Mulayam and Another vs State of U.P.

Hon. Imtiyaz Murtaza, J.—Present appeal has been preferred against the judgment and order dated 25.4.2009 rendered by Additional Sessions Judge court no 5 Hardoi in S.T No 458 of 2004 u/s 364 IPC whereby he rendered verdict of conviction against the appellants sentencing them to undergo RI for eight years attended with fine of Rs 5000/- each with default stipulation.

The abridged version of prosecution case is that on 10.9.2003, appellants Mulayam and Hari Ram took away with them his son Santosh on the pretext that he was to appear in a case in Hardoi impressing upon him that they would stay during night at the house of his nephew and next day they would be back to the village. Next day when his son did not come back, the complainant enquired from the accused who, it is alleged, told him that his son had gone to Bombay alongwith one of his relation in search of a job and that he would be back to the village before Diwali. Initially, the complainant grew suspicious but on being repeatedly assured that his son had not gone alone but he was accompanied with one of his relation, the complainant believed the accused. It is further alleged that when his son did not turn up even on Diwali, he again contacted the accused who denied knowing the whereabouts of his son whereupon he gave written report at the police station. It is further alleged that when the police did not act upon his application, he preferred application u/s 156 (3) Cr.P.C whereupon the court passed the orders for lodging of the report. It is also alleged that accused Mulayam had borrowed Rs 8000/- from his son for purchasing motor cycle and when the borrowed amount was called back, they were reluctant and it was apprehended that wearied of repeated demands from his son, the accused may have murdered his son and his body was caused to disappear. After investigation, the police of P.S Bilgram submitted charge sheet in the court on 18.8.2004 u/s 364, 504, 506 IPC.

The accused persons abjured the guilt submitting that they have been falsely nominated in the case and claimed to be tried.

The prosecution in order to prop up its case, examined PW 1 Ganga Ram who is complainant, PW 2 Chote Lal who is a witness of fact, PW 3 Dullabh, PW 4 Surendra Nath, PW 5 SI K.N.Tiwari who initially investigated the case and PW 6 S.I. Jagdambika Prasad Pandey who was subsequently entrusted with investigation.

The Sessions Judge after appraisal of evidence on record, recorded verdict of conviction against the appellants placing credence on circumstantial evidence.

I have heard Learned Counsel for the appellants and also learned AGA at prolix length. I have also been taken through the materials on record.

The Learned Counsel for the appellants assailed the conviction on the ground that the FIR was belated and further that there was no strong motive impelling the accused to commit the murder of the deceased and further that there was enmity between the accused and the family of deceased and if it was so, there was no occasion for the father of the deceased to have allowed his son to accompany the accused. Lastly it is submitted that in the facts and circumstances of the case, the verdict of conviction was not warranted and that the sentences recorded err on the side of severity.

Per contra, learned AGA canvassed for correctness of the decision recording conviction against the appellants urging that the circumstances as brought on record fully point to the guilt of the accused.

In order to appreciate the rival contentions, it would be but proper to independently scrutinize the oral as well as documentary evidence on record.

PW 1 Ganga Ram reiterated the facts as enumerated in the FIR further urging in his testimony that when next day his son did not return, he went to enquire about his son at the house of Mulayam and Hari Ram and he was told that his son had gone to Bombay to earn money and he would be back to the village on Diwali alleging further that when his son did not return even on Diwali, he again enquired from the accused about his son and when the witness insisted for telling him about the whereabouts of his son, the accused threatened him with dire consequences telling him that he would meet the same fate as his son had met. It was as a consequence of this that the written report was submitted by the complainant apprehending that his son has been murdered for calling back the borrowed money and his body has been caused to disappear. In cross examination, the witness stated that he had seen his son going with the accused. He could not recollect whether this fact was mentioned in the written report. He denied that on his written complaint, any police personnel came to his house for ascertaining the facts. He admitted that his son Santosh and Mulayam used to indulge in drinking together. He also stated that his fields were divided by a ridge with the field of the accused. He denied the suggestion that there was any dispute relating to agricultural field. He also denied the suggestion that he had not seen his son going with the accused persons. He also denied the suggestion that in his written report, he had mentioned his wife to have seen Santosh with the accused. He also denied that his son had not gone to Hardoi in connection with a case. He also denied the suggestion that his son had any criminal antecedents. He also denied the suggestion that his son was murdered by the gang on account of his consorting with notorious criminals.

PW 2 Chhote Lal deposed that accused Mulayam had met him in Chhibramau and he was told by the said accused that Santosh was called from his house and that he had illicit relation with his niece and further that he was taken to the house of his nephew where he indulged in bout of drinking and thereafter he was cut into pieces with Gadansa (axe) and his body was thrown into Brook. In cross examination, he stated that accused Mulayam was arrested from his house after efflux of 5 and 6 months. He also stated that when the police made sustained interrogation from the accused, he confessed to the crime and gave precise details that the deceased had established illicit connection with the niece of the accused and on this account, the accused had murdered the deceased. He denied that the accused had told him that they had murdered the deceased by pressing his neck and his body had been thrown in the Brook (Nala). He could not tell how the investigating officer mentioned this fact in his statement. He again reiterated that accused did not divulge anything to him but he had confessed to his crime before him at the time of sustained interrogation.

PW 3 Dullan deposed that the accused Mulayam had confessed to his crime in his presence at the time of sustained interrogation. He also deposed that Santosh was called out and taken to the house of his nephew where he was plied with liquor and subsequently murdered and his body was thrown in the Brooke (Nala).

In cross examination, he stated that Santosh had come to him alone and demanded Rs 100/- for going to Hardoi. He denied the suggestion that he was involved in manufacturing illicit arms. He also stated that after the accused Mulayam was arrested and taken to Police Kotwali, the witness was called there. He stated that before the accused were arrested, they were present in the village. He also stated that the accused had confessed during interrogation that Santosh was murdered by pressing his neck and his body was thrown in the Brooke. He denied that the accused had confessed that the deceased was murdered by tightening his neck with a piece of cloth. On being confronted with his statement given to Investigating officer, he could not tell how this came to be mentioned by the investigating officer. He also denied the suggestion that the body of accused was thrown in Ganga River. He also denied the suggestion that he was falsely deposing in the case.

PW 4 Surendra Nath deposed that on the day on which Santosh had disappeared, accused Mulayam had come to meet Santosh at 10 am and asked him to accompany them to Hardoi where they would stay during night. He also stated that the same day sometime in the evening, he had seen Santosh in the company of accused Mulayam and they were seen going towards Ganga River. He also stated that Santosh used to frequent the house of Mulayam and it was rumoured that Santosh had established illicit relation with the niece of Mulayam and it was for this reason that Mulayam nurtured grouse against Santosh. He also stated that Santosh was nowhere traceable thereafter and that he and his brother often enquired about Santosh from him and each time they were told that Santosh had gone to Bombay to earn livelihood and that he would come back until Diwali festival. He also deposed that when Santosh did not return on Diwali, his apprehension jelled into conviction that he was murdered by the accused and his body was caused to disappear.

In cross examination, he stated that at the time when Santosh alongwith Mulayam were going, he was standing at his door. He also stated that at that time, he and his brother were in their houses as both were living separately. Spelling out details he stated that he was sitting at the platform when Mulayam had come and that the said Mulayam had called Santosh outside. At that time Santosh was inside his house. He also stated that both had proceeded towards western side. On that day, it is stated, the entire area was inundated with flood water and as such they were marooned. He denied the suggestion that Santosh was facing various criminal cases and he was a notorious character and was hobnobbing with dacoits. He also stated that some criminal cases which Santosh was facing related to adjacent village known as Katari Pachoiya. He denied the suggestion that on account of kinship with the complainant he was deposing falsely. He also stated that the accused had fidelity to Sripal Pradhan but denied knowledge whether the people were divided on account of village politics. He also denied that he was falsely deposing in the case on account of pressure exerted by Jaddu.

PW 5 S.I. K.N.Tiwari deposed that investigation was entrusted to him by the S.O.Bilgram on 25.3.2004 and the same day he recorded statement of Mithu Singh Yadav and Surendra and thereafter he searched for accused persons. Accused Mulayam Singh was arrested on 27.3.2004. He further deposed that he inspected the spot of occurrence on being pointed out by the accused. Thereafter, he deposed, he tried to recover the dead body. He also deposed that accused confessed to their crime in the presence of Chhote Lal and Dulla witnesses of the case. He also deposed that charge sheet was submitted in court on 18.4.2004.

This witness was not cross examined. It is mentioned that the counsel of the accused did not turn up to cross examine this witness.

PW 6 is Jagdimba Prasad Pandey who at the relevant time was posted as Incharge Police station Bilgram. He stated that on the day of occurrence he had visited the spot and tried to search the body but could not find the body. He prepared the site plan etc but thereafter, the investigation was transferred to another SI. In cross examination, he denied the suggestion that he did not conduct himself fairly in preparing site plan or in recording statements of the witnesses. He also denied suggestion that the case was registered after deliberation with the police.

The defence examined Sri Pal as DW 1. His evidence substantially is that the fields of accused and complainant had been washed away by the flood and after the water receded, some sandy land which remained was claimed by both the parties and both the parties had fought over it and a panchayat was convened. He denied the suggestion that in Pradhani election since accused had supported him, he was deposing falsely in favour of accused. He denied the suggestion that complaint was made for irregularities committed during his tenure as Pradhan and being prejudiced, he had deposed falsely against the complainant. He denied knowledge whether the accused had borrowed any amount from the deceased for purchase of motor cycle.

The main brunt of argument advanced across the bar is that the only evidence against the accused is of last seen and by this reckoning, they cannot be said to be guilty of murder of the deceased.

The trial court repelled the submission that there was any delay in lodging the FIR. He observed that there was convincing and plausible explanation for the delay. The court also referred to various written complaints made from time to time by the complainant but they were not acted upon and hence the complainant resorted to the remedy u/s 156 (3) Cr.P.C and ultimately, report was lodged which culminated in submission of charge sheet in court.

As regards motive, the court converged to the conclusion citing testimonies of the witnesses that the accused had borrowed Rs 8000/- from the deceased for purchase of motor cycle in which connection he referred to statement of DW 1 Sri Pal. and that there was enmity between the accused and the complainant. The court repelled the submission that the deceased was murdered on account of his notorious antecedents by some gang of dacoits. and further that there was cogent and convincing circumstances which linked the accused with the crime. As regards enmity between the accused and the complainant, the trial court discountenced the submission on the ground that enmity is a double edged weapon which cuts both ways and in the circumstances, it cannot be ruled out that the accused could be falsely implicated or that on account of enmity the accused could commit the murder of the deceased. The trial court also repelled the submission that the prosecution had not been able to bring home the guilt beyond reasonable doubt and further that the prosecution case has not received reinforcement from any independent evidence. In ultimate analysis, he converged to the conclusion that offence of kidnapping was borne out from the materials on record and also from the testimonies adduced by the prosecution.

I have all over again appraised the evidence on record. From a scrutiny of the testimony of Ganga Ram complainant it would transpire that deceased Santosh had told him that his case was fixed next day in the court at Hardoi. It has come in the evidence that the deceased was involved in number of cases. The testimonies of other witnesses revolve round the fact that the deceased was seen in the company of the accused at the relevant date. Thus it brooks no dispute that the deceased was scheduled to go to Hardoi in order to appear in court on the date fixed. By this reckoning, it cannot be inferred from the facts on record that the accused practised any deception in taking away Santosh on some false pretext.

From a scrutiny of the testimonies of the witnesses adduced in the case, it would transpire that the only conclusion that can be drawn is that the deceased was seen in the company of the accused persons and thus the evidence if any is that of last seen.

It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, , Eradu and Others Vs. State of Hyderabad, , Earabhadrappa v. State of Karnataka ( AIR 1983 SC 446), State of U.P. Vs. Sukhbasi and Others, , Balwinder Singh alias Dalbir Singh Vs. State of Punjab, and Ashok Kumar Chatterjee Vs. State of M.P., . The circumstances, from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principle fact sought to be inferred from those circumstances. In Bhagat Ram Vs. State of Punjab, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

Reference be made to a decision of the Court in C. Chenga Reddy and Others Vs. State of Andhra Pradesh, , wherein it has been observed thus:

In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

In Padala Veera Reddy Vs. State of Andhra Pradesh and others, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established:

2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

3) 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

4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of 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."

In State of U.P. V. Ashok Kumar Srivastava (1992 Crl. LJ 1104) it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It has also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.

In Hanumant Vs. The State of Madhya Pradesh, it was observed thus:

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

Reverting to the facts of the present case, it is worthy of notice that none of the witnesses testified that the deceased had stayed at the house of nephew of the accused. No one has seen any of the accused committing the crime.

The finding of the trial court hinges on the evidence of last seen. The Apex court in Tipparam Prabhakar Vs. The State of Andhra Pradesh, has ruled that 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 impassible. It would be difficult in some cases to positively 13 establish that the deceased was last seen with the accused when there is a log 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. Reverting to the facts of the present case, the evidence of last seen does not commend itself for acceptance considering that the time lag between the point of time when the accused and deceased were last seen alive is wide enough inasmuch as the deceased was said to have accompanied the accused on 10.9.2003. The complainant waited for the deceased to come back on Diwali and when the deceased did not return on Diwali, he again contacted the accused who denied to have known the whereabouts of the deceased.

In a situation of this nature, it is difficult to hold that a judgment of conviction can be founded on the sole circumstance of the deceased''s having been last seen with the appellants by the prosecution witnesses who are all interested and partisan witnesses. More significant is the conduct of the prosecution witnesses. On the day of the alleged crime, they did not suspect the appellants in any manner whatsoever despite the fact that there was enmity between the accused and the complainant. Despite the fact that he was missing, the purported explanation of the appellants was taken for granted. Even no missing report was lodged. It was expected that such missing report should have been lodged immediately mentioning all relevant details about apparels he was wearing.

As stated supra, no missing report was lodged. What is surprising that it did not arouse suspicion in the complainant and he waited for arrival of his son merely because he had been told by the accused that he had gone to Bombay to earn livelihood alongwith one of his relations. The complainant did not try to find address of the relation nor tried to obtain his contact number.

The next factum worthy of consideration pertains to motive. It would transpire that initial case was that the accused had borrowed certain amount from the deceased but when deceased called back the borrowed amount, the accused were reluctant. The second motive alleged in the case is that there was enmity relating to agricultural land which had been swept away in the flood and there was a dispute over the sandy land between the complainant and the deceased. The third motive alleged is that the deceased had illicit intimacy with the niece of the accused.

It is well settled by a catena of decisions that the motive in a case hinging on circumstantial evidence plays a pivotal role. From a close scrutiny, it would transpire that the motive initially attributed in the written report was that the accused had borrowed Rs. 8000/- for purchasing scooter from the deceased and when the amount was called back, the accused was reluctant. This instance of motive was not reiterated in his examination in chief and a new theory was introduced by the witnesses cross examination that the deceased had illicit relation with the niece of the accused and therefore, he was taken away on some pretext. In our considered view, the motive is not explicitly proved in the present case and trial court erroneously assumed that there was strong motive for the accused to have committed the crime.

To sum up, the circumstances from which the conclusion of guilt is to be drawn, in my considered view, are not fully established, and all the facts so established are not one which can be said to be consistent with the hypothesis of the guilt of the accused. Again, the circumstances as pointed out by the prosecution are not of a conclusive nature and tendency. In other words, the chain of evidence is not complete and there remains a reasonable ground for a conclusion consistent with the innocence of the accused.

As a result of foregoing discussion, I am of the view that the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. The appellants are in jail. They are directed to be set at liberty unless wanted in connection with any other case.