The Lucknow Bench of the Allahabad High Court has set aside the order passed by the Additional Sessions Judge Barabanki, acquiting the appellant of charges under Sections 302, 201 IPC and Section -4/25 of the Arms Act.
The Division Bench of Justice Rajan Roy and Justice Sanjay Kumar Pachori passed this order while hearing a Jail Appeal filed by Ghanshyam @ Maidhoo.
This is an appeal challenging the order passed by Additional Sessions Judge, Barabanki dated 26.03.2009 by which the appellant has been convicted of an offence under Section 302 IPC and sentenced to undergo life imprisonment with fine of Rs 5,000/-, failing which, he will have to undergo additional simple imprisonment for six months, conviction under Section 201 IPC and sentence of three years imprisonment with fine of Rs 3,000/-, failing which, he will have to undergo additional three months’ simple imprisonment as also conviction and sentence under Section 4/25 of the Arms Act, 1959 to three years imprisonment with fine of Rs1,000/-, failing which, he will have to undergo additional one month imprisonment.
Chandra Shekhar Pandey, A.G.A has informed us that sentence of the appellant has been remitted in exercise of the powers under Article 161 of the Constitution of India and other relevant provisions vide order dated 02.05.2022.
The prosecution case is that on 17.12.2005 at about 11 A.M, the police of Police Station-Zaidpur, District Barabanki received information from the Chaukidar, Village Machauchi, P.S -Zaidpur, District-Barabanki that he had discovered a dead body on the northern bank of river Rari in the morning whose neck had been slit by half at the front. The police recovered the body and held the inquest on the same date at 11:30 A.M. which ended at 12:55 P.M.
The body was sent for post-mortem at about 3:10 P.M. on 17.12.2005. The post-mortem was conducted on the next date i.e on 18.12.2005 at about 03:10 P.M. The body was thereafter cremated as nobody came to claim it.
On 22.12.2005, Ram Harakh gave a written tehrir that his son-Mangal had gone with his brother-in-law Ghanshyam at about 11:30 A.M on 16.12.2005 and had not returned since then. He tried to find him but could not locate him. On coming to know about recovery of a body on the banks of river Rari, he and his Samdhi Ram Naresh and his son-in-law Radhey Shyam went to P.S-Zaidpur, District Barabanki and saw photograph of the body which had been recovered and it was identified by him as his son Mangal.
In the said written report (Tehrir), it was stated that he was sure that his son had been murdered by his brother-in-law Ghanshyam with the intent of taking his land and he had thrown the body near the river. The accused- Ghanshyam had also mortgaged ten biswa of his land.
On 23.12.2005 at about 06.10 A.M, the accused-appellant was arrested. After conducting the investigation, the Investigating Officer filed a charge-sheet against the accused-appellant on 31.12.2005 before the Chief Judicial Magistrate who took cognizance of the case on 17.01.2006. After committal to the Session Court, charges were framed on 27.05.2006 under Sections 302, 201 IPC and Section-4/25 of the Arms Act, 1959.
Counsel for the appellant submitted that the case is a case of circumstantial evidence, where there is no direct evidence/ocular account.
He submitted that in the case the prosecution has failed to discharge its burden of proof, so as to prove its case against the Appellant beyond all reasonable Doubts. The chain of circumstances has not been proved, is missing/not connected in the case against the Appellant, thus the conviction and sentence awarded by the Trial Court are grossly illegal and perverse; hence the same may kindly be set aside.
On the other hand, Chandra Shekhar Pandey, A.G.A has submitted that Ram Harakh (father of the deceased) has clearly proved the written tehrir submitted in his examination-in-chief and in the written tehrir, the date and time of the incident is mentioned when the appellant-accused was seen lastly with the deceased, therefore, the last seen theory is clearly proved. Motive is also proved from the testimony of various witnesses especially of Ram Harakh wherein he has stated that appellant wanted his property.
“In view of the above discussion, we are of the opinion that the prosecution has failed to prove its case based on circumstantial evidence beyond reasonable doubt. The possibility of the entire story having been cooked up after the arrest of the accused and the written report itself having been prepared thereafter and having been ante-dated cannot be ruled out. We have also perused the judgment of the trial court and find that it is based on conjectures and surmises. The prosecution story has been believed as it is, without any application of mind to relevant aspects as discussed hereinabove.
The trial court has overlooked the fact that the date and time when Mangal was last seen with Ghanshyam in the presence of Ram Harakh and two others namely Amit and Sarvesh itself has not been proved. There is no discussion by the trial court on the question of motive.
In a case of circumstantial evidence, the chain of events should not only be complete but they should only point towards the guilt of the accused and there should be no possibility of anybody else being involved. There is no discussion of motive at all in the trial court judgment nor is there any discussion about the law of circumstantial evidence as to how the chain of events is to be complete and each event has to be proved and thereafter the case has to be seen as to whether it has been proved beyond doubt. In fact, there is no such discussion as should have been made in a case based on circumstantial evidence. The trial court has simply believed the prosecution case without proper scrutiny and evaluation of evidence including the ocular testimony, its reliability and credibility, as is required in law.
We are accordingly of the view that the chain of events have neither been proved nor are they complete so as to point only towards the guilt of the appellant. The appeal is liable to succeed”, the Court observed while allowing the appeal.
“The judgment of the trial court is set aside. The appellant is acquitted of the charges levelled against him under Sections 302, 201 IPC and Section -4/25 of the Arms Act in view of the above. The sentence of the appellant has already been remitted vide order dated 02.05.2022 which had been placed before us by A.G.A and he is not in jail. The appellant is given a months’ time from the date of his release to furnish the bonds etc in terms of Section 437A CrPC”, the Court ordered.