Court No. - 4
Case :- CRIMINAL APPEAL No. - 533 of 1986
Appellant :- Laxmi Narain And Others
Respondent :- State Of U.P.
Counsel for Appellant :- Subodh Kumar
Counsel for Respondent :- D.G.A.
Hon'ble Bala Krishna Narayana,J. Hon'ble Ghandikota Sri Devi,J.
(Per Hon'ble Ghandikota Sri Devi,J.)
1. The aforesaid appeal has been filed by accused-appellant, Laxmi Narain and Mukta Prasad being aggrieved by the judgment and order dated 04.02.1986 passed by the VII Additional Sessions Judge, Bareilly in Sessions Trial No. 384 of 1984 under Sections 302/394/411 I.P.C., P.S.- Hafisganj, District- Bareilly, whereby the accused-appellants were convicted under Section 302/34 I.P.C. and were sentenced to undergo imprisonment for life. They were however, acquitted of the charges under Section 394 I.P.C. The accused-appellant, Mukta Prasad was further convicted under Section 411 I.P.C. and was sentenced to rigorous imprisonment for one year and all the sentences were directed to run concurrently.
2. Upon perusal of the record, it transpires that this appeal against accused-appellant, Laxmi Narain, vide order dated 08.03.2017 passed by another co-ordinate Bench of this Court was dismissed as abated. Hence the present appeal is now being heard on behalf of Mukta Prasad- A2 alone.
3. The facts of this case are that, the deceased, Smt. Genda Kunwar was the wife of Kesari Lal, who had gone to his daughter's house at village, Kharoli Khudaganj, Dist- Shahjahanpur few days prior to the occurrence, leaving his wife Smt. Genda Kunwar alone in the house in the village, Mehmoodpur. On 15.01.1984 at about 4 p.m. one Nathu, r/o village, Dimri had gone to the house of Kesari Lal and knocked the door of the house. Since he did not get any response from inside, he asked the wife of one Ghanshyam, neighbourer of Kesari Lal to find out as to why no body was responding from the house of Kesari Lal. The wife of Ghanshyam also called several times from the roof of her house but she also did not get any response then, Nathu Lal called Ram Chandra Pradhan and other villagers. Nizamuddin, son of Chaukidar was also called for and all of them peeped into the house of Kesari Lal from the roof of adjoining house and found Genda Kunwar lying on a cot and blood was oozing from the body. She was found lying dead. The pradhan of village asked Nizamuddin, who was working as Chaukidar in place of his father to go to the police station along with one Santosh to lodge the report. Accordingly at 2:30 a.m. in the night, Nizamuddin went to the police station and narrated the incident which was reduced into writing and accordingly, the report was lodged at the police station regarding the murder of Genda Kunwar. On the basis of the F.I.R. the investigation of the case was initiated by the Station Officer, Sri Shyam Lal Tripathi, who came to the spot, conducted inquest over the dead body of the deceased and prepared the inquest report. After completing the other necessary formalities, he had sent the dead body for postmortem examination through constables, Shree Krishna and Ashok Kumar along with all necessary papers. In the meanwhile, Kesari Lal was also informed about the murder and he also reached the place of occurrence. Kesari Lal also gave a written report giving a list of looted property. The postmortem of the dead body of Smt. Genda Kunwar was conducted by Sri Balbir Singh on 17.01.1984 at 3:30 p.m. who also prepared the postmortem report. On the body of the deceased, he found as many as 14 antemortem incised wounds as mentioned in his postmortem report. According to the doctor who conducted postmortem examination, the death was caused due to shock and haemorrhage, as a result of the antemortem injuries. The Investigating Officer during the course of investigation arrested the accused-appellant, Mukta Prasad on 05.02.1984 and a sweater, said to have been looted from the house of Kesari Lal was recovered from the possession of the accused and it's recovery memo was prepared. Subsequently on 24.02.1984 the said sweater was put up for test identification conducted by Sri B.M.L. Saxena, Executive Magistrate and the same was said to have been identified by Kesari Lal and Dharam Pal, as the sweater which was said to have been looted from the house of Kesari Lal. During the course of investigation, the Investigating Officer also collected evidence of some persons who had seen the accused- appellants moving near the house of Kesari Lal on or after the day of murder however, no date whatsoever was mentioned regarding the death of Smt. Genda Kunwar. Besides the theory of last seen, the Investigating Officer also collected the evidence of extra judicial confession alleged to have been made by them before one Nanhey Babu, who was not the resident of village of the accused-appellants or the informant. After completing the other formalities and on the basis of the evidence collected, the Investigating Officer submitted charge-sheet against both the accused-appellants.
4. Since the disclosed offences were exclusively triable by the court of Sessions, the Chief Judicial Magistrate, Bareilly committed the accused- appellants to the court of Sessions for trial where the case was registered as Sessions Trial No. 384 of 1984 and the same was transferred to the court of VII Additional Sessions Judge, Bareilly for disposal in accordance with law.
5. On the basis of the primary evidence collected during investigation and on the strength of the charge-sheet submitted and after affording opportunity of hearing to the prosecution as well as the accused, the learned Additional Sessions Judge, vide order dated 16.05.1985 had framed charges against the accused-appellants under Section 302 read with Section 34 I.P.C. and Section 394 I.P.C. He further charged the accused-appellant, Mukta Prasad for the offence punishable under Section 411 I.P.C. The accused-appellants abjured the charge and claimed trial.
6. In order to substantiate the charges against the accused-appellants, the prosecution had examined as many as 10 witnesses to support the prosecution version. PW-1, Nizamuddin was the chaukidar who had gone to the police station at the instance of Pradhan and lodged the report at 2:30 a.m., PW-2, Manohar Lal, who was said to have seen the two accused-appellants, Laxmi Narain and Mukta Prasad in the lane on the alleged date of occurrence, PW-3, Nand Lal, who had also witnessed the accused-appellants near the house of Kesari Lal on the date of occurrence, PW-4, Ram Kishore, who had also seen the accused near the house of Kesari Lal, were witnesses to the last seen theory. PW-5, Ram Chandra who was a witness to the recovery of sweater from the possession of the accused-appellant, Mukta Prasad on 05.02.1984, PW-6, Kesari Lal the husband of the deceased and who had deposed regarding the motive for committing the murder of his wife by the accused-appellants, Laxmi Narain and Mukta Prasad. PW-7, Nanhey Babu stated about the extra judicial confession made by the accused-appellants in front of him. Thus, the prosecution had examined as many as 7 witnesses of fact.
7. Apart from the above fact witnesses, prosecution had also examined PW-8, Shyam Lal Tripathi, the Investigating Officer who prepared Panchayatnama, site plan etc. completed the other formalities of investigation and submitted the charge-sheet, PW-9, Dr. Balvir Singh who conducted postmortem on the body of the deceased on 17.01.1984 at 3:30 p.m. and prepared the postmortem report and PW-10, Sri B.M.L. Saxena, the Executive Magistrate in whose presence the sweater alleged to have been looted from the house of P.W-6, Kesari Lal recovered from the possession of the accused-appellant, Mukta Prasad was said to have been identified by PW-6, Kesari Lal and his son-in-law Dharam Pal were examined as formal witnesses.
8. Apart from the aforesaid oral evidence, prosecution also rested it's case on the documentary evidence collected during the course of investigation, particularly the sweater alleged to have recovered from the possession of the accused-appellant, Mukta Prasad, which will be discussed at the relevant time.
9. After closure of the prosecution evidence, the statements of the accused-appellants were recorded under Section 313 Cr.P.C., in which both the accused-appellants denied the allegations of the prosecution that they had committed the murder of Genda Kunwar, wife of Kesari Lal. Accused-appellant, Mukta Prasad emphatically denied the recovery of the sweater from his possession and stated that he was called from his house and was arrested and false recovery was shown from his possession. He further stated that Munni Devi, daughter of Kesari Lal was married to one Mahendra of Nabadia and the said Mahendra came several times to take Munni Devi with him and they had also requested Kesari Lal to send Munni Devi with Mahendra, on which Kesari Lal felt bad and developed ill will. Subsequently, Kesari Lal performed the marriage of his daughter, Munni Devi with Dharam Pal, on which Mahendra threatened Kesari and his wife dire consequences. The accused-appellant, Mukta Prasad also stated that the daughter of Kesari Lal earlier also had run away with one Babu Ram. The accused-appellant, Laxmi Narain also adopted the statement given by Mukta Prasad. However, the accused did not choose to produce any defence witness on their behalf.
10. The learned trial court after considering the entire evidence on record had come to the conclusion that the prosecution had been able to prove the circumstantial evidence as the accused were seen near the house of Kesari Lal in the morning, on the date of murder which was corroborated by the testimony of extra judicial confession of PW-7, Nanhey Babu. It was further corroborated by the recovery of the sweater from the possession of the accused-appellant, Mukta Prasad and it was fully established that the same sweater was stolen from the house of Kesari Lal, the husband of the deceased and accordingly, the learned trial court found both the accused-appellants, Laxmi Narain and Mukta Prasad guilty of committing the murder of Genda Kunwar and convicted them under Section 302 read with Section 34 I.P.C. The learned trial court also found Mukta Prasad guilty under Section 411 I.P.C. for recovery of the sweater from his possession, however, both the accused were found not guilty of the charge under Section 394 I.P.C. as there was no evidence to corroborate the fact of robbery except the statement of PW-6, Kesari Lal that cash and ornaments were looted from his house and accordingly sentenced the accused-appellant, Mukta Prasad to life imprisonment and to undergo rigorous imprisonment for one year as stated above in the opening paragraph of this judgment.
11. Hence this appeal.
12. We have heard Sri Subodh Kumar, learned counsel for the appellants, Smt. Manju Thakur, learned AGA-I for the State and perused the entire lower court record.
13. Learned counsel for the appellant strenuously argued that the trial court had committed patent error of law in holding that the charge against the accused-appellant has been proved beyond reasonable doubt. He urged that the entire case was based on circumstantial evidence and the learned trial court failed to keep in view the legal requirements attracting the cases that are based on circumstantial evidence. He further argued that the deposition of Nanhey Babu, PW-7 was not at all reliable for the reasons more than one and the learned trial court had committed a patent error in ignoring those reasons and convicted the accused-appellant on wrong assumption of facts. The fact that if there was any motive to commit the crime as deposed by PW-6 but the said motive has not been established in the present case and the so-called last seen theory was not at all sufficient by itself to justify the conclusion that the appellants were responsible for the murder of the deceased, Genda Kunwar. It was further argued that the so-called recovery of the sweater from the possession of the accused- appellant is false, fabricated and cooked up story of the prosecution on the basis of which the conviction of the accused-appellant could not have been recorded by the learned trial court. Thus, it was submitted that since the prosecution could prove it's case beyond the shadow of any reasonable doubt, hence the accused-appellant, Mukta Prasad is entitled for acquittal and the order of conviction passed against the accused-appellant is liable to be set aside.
14. Per contra, Smt. Manju Thakur, learned AGA for the state contended that the accused-appellant along with the accused, Laxmi Narain was last seen in front of the house of the deceased on the date of the occurrence and the prosecution established this fact through cogent evidence adduced by the witnesses and it was for the accused-appellant to explain as to what had happened to the deceased and in the absence of any explanation from the accused-appellant and based on the other circumstantial evidence, the learned trial court rightly convicted the accused-appellant and hence the impugned judgment and order warrants no interference and thus, it was submitted that the appeal is devoid of merit and the same is liable to be set aside.
15. We have considered the rival contentions of the learned counsel for the respective parties and perused impugned judgment and order and material on record.
16. The prosecution case is entirely based on circumstantial evidence. In a case based on circumstantial evidence, it is settled legal proposition that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. All the circumstances should be complete, forming chain and there should be no gap left in the chain of evidence. The proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his evidence.
17. In the case of Aftab Ahmad Ansari v. State of Uttaranchal, 2010 (1) JIC 786 SC, the Hon'ble Apex Court held as follows:-
“In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. ”
18. Coming to the facts of the case, the prosecution relies entirely upon the depositions of PWs- 2, 3, 4, 5, 6, 7 and 8. Admittedly all these witnesses were not eye-witnesses to the occurrence, nor they have stated anything against the accused-appellants that the accused-appellants were last seen in front of the house of deceased. Interestingly, out of these witnesses PW-3 and 4 have been declared hostile.
19. PW-2, Manohar Lal had stated that the wife of Kesari Lal was murdered about less than 2 years back and he was keeping the wood at it's place in the morning at about 8-9 a.m. When he was carrying the wood, he saw the accused-appellants passing through the lane. The lane passes in front of his house so also in front of the house of Kesari Lal and he had seen both accused coming from northern side and were going towards southern side. However, he did not find anything in the hands of the accused-appellants. In the cross-examination, he categorically stated that the public and so many persons used to pass through that lane.
20. PW-3, Nand Lal had stated that wife of Kesari Lal was murdered about two years back, while he was going to his house from the house of Bihari Lal and when he reached in front of the door of Kesari Lal, he saw that two persons were talking to each other. However, he could not recognise those two persons and he did not find anything in the hands of those two persons. This witness was declared hostile and he was permitted to be cross examined by the prosecution. When his statement under Section 161 Cr.P.C. was read over, he stated that he had given that statement to the Investigating Officer. Being cross examined by the counsel for the accused, this witness had stated that his statement was recorded by the Investigating Officer, 8-10 days after the occurrence and it was not known to him whether the accused were under the influence of any person of the village or they were being pressurized by Kesari Lal or not. When the Investigating Officer reached the place of occurrence then the door of the room of Kesari Lal was got opened which was locked from the outside. The lock was broken open and he denied the suggestion that being tutored by Kesari Lal, he was deposing falsehood.
21. PW-4, Ram Kishore was also declared hostile and he was also permitted to be cross examined by the prosecution. He, in his chief examination, emphatically stated that while he was passing through the house of Kesari Lal, he had seen two persons coming out but he could not recognise those two persons. One person was having a sack in his hands and both the persons belonged to his village. Being cross examined by the prosecution counsel, he stated that he had not even given statement to the Investigating Officer that “I have seen Mukta Prasad of my village coming out from the house of Kesari Lal and saw him going towards southern side speedily. I have seen one sack (jhola) in the hands of Laxmi Narain and I have also called Laxmi Narain but without giving any reply to my call, they left towards south”. He further stated that he could very well recognise the accused-appellants, Laxmi Narain and Mukta. He denied the suggestion that he having connived with the accused-appellant, he was deposing falsehood. In the cross-examination by the counsel for the accused-appellant, he stated that there is a wide lane in front of the house of Kesari Lal which leads to the village and to the fields outside the village. He further stated that on the next day after the murder and when the police officer had taken the dead body, police took him also to the police station and detained him in the police station and released him 8 days thereafter. The police officer interrogated him regarding as to who had murdered Genda Kunwar. He told him that it was not known to him.
22. Thus, there is no iota of evidence on record that anybody had seen the accused-appellant coming out or moving in front of the house of Kesari Lal on the alleged date of occurrence i.e. 15.01.1984 as alleged by the prosecution.
23. Now the star witness to whose evidence the learned trial court has given much credence is PW-7, Nanhey Babu. According to this witness, the accused-appellant, Mukta Prasad and late Laxmi Narain had gone to him about one and half years before he deposed before the court, at about 8 a.m. in the morning. Both were found to be terribly afraid of and they stated to him that as he was very well known to the police so they asked him to save them from a murder of a woman in village, Mehmoodpur, of which they have been suspected to have committed the said murder. They have also told him that if any bribe is to be given, also to speak to the police and they further stated to him that the wife of Kesari Lal was murdered but they did not tell him as to who had murdered her. They stated that they were being suspected in the said murder of the wife of Kesari Lal. However, he refused to involve himself. However, interestingly this witness was also declared hostile and he was permitted to be cross-examined by the prosecution counsel. When the statement under Section 161 Cr.P.C. was read over to him he stated that he had given such statement to the Investigating Officer and he had given rightly such statement to the Investigating Officer without any pressure and whatever told to him by the accused-appellant, he had given the same statement to the Investigating Officer. He further stated that when the statement under Section 161 Cr.P.C. was fully read over to him, he could recollect immediately. Before that he could not recollect anything. He had appeared before the court only one and half years after the occurrence. When he was cross examined by the counsel for the accused-appellants, he stated that he had no concern with the accused-appellants. They were simply his neighbours which means that they belong to a different village. He further stated that there are influential people in the village of accused-appellants also. He has also deposed that the accused-appellants had never met him before that, nor he ever helped them. The accused- appellants had gone to him on the next day after the occurrence and his statement was recorded after 5-6 days by the Investigating Officer when the accused-appellants met him. Then he narrated the entire thing to the Investigating Officer. He further stated that on and often he used to go the police station. He had seen the accused-appellants in the village before the Investigating Officer had gone to their village. He did not think it necessary to report to the Investigating Officer regarding whatever the accused-appellants stated to him. The Investigating Officer did not call any other witness while recording his such statement nor any of his thumb impression was taken nor the statement which was recorded was read over to him. However, he denied the suggestion that at the instance of the police, he was deposing falsehood. This witness, according to him made no disclosure to either PW-6 or PW-2 to 5 or any other person who were all along present in the village till the so-called statement was made to the police. He made no disclosure to the police about what was stated to him by the accused-appellants, though, he very often used to visit the police station. It was for the first time before disclosing any such statement, even to the husband of the deceased, he had given the statement to the police after about 8 days of the occurrence. This witness did not offer any explanation, much less to say, any cogent and acceptable explanation for his silence for not disclosing the fact before anybody till his statement was recorded by the Investigating Officer. It was not the assertion of this witness that he was scared of the appellants. Therefore he could not reveal anything about the actual events, till he had courage to disclose the fact of extra judicial confession made to him by the appellants, to the police after 8 days of the occurrence, is hard to be believed. Reliance upon the deposition of such witness who has made such statement after a long gap is wholly unsafe. It is not corroborated by any other independent witness that may probablise his version in this case except to the police as admitted by this witness. Hence, such statement made to the police by this witness cannot be relied upon basing on which the conviction of the appellants cannot be sustained.
24. Regarding the motive, PW-6, husband of deceased attributed to both accused, Laxmi Narain and Mukta Prasad and according to him, his daughter Munni Devi had run away with some person and the two accused demanded Rs. 1000/- each from him for searching and tracing his daughter. He had given Rs. 1000/- to Laxmi Narain and remaining Rs. 1000/- was due on him. Subsequently, his daughter came back with Dharam Pal and he got married his daughter with Dharam Pal but he did not pay the balance amount of Rs. 1000/- to the accused due to which, the accused became inimical to him and for this motive accused might have committed the murder of his wife.
25. In the case of Santosh Kumar Singh v. State through CBI, 2010 (9) SCC 747, it was held by the Hon'ble Apex Court that:-
“Motive alone in the absence of any other circumstantial evidence would not be sufficient to convict the appellant.”
26. In the case of Sunil Rai @ Paua and others v. Union Territory, Chandigarh, 2011 (3) JIC 346 (SC), the Hon'ble Apex Court explained the legal position as follows:-
“ In any event, motive alone can hardly be a ground for conviction. On the materials on record, there may be some suspicion against the accused but as is often said suspicion, howsoever, strong cannot take the place of proof.”
27. In the instant case because this witness did not pay the balance amount, the accused persons might have developed motive to harm this witness but there is nothing on record to show that for non payment of money they had decided to finish the other family members of Kesari Lal. On mere suspicion, howsoever strong, the accused cannot be held guilty without the proof beyond reasonable doubt.
28. The other circumstance on which the accused-appellant was held guilty was regarding the recovery of the so-called sweater from his possession. According to the prosecution case, Kesari Lal had given a list of articles which were looted from his house when he was absent from the house and the assailants also committed the murder of his wife. There is no iota of evidence available on record regarding the looted property and on this point the learned trial court has acquitted the accused-appellant under Section 394 I.P.C. The doctor who conducted postmortem found ornaments on the body of the deceased which were collected after postmortem and handed over to the concerned police, which shows that nothing was looted from the house of Kesari Lal as mentioned in his report. The only sweater which was recovered from the possession of the accused-appellant raises a grave doubt in our mind as to whether the same belonged to Kesari Lal or it belonged to the deceased, Genda Kunwar or it belonged to the any other family member of Kesari Lal. There was no receipt whatsoever produced by Kesari Lal as to when the said sweater was purchased and from whom, it was purchased.
29. Another interesting factor in this case is that the sweater was recovered from the possession of the accused-appellant, Mukta Prasad on 05.02.1984 but it was got identified by Kesari Lal and his son-in-law, Dharam Pal on 24.02.1984. No cogent explanation was put forward by the prosecution to get the sweater identified after a long lapse of time.
30. Thus, in the totality of the circumstances, we are of the view that the prosecution has not proved it's case against the accused-appellant, Mukta Prasad beyond all reasonable doubt, who is in our opinion entitled for acquittal.
31. In the result, the appeal succeeds and is hereby allowed. The appellant, Mukta Prasad stands acquitted of the charges framed against him. He is on bail. His bail bonds are cancelled and sureties are discharged from their liability. The impugned judgment and order is accordingly set aside.
32. However, the accused-appellant is directed to comply with the provisions under Section 437-A Cr.P.C.
Order Date :- 30.4.2019 V.S.Singh