Court No. - 51
Case :- GOVERNMENT APPEAL No. - 6082 of 2011 Appellant :- State Of U.P.
Respondent :- Shobha Ram & Another Counsel for Appellant :- Govt. Advocate
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri Rajesh Mishra, learned AGA, appearing for the State on application seeking leave to appeal against judgment and order dated 19.08.2011 by means of which the accused-respondent Shobha Ram and Lala Ram have been acquitted under Section 364, 302, 201 IPC.
Heard learned AGA at great length and the perusal of the record shows that this is a case of circumstantial evidence where the important links is missing and the chain is incomplete. The deceased Banti is said to be a driver of a tempo. He was death and his body was recovered by the police. It appears that the owner of the tempo namely Karan Singh who was the first informant and the case was registered. Thereafter initially there were no one as the main accused. Secondly after a period of six months three persons were came forward to claim of being the witness of the evidence of last seen. It may be the three persons are PW-3 Ram Bharosey who have been examined as PW-3, PW-4 Mahesh and PW-5 Sita Ram @ Ram Sewak. At this stage itself it may be appreciated as far as Sita Ram PW-5 is concerned who happens to be the father of the deceased as far as Ram Bharosey and Mahesh PW-3 and PW-4 respectively are concerned they are also close relative of deceased. The court concerned has clearly observed that no reasons have been given as to why the witnesses have been examined after six months and there is also nothing on record to shows that father of the deceased and close relatives as well as other witnesses actually seen the accused persons together with the deceased and why was this opinion was not disclosed earlier at this stage of first information report itself.
The court after going through the evidence has clearly observed that:-
foospuk dk fu;e ;g gS fd lkf{k;ks dks lk{; fcuk fdlh foyEc ds fy;s tkus pkfg, vkSj ;fn dksbZ foyEc gS rks mldk Li"Vhdj.k vfHk;kstu } kjk fn;k tkuk pkfg,A bl ekeys esa vfHk;kstu ds Lrkj ls bl ckr dk dksbZ Li"Vhdj.k ugha fn;k x;k gS fd fdu ifjfLFkfr;ksa esa ?kVuk ds 6 efgus ckn budk foospd }kjk c;ku fy;k x;kA The court has further discussed the testimony of PW-3 and PW-4 in the following terms.
vius c;ku esa ih0 Mcyw0&3 rFkk 4 us bldk Li"Vhdj.k nsus dh dksf'k'k dh gS fd og iqfyl ds le{k pkjktksbZ djrs jgs iqfyl ds mPpkf/kdkjh dks Hkh bUgksus f'kdk;r dh vkSj rc Hkh bldh ckr ugha lquh x;h rks bUgksus U;k;ky; ds le{k vkosnu fn;kA ysfdu bl vk'k; dk ,d Hkh lk{; i=koyh ij ugha gS ftlls ;g lkfcr gks fd bu nksuksa lkf{k;ksa us ;k fdlh Hkh O;fDr us iqfyl ds fdlh d`R; ds ckjs esa fdlh mPpkf/kdkfj;ksa ;k U;k;ky; ds le{k dksbZ f'kdk;r dh gksA ih0 Mcyw0&8 us vius lk{; es bl ckr dks Lohdkj fd;k gS fd muds ikl bl ekeys ls lEcfU/kr U;k;ky; dk dksbZ vkns'k foospuk ds nkSjku ugh vk;kA ,slh fLFkfr es bu lkf{k;ksa }kjk vius ftjg esa foyEc ds ckjs esa fn;k x;k Li"Vhdj.k Hkh iwjh rjg ls vfo'oluh; gSA bu ifjfLFkfr;ksa esa ;g Li"V gS fd bl ekeys esa ih0 MCyw0&3 ,oa ih0 MCyw0&4 ,oa u dsoy vfo'oluh; :i ls la;ksxh lk{kh gS cfYd bUgksus tks vius dks ?kVuk dk izR;{kn'khZ crkrs gq;s lk{; fn;k gS ml ij fo'okl djus vkSj mls lk{; ds :i esa Lohdkj fd;s tkus dk bl ekeys esa dksbZ dkj.k ugha gSA vr% lkf{k;ksa ds lk{; ds vk/kkj ij esjh jk; esa vfHk;kstu ;g lkfcr ughaa dj ldk gS fd egs'k o jkeHkjksls us vfHk;qDrx.k ykykjke o 'kksHkkjke }kjk fnukad 26-10-09 dks e`rd ds lkFk ekjihV djrs gq;s ns[kk vkSj ;g Hkh ns[kk fd vfHk;qDrx.k mls vius VSEiw esa cSBkdj ys tk jgs gSA bl ekeys es viuh ftjg esa ih0 Mcyw0&8 foospd us crk;k gS fd ';ke flg uke ds ,d O;fDr us mUgs crk;k Fkk fd muds lkeus vfHk;qDrx.k 'kksHkkjke rFkk ykykjke ?kVuk ds igys e`rd dks cqykdj ys x;s Fks] ysfdu ';ke flg uked fdlh O;fDr dks bl ekeys esa lk{kh ds :i esa ugha is'k fd;k x;k gS cfYd ';ke flg dks vfHk;kstu ds fuosnu ij mUeksfpr fd;k x;k gSA ,slk dksbZ lk{kh ugha gS ftlus ?kVuk ls iwoZ ;k ?kVuk ds le; vfHk;qDrx.k dks e`rd ds lkFk ns[kk gksA With regard to the question of motive the court has clearly elaborated upon the motive in paragraph no. 8 internal page no. 13 of the judgment and has come to the conclusion that.
bu ifjfLFkfr;ksa esa ?kVuk ds gsrqd dks lkfcr djus ds ckjs esa Hkh tks lk{; vfHk;kstu ds ckjs esa fn;k x;k gS og u dsoy vfo'oluh; gS cfYd vLokHkfod Hkh gSA bu ifjfLFkfr;ksa eas ifjfLFkfrtU; lk{;ksa dh bl dMh+ dks Hkh vfHk;kstu lkfcr ugha dj ik;k gSA With the aforesaid finding the court has concluded.
bu lkf{k;ksa ds lk{; ls bl ekeys esa foospuk fd;s tkus ds rF; lkfcr gksrs gSA blds vfrfjDr vfHk;kstu dh vksj ls dksbZ lk{; ugha izLrqr fd;k x;k gSA vfHk;qDr }kjk lk{; feVkus ds fy, e`rd dh yk'k dks fNikus dk ;k vfHk;qDrx.k }kjk e`rd dk vigj.k fd;s tkus ;k mldh gR;k fd;s tkus dk dksbZ Hkh izR;{kn'khZ lk{kh bl ekeys ls izLrqr ugh fd;k x;k gSA iz'u ;g mBrk gS fd D;ksa bl ekeys esa vfHk;kstu dh vksj ls ifjfLFkfrtU; lk{;ksa dh tks mijksDr dfM+;ka is'k dh x;h gS muesa ,d ,slh vVwV J`[kayk curh gS ftlls dsoy vkSj dsoy vfHk;qDrx.k dh nksf"krk dk fu"d"kZ fudkyk tk ldsA bl ekeys esa vfHk;kstu }kjk ifjfLFkfrtU; lk{kh dks ftu dfM+;ksa dks lkfcr fd;k x;k gS muls dsoy ;g lkfcr gksrk gS fd e`rd ih0 MCyw0&1 dju flg dk VSEiw pykrk Fkk mDr VSEiw fnukad 26-10-09 dh jkr dks Fkkuk lSDVj &58 uks,Mk ds pkSdh lSDVj &62 ds {ks= esa ,u0 vkbZ0 ch0 ds ikl ls cjken fd;k x;k ml ij dksbZ lokj ugha FkkA fnukad 27-10-09 dks e`rd dh yk'k lSDVj&51 fLFkr dsUnzh; fcgkj ds ihNs dh >kfM+;ksa ls cjken dh x;h ftldk fof/kor iapk;rukek dj iksLVekVZe djk;k x;k vkSj bl ekeys esa foospuk dj vfHk;qDrx.k ds fo:) vkjksi i= nkf[ky fd;k x;k blds vykok fdlh Hkh rF; dks vfHk;kstu }kjk lkfcr ugha fd;k x;k gSA bl ekeys esa fdlh Hkh p{kqn'khZ ;k ifjfLFkfrtU; lk{;ksa ds ek/;e ls vfHk;kstu ;g lkfcr ugha dj ik;k gS fd bl ekeys ds vfHk;qDrx.k }kjk e`rd dk gR;k djus ds vk'k; ls vigj.k fd;k x;k vkSj mldh gR;k dh x;h rFkk lk{; feVkus ds fy;s mldh yk'k dks fNik;k x;kA Thus keeping in view the facts and circumstance of the case and the findings recorded by the court concerned learned counsel for the appellant has not been able to point out any illegality or perversity and also keeping in view the parameters with regard to the law as has been laid down in an appeal against acquitted specially based on last seen. No case has been made out. As far as the question of conviction of last seen presence the court would like to make a reference of the judgment of the Apex Court rendered in the case of of Rambraksh @ Jalim Vs. State of Chhattisgarh It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.
In a similar fact situation this Court in Krishnan v. State of T.N. [Krishnan v. State of T.N., (2014) 12 SCC 279 : (2014) 5 SCC (Cri) 66] , held as follows:
(SCC pp. 284-85, paras 21-24) The conviction cannot be based only on circumstance of last seen together with the deceased.
In Arjun Marik v. State of Bihar [Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372 : 1994 SCC (Cri) 1551] this Court held as follows: (SCC p. 385, para 31) ‘31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.’
22. This Court in Bodhraj v. State of J&K [Bodhraj v. State of J&K, (2002) 8 SCC 45 : 2003 SCC (Cri) 201] held that: (SCC p. 63, para 31) ‘31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.’ It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together.
23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4-4-2004 at Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased.
24. In Jaswant Gir v. State of Punjab [Jaswant Gir v. State of Punjab, (2005) 12 SCC 438 : (2006) 1 SCC (Cri) 579], this Court held that in the absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of “last seen together” even if version of the prosecution witness in this regard is believed.”
And also looking in view of the parameters as has been recorded by the court concerned with regard to the interference and the case of circumstantial evidence which has been discussed by the Apex Court in the following case.
It is one of the established principles of law that a witness may lie but not the circumstances. However, the court must adopt a cautious approach while basing its conviction purely on circumstantial evidence. The standard of proof required to convict a person on circumstantial evidence is well established by a series of decisions of Supreme Court.
According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and further it must be such as to show that within all human probability the act must have been done by the accused.
There is this basic rule of criminal jurisprudence that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the court should adopt view which is favorable to the accused.
In reference to cases where there is no direct evidence and the decision has to rest on circumstantial evidence, the Supreme Court in a line of decisions has consistently held that such evidence must satisfied the following tests:-
(a) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(b) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(c) 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
(d) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on 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."
Reference, may also be made to the judgment of the Apex Court rendered in the cases of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622.
On a bare perusal of the judgment and order dated 19.08.2011, it cannot be said that the view taken by the trial court is not a possible view or a feasible view that could be taken by a reasonable person. Moreover as no illegality or perversity has been pointed out, this Court refuses to grant any indulgence whatsoever to the appellant-State.
In view of the aforesaid facts and circumstance of the case, application seeking leave to appeal is rejected. The appeal is dismissed.
Consequences to follow.
Let a copy of this order be certified to the court concerned.
Let the lower court record be sent back forthwith along with copy of the judgment of this appeal for compliance.
Order Date :- 25.7.2018 Vikram