The Allahabad High Court has overturned the sentence of an accused, while observing that conviction on the basis that the accused was last seen with the deceased was a very weak piece of evidence.
The Division Bench of Justice Kaushal Jayendra Thaker and Justice Nalin Kumar Srivastava passed this order, while hearing an appeal filed by Sagar.
This appeal has been preferred by the appellant Sagar against the May 9, 2013 order, passed by the Additional Sessions Judge, Saharanpur, arising out of Case under Section 304 IPC, Police Station-Behat, District-Saharanpur, whereby the accused was convicted and awarded sentence under Section 304 IPC for life imprisonment and fine of Rs 10,000.
The facts giving rise to the appeal are that on 9.9.2011 complainant Shyam Singh has given a typed written-report at the police station stating that on the day of Rakshabandhan on 13.8.2011 at about 10:00 o’clock when his brother Vinod s/o Peerdiyaa along with Sagar had gone somewhere from the home. On the way, they were followed by Sumit. When his brother Vinod did not come back home, he searched for him at the relatives and other friends place. On not being found, information was given at the police station on 17.8.2011.
On 25.8.2011 at 6:00 p.m the body of Vinod was recovered from the canal which is around 3 km from Baraut Police Chowki. On receiving information, the informant and others reached Baraut and identified the dead body of Vinod. His postmortem was conducted in Baghpat itself. Thereafter his funeral was conducted. The complainant was fully assure that Sagar had thrown the dead body in canal after committing murder due to enmity Pappu s/o Rulha and Aman s/o Ridkaram of his village were the witnesses of the said incident.
On the basis of the information, chik report was prepared by registering u/s 302 IPC on 9.9.2011 at 21:40 o’clock by clerk Ram Kashyap wherein the time of incident has been recorded on 13.8.2011 at 11:00 a.m. The distance of the place of occurrence from the police station has been shown to be 5 Km away.
The trial court framed charges against appellant under Sections 304 IPC. Charges were read over to the accused, who denied the charges and claimed to be tried.
After recording of evidence the accused-appellant was examined under Section 313 CrPC and evidence led by prosecution against him was put to him. Accused stated that false evidence has been led against him. Accused did not examine any witness in his defence.
Counsel for the appellant submitted that the appellant has been falsely implicated in the case. He is innocent. The custody certificate would show that the accused is in jail for more than 10 years. In the alternative it is submitted that if the accused is held guilty, he be given a sentence of, namely twelve years,three months and ten days with remission and the fine be reduced.
Per contra, AGA submitted that appellant is named in FIR. The Court below has already shown mercy and has convicted the accused appellant under Section 304 IPC. The dead body was thrown in a canal.
Before coming to the conclusion that the accused is the perpetrator, the court have to evaluate the evidence on record if he hold him guilty of the commission of offence, whether sentence of life imprisonment and fine is adequate or the sentence requires to be modified in the facts and circumstances of the case and in the light of certain judicial pronouncements and precedents applicable in such matters.
The Court observed that,
The fact that the evidence which has been on record only shows that the accused was last seen with the deceased. However, except this the chain which the Judge has mentioned does not satisfy the test for punishing an accused where the matter hinges on circumstantial evidence. Conviction on the basis of last seen is a very weak piece of evidence. In our case the chain which is set to be pointing the finger at the accused is very feeble. The Judge has held that the following are the instances which complete the chain namely the accused and the deceased were habituated to drink liquor. Just because the deceased was seen with the accused and just because his dead body was immediately recognized by the family members cannot mean that the chain is complete.
Even if we consider the other aspects it is not proved that he was the person who had committed the offence. There is no recovery from the accused. There is nothing incriminating except the confessional statement to one of the witnesses which is not proved to the hilt and could not have been acted upon .
In the alternative even if we concur with the court below whether the punishment of life imprisonment is justified for which we will have to go by the facts which we have narrated herein-above, the Court said.
“Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, the Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.
“The ‘Reformative theory of punishment’ is to be adopted and for that reason, it is necessary to impose punishment keeping in view the ‘doctrine of proportionality’. That sentence awarded by the trial court for life term is very harsh, keeping in view the entirety of facts and circumstances of the case and gravity of offence.
“The Apex Court has held that undue harshness should be avoided taking into account the reformative approach underlying the criminal justice system.
“The accused is in custody for nine years, one month and 17 days as on date of the report sent by the Office, which would mean that the undergone period would be 3507 days and the total sentence including remission is 12 years, three months and 18 days, as on June 23, 2022 and we are in October, 2022.
“However, on the scanty evidence, he is not required to be confined anymore and the sentence is overturned.
Only on the basis of last seen, he has been convicted for commission of offence Section 304 of IPC for life imprisonment which cannot be sustained,” the Court further observed, while allowing the appeal.