JUDGMENT
1. This appeal has come up for hearing having been expedited by the order dated 2-11-2001 of the Hon'ble The Chief Justice.
2. By the judgment and order dated 27-8-1997 passed by Shri Ashok Srivastava, the then VIIIth Addl. Sessions Judge, Allahabad, the appellant has been convicted and sentenced to imprisonment for life under Section 302 I.P.C. and also to a fine of Rs.5000/- and in default of payment of fine to undergo one year R.I. Aggrieved by the said judgment, the present appeal has been preferred by the appellant.
3. The deceased of this case was Ramesh Kumar aged about 14 years. He was grand son of Ram Sundar Pasi complainant. The dead body of Ramesh Kumar was found on 29-10-1989 in the afternoon at about 1 p.m. in the paddy field of Shripat Maurya, which was situated in the south of Sharda Sahayak Rampur Branch Canal. Ram Sundar Pasi lodged written report at police station. Phoolpur at 2 p.m. on the same day stating therein that in the preceding evening at about 5 p.m. Ramesh Kumar had gone on cycle to Phoolpur market for grinding flour. At about 5.30 p.m. his son Ramphal and Tej Bahadur met Ramesh Kumar at 'Saraiya Tiraha' in Phoolpur Bazar. Ramphal asked Ramesh Kumar to accompany them but Ramesh Kumar said that he would come later after taking water. It was further stated in the report that when Ramesh Kumar was coming back he saw appellant Ram Sukhi alias Laloo in the way. When Ramesh Kumar did not reach home till late night, a search was made for him. On the next day cycle of Ramesh Kumar with a bundle of flour was found lying on canal patri. On further search in the neighbouring fields dead body of Ramesh Kumar was traced. It was noticed that Ramesh Kumar had injuries on his neck. Ram Sundar Pasi who was having litigation with the present appellant in civil Courts suspected that the appellant has committed murder of his grand son, Ramesh Kumar.
4. On registration of case at the police station, S.I. Ram Ratan Ram, P.W. 6 took up investigation. He recorded the statements of first informant Ram Sundar and witness Ram Suchit. On the same day he went to the scene of occurrence and prepared site plan Ex, Ka 3. Ha also collected samples of blood stained and plain earth from the place of occurrence. One pair of sleeper, cycle and bundle of flour were found lying on the canal patri. They were also taken into custody through memo Exs. Ka 4 to 6. Dead body of Ramesh Kumar was found in the paddy field of Shripat Maurya. He appointed panches and held inquest. Dead body was then sent to mortuary for post mortem examination.
5. Dr. Nisar, P.W. 5 conducted autopsy on the dead body of deceased Ramesh Kumar on 30-10-1989 at 3.30 p.m. Following ante mortem injury was found:
An incised wound over the neck anteriorly in a length of 3 1/2", cutting the skin muscles larynx and the blood vessels. The cut is deep severing all the tissues excepting the cartilage lobule which was intact.
In the opinion of the doctor death of Ramesh Kumar had occurred due to shock and haemorrhage as a result of ante mortem injury. Post mortem report is Ex. Ka.2. In his statement before the Court Dr. Nisar P.W. 5 further deposed that death was possible at 5.30 p.m. on 28-10-1989 and there could be a difference of 10 to 12 hours either way.
6. On completion of investigation, charge sheet was submitted against the appellant.
7. Prosecution in support of its case produced seven witnesses in all before the trial Court. They were Ram Phal, P.W. 1, Ram Sundar Pasi, P.W.2, Jangi Lal, P.W.3, constable Ramesh Chand Chaudhari, P.W. 4 who took sealed dead body from the place of occurrence to mortuary, Dr. Nisar, P.W. 5 who conducted post mortem examination, S.I. Ram Ratan Ram, P.W. 6, the investigating officer and Head Constable Mohan Das, P.W.7, who prepared check F.I.R. and made relevant entries in the general diary.
8. Accused Ram Sukhi in his statement recorded under Section 313 Cr.P.C. denied the prosecution allegations. He admitted that there had been litigations in Civil Court between him and the first informant Ram Sundar Pasi. He further admitted that dead body of Ramesh Kumar was found in the paddy field. According to him he has been implicated falsely by the first informant on account of longstanding enmity. He produced no witness in defence.
9. Learned Sessions Judge on evaluation of evidence on record came to the conclusion that the prosecution has succeeded in establishing cogent and clinching circumstances to connect the appellant with the murder of Ramesh Kumar.
10. We have heard Shri S.P.S. Raghav, learned counsel for the appellant; Shri Ratan Singh, learned A.G.A. for the State and Sri,S.P. Srivastava for the complainant.
11. As far as factum of death of Ramesh Kumar on account of stab injury is concerned, the same has neither been disputed nor assailed before us by the learned counsel for the appellant. However, it has been vehemently argued that in the present case there is neither any direct nor circumstantial evidence to hold the appellant guilty of the offence of murder of Ramesh Kumar, therefore, conviction of the appellant is not sustainable.
12. Undisputedly, in this case there is no direct evidence regarding the commission of murder of deceased Ramesh Kumar and the prosecution relied upon certain circumstances to connect the appellant with the murder of Ramesh Kumar. Let us recapitulate the circumstances relied upon by the prosecution. They are:-
that the deceased had been left at about 5.30 p.m. in Phoolpur market by his brother Ram Phal and Tej Bahadur that when Ram Phal and Tej Bahadur were going back home, they saw accused Ram Sukhl along with one unknown person going on cycle towards Phoolpur that when Ramesh Kumar did not return home till late evening a search was made for him and during the search at about 9 p.m. when P.W.I, Ram Phal had gone to lit a 'Diya' in his field he met the appellant, who at that time looked somewhat disturbed; that at about 8.30 p.m. on the same night Jangi Lal P.W.3 saw accused Ram Sukhi, Ramesh Kumar deceased and one unknown person when they all were going on the canal patri towards east; that on the next morning cycle of deceased with a bundle of flour were found lying on the canal patri that dead body of deceased Ramesh Kumar was found in the paddy field of Shripat Maurya; and that the appellant had a motive to commit the murder of deceased Ramesh Kumar as he was having long standing enmity with Ram Sunder P.W.2, grand father of deceased Ramesh Kumar.
13. In order to establish the above circumstances prosecution produced Ram Phal P.W.l, Ram Sundar, P.W.2 and Jangi Lal, P.W. 3.
14. P.W. 1 Ram Phal in his statement before the Court stated that in the preceding evening his nephew Ramesh Kumar had gone to Phoolpur market for grinding flour. He and Tej Bahadur had also gone to the same market for purchasing some articles. When they were returning they met Ramesh Kumar in front of Phoolpur block. Then all of them came at the shop of Ram Khilawan situated at 'Saraiya Tiraha' where they stopped for a while. Ramesh Kumar sat down on a bench at the shop of Ram Khilawan and told this witness that he would come later. This witness and Tej Bahadur started for their village leaving behind Ramesh Kumar at the shop of Ram Khilawan, In the way near the cup-plate factory they saw Ram Sukhi appellant and one unknown person going on cycles towards Phoolpur market. On reaching home, he told his father Ram Sundar that Ramesh Kumar has stopped at 'Saraiya Tiraha'. When Ramesh Kumar did not come back a search was made for him. At about 9 p.m. Ram Sukhi appellant met him. It was a Diwali night. At that time Ram Sukhi appeared to be disturbed. In cross examination he admitted that the place where he saw Ram Sukhi and one unknown person going on cycles was removed by about one Bigha from the place where he had left Ramesh Kumar. He at that time did not have any talk with the appellant. He further admitted that when in the night at about 12 he saw Ram Sukhi and one unknown person in the village at that time also he did not have any talk with either of them. This part of his statement that he had met Ram Sukhi in the night in a puzzled and disturbed state was an improvement at the trial inasmuch as he did not state this fact to the investigating officer in his statement recorded during investigation. It may also be noted that in the examination-in-chief though he gave out the time of seeing the accused at about 9 p.m. but during cross examination he stated that in fact he had met him at about 12 in the night and his earlier statement was wrong. Thus we find that apart from the fact that the circumstance that the accused was seen In a disturbed state of mind was an Improvement made for the first time at the trial the witness was not sure of the time of seeing the accused in a puzzled state of mind as he has given a vacillating statement in this regard. In fact up to the stage of investigation he did not claim to have seen the appellant at any point of time during the night. It is also significant to note that in his statement recorded under Section 161 Cr.P.C. he even did not state that he had seen Ram Sukhi and one unknown person going on cycle towards Phoolpur market. He was confronted with his statement recorded by the investigating officer but he could not explain as to why that fact has not been mentioned in his statement recorded by the investigating officer. He further claimed that he had told to his father of his having seen Ram Sukhi in a puzzled state of mind in the preceding night at about 12 yet this fact has not been stated by Ram Sundar either in the F.I.R. or in his statement before the Court. We thus find that the evidence of this witness is not at all reliable and the only circumstances which have been established from his evidence are that he had left deceased Ramesh Kumar at the shop of Ram Khilawan in Phoolpur Bazar in the preceding evening at about 5 p.m. and that cycle of deceased with bundle of flour were found on canal patri while dead body of deceased in the paddy field of Shripat Maurya on the next day at about 1 p.m.
15. P.W. 2 Ram Sundar is grand father of Ramesh Kumar. He deposed in his statement before the Court that in the preceding evening at about 5 p.m. Ramesh Kumar had gone on cycle to Phoolpur market. His son Ram Phal had also gone to the same market. When Ram Phal came back he told him that Ramesh Kumar has stopped at Saraiya Tiraha for drinking water and would come later. He had also told him that in the way Ram Phal had seen Ram Sukhi and one unknown person going on cycles towards Phoolpur. When Ramesh Kumar did not return he was searched for throughout the night but his whereabouts could not be known. On the next day when he and others reached near Tiraha they got the information that one cycle along with 'Gathri' were lying on the canal patri. On this information they reached there and saw that cycle of deceased along with 'Gathri' were lying there. Search was made in neighbouring fields and then in the paddy field of Sripat Maurya dead body of deceased Ramesh Kumar was found. He got the first information report Ex.Ka 1 written by Rajendra Prasad Upadhyay and lodged the same at the police station at 2 p.m. This witness also deposed about motive. He stated that a litigation between him and Ram Sukhi was pending in Civil Courts, Allahabad, much before the occurrence in question. Ram Sukhi had exclaimed that he would drag him up to High Court and thus he believed that appellant Ram Sukhi has murdered his grand son Rakesh Kumar. From his statement the only circumstances which could be said to have been proved are that there was enmity between appellant and this witness; that in the preceding evening deceased had gone to Phoolpur Bazar on cycle for grinding flour and had stopped there at 'Saraiya Tiraha' though his uncle Ram Phal had come back home; that Ramesh Kumar did not return home for whole of the night; and that on the next day his dead body was found in a paddy field and cycle and 'Gathri' of flour on the canal patri.
16. P.W.3 is Jangi Lal on whose testimony much reliance has been placed by the learned trial Judge. He was a rickshaw puller. He stated that in the preceding evening when he was coming back to his village on his rickshaw from Phoolpur at about 8.30 p.m. he saw deceased Ramesh Kumar, appellant Ram Sukhi and one unknown person on canal patri going towards east. They were on cycles. He admitted that it was a Diwali night. 'Diwali' falls on 'Amavasya' hence there was complete darkness. In his cross-examination he admitted that he had seen the above three persons from a distance of 50 paces. There was no light either on the culvert or on canal patri. Thus in the absence of any source of light and the night being completely dark it cannot be accepted that this witness was able to identify three persons who were going on cycles at a distance of 50 paces from him. Therefore, the circumstance that appellant along with deceased and one unknown person were seen going together on the canal patri at about 8.30 p.m. is not established beyond doubt. In any view of the matter it is inconceivable that the deceased would have gone in the company of the appellant with whom the family of deceased was having highly inimical terms. It is not the case of the prosecution that at any point of time accused and deceased had become friendly or close to each other. It does not sound to reason that when deceased had stopped at the shop of Ram Khilawan to drink water, he without making any hue and cry would have gone in the company of the accused who was dire enemy of his family.
17. Where prosecution case rests entirely on circumstantial evidence the well established principles governing the appreciation of evidence in such cases should be borne in mind. Briefly the principles are that each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence; that the circumstances so relied upon must be such as cannot be explained by any hypothesis except the guilt of the accused and all the circumstances must provide a complete chain, no link of which must be missing and they most unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence. In a recent decision of V.C. Rao v. Ponna Satyanaryana, 2000(41) All Cri C 210 (211) : (AIR 2000 SC 2138) the Apex Court held that the cumulative effect of the proved circumstances must be such as to negate the innocence of the accused and to bring home the offence beyond any reasonable doubt.
18. It is, therefore, the cumulative effect of all the circumstances alleged and proved which matters. It is neither desirable nor open to a Court to cull out one circumstance from the rest for the purpose of giving a different meaning to it either for recording a conviction or acquittal.
19. In the present case the only circumstances which at best could be said to have been proved are that there was enmity between the appellant and grand father of the deceased on account of a litigation pending in the Civil Courts at Allahabad; that the dead body of the deceased was found in the paddy field of Shripat Maurya on 29-10-1989 at about 1 p.m.; that on the canal patri near the aforesaid field cycle of deceased along with bundle of flour were found; and that in the preceding evening deceased had gone to Phoolpur market for grinding flour and had been left at the shop of Ram Khelawan near Saraiya Tiraha at about 5 p.m. The other circumstances that the accused along with an unknown person were seen going towards Phoolpur market near the cup-plate factory by Ram Phal, P.W. 1; and that deceased was seen in the company of accused and one unknown person on the canal patri at about 8.30 p.m. have not been established.
20. From the above circumstances inference of guilt of accused cannot be drawn. Undisputedly litigation was pending between appellant and Ram Sundar P.W. 2 grand father of deceased in civil Courts at Allahabad and they were draggers drawn. Enmity is a double edged weapon which cuts both ways. If on one had it provided a motive for the accused to commit the murder in question, on the other hand it equally provided an opportunity to the first informant to implicate his enemy, in the blind murder of his grand son. The long standing enmity may have also led to a suspicion that appellant may have killed Ramesh Kumar but suspicion howsoever strong it may be cannot take the place of legal proof. In the case of Dhananjoy Chatterji v. State of West Bengal (1994) 1 JT (SC) 33 :(1995 AIR SCW 510) the Apex Court made a note of caution that it needs no reminder that legally established circumstances and not merely indignation of the Court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.
21. On a careful scrutiny of evidence on record we find that the incriminating circumstances which the prosecution has sought to prove against the appellant have not been established beyond doubt nor they provide a complete chain which could unequivocally point to the guilt of the accused. Resultant effect of our discussion is that the order of the trial Court convicting and sentencing the appellant for the offence of murder of Ramesh Kumar cannot be upheld.
22. For the reasons stated above the conviction and sentence of the appellant as recorded by the trial Court are set aside and the appellant is acquitted of the offences charged for. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.
Appeal is accordingly allowed.