Bheemal and Others vs State of U.P.

S.S. Kulshrestha, J.—This appeal has been brought against the judgment and order dated 18.11.2006 passed by the Additional Sessions Judge, court No. 7, Deoria in S.T. No. 84 of 2006, State v. Bheemal and four others, whereby convicting them u/s 302 read with Section 34, I.P.C. and awarding death sentence to each of them.

It is said that the Additional Sessions Judge committed a serious error in holding it to be a homicidal death of Rajendra s/o Congress Chawhan, the informant of this case when the post-mortem report and the opinion of the doctor clearly refer it to be a suicidal death. The prosecution had also deliberately withheld the material evidence as a result whereof the Appellants suffered grave prejudice. The Appellants have been roped into this case because of enmity. Further inconsistencies in the deposition of the witnesses were not taken into consideration. The case is totally based on circumstantial evidence and the conclusion was wrongly drawn. Whatever the evidence adduced by the prosecution was not consistent with the hypothesis of the guilt of the accused. The genesis of the occurrence and the trifle dispute, which gave rise to the occurrence, belie the prosecution case of the Appellants intended to cause the death of the deceased.

In order to appreciate the salient points raised by the learned Counsel for the accused Appellants and also to make the disposal of this appeal a brief resume of the facts may be made. Congress Chawhan, the complainant of this case, received an information on 11.5.2005 at 6.00 a.m. from one Amarjit Kushwaha (P.W. 2), r/o neighboring Village Deoruva, that his son Rajendra was seen dead hanged in a rope in the Marahai of his house. The complainant rushed to his house on that very day and found his son dead hanging in a rope. On the basis of such information furnished by Sri Amarjit Kushwaha intimation was given by Congress Chawhan to the police station at 7.15 a.m. and its entry was also made in G.D. No. 10 (Exhibit Ka-4) on that date. On 12.5.2005 a written report (Exhibit Ka-1) was submitted by the complainant at P.S. Tarkulwa, Deoria at about 8.10 a.m. nominating five persons namely Bheemal, Degree, Vijayee, Chandra Shekhar and Ram Gyan to be involved in the murder of his son. It was reported by him that he is resident of Village Piparhiya, which is within the Police Circle Tarkulwa, District Deoria but was residing at Kasba Rampurgarh in a house got constructed by him. On 10.5.2005 his son Rajendra (deceased) and daughter Km. Sarita went to their village Piparhiya for taking care of vegetables which were sown and brought up in their field. After coming from the field Km. Sarita, the daughter of the complainant, informed at her house that her brother Rajendra had not come. He was sitting at the residence of grandfather and uncle (Pattidars) and when was asked to return home he told that he would come later on. It was also informed by her that at that time Bheemal, Degree, Vijayee, Chandra Shekhar and Ram Gyan were also present. When Rajendra could not come in the night the informant alongwith his family members went for his search. He was not found. However, the complainant felt composed that he might have, as usual, gone to see dances in Barat. He did not ask the whereabouts of Rajendra from any of his Pattidars. It was also reported by the complainant that he is having old enmity with the accused and because of that reason his son Rajendra was killed by them by hanging him in a rope. Not only this they have also absconded with their belongings so as to protect themselves.

Prosecution examined P.W. 1 Congress Chawhan, who is the informant of this case. He stated that the accused are his Pattidars and are separate in their holdings. The complainant had purchased land of Chandrika a (one of the Pattidars) by way of a sale deed. Accused Bheemal used to comment that if he could have avoided the sale deed executed in his favour, as it was to be purchased by him. He further stated that before this incident a case was also brought by him against the accused as they had caused damage to his properties. Not only this, the accused also threatened him for dire consequences if he would not leave the village. This witness has also given the narration of the incident as was communicated to him by his daughter Km. Sarita. It was also communicated by his daughter that her brother Master Rajendra was sitting with her grandfather uncle Bheemal, Degree, Vijayee, Chandra Shekhar and Ram Gyan. He was also persuaded by her to return to the house but he told that he would come back later on. The witness further stated that he also went for the search of his son but could not find his whereabouts. He did not enquire from the accused about his son. He came back to his house believing that his son might have gone to see dances in a marriage. P.W. 2 Amarjit Kushwaha who is said to have communicated the complainant with regard to the death of his son hanged in a rope at his Marahai, stated that on 11.5.2005 at about 4.30 a.m. when he went to attend the call of nature he saw accused Bheemal, Degree, Vijayee, Chandra Shekhar and Ram Gyan going with their belongings and cattles towards Gurumittia which is to the north. Thereafter he heard the cries of Km. Sarita that her brother had been hanged. There was also whispering that the accused had killed Rajendra and they were fleeing away from that place. He went at the site and witnessed Rajendra to be dead hanging in a rope. He thereafter went to Garhrampur where the complainant was informed about the unfortunate end of his son. P.W. 3 Nandu Yadav stated that the accused and complainant Congress Chawhan both were at draggers drawn because of some land purchased by the complainant which was not liked by the accused. It was also stated by the witness that on the date of the incident they were not available in the village. In the house of Bheemal the rope and Hasia were also recovered by the police. He is also the witness of the recovery (Exhibit Ka-3). P.W. 4 Km. Sarita Chawhan, who is said to be the star witness of this incident and was hardly about 10 years of age at the time of incident. She made total narration of the incident. It was stated by her that she and her brother used to go to Village Piparhiya for taking care of her agricultural produce. On 10.5.2005 she alongwith her brother went to take care of the agricultural produce of her field. In the meantime accused Bheemal came at that place near to Barhal Tree and told that let us sit at Chawki. On his persuasion Rajendra (deceased) went with him. He was also got seated at Chawki where accused Degree, Vijayee, Chandra Shekhar and Ram Gyan were present. She thereafter came back to her house and apprised her parents that her brother is in the company of the above noted accused persons. The witness further stated that her parents also went for the search of her brother but she went for sleep and in the morning verified about her brother and then she again went to Village Piparhiya and saw her brother dead hanged in a rope in Marahai. On her cries several villagers came at that place. Information of the death of his brother was got communicated through Amarjit Kushwaha. Smt. Sunaina Devi (P.W. 5) also reiterated the F.I.R. version.

Prosecution further examined formal witness namely Shyam Mohan Tripathi, Head Constable (P.W. 6) who recorded the intimation in G.D. No. 10 at 7.15 am. vide Exhibit Ka-16 and registered the case at Crime No. 102/05 u/s 302/34, I.P.C. and also the Chick No. 42/05 vide Exhibit Ka-5. The G.D. at Rapat No. 10 recorded on 12.5.2005 vide Exhibit Ka-6 was also proved by him. C.P. Tirth Raj alongwith other papers had taken the dead body of the deceased to the hospital for post-mortem. P.W. 8 G.P. Singh, S.I. had taken the photographs of the dead body of the deceased and also got the inquest report prepared from Hira Singh, S.I. That inquest report (Exhibit Ka-2) was proved by this witness. P.W. 9 Mahesh Yadav is a witness of the recovery of rope and Hasia from the house of accused Bheemal. He proved its Fard (Exhibit Ka-3). Dr. B. S. Srivastava (P.W. 11) conducted the autopsy of the dead body of the deceased and found the following ante-mortem injuries to have been sustained by the deceased:

Ligature mark present on the upper part of Neck above the hyoid bone. Encircling outer part of neck obliquely placed. (L) side above the (R) discontinuing on the back of Neck 17 cm. length 2 cm. breadth blackish Parchment like.

It was also noticed by the doctor that food contents were coming out from his mouth and cervical vertebra was found not displaced. Cause of death was opined due to asphyxia as a result of hanging. He also proved the post-mortem report (Exhibit Ka-15). Mohd. Naseem Khan (P.W. 10) had recorded the statements of the witnesses in the course of investigation and after extensive investigation charge-sheet was submitted by him against the accused persons. As a result of the investigation the accused Appellants were sent for trial. All the Appellants denied their complicity for the offence charged with and stated that they have been falsely implicated. The conviction of the Appellants is based on circumstantial evidence.

The learned Additional Sessions Judge found the circumstantial evidence established against the accused Appellants and from which he concluded that they have murdered Rajendra. The circumstances which weighted the trial court to come to this conclusion are as under:

(i) Accused were so much inimical with the complainant that they intended to make him without son.

(ii) There was also a case of maarpeet between the complainant and the accused on account of the land purchased by him from Chandrika

(iii) The evidence of last seen so given by the little girl Sarita that the deceased was sitting with the accused was also found worth credence.

(iv) The attending circumstances and the ante-mortem injuries noticed by the doctor would render it to be a case of homicidal death.

(v) Accused after committing murder of the deceased were fleeing away from the place of occurrence with all their belongings and catties.

(vi) Recovery of Rassi, Hasia, signs of dragging the dead body of the deceased were found to lend support to prosecution version.

It is the specific case of the prosecution as is also ascertainable from the written report Exhibit Ka-5 that the accused Appellants had animosity with the complainant as he had in the past made purchase of the land belonging to his Pattidar. Because of that enmity he had also to leave the village and got his house constructed at Kasba Rampurgarh. It is generally difficult for the prosecution to prove motive. In the case of Ranganayaki Vs. State by Inspector of Police, the Apex Court held as under:

Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in Red v. Palmer (Shorthand Report at page 308 May, 1856) thus: "But if there be any motive which can be assigned. I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties". Though, it is a sound presumption that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailants. In Atley Vs. State of Uttar Pradesh, it was held "that is true, and where there is clear proof of motive for the crime, that lends additional support to the finding of the Court that the accused was guilty, but absence of clear proof of motive does not necessarily lead to the contrary conclusion". In some cases it may be difficult to establish motive through direct evidence, while in some other cases inferences from circumstances may help in discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the accused which would have impelled him to act. No proof can be expected in all cases as to how the mind of the accused worked in a particular situation. Sometimes it may appear that the motive established is a weak one. That by itself is insufficient to lead to an inference adverse to the prosecution. Absence of motive, even if it is accepted, does not come to aid of the accused. These principles have to be tested on the background of factual scenario.

Here in this case P.W. 1 Congress Chawhan also stated that the accused were in litigation with him and he was also threatened to leave the village. Some maarpeet had also taken place in between them and for which criminal case is pending between the parties. P.W. 4 Km. Sarita Chawhan, a little girl of about 10 years of age at the relevant time, also stated that she informed to her parents on the previous evening that when Rajendra (deceased) was sitting with the accused Appellants, she told him to come back to the house as they are not having good relation with her family. P.W. 5 Smt. Sunaina Devi in her statement also clarified that the accused were having Ranjish and they had also in the past beaten her father-in-law and also her husband. She was also been beaten by the accused. It is appearing to be an admitted position that parties were in litigation and a criminal case was also pending against the accused. These witnesses have clearly shown that the accused had the motive to cause harm to the complainant or his family members. Their testimony amply establishes the motive for murder. However, it is contended by the learned Counsel for the Appellants that the genesis of the incident is shrouded in misty and there is no proximate cause established as to why the Appellants would do away with the life of the deceased by pursuing a common object. It is also said that the litigation was pending since long and if at all there was any enmity that was in between the complainant and the accused. There was no reason to eliminate the deceased by the accused. The contention of the learned Counsel for the Appellants that the prosecution has failed to establish the motive is untenable.

It has next been urged by the learned Counsel for the accused Appellants that it was a case of suicide and that too was committed by the deceased in his Marahai. The doctor found ligature mark present on the upper part of neck above the hyoid bone and encircling outer part of neck was obliquely placed. On that it was also opined by the doctor that the cause of the death was due to asphyxia. In his statement on oath he made it clear that it can also be a cause of suicide. To the contrary it was submitted by the learned A.G.A. that the opinion of the doctor is not based on the medical jurisprudence. He has omitted to take into consideration certain relevant facts to ascertain whether it was a homicidal death or suicide. In this regard it may be mentioned that the presence of ligature mark as was observed by the doctor conducting autopsy of the dead body of the deceased alone is not diagnostic of death from hanging inasmuch as being a purely cadaveric phenomenon it may be produced if a body has been suspended after death. Casper in his Forensic Medicine English Translation, Vol II, 173 has also illustrated by experiments that ''a mark similar to the one observed in persons hanged alive can be produced if suspended within two hours or even a longer period after death''. However, one can safely say that death was due to hanging, if, in addition to the cord marks, there was dribbling of saliva from the angle of mouth, eccshnosis and slight abrasion around the ligature mark, laceration of the intima of the carotid arteries with extra vasation of blood within their wall and the post-mortem signs of asphyxias besides if there are no evidence of a struggling, scratches and nail marks. The prominent features such as the dribbling of saliva from the angle of mouth etc. were not found by the doctor. It is all appearing to be a case of homicidal death. The most prominent feature of this case is that at the time when inquest report was prepared, the police officer and the witnesses did not find any stool/table/platform or other preparatory items with the help of which the deceased managed to hang himself. Non-presence of any such table/stool etc. would render the conclusion that the body was pulled up by someone else and dropped down. However, the learned Counsel for the accused Appellants pointed out that the doctor in specific term has stated that it was a case of suicide and so the prosecution case that it was a case of homicidal death of the deceased cannot be accepted. As has already been mentioned that the prominent features, as have been indicated in medical jurisprudence referred above and when there was no preparatory material in the Marahai where the dead body was found lying, would show itself to be a case of homicidal death.

It has further been argued by the learned Counsel for the accused Appellants that the case is totally based on circumstantial evidence and the essential link of evidence so as to show the complicity of the accused in the aforesaid crime is missing. To the contrary the submissions have been made by the learned A.G.A. that most crucial circumstantial evidence which could have linked the accused with the murder of the deceased is the finding of the Moonj Rassi bundle from which, according to the prosecution, the rope was taken for hanging the deceased. It was also urged that the piece of rope used for hanging and its twist quite agree with that of the Moonj Rassi bundle recovered from the house of the accused Bheemal. Rassi was seized by the police in the presence of the witnesses namely Mahesh Yadav (P.W. 9) and Nandu Yadav. Its seizure memo (Exhibit Ka-3) was also proved by P.W. 9 Mahesh Yadav. There is also the report of the expert chemical examiner dated 13.7.2005 to the effect that the sample of the rope including that of its twists which was taken out from the bundle which was recovered from the house of accused Bheemal quite agree in its nature with that of the rope in which the deceased was found hanging.

Four circumstances were noticed by the trial court, which are that (i) recovery of Moonj Rassi bundle has been assigned. The piece of rope seized by the police from the house of accused Bheemal lends support to the prosecution version, (ii) Dragging marks at the chabutra of accused Bheemal. (iii) Km. Sarita Chawhan (P.W. 4) had seen the deceased sitting with the accused at the Chawki in the previous evening and when he was asked to accompany her for going back to the home he replied to come later, (iv) Amarjit Kushwaha (P.W. 3) stated that on 11.5.2005 when he was returning after answering the call of nature he saw the accused persons running away from the village. Thereafter he heard the cries of Km. Sarita Chawhan (P.W. 4) and found the dead body of Rajendra hanging in the Marahai of the complainant.

The learned Counsel for the accused Appellants submitted that the Moonj Rassai of the same make, nature, twist etc. is manufactured by the villagers and is readily available. No criminality can be fastened against the accused Appellants on the basis of such recovery of bundle of Rassi at the house of one of the accused. The identity of the article, i.e., whether the rope used in the hanging of the deceased was the part of the bundle of the rope which was recovered from the house of accused Bheemal, would be dependent on the evidence so adduced by the prosecution. Here in this case the Expert only confirmed this aspect that the Moonj Rassai used in hanging quite agree with that of the Moonj Rassi bundle recovered from the house of Bheemal but he showed his reservation on the point whether the Rassi used in hanging was the part of the big bundle recovered from the house of accused Bheemal. The ends of Rassi appear to have been examined but he showed his reluctance in giving positive evidence as to whether it agrees with each other or not. In the absence of evidence connecting both the ends of Rassi used and recovered, merely from the shape or twist of the rope it cannot be inferred that the Rassi used in hanging of the deceased was the part of big bundle so recovered.

The other evidence of dragging mark of the deceased found at the chabootra of the house of accused Bheemal is also said to be the index of the mind of the Investigating Officer. Where could be the occasion for the number of accused persons to have dragged a boy of 12-13 years of age if at all he was to be hanged after killing. He could well be lifted. Further from the evidence of recovery including from the post-mortem report and also from the Panchnama, signs of dragging have not been noticed by anyone there at the dead body of the deceased.

It was next contended by the learned Counsel for the accused Appellants that the evidence of last seen cannot be relied upon unless it is consistent and finds support from other materials on record. In this regard it is said that there is statement of P.W. 4 Km. Sarita Chawhan that a day before this dastardly incident she and her brother were looking after their fields and sometimes in the evening when accused Bheemal came at their fields and told her brother that let us now sit at the Chawki, he had taken Rajendra to that place holding his hand. He was made to sit at Chawki and at that time other accused namely Degree, Vijayee, Chandra Shekhar and Ram Gyan were also present. She came back to her house and disclosed this fact to her parents. Her parents also went for his search but by that time they came back she went asleep. Thereafter on the next day she went to the village just to findout whereabouts of her brother and found him hanging in Marahai. She also stated that on her cries several villagers and Amarjit Kushwaha came. Such testimony of the witness is said to be the last seen evidence. It is contended by the learned Counsel for the accused Appellants that assuming that the deceased was sitting with accused Bheemal and other accused there at Chawki, the deceased was related to them. There was also the marriage function at the house of the accused. If the deceased was sitting with the accused sometimes in the evening, this single circumstance by itself is too feeble to connect the accused with his murder. Accepting that the deceased was seen in the evening of 10.5.2005 sitting at Chawki in the company of the accused, in the absence of any positive evidence about the probable time of the death, it is difficult to connect the accused with the crime as there is a long-gap between the deceased being seen in the company of the accused. Many more persons might have come in between. Besides there is also the evidence that after marriage certain ceremony such as Bahoobhoj was also to be taken. It cannot be said that other persons did not contact the deceased in the meantime. It is further submitted that when Km. Sarita Chawhan (P.W. 4) informed her parents and when they were in the know of their enmity with the accused Appellants they did not verify about the whereabouts of his son from the villagers. This itself would create doubt with regard to such version given by Km. Sarita Chawhan to her parents. It is also submitted that as per the statement of P.W. 1 Congress Chawhan when he remained disturbed throughout the night of that day, not proceeding to make the search by himself till in the next morning and sending his daughter would itself show that no such information about the deceased being in the company of the accused was given by PW-4 Km. Sarita Chawhan. From the circumstance of last seen it cannot be inferred that the accused Appellants have committed crime. The accused are related to the deceased and at the time of marriage function if they were sitting with the deceased there was nothing unlawful for the accused Appellants being in the company of the deceased at evening before the murder is said to have been committed. Reliance may also be placed in the case of Prem Thakur Vs. State of Punjab, The importance of the last seen was also analyzed by the Apex Court in the case of State of U.P. Vs. Satish,

The 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 author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.

In this case there is the evidence of P.W. 4 Km Sarita Chawhan that the accused were seen together with the deceased sometimes in the evening. This was also communicated by her to her parents early in the morning when Amarjit Kushwaha informed about the dead body of Master Rajendra hanging in his Marahai. Such fact that on the previous night he was seen in the company of the accused was not written by the complainant in the report (Exhibit Ka-16) submitted at the police station. Had there been any such narration of the last seen made by his daughter it could have find place in that report (Exhibit Ka-16) submitted at the police station on 11.5.2005 which was entered in the G.D. at 7.15 a.m. on that very day. Had there been any such communication made by her daughter it could not be suppressed by the complainant. Even this report (Exhibit Ka-16) refers that in the morning at about 6.00 a.m. on 11.5.2005 Amarjit Kushwaha approached him and gave this information. To the contrary Amarjit Kushwaha stated that he had seen early in the morning the accused fleeing away with their men and materials from the village and after hearing cries of Km. Sarita Chawhan he could ascertain the reason of the accused fleeing away from that place. P.W. 2 Amarjit Kushwaha also stated that this fact was also disclosed by him to the complainant but report Exhibit Ka-16 is conspicuously silent on that point. Emphasis has been laid that such evidence of the last seen would not be sufficient to establish the complicity of the accused in the aforesaid incident. It is further submitted by the learned Counsel for the accused Appellants that the cumulative effect to the circumstantial evidence appearing in the case is to be looked into. The handing over of the report (Exhibit Ka-16) would itself show that by that time the complainant was not knowing as to whether the deceased was in the company of the accused last night and they are involved in the hanging of the, deceased otherwise he could have not omitted to mention this fact in the report. Had there been any communication of the suspicion so stated by Amarjit Kushwaha, it could have find place in that report (Exhibit Ka-16). The report of this incident was lodged after more than 24 hours. Such report is said to be not free from fabrication and no reason for the delay of lodging of the F.I.R. after 24 hours has been explained. The Investigating Officer had also prepared the Panchnama and recorded the statements of the witnesses on 12.5.2005. This undue delay was not explained by the prosecution. Such failure is undoubtedly a circumstance of considerable importance and would show a great deal of doubt on the prosecution story. Such circumstance is tried to be proved by the learned A.G.A. by contending that the accused were seen absconding by P.W. 2 Amarjit Kushwaha with their belongings. However, it was submitted by the learned Counsel for the accused Appellants that the houses of the accused Appellants were broken by the police and if they had run away with their belongings, it would not show their complicity in the crime. In this regard it may be mentioned that the act of absconding, even if proved, is normally considered somewhat a weak link in a chain of circumstances utilized for establishing the guilt of the accused. Such act of absconding would serve only when the evidence of eye-witness is held trustworthy. In the given case however, the circumstance of absconding was not put to the accused Appellants, u/s 313 of the Code of Criminal Procedure but on the existing materials on record, even considering the act of absconding, this evidence seems to be inadequate to establish the guilt of the accused beyond reasonable doubt.

For the reasons assigned above the prosecution utterly failed to prove out the charge against the accused Appellants. The impugned order is not sustainable. In the result the appeal is allowed and the accused Appellants are acquitted for the offences u/s 302/34, I.P.C. Let they be released.