Kaliram vs State Of Uttarakhand & Ors

(Per: Hon’ble Manoj Kumar Tiwari, J.)

The present criminal appeal has been preferred by the informant and government appeal is filed by the State assailing the judgment and order dated 20.7.2015, passed by Additional Sessions Judge, Laksar in Sessions Trial No. 144/2010, whereby respondents-accused Sitaram, Biram and Rajpal were acquitted of the charges under Sections 364, 302 and 201 read with Section 34 of the Indian Penal Code.

The prosecution case, in brief, is that Deepak, a four years old deaf and dumb child and grandson of the informant Kaliram, went missing at about 3 PM on 25.8.1998. A missing report was lodged by the informant on 26.8.1998. On 27.8.1998, dead body of Deepak was recovered from river Banganga. Thereafter, on 28.8.1998 at about 8.30 PM, an FIR was registered against unknown persons. Initially, the local police investigated the matter and submitted a final report. On a protest petition filed by the informant, further investigation was directed through CBCID. On completion of the investigation by CBCID, a complaint case was registered and proceedings under Sections 200 and 202 CrPC were undertaken and cognizance was ultimately taken against six accused persons for offences punishable under Sections 364, 302 and 201 read with Section 34 IPC.

We gather from the impugned judgment that during the course of trial, accused Kaliram, alleged to be a Tantrik, and accused Rulha died. Accused Vikki was found to be a juvenile and his case was separated. Consequently, trial proceeded against respondents Sitaram, Biram and Rajpal.

The prosecution examined eight witnesses, whereas the defence examined one witness.

It is undisputed that the prosecution case rests entirely upon circumstantial evidence. There is no eyewitness to the alleged kidnapping, murder or alleged ritual of human sacrifice. According to the prosecution, a religious ceremony (pooja) was being performed in the house of accused Rajpal on the day of occurrence, when the deceased was allegedly kidnapped and sacrificed as part of an occult ritual.

The question before this Court is whether the prosecution succeeded in establishing a complete chain of circumstances pointing unerringly towards the guilt of the accused and excluding every hypothesis consistent with innocence.

PW1 is the informant and grandfather of the deceased. He deposed that on the day the child went missing, a pooja was being performed in the house of accused Rajpal and that Rajpal did not permit him to enter the house when he searched for the child. According to him, this created suspicion in his mind that the accused persons had kidnapped the child.

Learned Trial Court rightly noticed that the missing report lodged by PW1 on 26.8.1998 does not contain even a whisper regarding any suspicion against the accused persons, the alleged pooja or denial of entry into Rajpal's house. If PW1 had genuinely entertained suspicion against the accused persons from the very first day, it was natural for him to disclose such suspicion in the missing report itself.

More importantly, PW1 categorically admitted in his cross-examination that he had neither seen the accused taking away the deceased nor had he seen the deceased in their company. His testimony is thus founded entirely upon suspicion and not upon direct knowledge of any incriminating fact. Suspicion, however strong, cannot substitute legal proof.

PW2 substantially repeated the version of PW1 regarding the alleged refusal by Rajpal to permit entry into the house. However, he further stated that accused Sitaram handed over the dead body before the Panchayat.

The Trial Court rightly found this to be a material improvement because PW1 never stated any such fact. This improvement goes to the root of the prosecution story and materially affects the credibility of PW2.

PW2 also admitted that he had not witnessed the kidnapping or murder and had not seen the deceased in the company of the accused persons. Significantly, he admitted that after recovery of the dead body, police came in the village, however he did not inform the police that the accused persons had murdered the child. Such conduct is wholly inconsistent with the prosecution version and renders his testimony doubtful.

PW3 also deposed regarding the pooja and denial of entry into Rajpal's house. Like PW1 and PW2, he admitted that he had not seen the accused kidnapping the deceased nor had he witnessed any alleged human sacrifice.

Evidence of PW3 also does not establish the circumstance of "last seen together". In a case based purely upon circumstantial evidence, the absence of last-seen evidence assumes considerable significance.

PW4 stated that the dead body was recovered on the pointing out of accused Sitaram and Biram and that accused Rajpal had made an extra-judicial confession before him, PW8 Nathlu and certain villagers admitting participation in human sacrifice.

The Trial Court found the testimony of PW4 unreliable for more than one reason. Firstly, none of the witnesses to the recovery, including PW1, PW2 or PW3, stated that the dead body was recovered on the pointing out of Sitaram or Biram. Secondly, the alleged extra-judicial confession was not supported by reliable independent evidence. Extra-judicial confession is a weak piece of evidence. It requires strict scrutiny and ordinarily requires corroboration from reliable independent circumstances. In the present case, the alleged confession is neither consistent nor corroborated by any other incriminating circumstance.

PW8 also attempted to support the prosecution version regarding confession and recovery. However, he admitted that the dead body was recovered in the presence of police. There is no recovery memo or other reliable evidence establishing that recovery was made pursuant to disclosure made by any accused. The Trial Court therefore rightly discarded this part of the prosecution case.

The prosecution sought to establish recovery of the dead body as an incriminating circumstance. However, there is material inconsistency among prosecution witnesses regarding the manner of recovery. The prosecution has failed to prove that the body was discovered in consequence of any disclosure statement attributable to the accused within the meaning of Section 27 of the Evidence Act. Once this circumstance itself becomes doubtful, it cannot be treated as an incriminating link in the chain of circumstances.

PW5, Inspector J.P. Juyal, collected soil from the alleged place where human sacrifice was said to have been performed. However, on forensic examination, no blood was found on the soil samples. This scientific evidence assumes importance because the prosecution specifically alleged that the child was sacrificed during the pooja at that place. Absence of blood completely belies the prosecution theory regarding the place of occurrence and materially weakens the prosecution case.

One of the most important circumstances in a case of circumstantial evidence is proof that the deceased was last seen alive in the company of the accused. In the present case, not a single prosecution witness has stated that he saw the deceased in the company of any accused immediately before his disappearance. PW1, PW2, PW3 and PW4 all admitted in their cross-examination that they had not seen the accused taking away the child. Thus, the prosecution has completely failed to establish the foundational circumstance of last seen together.

The prosecution theory rests upon an allegation that the deceased was subjected to ritual of human sacrifice during a pooja conducted by a Tantrik. However, except for suspicion, rumours and alleged extra-judicial confession, no evidence whatsoever was produced to substantiate this allegation. There is no eyewitness, no medical evidence indicating injuries suggestive of ritual sacrifice, no scientific evidence connecting the alleged place of pooja with the offence and no recovery of any incriminating article from the accused. A criminal court cannot record conviction merely because an allegation appears emotionally disturbing or because a particular practice is alleged to have been followed.

DW1 Somprakash stated that the pooja had actually been performed two days before the disappearance of the child and that such pooja was an annual event. He further stated that the dead body was recovered from the river where animals had eaten certain body parts and that there existed dispute between the communities of the informant and accused persons.

The defence version is not required to be proved beyond reasonable doubt. It is sufficient if it creates a reasonable doubt regarding the prosecution story. The testimony of DW1 further probabilises the defence plea that the prosecution case emerged out of suspicion and rumours following the unfortunate death of the child.

In a case resting entirely upon circumstantial evidence, every circumstance must be firmly established, all circumstances must form a complete chain and the chain must be inconsistent with the innocence of the accused. In the present case, the prosecution has failed to establish:

The Trial Court meticulously analysed the testimony of each witness and assigned cogent reasons for discarding the prosecution evidence. The conclusions reached by the Trial Court are based upon proper appreciation of evidence. This Court do not find any perversity, illegality or misreading of evidence warranting interference in appeal. The view taken by the Trial Court is a possible and reasonable view arising from the evidence on record.

Thus the prosecution has failed to prove beyond reasonable doubt that respondents Sitaram, Biram and Rajpal, in furtherance of their common intention, kidnapped deceased Deepak, committed his murder by alleged human sacrifice and caused disappearance of evidence. Consequently, the criminal appeal and the government appeal are dismissed. Bail bonds, if any, stand discharged. Records of the Trial Court be transmitted forthwith.