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Judgment
(Per: Hon'ble Pankaj Purohit, J.)
The appeal is preferred by the appellant against the judgment and order dated 12.07.2016, passed by learned Additional Sessions Judge, Ramnagar, District Nainital in Session Trial No.68 of 2013, State vs. Bharat Singh whereby the appellant has been convicted under Section 302 of IPC and sentenced with an imprisonment for life and a fine of Rs.10,000/- with default stipulation of six months additional simple imprisonment.
In brief, the prosecution case is that on 15.02.2013, a written first information report was filed by the informant Govind Singh alleging therein that in the evening of 13.02.2013 his younger son Ajay Pal Singh went out with Bharat Singh. When he did not return till 14.02.2013 he went out to search for him. He also visited Bharat Singh’s house but he was not there. He further alleged that today morning Bharat Singh came to his house and asked whether Ajay Pal had not returned as of now. He also suggested that they should search for him together, thereafter Bharat Singh took him to the orc of Mr. Prem Chardra Bajaad and he pointed towards the dead body of Ajay Pal. Before the informant could asked any question to him he ran away. Thereafter, the informant informed about the alleged incident to his relatives and fellow villagers. His nephew Sanjay Singh Patwal reached there and informed him that yesterday Jeevan Singh in his shop told him that Bharat Singh had told him that Ajay Pal had died. The informant further alleged that he was quite sure that Bharat Singh had killed his son and had thrown body in orchard.
On the basis of above facts, a chick FIR was lodged by the informant (PW1) on 15:45 hrs. in Police Station Ramnagar. The FIR was registered as FIR No.36/2013. The investigation ensued after the registration of the crime, the Investigation Officer drawn inquest report of the deceased and sent the dead body of the deceased for postmortem.
The Investigation Officer conducted the investigation of the case and after doing necessary formalities and arresting the appellant submitted a charge-sheet against the appellant in the court.
Thereafter, learned Chief Judicial Magistrate after compliance of Sections 207 and 208 IPC committed the case to Sessions Court which framed charges under Section 302 of IPC. The charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried.
To prove its case, the prosecution has examined PW1 Govind Singh (the complainant), PW2 Satyapal Singh, PW3 Sanjay Singh Patwal, PW4 Jeevan Singh, PW5 Dr. Rajesh Pandey, PW6 S.I. Pratap Singh Negi, PW7 Head Constable Mohd. Aaqil, PW8 S.I. Ravindra Kumar.
After prosecution evidence, the statement of appellant was recorded under Section 313 Cr.P.C., in which, he denied the evidence of prosecution and stated that he has been falsely implicated.
After hearing the public prosecutor as well as the appellant accused, the trial court found the charges proved against the appellant beyond all reasonable doubts and convicted and sentenced him, accordingly as stated above.
We have heard learned counsels for the parties and perused the entire oral and documentary evidence available on record carefully.
During trial, PW1 reiterated the facts of prosecution story and supported it. He on oath deposed that he was acquainted with Bharat Singh and the deceased was his son. He further stated that in the evening of 13.02.2013 his younger son Ajay Pal Singh went out with Bharat Singh. When he did not return till 14.02.2013 he went out to search for him. He also visited Bharat Singh’s house but he was not there. He further stated that on 15.02.2013 Bharat Singh came to his house and asked whether Ajay Pal had not returned as of now. He also suggested that they should search for him together, thereafter Bharat Singh took him to the orchard of Mr. Prem Chardra Bajaad and he pointed towards the dead body of Ajay Pal. Before he could ask any question to him, he ran away. Thereafter, the informant informed about the alleged incident to his relatives and fellow villagers. He further stated that the Pradhan of the village telephonically informed the police about the said incident. On his cross-examination, he stated that he did not inform the police about the missing of his son on 13.02.2013 as his son had a habit of absconding from the house.
PW2 Satyapal Singh in his examination-in-chief admitted that he wrote the FIR on the dictation of PW1. He verified his signature in the FIR (Ex-ka-1).
PW3 Sanjay Singh Patwal in his examination-in-chief stated that he was well acquainted with accused Bharat Singh. On 14.02.2013, he was informed by Jeevan Singh that Ajay Pal has died. Jeewan Singh also told him that this was told to him by appellant Bharat Singh but he did not took it seriously. He further stated that when the information of recovery of dead body of the deceased reached him on 15.02.2013, he immediately went to the spot; he was signatory of recovery of plain and blood stained soil. He verified his signatures on the recovery memo (Ex-ka-3).
PW4- Jeevan Singh on oath stated that he was well acquainted with the deceased as well as the accused. He further stated that on 14.02.2013 at around 10-11 a.m. Bharat Singh told him that Ajay Pal had died after falling because of excessive drunk. He informed about the said incident to Sanjay Singh Patwal. In his cross examination, he stated that he informed about the said conversation only to Sanjay Singh Patwal and not to other family members of the deceased.
PW5-Dr. Rajesh Pandey on oath deposed that on 15.02.2013, he was posted as a Medical Officer at the Hospital in Ramnagar. He stated that the dead body of the deceased was brought before him at around 2:10 p.m. After examination of the dead body, he opined that the death might have occurred 24-48 hours before postmortem examination. He further opined that on examination, it transpires that the death might have been caused because of strangulation. On his cross examination, he stated that the injuries might have occurred because of a fall on a hard surface. He proved postmortem report as Ex-ka-4.
PW6- SI Pratap Singh Negi in his examination-in-chief deposed that he was informed by Diwan Singh Kataria about the alleged incident telephonically on 15.02.2013. After getting the information, he rushed towards the alleged place of incident and saw that deceased’s father and other villagers had already assembled over that place. He thereafter sent the body for postmortem and prepared site plan and collected sample of blood stained soil and plain soil, blood stained green polythene, black slippers; prepared memo and sealed it in plastic containers. He further deposed that he interrogated accused Bharat Singh on 16.02.2013 and inquired about the clothes he was wearing at the time of alleged incident. He thereafter stated that he recovered blood stained clothes which were worn by the accused on the alleged date of incident on his pointing out from the cowshed close to the appellant’s residence.
PW7 Head Constable Mohd. Aquil is a formal witness. He in his examination-in-chief deposed that he wrote the chick FIR and identified his handwriting and signature in the FIR, G.D. Ex-Ka-11 and Ex-ka-12.
PW8 S.I. Ravindra Kumar is the Investigating Officer. He in his examination-in-chief deposed that he prepared the arrest memo, disclosure statement and the recovery memo. He thereafter submitted the charge-sheet to the trial court. He in his cross examination admitted that in spite of being the Investigating Officer he did not record the statements of Diwan Singh Kataria. He further stated that he arrested the accused person near Pirumdara Tiraha on 16.02.2013 at around 6:10 a.m.
The learned trial court after appreciation of the evidence and material available on record convicted the appellant as stated above. Now the appellant is before this Court in appeal assailing the aforesaid conviction and sentence.
Heard learned counsel for the parties and perused the record.
It is vehemently argued by learned counsel for the appellant that learned court below committed grave irregularity by convicting the accused appellant as the prosecution failed to prove its case beyond all reasonable doubts. He further stated that the prosecution story is highly improbable and unbelievable as the prosecution failed to prove any motive against the accused appellant. He further stated that the entire case of the prosecution is based upon circumstantial evidence and the medical examination also does not give any definite cause of death. He further argued that the FIR was lodged after a delay of 2 days. He also states that the only witnesses produced by the prosecution were relative of the father of the deceased, therefore, their testimony is highly doubtful. None of the prosecution witnesses had seen the incident; doctor PW-5 deposed in cross-examination that injuries found on the person of deceased might come by fall on a hard surface.
Per contra, learned State Counsel supported the case of prosecution and the impugned judgment contending that the evidence of the victim and other prosecution witnesses remained consistent and unshaken throughout the trial and no material contradiction could be elicited even on lengthy cross examination of prosecution witnesses.
Before appreciating the arguments of the learned counsel for the appellant to bring the case of the prosecution within the fold of Section 302 of IPC, the said provision is required to be considered and thereafter on the basis of evidence it can be inferred as to whether on the basis of facts and evidence on record the ingredients to bring it within the fold of Section 300 of IPC are satisfied or not. Section 300 of IPC is herein quoted below:-
“300.Murder — Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—
Secondly — If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or—
Thirdly — If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or —
Fourthly — If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.”
The bare reading of the aforementioned provision clearly demonstrate that the prosecution has to prove the causal link between the act of the accused and the death of the deceased. To prove so the prosecution has to prove the actus reus coupled with any of the four mens rea provided in Section 300 of IPC. As the case is based upon circumstantial evidence and no direct evidence, therefore, the prosecution has to prove the act done by the appellant which resulted in the death of the deceased by means of circumstantial evidence.
As the- entire case is based upon last seen theory and circumstantial evidence and it is a settled proposition of law that to sustain a conviction on the basis of circumstantial evidence following conditions must be established:-
“(i). The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(ii). The facts so established should be consistent with the hypothesis of guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii). The circumstances would be of a conclusive nature and tendency;
(iv). They should exclude every possible hypothesis except the one to be proved; and
(v). 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.”
My aforesaid view is based upon the golden principles enumerated in the landmark case of Sharad Birdhi Chard Sarda vs. State of Maharashtra, 1984 AIR 1622. Here in the case in hard, it is very clear from the perusal of the record that the conviction is based entirely upon circumstantial evidence and no prosecution witness has himself seen the appellant killing the deceased nor has any person seen the accused-appellant coming out of the alleged place of incident. It is a settled principle of law that last seen theory cannot be the sole basis of conviction and it only forms a link in the chain of circumstantial evidence. The deceased was last seen with the accused appellant on 13.02.2013 in the evening whereas the dead body was recovered on 15.02.2013 in the morning. The gap is too high to rule out the interference of third party. Moreover, the postmortem report states that the death occurred due to asphyxia due to strangulation along with facial and chest injuries. But the postmortem report does not show any fracture of hyoid bone or laryngeal fractures. Moreover, the Medical Officer PW-5 himself in his cross examination opined that the injuries could have been caused because of fall on a hard surface. Therefore, it would not be safe to come to a conclusion that the appellant who was last seen with the deceased on 13.02.2013 in the evening is guilty of committing murder of Ajay Pal Singh.
In case of circumstantial evidence, the court has to examine the whole evidence in its entirety and ensures that the only inference that can be drawn from the evidence is towards the guilt of the accused. In the case at hand, there are many apparent lapses in the investigation and there are also missing links:-
The FIR was filed by the father of the deceased after a gap of 2 days. No missing response was lodged.
There is no motive assigned to the appellant.
The conduct of the appellant himself informing Jeevan Singh that Ajay Pal has died after falling raises doubt over the prosecution story.
The expert medical opinion does not give a definite cause of death.
There is no proximity in the last seen theory and the recovery of dead body.
Source of human blood found on the clothes of appellant could not be ascertained and linked with appellant or deceased.
It seems that last seen theory have substantially weighed with the trial court and therefore, it brushed aside many loop holes in the prosecution case. None of the circumstances relied upon by the prosecution and accepted by the trial court can be said to be pointing only to the guilt of the appellant. If more than one inference can be drawn, then the appellant must get benefit of doubt. In this view of the matter, it is safe to conclude that the prosecution failed to prove its case beyond all reasonable doubt against the appellant.
The upshot of the aforesaid discussions is that the appeal deserves to be allowed. Accordingly, present appeal is allowed and the impugned judgment and order dated 12.07.2016 passed by the learned Additional Sessions Judge, Ramnagar, Nainital, is hereby set-aside. He is acquitted of charges under Section 302 of IPC. Appellant is in jail. He shall be released forthwith, if not required in any other case.
Let Trial Court Record be immediately sent back to the trial court for compliance.