Hon'ble Mrs. Saroj Yadav,J.
(per Saroj Yadav,J for the Bench)
1. This appeal alongwith application under Section 378 (3) of the Code of Criminal Procedure, 1973( in short 'Cr.P.C.') has been filed by Sushma Maurya, the mother of the deceased with a prayer that leave to appeal may be granted against the judgment and order dated 19.08.2016 passed by Additional Sessions Judge/ Special Judge Anti Corruption Act, Court No.1, Lucknow in Sessions Trial No.432 of 2011, (Case Crime No.431 of 2008) State of U.P. Vs. Girja Shankar Mishra) under Section 302, 201 of the Indian Penal Code ( in short 'I.P.C.'), Police Station Bazar Khala, District Lucknow whereby the trial court acquitted the accused / respondents.
2. Heard Shri Lalji Gupta, learned counsel for the appellant, Sri S.K. Tripathi, learned counsel for the accused/respondent No.2 and Sri Arunendra learned Additional Government Advocate (in short 'A.G.A.') for the respondent/State of U.P., perused the impugned judgment and order and record of the trial court.
3. Shorn of unnecessary details, the facts necessary for the disposal of this appeal are as under :-
4. A First Information Report (in short 'F.I.R.') was registered on the basis of a written report presented by the complainant Jagdish Prasad Maurya, the father of the deceased on 17.10.2008 in Police Station Bazar Khala, District Lucknow at Case Crime No.431 of 2008, under Sections 302 & and 201 of the I.P.C.. In written report it was stated that Sanjeev Maurya son of the complainant, on 11.10.2008 at about 8:00 PM left the house on his Motorcycle No.UP 32 CP 0407 telling him that he (Sanjeev Maurya) was going to attend a function at the house of some Vikas Jaiswal. When he did not return late in the night, the complainant tried to contact on his mobile numbers 9336110444 and 9415581178, but could not connect. The complainant tried to search his son, but could know nothing in the night. Next morning on 12.10.2008 at about 7:00 AM the people of locality informed him that dead body of Sanjeev Maurya was lying in the lane behind the house of Maikyu Yadav, upon it he went there and found the dead body of his son. The face of his son became black and no visible injury was there on the body. Thereafter he gave written information to the Police Station about the death of his son. After cremation of dead body he inquired about the death of his son from the people and he came to know that on the date of incident at about 9:00 PM Maiku Yadav conversed with his son Sanjeev Maurya, thereafter Girja Shankar, Pankaj Jaiswal, Anshu Yadav and others went to liquor shop situated at Bulaki Bus Stand alongwith his son. There they made his son consume liquor and they all also consumed liquor. At about 11:00 PM in the night they all came back to the house of Vikas Jaiswal, where Maiku Yadav, Vikas Jaiswal and others were present. They all took his son on the roof of the house, there also they all consumed liquor and made his son to consume liquor, in the meantime they mixed poison in the liquor of his son and he died of that. There after they threw the dead body in the lane from the roof. He doubted that these people due to some enmity mixed the poison in the liquor and killed his son. The Motorcycle of his son got parked near the house of Vikas Jaiswal and Maiku Yadav at some distance in locked condition.
5. The investigation was made, the Investigating Officer found no involvement of Maiku Yadav, Vikas Jaiswal, Pankaj Jaiswal, Amit Shukla and Anshu Verma and dropped their names. The Charge-sheet was submitted in the Court only against Girja Shankar accused /respondent No.2. The Chief Judicial Magistrate concerned after taking cognizance committed the case to the Court of Sessions for trial. The Trial Court framed charges under Sections 302 and 201 of I.P.C. against the accused. The accused denied the charges and claimed to be tried. In order to prove the charges, the prosecution examined ten witnesses, PW1 Smt. Sushma Maurya (mother of the deceased and wife of the complainant), PW2 Surendra Kumar, PW3 Pradeep Kumar, PW4 Dr. Nurul Haq Siddiqui, PW5 Constable Hari Charan, PW6 Sub Inspector Arun Kumar Dubey, PW7 Deepak Singh, PW8 Head Constable- Hari Prasad Shukla, PW9 Station House Officer- Jai Karan Singh and PW10- Sub Inspector Lal Mani Tiwari. In documentary evidence Exhibit- Ka-1 to Exhibit Ka-13 were also proved. Thereafter statement of accused under Section 313 of the Cr.P.C. ('in short Criminal Procedure Code') was recorded. He denied the crime and stated that witnesses have deposed falsely. He is innocent and has been implicated in the crime only on the basis of doubt.
6. The trial court after analysing the evidence available on record came to the conclusion that prosecution has failed to prove that the deceased was 'last seen' in the company of the accused, beyond reasonable doubt. It is not established that the accused administered the poisoned liquor to the deceased. The statement of witnesses in this regard are not trust worthy as they have given contradictory statements. Therefore, the trial Court acquitted the accused. Being dissatisfied of the acquittal, the mother of deceased Smt. Sushma Maurya filed this appeal alongwith application under Section 378 (3) of Cr.P.C.
7. As far as application under Section 378(3) is concerned, the proviso added to Section 372 by Code of Criminal Procedure (Amendment) Act, 2008, w.e.f. 31.12.2009 confers right on the victim to prefer an appeal against acquittal or conviction for lesser offence of accused. Hence, in our considered opinion, there is no need for seeking permission under Section 378(3) Cr.P.C. for filing the appeal by the mother of the deceased. The application under Section 378(3) Cr.P.C. is disposed of accordingly.
8. Learned counsel for the applicant/appellant challenged the impugned order mainly on the grounds that learned trial court did not consider the motive of the crime. There was dispute of Rs.50,000/- (fifty thousand) between the deceased and the accused. The accused took the deceased from his house on a pretext to go to attend a function. The deceased was 'last seen' in the company of accused. The accused did not explain under what circumstances and when deceased parted with him. The burden was on the accused under section 106 of the Indian Evidence Act. The Trial Court disbelieved the evidence of witnesses of facts for minor contradictions.
9. Contrary to it learned counsel for the respondent No.2/ accused argued that there is no reliable evidence on record to prove the fact that deceased was 'last seen ' in the company of the accused or the accused has any connection with the crime. There is no evidence of money-dispute between the accused and the deceased. No motive of the crime has been proved. The accused/respondent has been implicated in the crime on the basis of doubt only. The confessional statement allegedly made in police custody is not admissible under Section 25 of the Indian Evidence Act. The prosecution has failed to prove the charges against the accused beyond reasonable doubt, hence the learned trial court has rightly acquitted the accused/respondent No.2. Therefore, the appeal deserves to be dismissed.
10. Considered the rival submissions and perused the record of the trial. Admittedly the case is based on circumstantial evidence, as there is no eyewitness of the crime. The most important principle of criminal jurisprudence is that accused is considered innocent until proved guilty. In a case based on circumstantial evidence heavy duty lies on the court to examine the evidence with great care and caution to hold an accused guilty. In a case based on circumstantial evidence, it is necessary that chain of circumstances should be intact and all the circumstances must indicate that in all probabilities the crime was committed by the accused and accused alone. There should be no space for doubt that some one else could have committed the crime. The Hon'ble Apex Court in this regard in the case of Shivaji Chintappa Patil Vs. State of Maharashtra reported in (2021) 5 SCC 626, the Hon'ble Supreme Court has laid down as under ( para 12 ):-
"12. The law with regard to conviction on the basis of circumstantial evidence has been very well crystalised in the judgment of this Court in Sharad Birdhichand Sarda v. State of Maharashtra :-(SCC p.185, paras 153-54) "153. 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 where the observations were made: [SCC p. 807 : para 19, SCC (Cri) p. 1047] "19. .....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 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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
11. In the present matter Jagdish Prasad Maurya, the father of the deceased lodged F.I.R. after a delay of six days. Previously on the next day of incident he just informed at the Police Station about the death of his son. In the F.I.R. there is no mention of any money-dispute regarding Rs.50,000/-(fifty thousand) between accused and the deceased. This fact was disclosed for the first time in the Court by PW1 Smt. Sushma Maurya, the mother of the deceased in her examination-in-chief. But in her cross-examination she has stated that she had no knowledge about the money transactions done by the deceased. She further stated that this would be in the knowledge of the wife of the deceased. The wife of the deceased had not been examined in the Court. The Investigating Officer PW 10 had stated that the wife of the deceased told him that her husband neither had enmity nor money-dispute with any one. There is no evidence of money dispute between the accused and deceased except the statement of PW1 the mother of the deceased in her examination-in-chief. During the investigation, the mother of the deceased gave affidavit to the Circle-Officer concerned, but in that affidavit too there is no mention about the money-dispute between the accused and the deceased. This fact was neither mentioned in the F.I.R. nor in the information given to the Police Station in the beginning, on the day when the dead body was recovered. Unfortunately, the complainant-father of the deceased could not be examined as he died.
12. Learned counsel for the appellant argued that accused had admitted that there was dispute of Rs.50,000/-(fifty thousand) between deceased and him, so he killed the deceased, in police custody, but this argument is not tenable as the confession made in police custody is not admissible as has been provided under Section 25 of the Indian Evidence Act, unless in regard of some discovery as provided under Section 27 of the Indian Evidence Act. Hence, it is clear that prosecution has failed to establish the motive of the crime. Though, it is not necessary to prove the motive always, as no body can peep into the mind of an author of the crime, but in the case based on circumstantial evidence the motive plays an important role, rather it helps to connect the chain of the circumstances. In this matter the prosecution has failed to prove the motive of the crime.
13. The Hon'ble Apex Court in the case of Anwar Ali and another Vs. The State of Himanchal Pradesh :(2020) 10 SCC 166, has held as under (Paragraph 24 ) :-
"24. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in Babu (supra), absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paras 25 and 26, it is observed and held as under (Babu's case SCC pp.200-01) :
"25. In State of U.P. v. Kishanpal, this Court examined the importance of motive in cases of circumstantial evidence and observed: (SCC pp. 87-88, paras 38 -39) "38. ... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime.
39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (Vide Pannayar v. State of T.N."
14. Now comes the 'last seen evidence' counsel for the appellant argued that the learned trial court has committed grave error in not relying on the evidence of PW 2 & 3 regarding the fact that deceased was 'last seen' in the Company of the accused. In this regard PW1, the mother of the deceased has stated in her examination-in-chief that accused along with others has came to her house and her deceased son left with them to attend a function. But in her cross-examination she has stated that she did not know whether Girja Shankar, accused came to her house before incident. She has stated that she could not see who were driving the motorcycle or who was riding on that. She has further stated in her cross-examination that Girja Shankar, accused had no enmity with her deceased son. In the affidavit given to Circle-Officer, Bazar Khala, Lucknow, during the investigation, Smt. Sushma Maurya has stated that on 11.10.2008 at about 8:00 PM, Anshu Verma and Amit Shukla came to call her son. In that affidavit too she has not disclosed the name of Girja Shankar. PW2 Surendra Kumar and PW3 Pradeep (cousin of the deceased) have been examined as witnesses of 'last seen evidence'. The trial court rightly did not find them trustworthy for the reason that their statements show that they did not watch the deceased in the Company of the accused and others. PW2 Surendra Kumar has stated that while going to watch Ramlila on the day of incident at about 8:30 to 9:00 PM in the night he saw that under the 'Banyan Tree' the accused Girja Shankar alongwith others was conversing amongselves, thereafter Girja Shankar pulled Sanjeev Maurya towards the house of Maiku Yadav. In the cross-examination this witnesses has stated that he did not know the friends and relatives of the deceased. He came there alongwith Pradeep (PW3) to work as labour in the house of deceased, which was under construction at the time. He denied that he gave any affidavit to the police, while PW9 the Investigating-Officer Jai Karan Singh has stated that an affidavit was given by him. PW3 Pradeep has stated that on the night of incident at about 10:30 PM while going to watch Ramlila alongwith Surendra Kumar he saw that in front of house of Pankaj under the 'Peepal Tree' accused alongwith others were pulling the deceased Sanjeev Maurya towards the house of Pankaj Jayaswal. This witness is admittedly cousin of the deceased. It appears unnatural when he watched the accused pulling the deceased into the house of Pankaj Jaiswal why he did not inform the parents of the deceased who were his near relatives. Apart from it, PW 2 and 3 both have stated that they were going to watch Ramlila, but time has been narrated differently. PW 2 has stated that he saw the accused and deceased at about 8:30 to 9:00 PM while PW3 has told the time 10:30 PM. There is a contradiction on the point in the statement of these two and also that they have stated that they both have gone to watch Ramlila. In the F.I.R. Exhibit Ka-1 it has been stated that deceased alongwith accused and others came back at about 11:00 PM in the night after consuming liquor from Model Shop situated at Bulaki Bus Stand. Hence at that time the presence of PW 2 and 3 as per their own statement is highly improbable as they both have gone to watch Ramlila together.
15. Thus the factum of 'last seen' is not established by the prosecution beyond reasonable doubt. Now comes the argument of the appellant counsel that under Section 106 of the Indian Evidence Act, the burden was on the accused to explain how he parted from company of the deceased. Section 106 of the Indian Evidence Act runs as under:-
"106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
16. This Section comes into play when it is established that deceased was 'last seen' in the company of the accused and not before that. As has been noted above that prosecution could not establish the fact that the deceased was 'last seen' in the company of the accused, so it is not required on the part of the accused to explain how the deceased parted from his company. In other word the burden cannot be shifted on the accused.
17. Thus to sum up it is clear that the case is based on circumstantial evidence as no eyewitness of the incident was there. F.I.R. was lodged after a delay of 6 days and no plausible explanation of delay is on the record. The motive of the crime has not been alleged in the F.I.R., but disclosed in the statement of PW1 for the first time in the Court and that too has not been proved. The fact of 'last seen' has not been established beyond reasonable doubt. There is no evidence of mixing poison in the liquor by the accused and to administer the same to the deceased.
18. More over, the view of the trial court is possible view. The Hon'ble Apex Court in the case of Achhar Singh Vs. State of Himachal Pradesh reported in (2021) 5 SCC 543, has laid down as under ( para 16) :-
"16. It is thus a well crystalized principle that if two views are possible, the High Court ought not to interfere with the trial Court's judgment. However, such a precautionary principle cannot be overstretched to portray that the "contours of appeal" against acquittal under Section 378 CrPC are limited to seeing whether or not the trial Court's view was impossible. It is equally well settled that there is no bar on the High Court's power to re-appreciate evidence in an appeal against acquittal. This Court has held in a catena of decisions (including Chandrappa v. State of Karnataka, State of Andhra Pradesh v. M. Madhusudhan Rao, And Raveen Kumar v. State of Himachal Pradesh) that the Cr.P.C does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate Court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused".
19. In the light of the above discussions and the law laid down by Hon'ble Apex Court referred above, we do not find any factual or legal error in the appreciation of evidences by the trial court for the reasons that there is no direct evidence of the offence and the chain of circumstantial evidence is not complete. The motive of the crime has not been established. There is no evidence of the fact that accused mixed poison in the liquor of the deceased. Further more it has been mentioned in the F.I.R. that accused was thrown away from the roof of Maiku Yadav in the lane behind the house, but in the postmortem conducted on the cadaver, no such injuries were found on the body, which could establish that the dead body was thrown down from the roof of the house. There is no trustworthy evidence of the fact that deceased was 'last seen' in the company of accused / respondent No.2.
20. There is no reliable and trustwothy evidence on the record to connect the accused with the crime. The learned trial court has given cogent convincing and satisfactory reasons while passing the order of acquittal.
21. We therefore, do not find any merit in the appeal. The appeal is accordingly dismissed.
(Saroj Yadav,J) (Ramesh Sinha,J) Order Date :- 21.9.2021 A.K. Singh