Court No. - 2
Case :- GOVERNMENT APPEAL No. - 381 of 2019 Appellant :- State of U.P.
Respondent :- Rajpal Singh Gurjar Counsel for Appellant :- G.A.
Hon'ble Suneet Kumar,J. Hon'ble Brij Raj Singh,J.
( Order on Application for Leave to Appeal)
1. Leave to appeal application is disposed of in terms of order dated 4.8.2021 passed in Criminal Appeal No. 123 of 2021 (Rita Devi Vs. State of U.P. and another).
( Order on Appeal)
1. We have heard learned A.G.A. for the State and perused the trial court record with the assistance of the learned counsel for the State.
2. The instant appeal has been filed against the judgment and order of acquittal of the accused-respondent dated 13.05.2019 passed by learned Additional Sessions Judge/Special Judge (Essential Commodities Act), Ghaziabad in Sessions Trial No. 1505 of 2014 (State of Uttar Pradesh Vs. Rajpal Singh Gurjar), arising out of Case Crime No. 706 of 2011 for the offences under Sections 302 and 201 I.P.C., Police Station Kotwali, Distirct Ghaziabad.
3. Learned counsel for the State submitted that the trial court committed an error of ignoring the statement of the the occular witnesses. They deposed that the deceased was last seen being assaulted by the accused. In other words, it is urged that the judgement and order suffers from perversity.
4. F.I.R. came to be lodged through an application under Section 156(3) Cr.P.C., on 16.8.2011, after four months of the incident. As per prosecution case the brother of the complainant (Rajkumar @ Pappu), a driver working with the accused for past 20 years. The salary for the past three years was not paid to the deceased brother and on the contrary, Rs.1,00,000/- was gradually extracted from the deceased by the accused. Consequently, money and the salary was being demanded by the deceased. The complainant was informed by the Bus Station Police Chauki, Ghaziabad, that a body had been recovered from the railway track on a Nala, behind the bus station. The body came to be cremated as unknown. After investigation, charge came to be framed and same was sent for sessions trial for offence under Section 302 and 301 I.P.C.
5. The prosecution in order to prove the charge examined the informant Virendra (P.W. -1), Yashveer Singh (P.W. -2), Ravindra Kumar (P.W. -3), Head Constable 471 Omvir Singh (P.W. -4), Chandrapal Singh (P.W. -5), Ramkaran (P.W. -6), Krishna Kashyap (P.W. -7), Dr Akhilesh Kumar Chaudhary (P.W. -8), Smt. Sheela (P.W. -9), S.I. Fateh Singh (retired) (P.W. -10) and Satish Chandra Tyagi, S.I. (Retired) (P.W. -11).
6. After the evidence and material of the prosecution, the statement of the accused under Section 313 Cr.P.C. came to be recorded, wherein, he denied the charge, further, stating that the deceased was not his driver nor he did give any money to him. He further stated that on the date of incident i.e. 10.04.2011, he was not in Ghaziabad, but at Lucknow in Jwala Hotel, Husainganj. The defence produced and examined Rajkumar Singh (D.W. -1), Irshad (D.W. -2), Mohd. Shahid (D.W. -3), Sudhir Kumar (D.W. -4), Pradeep Yadav (D.W. -5), Ajab Singh (D.W. -6) and Home Singh Yadav (D.W. -7).
7. The trial court on considering the evidence and material was of the opinion that the prosecution failed to prove the charge and the chain of circumstantial evidence and the circumstances is incomplete and does not link the accused to the commission of the offence. Accordingly, the accused came to be acquitted. Hence the present appeal.
8. Complainant (P.W. -1) deposed that on 10.04.2011, he had last contacted the deceased on mobile, thereafter, he was not heard of. He went to enquire about the deceased where he worked, the accused had given him the mobile and sim of the deceased. A missing report came to be lodged after a month of the incident (9.5.2011). In the report, there is no allegation against the accused with regard to the motive of money being transacted between the accused and the deceased. On 12.05.2011, on receiving information from Police Chauki, the informant (P.W. -1) identified the deceased from his clothes and belongings. The informant named driver Satendra and Krishna of being present at the place of the incident i.e. 10.04.2011. The prosecution did not produce them as witness during trial. On the contrary, Ramkaran (P.W. -6) and Krishna Kashyap (P.W. -7) were examined in the trial. P.W. -6 and P.W. -7 are resident of Hapur, whereas, in the missing report it was stated that Satendra and Krishna are resident of district Bulandshahr. During investigation, Ramkaran (P.W. -6) on affidavit stated that he is the witness of the incident alleging that the deceased was being assaulted by the accused and two other unknown persons. Both the witnesses, Ramkaran (P.W. -6), Krishna Kashyap (P.W. -7) were present at the bus station waiting for the bus for their respective destination. The motive for commission of offence is that the deceased was employed with the accused for 15-20 years, but was not paid his salary for the last three years, and on the contrary accused had gradually extracted Rs.1,00,000/-. On demanding his salary and money the deceased was eliminated by the accused. The statement of Smt. Sheela (P.W. -9), mother of the deceased, was not recorded during investigation, but during trial Smt. Sheela (P.W. -9) stated that she had sold her grove and buffalo to provide money to the deceased, whereas, the other witnesses namely, the brothers of the deceased (P.W. -1 and P.W. -3) and their real brother in law (P.W. -5) in their examination in chief have not supported the statement of Smt. Sheela (P.W. -9) of selling property to provide money to the deceased. The motive was set up belatedly for the first time in an application filed under Section 156(3) Cr.P.C.
9. The prosecution case is based on circumstantial evidence. As per the prosecution case, on the date of incident (10.04.2011) at about 2:30- 3:00 in the afternoon the informant (P.W. -1) his brother (P.W. -3) and the brother in law of the deceased (P.W. -5) and the independent witnesses Ramkaran (P.W. -6), Krishna Kashyap (P.W. -7) claim to be witness of the incident. They deposed that the deceased and the accused were seen quarreling, but after 10.04.2011 none of the prosecution witnesses had seen the deceased, nor were aware of the whereabouts of the deceased. The body of the deceased was recovered from railway track on 17.04.2011. Panchayatnama was conducted as unknown by S.I. Fateh Singh (P.W. -10) and the post mortem by Dr Akhilesh Kumar Chaudhary (P.W. -8). The date of post mortem is 18.04.2011, and in the opinion of the medical expert the probable date of death is 14.04.2011. The whereabouts of the deceased between 10.04.2011 (when he was last seen by the prosecution witnesses) and 14.04.2011 (until his death) no evidence was forthcoming by the prosecution. The mobile of the deceased, as per P.W.
-1 and call detail report (CDR) was live until 11.4.2011. P.W. -1 deposed that after 5-6 days of the incident he went to the place of the accused to enquire about the whereabouts of the deceased, the mobile and the sim of the deceased was returned by the accused. As per the mobile call records, the mobile was live from 01.04.2011 to 11.04.2011 and several conversations between the accused and the deceased had taken place in the said period.
10. Rajkumar Singh (D.W. -1) deposed that the deceased was not the regular driver of the bus of the accused, he was working on daily wage basis and driving bus of different owners. The deceased had driven his bus between 8.04.2011 and 10.04.2011. Mohd. Shahid (D.W. -3) stated that none of the buses of the accused was in working condition. He further stated that the deceased was not his driver, nor, driving the bus of the accused. Irshad (D.W. -2) and Mohd. Shahid (D.W. -3) deposed that on 10.04.2011, the deceased was seen in a drunken state lying unconscious at the bus station.
11. The prosecution failed to explain the whereabouts of the deceased in the intervening period of 11.04.2011 to 14.04.2011 i.e. after the deceased was last seen both by the prosecution and defence witness and the tentative date of death of the deceased. The theory set up by the prosecution that P.W. -1 went to the house of the accused to enquire about the deceased, the mobile and sim of the deceased was returned is not probable human behaviour. If the accused had committed the crime, he would have either destroyed the sim and disposed of the mobile but certainly would not return it to the family members of the deceased. It is not the case of the prosecution that on the pointing out of the accused any incriminating material linking him to the commission of the offence was recovered. The chain of events and the circumstantial evidence is incomplete, the prosecution failed to explain the whereabouts of the accused for the period 11.04.2011 and 14.04.2011. The version of missing report lodged after a month and thereafter the case set up in an application filed under Section 156(3), after lapse of several months, appears to be on consultation, legal advice and after thought.
12. Supreme Court in a decision rendered in Sharad Birdhichand Sarda Vs. State of Maharashtra 1 held as follows:
“A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 2 where the observations were made:
“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”
(2) the facts so established should be consistent only with the hypothesis 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 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.”
It was further followed by a three Judge Bench in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors. 3 wherein this Court held as under:-
“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 4”
13. Consequently, the appeal lacks merit and is dismissed at the admission stage.
Order Date :- 28.10.2021 Arun K. Singh (Brij Raj Singh, J.) (Suneet Kumar, J.) 3 1989 Supp (2) SCC 706 4 (1982) 2 SCC 351