The Lucknow Bench of the Allahabad High Court has acquitted the convict serving life sentence in the Sitapur double murder case due to the weak advocacy of the prosecution, giving him the benefit of the doubt.
The Division Bench of Justice Rajan Roy and Justice Sanjay Kumar Pachori passed this order while hearing a Jail Appeal filed by Chetram.
This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 18.05.2017 passed by Additional Session Judge, Sitapur convicting the appellant under Section 302 IPC and sentencing him to life imprisonment with fine of Rs10,000/-, failing which, he would have to undergo an additional simple imprisonment for one year.
The Prosecution case is that on the night of 13/14.08.2014, the deceased-Rakesh Mishra left his house at about 09:00 P.M to go to the house of the accused-appellant. When he did not return even after 45 minutes, his younger brother-Informant, namely, Koyali along with his brother-in-law, Yugya Dutt and cousin Rama Shanker went to look for him. When they reached the doors of the accused/ appellant and entered a few steps, they saw in the light of a torch being carried by the Informant that the accused/ appellant-Chetram who was not covering his face, was striking a blow with a ‘Banka’ upon his wife, namely, Meena Devi who was lying on a cot. By her side, on another cot, the elder brother of the Informant was lying.
It is said that in the light of the torch, the three alleged eyewitnesses saw that after striking his wife, the accused-appellant struck seven or eight blows upon the deceased-Rakesh Mishra. The eye witnesses did not intervene nor did they protest. After about five minutes, they raised an alarm whereupon the accused-appellant Chetram along with his three accomplices, who were masked and who did not carry any weapon nor did they deliver any blow upon the two deceased, ran away.
Thereafter, at about 04:00 A.M in the morning of 14.08.2014, FIR was lodged on a written tehrir submitted by the Informant- Koyali at Police Station-Than Gaon, Subdistrict- Biswa, District- Sitapur. The police station was 7 Km away from the scene of crime. Investigation was conducted by the Investigating Officer, namely, Vijay Kumar Yadav and after his transfer, the same was conducted by his successor, Manoj Kumar Yadav. Bodies of the two deceased were found in the house of the appellant-accused Chetram.
After completing the investigation, a chargesheet was submitted by the Investigating Officer and the case was committed by the Chief Judicial Magistrate, Sitapur to Session Court on 18.10.2014. Charge was framed against the accused appellant on 07.07.2015 by learned trial court/ Addl District & Sessions Judge, Sitapur wherein he was charged with the offence punishable under Section 302 IPC. He denied the charge and was put to trial.
The submission on behalf of the appellant was that there was inordinate delay in lodging of the FIR and the intervening time was utilized for deliberations and consultations in order to falsely implicate him. The scribe of the alleged report was not produced by the prosecution as a witness.
Recovery of the alleged weapon of crime has not been proved in terms of Section 27 of the Indian Evidence Act. No site-plan was prepared by the Investigating Officer about the alleged discovery of the said weapon on the alleged pointing of the accused-appellant which creates a serious doubt on the entire exercise.
There are no independent/ public witnesses to the arrest of the appellant and/ or recovery of the alleged weapon of crime which creates a doubt about the same. The recovery is fake. No separate disclosure statement of the accused appellant was recorded by the police nor was it exhibited. No fingerprints of the accused were collected from the weapon of assault. The weapon of assault (Banka) was not produced before trial court nor shown to the autopsy surgeon nor the eye-witnesses.
The Autopsy Surgeon has not mentioned any specific weapon which could have been used in committing the crime. The clothes of the accused were collected one day after his arrest which creates a serious doubt on arrest of the accused on 14.08.2014 and recovery of the cloth from him on 15.08.2014, especially as, the accused-appellant was not supplied any other clothes to wear and there is no proof in this regard.
The Prosecution has failed to prove its case beyond reasonable doubt. The accused is innocent and has been falsely implicated.
On the other hand, Chandra Shekhar Pandey, A.G.A for the State submitted that double murder having been committed in the night, FIR was lodged promptly at 04:00 A.M as such it cannot be said that there was any delay. There were three eye-witnesses to the incident, out of which, two were produced and have supported the prosecution case. Based on this direct ocular evidence, learned trial court has rightly convicted the accused-appellant, especially as, bodies of the two deceased were found in the house of the accused appellant, therefore, burden was upon the accused-appellant to offer an explanation in terms of Section 106 of the Indian Evidence Act. The accused-appellant did not prove the plea of alibi and also that his wife was a woman of easy virtue.
The testimonies of eye-witnesses tally with the site plans and as also the medical evidence. The recovery clearly mentions arrest of the accused and also that on his pointing out while he was in police custody, the weapon of assault was recovered, therefore, the ingredients of Section 27 of the Indian Evidence Act are satisfied and his statement before the police to this extent can be read in evidence. The accused was arrested from Primary Pathshala, Village-Chainpura i.e another village. Therefore, he submitted that the trial court has rightly convicted the appellant.
“Considered holistically in light of the discussions made above, absence of public witnesses of recovery of Banka and at the time of arrest of accused is relevant in the facts of this case especially as no human blood could be ascertained on the Banka. In the facts and circumstances of this case, in the absence of any public witnesses of recovery of Banka, the said recovery allegedly on the pointing of the accused-appellant is not reliable. In any case, it has not been established by the prosecution that the Banka which was recovered was the one which was used for commission of crime.
The forensic report does not support this case and the testimonies of Koyali and Rama Shanker are full of discrepancies and improbabilities making it unreliable on this count also. The said Banka was not shown to Koyali and Rama Shanker nor to the autopsy surgeon during the trial.
As per forensic report, blood was found on the ‘Banka’ but it could not be determined as to whether it was human blood or not. This becomes relevant in the totality of facts and circumstances discussed hereinabove.
In this context, it is also relevant that the shirt and shawl of the accused was recovered from him on 15.08.2014 whereas he was arrested on 14.08.2014 at 4:30 PM. The recovery was made while he was in police custody. Two public witnesses are mentioned in Recovery Memo but none have been examined. Recovery of the shirt a day after his arrest itself makes the recovery unreliable.
The origin of blood could not be determined as regards the shawl allegedly recovered from the accused.
The prosecution case set up on the basis of testimonies of Koyali and Rama Shanker is not believable as their presence at the time of commission of the crime is highly doubtful for the reasons already given earlier.
Prosecution has failed to prove its case beyond doubt. The trial court has failed to consider relevant aspects of the matter as discussed above. The trial court has also not properly appreciated the statements of Koyali and Rama Shanker and the discrepancies and improbabilities in this regard as discussed hereinabove. The trial court has accepted the prosecution case as it is without proper scrutiny of the testimonies of eyewitnesses as to assess their reliability, especially with regard to their presence at the time of commission of the crime. In our opinion, the prosecution has failed to prove its case beyond reasonable doubt and the accused is liable to be given benefit of doubt”, the Court observed while allowing the appeal.
“Accordingly, we set-aside the judgment of the trial court and direct release of the appellant who is in jail.
The appellant is directed to file a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437-A of the Code of Criminal Procedure within six weeks from the date of release”, the Court ordered.