefore, there is a vast variation in the estimated time of death which creates a serious doubt about the time of the alleged incident testimony of prosecution witnesses.
Counsel for the appellants further argued that there was no independent witness of the alleged recovery allegedly made at the instance of the accused appellants, the recovery was planted in order to frame the accused appellants by false and fabricated means. It is further submitted that the case rests on circumstantial evidence but none of the circumstances from which inference of guilt against the accused appellants could be drawn had been proved by cogent evidence.
Counsel appearing for State-respondent, on the other hand, submitted that though the case rests on circumstantial evidence, but the chain of circumstances established on the basis of cogent evidence available on record which clearly indicate involvement of the accused appellants in the commission of the crime in question.
We have heard counsel for the parties and gone through the material brought on record, it is manifestly clear that the trial Court has convicted the accused appellants merely on the basis of testimonies of the informant Roshan Lal and Yadram as well as recoveries made on the pointing out of accused/appellant Mahesh from the house of accused appellant Suresh alias Chaveney. It may be noted that Raju and Tilak Raj had been declared hostile, the Court observed.
The Court said that,
To examine the guilt of the accused appellants, we must appreciate the evidence adduced by the prosecution. The case being a case of circumstantial evidence, it is a well settled law that where there is no direct evidence against the accused and the prosecution rests its case 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. In other words, there must be 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 that within all human probability, the act must have been done by the accused. All the links in the chain of circumstances must be complete and should be proved by cogent evidence.
The case purely rests on circumstantial evidence. In order to sustain conviction, a complete chain of circumstantial evidence must be formed which is incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard-and-fast rule can be laid to say that the particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done by the Court in the facts and circumstances of each case.
The Court further said that,
The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eyewitness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, at the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic one on one hand and inference of facts to be drawn from them on the other hand. In regard to proof of primary facts, the Court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that facts lead to an inference of guilt of the accused person should be considered.
It would be significant to add that while dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering in the mind may take the place of proof. Suspicion, however strong, cannot be allowed to take the place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof.
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, where various links in the chain are in themselves complete.
The case, which undoubtedly, is a case of circumstantial evidence, is to be looked into in the backdrop of the aforesaid legal principles. The prosecution has completely failed to prove beyond reasonable doubt the complete chain of events and circumstances which unerringly points towards the involvement and guilt of the appellants. The prosecution also failed to establish any motive to the accused appellants for committing the murder of the deceased, the brother of the informant.
“In the aforesaid facts and circumstances of the case, we are of the considered view that there are various lacunae in the case of the prosecution in establishing the chain of circumstantial evidence against the accused appellants. Further, there is no cogent or clinching evidence on record which proves the guilt of the accused appellants beyond reasonable doubt. Henceforth, we hold that the prosecution has failed to produce evidence to complete the chain of circumstances and the guilt of the appellants beyond all reasonable doubt, and the benefit undoubtedly has to go to the accused appellant herein. The impugned judgment of conviction, thus found unsustainable and is liable to be set aside and the appellants are entitled to be acquitted by giving them the benefit of doubt”, the Court further observed while allowing the appeals.
“The order dated 28.1.1997 passed by the Fifth Additional District and Sessions Judge, Bijnor in Session Trial, arising out of Case under Sections 302/201 I.P.C, Police Station Kotwali Shahar, District Bijnor, is hereby set aside.
Appellants, Suresh alias Chavaney and Mahesh are acquitted of the charges under Sections 302/34 and 201 IPC. They are on bail and need not to surrender. Their bail bonds are cancelled and sureties are discharged,” the order reads.