Hon'ble Rajendra Kumar-IV,J.
(Delivered by Hon'ble Rajendra Kumar-IV)
1. Present jail appeal has been directed by accused-appellant Pappu @ Nandu Pandey against the judgement and order dated 11.5.2015 passed by Additional Sessions Judge, Court No.14, Meerut in Session Trial No.1395 of 2011 (State Vs. Pappu @ Nandu Pandey) under Section 302, 376 IPC, P.S. Partapur, District Meerut whereby Trial Court has convicted accused Pappu @ Nandu Pandey and sentenced him to rigorous imprisonment for ten years with fine of Rs.10,000/- under Section 376 IPC, in default of payment of fine, one years additional imprisonment; and rigorous imprisonment for life with fine of Rs. 20,000/- under Section 302 I.P.C., in default of payment of fine, two years additional imprisonment.
2. Factual matrix of the case as emerging from First Information Report (hereinafter referred to as "FIR") as well as material placed on record is as follows.
3. PW-1, Jai Pakash submitted a written Tehrir Ex.Ka-1 on 31.10.2011 in Police Station Partapur, District Meerut stating therein that his own house was broken and it was not liveable, so his mother lived alone in the house of Sudhir (his cousin) and as usual, she slept in the night of 30.10.2011 in that house. His sister in law (Bhabhi) Smt. Kamlesh PW-2 was living in her own house and look after his mother (victim). In the morning on 31.10.2011 PW-2 Kamlesh came to see victim and saw that door was closed from inside. She tried to get it opened by giving voice but no response came from inside, so a boy was sent from the house of neighbouring Jogendra to open the door from inside. On opening door, PW-2 Kamlesh found his mother Bhagwati dead. There was a lot of bruises and blood on her face. Many people gathered on the spot. F.I.R. further recites that on 30.10.2011, PW-1 was present in the house of his Bhabhi, at about 10:00 PM. PW-1 and his nephew Yogesh, PW-3, after taking dinner, came to walk in the street towards his mother and saw that house of his mother was locked. They saw accused-appellant Pappu @ Nandu Pandey going towards roof of Jogendra from Sudhir's roof. All cloths of mother were removed from her body and she was half necked. It was suspected by PW-1 that victim was raped and murdered by accused-appellant Pappu @ Nandu Pandey.
4. On the basis of written Tehrir Ex.Ka-1, a Chick F.I.R. Ex.Ka-19 was registered by H.M., Naresh Kumar as Case Crime no. 530 of 2011, under Section 302 and 376 I.P.C. against accused-appellant. Entry of case was made in General Diary.
5. PW-8, Inspector, Rampal Singh, under the direction of PW-9 B.D. Pushkar, the then Inspector, held inquest over the dead body of Smt. Bhagwati, prepared inquest report Ex.Ka-10 and other papers relating thereto.
6. PW-6 Dr. Ravindra Singh, conducted autopsy over the dead body of Smt. Bhagwati and prepared post mortem report Ex.Ka-8, expressing his opinion that death of victim was possible two days prior to post-mortem due to coma on account of head injuries. He found three ante-mortem injuries as under :-
(i) Lacerated wound 3 cm x 1 cm x bone deep on left side of forehead eyebrow.
(ii) Bilateral black eyes.
(iii) Lacerated wound 2 cm x 1 cm x bone deep on right side of chin (not clear in the P.M. report).
7. PW-7 Dr. Vikram Singh examined smear slide of Smt. Bhagwati and prepared his examination report, Ex.Ka-9, expressing his opinion that dead spermatozoa was found in the slide.
8. PW-9 B.D. Pushkar undertook investigation, visited spot with Informant PW-1, prepared site plan Ex.Ka-16, recorded statement of Informant, collected one blood stained pillow and one blood stained bed sheet, blood stained and simple earth, one bangle (Kada made by steal) and prepared memos thereof, collected one Jeans pant, underwear and baniyan belong to accused and taken into custody and prepared Fard thereof; recorded statement of other witnesses. After completing all formalities of investigation submitted charge sheet Ex.Ka-18 against accused-appellant.
9. Case, being exclusively triable by Court of Sessions, was committed to Sessions Court for trial.
10. Trial Court, framed charges against accused-appellant Pappu @ Nandu Pandey under Section 302 and 376 IPC on 01.02.2012 which read as under :
vkjksi ^^^eS] lk/kuk jkuh] vij l= U;k;k/kh'k] dksVZ la0&15] esjB vki iIiw mQZ uUnw ikaMs ij ,rn}kjk fuEu vkjksi yxkrh gWwA izFke] ;g fd fnukad 30-10-2011 dks jkf= esa fdlh le; LFkku xzke f< f}rh;] ;gfd mijksDr fnukad] le; o LFkku ij vkius oknh dh eka ds lkFk cykRdkj djus ds i'pkr tku ls ekjus dh uh;r ls oknh dh eka dh pksVsa igqWpkdj mldh gR;k dj nh bl izdkj vkidk ;g dk;Z /kkjk 302 Hkk0na0la0 ds v/khu naMuh; vijk/k gS tks bl U;k;ky; ds izlKku esa gSA ,rn}kjk vkidks] vknsf'kr fd;k tkrk gS fd vkidk fopkj.k mDr vkjksi gsrq bl U;k;ky; }kjk fd;k tk;sxkA** Charge "I, Sadhna Rani, Additional Sessions Judge, Court No. 15, Meerut, hereby charge you, Pappu @ Nandu Pandey with the following offences:-
Firstly, you at any time on the night of 30.10.2011 forcibly committed rape on the complainant Jai Prakash Singh's mother sleeping in Sudhir's house located in village - Dhidhala, PS - Paratapur, and District - Meerut; thereby committing an offence punishable u/s 376 IPC, which is in the cognisance of this court.
Secondly, on the aforesaid date, time and place, you, having committed rape on the complainant's mother, inflicted injuries on her person with the intention to kill her, and murdered her; thereby you committed an offence punishable u/s 302 IPC, which is in the cognisance of this court.
It is hereby ordered that you shall be tried for the aforesaid charges by this court."
11. Accused-appellant pleaded not guilty and claimed to be tried.
12. In order to substantiate its case, prosecution examined as many as nine witnesses out of whom PW-1 Jai Prakash, PW-2 Kamklesh, PW-3 Yogesh and PW-4 Beena are witnesses of fact and PW-5 Shiv Raj Singh, PW-6 Dr. Ravindra Singh, PW-7 Dr. Vikram Singh, PW-8 Inspector Rampal Singh and PW-9 the then Inspector B.D. Pushkar are formal witnesses.
13. Subsequent to closure of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded by Court explaining entire evidence and other incriminating circumstances. In the statement under Section 313 Cr.P.C., accused-appellant denied prosecution story in toto, story and statement of witnesses are said to be wrong and under the pressure of police. He claimed false implication in the present case.
14. Trial Court, after hearing learned counsel for the parties and appreciating entire evidence led by prosecution on record found accused-appellant guilty and convicted him as stated above. Feeling aggrieved and dissatisfied with impugned judgement and order of conviction, present appeal has been filed through Jail.
15. We have heard Sri Prem Shanker Tiwari, learned Amicus Curiae appearing for appellant and Sri Nikhil Chaturvedi, learned A.G.A for State-respondent at length and gone through the record carefully.
16. Learned counsel for appellant assailing impugned judgement and order of conviction of accused-appellant, advanced his submissions, in the following manners :-
(i) This is a case of circumstantial evidence where there is no direct evidence against accused-appellant.
(ii) There is no complete chain of circumstantial evidence produced by prosecution.
(iii) There is no motive to accused to commit the present crime. Motive is completely missing in the prosecution case.
(iv) PW-3 Yogesh states nothing in support of PW-1 regarding landing of accused-appellant on Yogendra's roof.
(v) Except PW-1, no other witness states anything about the fact of case.
(vi) It is apparent from the prosecution case that accused was present on spot before registration of case which leads innocence of accused.
(vii) Seeing the age of deceased, there is no possibility of rape with victim by any one. Medical evidence does not support theory of rape with victim.
(viii) There are many contradictions in evidence of witnesses rendering the case doubtful.
(ix) Prosecution, totally, failed to prove its case beyond reasonable doubt but Trial Court wrongly appreciated evidence and held accused-appellant guilty without proper application of mind.
17. Learned AGA opposed submissions of leaned counsel for appellant and submitted that accused is named in F.I.R.; he has been arrested immediately after the crime; his steal bangle (Kada), pant and underwear contained blood which was found to be human blood in the report of F.S.L. was recovered from the spot; PW-1 saw him landing on the roof of Yogendra from the house of Sudhir on 10:00 PM in the night on 30.10.2011 in which crime was committed; hence, prosecution has proved entire chain of circumstantial evidence and Trial Court rightly convicted accused-appellant.
18. Although, time, date, place and assassination of victim Bhagwati was not challenged from the side of defence but according to Advocate for appellant he is not responsible for the present crime. Death of Smt. Bhagwati and place where she was assassinated stand established from the evidence of prosecution.
19. Thus only question for consideration of this Court is, "whether accused-appellant is responsible for committing present crime and Trial Court has rightly convicted accused-appellant for the offence punishable under Sections 376 and 302 I.P.C. or not?"
20. Now we may proceed to consider rival submissions of learned counsel for parties and evidence of prosecution as well as some important decisions.
21. PW-1 Jai Prakash deposed that on 30.10.2011 he had gone to the house of PW-2 Kamlesh; his mother (deceased) was living in the house of his cousin; PW-2 Kamlesh was looking after the victim; in the evening on 10:00 PM, he was coming from the house of his Bhabhi PW-2 after taking meal along with his nephew Yogesh; door of his mother's house was closed whereupon he began to come back; he saw that accused-appellant Pappu @ Nandu Pandey was landing on Yogesh roof; he and his nephew Yogendra PW-3 came back to his house and slept; when on the next day, as usual, his sister-in-laws PW-2 Kamlesh visited the house of victim to provide tea and knocked door but it was not opened, then a boy was sent inside to open the door through Yogesh house's roof, who opened the door from inside; PW-2 saw that victim was lying on cot in naked position and there was sign of injuries on her face; he and other people present there saw the victim lying dead; and it was suspected that victim was killed by accused-appellant Pappu @ Nandu Pandey. In cross-examination at page 28 of paper book, he admitted that he had seen accused-appellant first time in the night of incident. He further deposed that when accused-appellant was caught by villagers and handed over to police, he saw him. When accused-appellant Pappu @ Nandu Pandey told in police station that he was resident of Bihar, he came to know about his residence. He further deposed in cross-examination at page 30 of paper book that there was an electric pole near the house of Yogendra. House of Yogendra and Sudhir are adjacent to each other. When he went to his mother's house in the night, there was electric light.
22. It is relevant to mention here that there is no description of electric pole in FIR. It is evident from the statement of PW-1 that there was light of electric when he went to the house of his mother but PW-1 says that he saw accused landing on the roof of Yogendra in the light of mobile torch which inspires no confidence.
23. PW-2 Kamlesh deposed that on 30.10.2011 her mother-in-law Smt. Bhagwati (victim) was sleeping in the house of Sudhir after taking meal; at about 10:00 PM her son Yogesh PW-3 and Dewar Jai Prakash PW-1 went to see her mother-in-law but door was closed from inside and they came back; they saw accused-appellant landing on the roof of Yogendra from the house of Sudhir in the light of mobile torch; next morning, she, as usual, went to her mother-in-law, door was closed; she sent one Ankit in the house of Sudhir where mother slept, who opened the door from inside and she saw that victim Bhagwati was lying on cot with blood and her cloths were scattered all around; she cried whereupon many people around came there and then she came to know that accused-appellant committed rape and killed her (victim).
24. PW-3 Yogesh deposed that PW-1 is his uncle and he wrote a tehrir Ex.Ka-1 on the dictation of PW-1 Jai Prakash. In cross-examination, he deposed that Ex.Ka-1 was scribed in police station in the presence of police officials.
25. PW-4 Smt. Beena deposed that deceased Bhagwati happens to be her Tai (aunt) who lived in her other house in the village. On 30.10.2011, victim slept in the night after taking meal. In the next morning, when she and PW-2 Kamlesh went to that house and found door was closed from inside. She knocked door but no response. When she sent one Ankit in the house through Yogendra house who opened the door from inside, she entered the house and saw that victim Bhagwati was lying dead with blood on cot and her cloths scattered all around. On hearing noise of weeping, PW-1 Jai Prakash and PW-3 Yogesh came there and informed police. Police inquired accused-appellant who confessed that he was in drunken position, committed rape upon Bhagwati and killed her.
26. From the evidence of PW-1, PW-2, PW-3 and PW-4, it appears that except PW-1, no other witnesses saw accused landing on the roof of Yogendra house from the roof of Sudhir in the night of 30.10.2011.
27. PW-5 Shiv Raj Singh is not eye witness and he proved Fard / memo prepared by police.
28. Only circumstantial evidence against accused-appellant is :-
(i) PW-1 Jai Prakash saw accused-appellant landing on the roof of Yogendra's house from the roof of Sudhir's house where victim slept;
(ii) Sign of rape appeared over the body of deceased;
(iii) Alleged underwear of accused-appellant bearing siemens, one Jeans Pant with blood allegedly belonged to accused-appellant.
29. As per report dated 6.4.2013 of F.S.L., Agra, human blood was found but no spermatozoa was found on the cloths allegedly belong to accused.
30. PW-5 Shiv Raj Singh deposed that police has taken one steal bangle (Kada), one pant, one underwear and one baniyan with spot of blood from the accused and prepared Fard. In his cross-examination, he admitted that when he reached the spot at about 7:00 AM and remained there by 10:00 AM, police was there from before with accused-appellant whereas Chick FIR Ex.Ka-19 reveals that it was registered in the police station concerned at about 8:30 AM on 31.10.2011, meaning thereby police arrived at spot before registration of case and accused was already present there. PW-4 Beena herself admitted that accused-appellant Pappu @ Nandu Pandey came there and police inquired from him.
31. PW-9 B.D. Pushkar, Investigating Officer stated in his cross-examination that accused-appellant was not present on spot.
32. PW-1 Jai Prakash states that he along with his nephew Yogesh, after taking meal at about 10:00 PM, went to the house of his mother. PW-3 Yogesh states nothing in his statement about these fact. Thus, he does not support statement of PW-1. PW-5 states that he reached on spot at about 7:00 AM in the morning and before reaching to spot, police and accused were present there whereas Chick FIR reveals that it has been registered in police station concerned at 8:30 AM in the presence of Investigating Officer.
33. F.S.L. report does not talk of any spermatozoa over the cloths of accused-appellant. Presence of accused-appellant on spot before registration of case leads his innocence. If he had committed any offence, he would not have remained present there.
34. Statement of PW-6 Dr. Ravindra Singh, conducting post mortem of deceased on 31.10.2011 at about 4:40 PM, shows that death was possible two days prior to post mortem due to Coma on account of head injury, while according to prosecution, victim was alive before 10:00 AM in the night of 30.10.2011, thus, medical evidence is not compatible with oral version.
35. Theory of accused-appellant landing on roof of Yogendra's house from the roof of Sudhir's house at about 10:00 PM in the night of 30.10.2011 inspires no confidence, therefore, we find that chain of circumstantial evidence leading guilt of accused-appellant is not complete.
36. In a case, which rests on circumstantial evidence, law postulates twin requirements to be satisfied. First, every link in chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all circumstances must be consistent only with guilt of accused.
37. In the case in hand there is no eye witness of occurrence. Case of prosecution rests on circumstantial evidence. There cannot be any dispute as to the well settled proposition that the circumstances from which the conclusion of guilt is to be drawn must or "should be" and not merely "may be" fully established. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explicable through any other hypothesis except that the accused was guilty. Moreover, the circumstances should be conclusive in nature. There must be a chain of evidence so complete so as to not leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must show that in all human probability, the offence was committed by the accused.
38. In Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343, a basic judgment of Supreme Court on appreciation of evidence, when a case depends only on circumstantial evidence, where Court said:
"... 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...... it must be such as to show that within all human probability the act must have been done by the accused."
39. In Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person.
40. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Court, while dealing with a case based on circumstantial evidence, held that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent :-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) 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.
(emphasis added)
41. In Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR 1989 SC 1890, Court said:
"...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, (5) 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." (emphasis added)
42. In C. Chenga Reddy and Others v. State of Andhra Pradesh, 1996(10) SCC 193, Court said:
"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." (emphasis added)
43. In Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir, 2002(8) SCC 45 Court said :
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;
(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." (emphasis added)
44. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Another v. Registrar General High Court of Karnataka and Another, 2007(4) SCC 713 and Tomaso Bruno v. State of U.P., 2015(7) SCC 178.
45. It is well settled that where on the evidence, two possibilities are available or open which goes in favour of the prosecution and other which benefits an accused, the accused is undoubtedly entitled to benefit of doubt.
46. In Bhagwan Singh & Others v. State of M.P. (2002) 4 SCC 85, Court repeated one of the fundamental principles of criminal jurisprudence that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Court observed as under:-
"7. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided.
47. In Sharad Birdhichand Sarda vs. State of Maharashtra AIR 1984 SCC 1622, Court said that at any rate, the evidence clearly shows that two views are possible - one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium cyanide) to Manju but at the same time a fair possibilitiy that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone appellant is entitled to the benefit of doubt resulting in his acquittal.
48. In Kali Ram v. State of Himachal Pradesh, 1973 AIR 2773, Court made following observations:
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."
49. In the present case, there is no eye witness. None has seen accused-appellant murdering deceased - Smt. Bhagwati. PW-1 to 5 failed to establish guilt of accused-appellant. There is no other evidence on record to connect accused-appellant with the present crime. Hence it can be said that crime could have been committed by someone else. There is no complete chain of circumstances to indicate that accused-appellant is the only person who murdered Smt. Bhagwati.
50. Looking into entirety of facts and circumstances of the case, as discussed above, we are of the view that Trial Court has not marshalled entire evidence on record with care and caution and is not correct in convicting accused-appellant, solely relying on the statement of PW-1, that too not supported by any other witnesses, overlooking other major contradictions in their evidence and missing chain of circumstantial evidence. In our view, accused-appellant is entitled to benefit of doubt and it cannot be said that prosecution has been successful in proving guilt of accused-appellant beyond reasonable doubt.
51. In the result, appeal succeeds and is allowed. Impugned judgment and order dated 11.5.2015 passed by Additional Sessions Judge, Court No. 14, Meerut in Sessions Trial No.1395 of 2011 is hereby set aside. Accused-appellant is acquitted of charges leveled against him. He is in jail and shall be released forthwith, if not wanted in any other case.
52. Keeping in view provisions of Section 437-A Cr.P.C., accused-appellant is directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.
53. Lower Court record along with a copy of this judgment be sent immediately to District Court concerned for compliance and further necessary action.
54. Before parting, we provide that Sri Prem Shanker Tiwari, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 11,500/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.
Order Date :- 27.09.2019 Manoj