Reserved on 23.10.2018 Delivered on 28.01.2019 Case :- JAIL APPEAL No. - 4438 of 2015 Appellant :- Mahesh Raidas @ Kallu Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Lokesh Kumar Dwivedi,Surendra Kumar Singh, Ms. Nishi Mehrotra (AC) Counsel for Respondent :- A.G.A.
And Case :- JAIL APPEAL No. - 465 of 2018 Appellant :- Sita Ram Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Om Prakash Katiyar Counsel for Respondent :- A.G.A.
Hon'ble Sudhir Agarwal,J. Hon'ble Om Prakash-VII,J.
(Delivered by Om Prakash-VII, J.)
1. These two jail appeals have been filed by appellant Mahesh Raidas @ Kallu and appellant Sita Ram against judgment and order dated 4.8.2015 passed by Additional Sessions Judge / Special Judge (EC Act), Kanpur Nagar in Session Trial No. 233 of 2008 convicting and sentencing appellants for the offence punishable under Section 302 I.P.C. to undergo imprisonment for life and a fine of Rs.20,000/- and for the offence under Section 201 IPC for three years rigorous imprisonment and a fine of Rs. 5,000/-. In case of default in payment of fine for the offence under Section 302 IPC, appellants were also to undergo six months' additional rigorous imprisonment and for the offence under Section 201 IPC two months' rigorous imprisonment and in Session Trial No. 232 of 2008 convicting and sentencing the appellant Mahesh Raidas @ Kallu for the offence punishable under Section 25/4 Arms Act to undergo one year's rigorous imprisonment and a fine of Rs. 300/- with default stipulation. All sentences were directed to run concurrently.
2. Since both these appeals arise out of same judgment and order and were heard together, the same are being decided by a common judgment.
3. Prosecution story, as unfolded in written report (Ex.Ka-1) dated 28.11.2007 moved by Shiv Charan Yadav son of late Tulsi Ram Yadav, village Sultan Khera, P.S. Kotwali, District Unnao, is that informant's brother Devi Chandra was driver of Truck No. UP 78 N-8827 belonging to New Five Star Road Lines Collector Ganj, Kanpur Nagar and Mahesh Raidas @ Kallu was the cleaner in the said truck. On 27.11.2007 in the evening at about 07:00 p.m. after loading pea (matar) from railway godown, they proceeded for Panki. When they did not reach till the evening of 28.11.2007, informant and other person started search and reached Vijay Nagar Chauraha and found the truck in question near Kishori Petrol Pump. Dead body of informant's brother Devi Charan was lying in the truck who was identified by them. It is also mentioned that local police had already reached there and inquest proceeding was being conducted. Written report further shows that cleaner Mahesh Raidas @ Kallu after cutting throat of deceased had hidden the dead body beneath the seat in the cabin of truck in question and was absconding. It is also mentioned in the written report that on 25.11.2007 some altercation took place between deceased and Mahesh Raidas @ Kallu regarding money transaction and due to that reason Mahesh Raidas @ Kallu has committed murder of informant's brother. Accused Mahesh Raidas @ Kallu was absconding leaving the truck near the aforesaid petrol pump.
4. On the basis of written report, chick FIR under Sections 302/201 I.P.C. was registered against Mahesh Raidas @ Kallu, the cleaner of said truck, which is Ext. Ka-7. G.D. Entry was also made at the same time on the basis of chick FIR, which is Ex.Ka-8 on record.
5. Investigation commenced. PW-9, Anand Mohan Pathak started investigation and copied chick and G.D. in the case diary and recorded statement of witnesses. PW-10 Awadhesh Pandey has prepared inquest report Ext. Ka-2 and other relevant police papers Ext. Ka-20 to Ka-23. PW-9 also visited place of occurrence in presence of witnesses and prepared site plan (Ext. Ka-14) mentioning all details. Recovery memo (Ext. Ka-15 to Ka-17) were also prepared on the same day by PW-9 taking into possession half T-shirt, pant, rexine from the truck in question and also one towel and also keeping them in sealed cloths and preparing sample seals. He also took blood stained part of the tire and keeping the same in sealed cloths, preparing sample seal prepared recovery memo Ext. Ka-9. The Investigating Officer has also recorded statement of neighbours and searched the accused. He also recorded statement of drivers of different transports. It also appears that investigation of the matter was taken thereafter by PW-8, Kripa Shankar Saroj, the S.O concerned. This witnesses after perusing the entire case diary recorded statement of some witnesses on 30.11.2007 and also copied postmortem report in the case diary. He tried to search the accused but he was not traced out. On 05.12.2007, Investigating Officer opened the bandal of cloths recovered from the truck and belonging to accused Sita Ram in the police station which were identified as cloths of accused Sita Ram by the witnesses. Accused Mahesh Raidas @ Kallu and Sita Ram both were arrested on 05.12.2007. On pointing out of accused Mahesh Raidas @ Kallu, a knife in a polythene wrapper was recovered from the open plot of Arthtan Mill near the Bajrang Dharm Kanta. Accused Mahesh Raidas @ Kallu confessed his guilt that he had committed the murder of Devi Charan with the said knife. Recovered weapon was kept in sealed cloth preparing sample seal and recovery memo (Ex.Ka-9) was also prepared. Site plan (Ex.Ka-10) is related to the place wherefrom said knife was recovered.
6. 12 packets of pea was also recovered on pointing out of accused from the house of co-accused Prem Kumar Gupta @ Sonu. Accused Mahesh Raidas @ Kallu and Sita Ram both had disclosed that the aforesaid pea was sold by them to co-accused Prem Kumar Gupta @ Sonu. Recovery memo (Ext. Ka-4) in this regard was also prepared at the place of recovery and Investigating Officer has also recorded statement of co-accused Prem Kumar Gupta @ Sonu and has prepared site plan Ext. Ka-11 mentioning all the details.
7. Postmortem on the dead body of deceased was conducted on 29.11.2007 at 12:50 p.m.. Postmortem report is Ext. Ka-6. On general examination, he was found aged about 40 years. Time since death was about one day. Average built body; rigor mortis present in both extremists; eyes and mouth partially opened.
8. On examination of dead body, following ante-mortem injuries were found :
“(i) Incised wound 7 cm x 5 cm x trachea and oesophagus cut on front of neck, 5 cm above sternal notch tailing of wound present left side of neck;
(ii) incised wound 6 cm x 2 cm x muscle deep on right side neck, 2 cm below injury no.1 and 3 cm above sternal notch.”
9. In the stomach watering fluid was found. Small intestine was half filled and gases in the large intestine. Gall bladder and spleen was pale, urinary was empty.
10. In the opinion of doctor, cause of death of deceased was due to hemorrhage and shock as a result of ante-mortem injuries.
11. After completing entire formalities, the Investigating Officer has submitted charge sheet (Ext. Ka-12) against accused-appellants. Material / articles recovered in the matter were also sent to Forensic Science Laboratory for chemical examination. Report submitted by the Laboratory is Ext. Ka-5 on record.
12. A separate crime number for the offence under Section 4/25 Arms Act as Chick No.254 of 2007 of Crime No.371 of 2007 was also registered. Recovery memo is Ext. Ka-2 and Ext. Ka-13. PW-8 has also proved material Ext.-5 and 6 before Court. After submission of charge sheet in both crime numbers, concerned Magistrate took cognizance and cases being exclusively triable by Sessions Court were committed to Court of Sessions. Both trials were consolidated and concluded together.
13. Prosecution opened its case describing all evidence collected during investigation and proposed to be adduced during trial. Trial Court also heard the accused side and framed charge against accused- appellants Mahesh Raidas @ Kallu and Sita Ram on 03.06.2008 for the offences under Sections 302, 201, 406 I.P.C. Charge for offence under Section 411 I.P.C. was framed against co-accused Prem Kumar Gupta (acquitted during trial) on same day. In Sessions Trial No.232 of 2008 charge for the offence under Section 4/25 Arms Act was framed against accused-appellant Mahesh Raidas @ Kallu. All the charges were read over to the accused to which they denied and pleading not guilty claimed their trial.
14. In order to prove its case, prosecution examined twelve witnesses in total out of them PW-1 Shiv Charan is the informant, PW- 2 Ram Bali witness of circumstance, PW-3 Chanda @ Chand is also witness of circumstantial evidence, PW-4 Shiv Shankar Lal, driver of Truck No. U.P. 78 AN-2003, PW-5 Mahesh Kumar, a trader of pea, PW-6 Dr. Y.K. Nigam, who has conducted postmortem on the dead body of deceased on 29.11.2007 and has prepared postmortem report (Ext. Ka-6), PW-7 Head Constable Tej Bahadur Singh, chick writer, who has proved Ext. Ka-7 and Ka-8, PW-8 S.I. Kripa Shankar Saroj, who is the second Investigating Officer, PW-9 Sub-Inspector Anand Mohan Pathak, the first Investigating Officer, PW-10 Avadesh Pandey the then Sub-Inspector of P.S. Fazal Ganj, who has prepared inquest report and other papers, PW-11 Rakesh Kumar Awasthi, the then Sub- Inspector of P.S. Fazal Ganj, who has investigated Crime No.371 of 2007 for the offence under Section 4/25 Arms Act and PW-12 Sub- Inspector Salig Ram Verma, who has prepared memo Ext. Ka-4 regarding the packets of pea recovered from the house of co-accused Prem Kumar Gupta.
15. After closure of prosecution evidence, statements of accused under Section 313 CrPC were recorded in which they denied the entire prosecution case and specifically stated that averments made in the First Information Report are false. Witnesses have deposed false facts. Nothing was recovered on their pointing out nor they confessed guilt. Postmortem report is based on incorrect facts. Prosecution for the offence under Section 4/25 Arms Act was started on the basis of false recovery. Recovery shown against accused-appellants is also false. Charge sheets were submitted against them on the basis of insufficient evidence. Prosecution was started due to enmity. Local police implicated them in the present matter on the basis of false recovery. Similar statement has been made by all the accused. Co-accused Prem Kumar Gupta (acquitted in trial) has specifically stated that kirana shop 'Gupta & Company' of his father is situated within the territorial jurisdiction of P.S. Fazal Ganj in Vijay Nagar Mohalla. Local police used to extract goods and money from his shop. He always objected to the illegal act of the police and due to that reason present prosecution was started on the basis of false statement.
16. Accused-appellants did not adduce any evidence in their defence.
17. Having heard learned counsel for parties and going through the record, Trial Court found that prosecution has fully succeeded in bringing home the charges against accused appellants beyond reasonable doubt and convicted and sentenced them as above. Hence, this appeal.
18. We have heard Ms. Nishi Mehrotra, learned amicus curiae in Jail Appeal No.4438 of 2015, Sri Om Prakash Katiyar, learned Advocate in Jail Appeal No.465 of 2018 and Sri Rishi Chaddha, learned AGA for the State at length.
19. It was submitted by learned amicus curiae and learned counsel appearing for appellants that prosecution was not able to prove its case beyond reasonable doubt. It is a case of circumstantial evidence. Chain of circumstances are not linked with each other to form a conclusive opinion against accused-appellants but Trial Court misappreciating the prosecution evidence illegally convicted and sentenced them. Investigation is perfunctory. Recovery said to have been made in the present matter is also false. Referring to recovery memo (Ext. Ka-5) it was also argued that local police exceeding the jurisdiction opened the sealed bandal in the police station concerned without obtaining permission from the concerned Magistrate. Motive assigned in the matter is also not proved nor is sufficient to commit the present offence by the accused-appellants. Last seen evidence is also not believable. Witnesses examined in the matter are not reliable witnesses. Prosecution had changed its version at the stage of trial and there is improvement in the prosecution evidence on material points, which are fatal to prosecution case. It was also argued that medical evidence is against oral version. Findings recorded by Trial Court in the impugned judgment and order are not based on correct appreciation of evidence and suffer from infirmity and illegality warranting interference by this Court.
20. Per contra, learned AGA has argued that although in the First Information Report at initial stage only name of accused-appellant Mahesh Raidas @ Kallu was shown yet during investigation name of accused-appellant Sita Ram also came into light. There is sufficient evidence against them to hold guilty. Chain of circumstantial evidence has also been proved. Witnesses examined in the matter are wholly reliable. Recoveries made in the matter have also been proved and the Trial Court has rightly relied upon them. It was further argued that recovery of weapon on pointing out of accused-appellant Mahesh Raidas @ Kallu is also proved beyond reasonable doubt. Findings recorded by Trial Court are based on correct appreciation of evidence. Although it is a case of circumstantial evidence yet chain of circumstances have been cogently and firmly proved. Impugned judgment and order does not suffer from infirmity or illegality warranting interference by this Court.
21. We have considered rival submissions made by learned counsel for parties and have gone through the entire records carefully.
22. In this matter, as is evident from the record, offence is said to have been committed in the intervening night of 27/28.11.2007. First Information Report was lodged on 28.11.2007 at 18:30 hours against accused-appellant Mahesh Raidas @ Kallu. Name of Sita Ram surfaced in the matter during investigation. Trial Court convicted and sentenced both appellants for the offence under Sections 302 and 201 I.P.C. Accused-appellant Mahesh Raidas @ Kallu was also convicted and sentenced for the offence under Section 4/25 Arms Act. Prosecution case is that accused-appellant Mahesh Raidas @ Kallu was cleaner on the truck No. U.P. 78 N 8827 and deceased was driver. On the day of incident, bags of peas were loaded upon the truck in question and deceased alongwith accused-appellant Mahesh Raidas @ Kallu had proceeded to unload the truck at Panki godown but they did not reach there. Search was made and truck in question was found lying in-front of petrol pump near Vijay Nagar Chauraha. Witnesses informing the police reached the place of occurrence. Prosecution case is also that when witnesses reached the place of occurrence, where truck was lying, police was preparing inquest of the dead body found in the truck, but accused-appellant Mahesh Raidas @ Kallu, who was named in the FIR, was absconding. Prosecution case is also that on 25.11.2007 a dispute between accused-appellant Mahesh Raidas @ Kallu and deceased took place regarding payment of some money. A knife said to have been used in commission of crime has also been recovered on pointing out of accused-appellant Mahesh Raidas @ Kallu. Pant belonging to accused-appellant Sita Ram was also taken into custody. Although bags of pea have been recovered yet Trial Court has not found the said recovery reliable and acquitted the co-accused Prem Kumar Gupta. Recovered article knife, cloths and seat cover of Truck in question as well as parts of the tire have been sent for chemical examination. Report submitted by the F.S.L. in the matter is Ext. Ka-29. Cause of death of deceased is due to hemorrhage and shock as a result of ante-mortem injuries. In the above factual background, Court proceeds to scrutinize the submissions raised by learned counsel for parties.
23. At the outset, it is clarified that there is no eye account witness of the present matter and prosecution case solely rests upon circumstantial evidence. Hence, first of all we proceed to analyze the existence of First Information Report at the time mentioned therein.
24. As has been mentioned here-in-above, offence is said to have been committed in the intervening night of 27/28.11.2007. First Information Report was lodged on 28.11.2007 at 18:30 hours. Dead body was found in the truck in question lying near Vijay Nagar Chauraha, Kanpur Nagar. Distance between place of occurrence and police station concerned is only 1 km. Police had reached the place of occurrence before reaching the witnesses. Inquest proceeding was started on 28.11.2007 at 03:55 p.m. and was completed at 16.00 hours. Thus, it appears that First Information Report in the present matter came into existence after preparing inquest report. If statements of PW-1 to PW-3 are taken into consideration on this point then it is evident that FIR in the present matter was lodged after preparing the inquest report. Witnesses examined on behalf of prosecution have admitted that when they reached the place where dead body and the truck in question were lying, police had already reached there and was conducting the inquest proceeding. If such was the position, existence of First Information Report at the time mentioned therein on the ground of time consumed in lodging the First Information Report is not sufficient to disbelieve the prosecution case. It is pertinent to mention here that a criminal case cannot be disbelieved solely on the ground of delay in lodging the FIR. In the present matter when entire facts came into knowledge of the informant, he lodged the First Information Report against accused-appellant Mahesh Raidas @ Kallu mentioning all details. Thus, finding of Trial Court about existence of First Information Report in the impugned judgment and order need no interference.
25. So far as medical evidence is concerned, two incised wounds have been found on the body of deceased. In the opinion of doctor, cause of death of deceased was due to hemorrhage and shock as a result of ante-mortem injuries. If statement of doctor concerned who has conducted the postmortem report on the dead body of the deceased in light of peculiar facts and circumstances of the present case are scrutinized, it clearly emerges that medical evidence fully supports the prosecution case. There is no conflict between oral and medical evidence. Finding of Trial Court on this issue also need no interference.
26. As regards motive is concerned, admittedly accused-appellant Mahesh Raidas @ Kallu was cleaner in the truck in question. This fact has been proved by prosecution from its evidence. In the First Information Report itself it has been mentioned that on 25.11.2007 hot talks between accused-appellant Mahesh Raidas @ Kallu and deceased regarding payment of money took place and due to that reason accused-appellant committed the present offence. It is settled proposition of law that motive is essential ingredient to commit a crime and motive becomes more important in a case of circumstantial evidence. Since present matter is totally based on circumstantial evidence, motive part has to be scrutinized carefully and cautiously. In this case, FIR was lodged only against accused-appellant Mahesh Raidas @ Kallu attributing motive against him. Motive against accused-appellant Sita Ram was attributed later on. If statement of PW-1 to PW-4 are minutely analyzed on this aspect, it emerges that accused-appellant Sita Ram was neither cleaner nor driver nor helper of the truck in question. Statement of prosecution witnesses during course of trial to implicate accused-appellant Sita Ram is that he was seen alongwith deceased when they were returning after taking meal. In the statement of one of the prosecution witnesses, it has also come that hot talk also took place between deceased and accused-appellants regarding payment of money and due to that reason both accused- appellants committed the present offence. On close scrutiny of entire evidence, we are of the view that prosecution was able to prove motive only against accused-appellant Mahesh Raidas @ Kallu. Motive assigned against accused-appellant Sita Ram appears to have been added during trial, as dispute regarding payment of money between deceased and Sita Ram was not disclosed in the FIR. Thus, finding of Trial Court on the point of motive attributed to accused-appellant Mahesh Raidas @ Kallu need no interference but motive attributed to accused-appellant Sita Ram by the prosecution to commit the present offence, has not been proved beyond reasonable doubt. It is also noteworthy here that if involvement of accused-appellants are not proved by the prosecution from other evidence, present matter cannot be decided solely on the basis of motive. Thus, circumstances said to have been proved by the prosecution have to be scrutinized carefully and cautiously.
27. Before proceeding to deal with other issues, it is clarified at this stage that recovery of bags of peas have been found false. Accused- appellants have been acquitted for the offence under Section 406 I.P.C. Thus, statements of PW-1 to PW-4 have to be scrutinized regarding sustainability of the finding of Trial Court regarding conviction of accused-appellants. If statement of PW-2 is analyzed minutely, it emerges that he saw the accused-appellant Sita Ram and deceased on 27.11.2007 at 10:00 p.m. when they had gone to take meal. Statement of PW-1 on this issue is based on hearsay evidence. PW-3 has stated that accused-appellant Sita Ram was also working alongwith deceased and both accused-appellants and deceased had gone taking the truck before this witness. Accused-appellant Sita Ram has been involved in this matter on the basis of last seen evidence i.e. on 27.11.2007 at about 10:00 p.m. and also on the basis of recovery of a pant but perusal of Ext. Ka-5 reveals that pant said to have been taken into custody belonging to accused-appellant Sita Ram on 28.11.2007 was reopened by Investigating Officer on 05.12.2007 in the police station concerned itself. Prosecution did not explain as to why and under what circumstances sealed packet was opened without obtaining permission from the concerned Magistrate. Trial Court while holding guilty to accused-appellant Sita Ram has taken into consideration Ext. Ka-5 and has also placed reliance on it. If statements of prosecution witnesses about the facts mentioned in Ext. Ka-5 are scrutinized, finding of Trial Court about involvement of accused-appellants on the basis of recovery of pant is not sustainable.
28. As far as recovery of knife on pointing out of accused-appellant Mahesh Raidas @ Kallu is concerned, police party after arrest of both accused-appellants recorded their statements and they made statement disclosing the manner of commission of the present offence. They also disclosed that they had hidden the weapon used in commission of crime. Ext. Ka-3 prepared in the matter also reveals that both accused- appellants were taken for recovery of said knife on the basis of their disclosure statement but said knife was recovered only on pointing out of accused Mahesh Raidas @ Kallu. Nothing is mentioned in Ext. Ka-
3 about involvement of accused-appellant Sita Ram in regard to recovery of knife. Trial Court has placed reliance on the recovery of knife and has held guilty to both accused-appellants for committing the murder of deceased. Since knife said to have been used in commission of crime was recovered on pointing out of accused-appellant Mahesh Raidas @ Kallu only, the said recovery could not be used against accused-appellant Sita Ram. Finding of Trial Court recorded in the impugned judgment and order to this extent is interferable.
29. So far as recovery of pant is concerned, as has been discussed here-in-above, only one witness PW-4 Shiv Shankar Lal has identified the pant belonging to accused Sita Ram. Since recovery of pant itself is doubtful, therefore, statement of PW-4 about involvement of accused-appellant Sita Ram in the present matter also appears to be incorrect. If statements of PW-1 to PW-5 are minutely analyzed, it emerges that statement of PW-1 and PW-2 about involvement of accused appellant Sita Ram is based on hearsay evidence. PW-3 Chanda @ Chand has also stated that accused-appellant Sita Ram was working with deceased but his statement regarding involvement of accused-appellant Sita Ram in the present matter is relevant only to this extent that this witness saw the deceased and Sita Ram coming together after taking meal but this fact alone is not sufficient to connect the accused-appellant Sita Ram with the present offence.
30. As far as role of accused-appellant Mahesh Raidas @ Kallu @ Kallu is concerned, it is established from the prosecution evidence that he was cleaner in the truck in question and was present alongwith deceased on the day of incident. On 25.11.2007 hot talks between them regarding payment of money also took place. When dead body of deceased was recovered from the truck in question, accused appellant Mahesh Raidas @ Kallu was absconding. Neither he lodged FIR nor gave any information to the police. There is recovery of knife said to be used in commission of present crime on his pointing out which has been proved by the prosecution beyond reasonable doubt. The said knife was sent to Forensic Science Laboratory and blood was found on it. Therefore, recovery made on pointing out of accused-appellant Mahesh Raidas @ Kallu is also relevant to connect him with the present offence.
31. Now, we have to consider whether judgment of conviction passed by Trial Court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence. While dealing with said conviction based on circumstantial evidence, circumstances from which conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that chain of event is complete and not to leave any doubt in the mind of Court.
32. For ready reference, paragraphs no.17 to 23 of Majenderan Langeswaran Versus State (NCT of Delhi) and Another, (2013) 7 Supreme Court Cases 192 are quoted below.
"17. In Hanumant Govind Nargundkar vs. State of M.P., AIR 1952 SC 343, this Court observed as under:
"10. It is well to remember that in cases where the 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, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
18. In Padala Veera Reddy vs. State of A.P., 1989 Supp (2) SCC 706, this Court opined as under:
"10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351).
19. In C. Chenga Reddy & Ors. vs. State of A.P., (1996) 10 SCC 193, this Court while considering a case of conviction based on the circumstantial evidence, held as under:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence."
20. In Ramreddy Rajesh Khanna Reddy vs. State of A.P., (2006) 10 SCC 172, this Court again considered the case of conviction based on circumstantial evidence and held as under:
"26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603)."
21. In the case of Sattatiya vs. State of Maharashtra, (2008) 3 SCC 210, this Court held as under:
“10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
This Court further observed in the aforesaid decision that:
17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the Trial Court and the High Court - Bharat v. State of M.P., (2003) 3 SCC. In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellant had committed the crime.
22. In the case of State of Goa vs. Pandurang Mohite, (2008) 16 SCC 714, this Court reiterated the settled law that where a conviction rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on circumstantial evidence. In the case of G. Parshwanath vs. State of Karnataka, (2010) 8 SCC 593, this Court elaborately dealt with the subject and held as under:
23. 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 sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these 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 or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
33. Similar view has also been reiterated by the Hon'ble Supreme Court in Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012) 4 SCC 37 as well as in Brajendrasingh vs. State of M.P., (2012) 4 SCC 289.
34. Thus, on the basis of law laid down in aforementioned cases it may be mentioned that rule which needs to be observed by the court while dealing with cases of circumstantial evidence is that best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The court has to examine complete chain of events and then see whether all material facts sought to be established by the prosecution to bring home the guilt of accused have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that accused is innocent till proven guilty and that accused is entitled to a just and fair trial.
35. On analysis of evidence made here-in-above, if circumstances said to have been established by prosecution in the present matter against accused appellant Mahesh Raidas @ Kallu are summarized, then it emerges that :
(i) Deceased and accused-appellant Mahesh Raidas @ Kallu both were working as driver and cleaner on the truck in question on the day of incident.
(ii) Few days earlier hot talk took place between them regarding money transaction.
(iii) Deceased and accused-appellant Mahesh Raidas @ Kallu had gone together to unload the peas bags.
(iv) Truck in question did not reach the destination where truck was to be unloaded.
(v) Dead body of deceased was found in truck in question near Kishori Petrol Pump but accused-appellant Mahesh Raidas @ Kallu was not present there.
(vi) Accused-appellant did not inform any person about the incident.
(vii) Weapon 'knife' said to have been used in commission of crime was recovered on pointing out of accused-appellant Mahesh Raidas @ Kallu.
(viii) On chemical examination, blood was found on the knife.
(ix) Inquest proceeding was conducted at the place where dead body was found.
36. If circumstances emerged and narrated here-in-above are taken in consonance with the settled legal position, as has been cited above, true import of facts and evidence is that circumstances from which inference of guilt of accused Mahesh Raidas @ Kallu is to be drawn have been cogently and firmly established by prosecution from its evidence and they are of definite tendency unerringly pointing towards guilt of this accused. If entire circumstances, as has been summarized here-in-above, are taken together, a complete chain of circumstances is formed and there is no escape from the conclusion that within all human probability crime was committed by accused appellant Mahesh Raidas @ Kallu and none else. Chain of circumstances is also complete. Thus, finding of Trial Court about involvement of accused- appellant Mahesh Raidas @ Kallu in the present matter for the offence under Sections 302, 201 I.P.C. need no interference and the same is based on correct appreciation of evidence.
37. As far as involvement of accused-appellant Sita Ram is concerned, recovery of pant from the truck said to be belonging to accused-appellant Sita Ram is suspicious. He was not working at the time of incident alongwith deceased on the truck in question and was only seen by the witnesses coming after taking meal alongwith deceased. Nothing is recovered from possession of appellant Sita Ram or his pointing out to connect him with the present offence. Last seen evidence is also not sufficient to connect him with the present offence. Motive is also not proved against appellant Sita Ram. Thus, finding of Trial Court about involvement of accused-appellant Sita Ram in the present matter for committing the offence under Sections 302 and 201 I.P.C. for want of complete chain of events is not based on correct appreciation of facts and evidence and need interference by this Court. Hence, we are of the opinion that prosecution has failed to establish guilt of accused appellant Sita Ram under Sections 302 and 201 IPC beyond reasonable doubt and to the satisfaction of judicial conscience of court. So, impugned judgment and order of conviction and sentence, which has been sought to be assailed, call for and deserves, interference.
38. As regards sentence imposed upon accused appellant Mahesh Raidas @ Kallu is concerned, having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed and the principles laid down by the Apex Court in various judgments, we are of the view that Trial Court has imposed minimum sentence for the offence under Section 302 IPC. Sentence imposed for other offence is also not excessive or exorbitant. Hence, in our considered opinion, sentence awarded to appellant Mahesh Raidas @ Kallu is adequate and proportionate to gravity of offence and no interference is required by this Court in this regard.
39. Considering entire aspects of the matter and looking to the circumstances, under which present offence has been committed, we are of the view that impugned judgment and order passed by Trial Court is well thought and well discussed in regard to accused-appellant Mahesh Raidas @ Kallu and Trial Court has rightly held that prosecution has succeeded to prove guilt of accused appellant Mahesh Raidas @ Kallu beyond reasonable doubt. As such, impugned judgment and order passed by Trial Court is liable to be upheld in regard to accused appellant Mahesh Raidas @ Kallu for the offence under Sections 302, 201 IPC and 4/25 Arms Act and Jail Appeal No. 4438 of 2015 is liable to be dismissed but Jail Appeal No. 465 of 2018 filed by accused appellant Sita Ram having force is liable to be allowed, as discussed above.
40. Accordingly Jail Appeal No. 4438 of 2015 is dismissed. Conviction and sentence imposed upon accused appellant Mahesh Raidas @ Kallu vide impugned judgment and order dated 4.8.2015 is hereby confirmed. However, Jail Appeal No. 465 of 2018 is allowed. Conviction and sentence awarded vide impugned judgment and order against accused appellant Sita Ram is hereby set aside. He is found not guilty for the offence punishable under Sections 302 and 201 IPC. He is acquitted of all charges framed against him. If he is in jail, he be released forthwith.
41. Keeping in view provisions of Section 437-A CrPC, appellant Sita Ram is directed to forthwith furnish each a personal bond of the sum of Rs. fifty thousand and two reliable Sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, appellant Sita Ram on receipt of notice thereof shall appear before Hon'ble Supreme Court.
42. Copy of this judgment alongwith lower court record be sent forthwith to Sessions Judge, Kanpur Nagar for compliance. Copy of this order be also supplied to accused appellants Mahesh Raidas @ Kallu and Sita Ram through concerned Jail Superintendent. Compliance report be also submitted to this Court.
43. A copy of this judgment and order be also placed on the record of Jail Appeal No. 465 of 2018.
Order Date :- 28.01.2019 Shahroz