The Allahabad High Court while observing that the conviction recorded by the Trial court was based on untrustworthy last seen evidence, set aside the conviction of 3 murder accused in a 30 year old case.
The Division Bench of Justice Sunita Agarwal and Subhash Chandra Sharma passed this order while hearing three Criminal Appeals.
These appeals are directed against the order dated 08.05.1997 passed by the Additional District & Sessions Judge, Kanpur Dehat, arising out of Case under Section 302, 201, 120-B IPC, P.S Rasoolabad, District Kanpur Dehat whereby three accused/appellants namely Manoj, Rajpal Singh and Munna Ram @ Baba have been convicted of the offence under Section 302 read with Section 34 & 120-B IPC and punished for life imprisonment. The accused/appellants have also been convicted under Section 201 IPC and punished for additional five years rigorous imprisonment.
The first information report is in the nature of a written report submitted by Jeet Singh on 27.12.1991 at about 10.30 A.M reporting that the dead body of his brother Vijay Pal Singh was found on the Chakroad near the field of Shambhu Pandit hidden in a ‘paddy Payar’.
It was stated therein that the deceased Vijay Pal Singh used to work in Rasoolabad and to come back daily from the workplace in the evening.
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On 23.12.1991, when he did not return home, he was looked after everywhere. At the time of search, the first informant came to know that the deceased had consumed liquor with some people on 23.12.1991 near the Usri Nursery and after that he had never been seen. The blood stained body cloth of the deceased was found on the Chak road near the field of Shambhu Pandit and besides that the ‘Paddy Payar’ was lying. Being suspicious, when ‘Paddy Payar’ was turned over, the dead body of Vijay Pal Singh was found hidden in it. The injuries on the body of the deceased seem to have been caused by an object like Axe.
On the said report, the police had reached the spot, recovered blood stained and plain earth on 27.12.1991. The inquest was conducted on the same day which commenced at about 11.15 AM and concluded at about 12.20 PM. The postmortem was conducted on 28.12.1991 at about 01.00 PM. The injuries found on the person of the deceased were lacerated wounds on the forehead 6 cm x 2 cm left upper arm, chin, elbow and multiple abrasions on the whole of the body. The approximate time of death was reported to be about 4-5 days and the cause of death was hemorrhage due to ante-mortem injuries.
The charges were framed against the accused persons namely Manoj and Rajpal under Section 302 read with 34 IPC Section 201 IPC and Section 120-B IPC, whereas by a separate order, charge had been framed against the appellant Munna Ram @ Baba of hatching a conspiracy to commit the murder of Vijay Pal Singh alongwith Manoj and Rajpal in furtherance of common intention of all accused punishable under Section 120- B IPC. The accused appellants denied the charges and demanded trial.
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It is vehemently argued by Neelam Giri, counsel for the appellants Manoj and Rajpal that they had been falsely implicated. The allegations of enmity were only against Rajpal for the reason of mortgaged land. Different motives had been assigned to two appellants Rajpal and Manoj and the motive, in any case, is very weak.
As per the statement of Jeet Singh, one village boy Mahesh had informed Jeet Singh that he heard screams of “Bachao Bachao” near the Nursery and on getting alert by the said information they went to the Nursery to search for the deceased. Whereas in his deposition before the Court, Jeet Singh stated that when he returned to the place of the incident after lodging the report, two persons namely Pradeep and Rakesh Awasthi had intimated him that they had seen his deceased brother alongwith the appellants Manoj and Rajpal who were standing near the Nursery carrying Kulharis (axe) in their hands.
It is vehemently argued by the learned counsel for the appellant that the appellant Munna Ram @ Baba had been implicated only on the suspicion of the prosecution witnesses for the reason that his hut was located near the place of recovery of the dead body and the entire prosecution story is concocted.
It is vehemently argued by the counsel for the appellant that the appellant Munna Ram @ Baba had been implicated only on the suspicion of the prosecution witnesses for the reason that his hut was located near the place of recovery of the dead body and the entire prosecution story is concocted.
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It is lastly argued by the counsels for the appellants that there is no recovery of murder weapon; the motive assigned to the accused namely Manoj is very weak and no motive at all could be assigned to appellant Munna Ram @ Baba. It was a case of circumstantial evidence and hence examination of the Investigating Officer was necessary so as to bring before the Court as to how investigation had proceeded and in what manner evidence was collected by him. The date and place of arrest of the accused persons namely Rajpal and Manoj also becomes relevant in the facts of the case, which was not brought before the Court.
Additional Government Advocate vehemently argued that non-examination of the Investigating Officer has no bearing on the case, in as much as, once the genuineness of the documents were not disputed by the defence, the formal proof of the documents prepared during the course of investigation was not necessary and all such documents can be read in evidence in the trial without proof and the signatures of the persons to whom it purports to be signed, in view of the categorical provisions of Section 294 (3) of the Code of Criminal Procedure. The trial court, therefore, cannot be said to have erred in reading the documents admitted in evidence, genuineness of which had been admitted by the defence, against the accused/appellants.
In the case, according to the prosecution, the chain of circumstances had begun with the evidence of the last seen and concluded with the evidence of Laakhan Singh who had proved the recovery of bicycle and shoes of the deceased Vijay Pal Singh on the pointing out of appellant Munna Ram @ Baba. The witnesses are natural witnesses who were living in the vicinity of the house of the deceased. Their testimonies cannot be discarded as unreliable. Minor contradictions in the statement of the witnesses are not such which would break the chain or create a dent in the prosecution story.
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Having heard counsel for the parties and perused the record, the Court noted that this is a case of circumstantial evidence. In a case which rests on circumstantial evidence, the law postulates two fold requirements; Firstly, that every link in the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond all reasonable doubt; Secondly, that all the circumstances must be consistent only with the guilt of the accused and totally inconsistent with his innocence.
Keeping in mind the above principles, we have to first see as to whether the prosecution has succeeded in establishing by definite evidence that the deceased was seen alive in the company of the accused in such close proximity of time so as to exclude the possibility of a third person entering in the scene of crime in all reasonableness, and, thus, enabling the Court to draw a reasonable inference against the accused to shift onus on the accused to explain the circumstance in accordance with the provisions of Section 106 of the Evidence Act, the Court said.
The Court found that in the case, the accused appellants have been seriously prejudiced on account of non-examination of the Investigating Officer and this omission has created a deep dent in the prosecution case. The cumulative effect of the prosecution evidence, thus, is that the witnesses of the prosecution have not been found trustworthy; the contradictions in their testimony remained unexplained for non-examination of the Investigating Officer; the chain of circumstances put forth by the prosecution has many loose links which could not be connected to each other. The result is that the complete chain of the circumstances could not be formed by the prosecution to unerringly point towards the guilt of the accused persons excluding every possible hypothesis except one to be proved.
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The prosecution has failed to establish every link in the chain of circumstance beyond all reasonable doubt to establish the guilt of the accused, leaving reasonable grounds for the conclusion consistent with the innocence of the accused. It could not be shown that in all human probabilities the act must have been done by the accused persons and no one else.
The trial court had, thus, erred in relying upon these documents to draw inference against the appellants and to accept the submission of prosecution witnesses for conviction of the accused persons.
The Court further found that the trial court, the District & Sessions Judge, Kanpur Dehat has committed a manifest error of law in convicting three accused persons namely Rajpal, Manoj & Munna Ram @ Baba only on an untrustworthy last seen evidence.
“Accordingly, the order dated 08.05.1997 passed by the Additional District & Sessions Judge, Kanpur Dehat, arising out of Case under Section 302, 201, 120-B IPC, P.S Rasoolabad, District Kanpur Dehat, is set aside.
The accused-appellants are entitled to be acquitted of all the offences of which they were charged. Their conviction is liable to be set aside.
The appellant Rajpal and Munna Ram @ Baba are on bail. Their sureties shall stand discharged. The appellant Manoj is in jail. He shall be released forthwith, in case he is not needed in any case”, the Court ordered.