Ram Nath vs State Of Uttar Pradesh

Pankaj Bhatia, J

Heard Sri Girraj Singh, Advocate holding brief of Ms. Zia Naz Zaidi, learned counsel for the appellant and Ms. Manju Thakur, learned AGA for the State.

The appeal has been filed by Ram Nath son of Chhaviram Thakur against the judgment and order dated 28.10.2014 passed by Additional Sessions Judge, Court No.2, District Firozabad, in Sessions Trial No.125 of 2013 convicting the appellant for an offence under Section 302 IPC and sentencing him to life imprisonment and a fine of Rs.10,000/-.

The prosecution case, before the trial Court, was that one Bihari Lal lodged a first information report with Police Station Nagla Sindhi, District Firozabad alleging that he was the resident of village Niyamatpur, Police Station Nagla Sindhi. On 17.5.2013 his father Viddya Ram son of Jyoti Ram had gone to village Nauni and his cousin brother Rahul son of Kundan Singh and Ela alias Dinesh were at home. At about 3.00 in the morning loud cries were heard. On hearing the cries his cousin brother Rahul and uncle Kanta Prasad reached the house of Ram Nath Dhakrey and saw Ram Nath and Ayodhya Prasad, both sons of Chhaviram coming out of the house of Ram Nath Dhakhrey shouting that they had killed Sundari and Ela alias Dinesh as the love relationship in between them was not acceptable to them. He and his brother went inside Ram Nath's house and saw that his brother Ela's body was lying near the door and the body of the girl Sundari lay in the Courtyard. It was further stated that after seeing the incident, on account of fear they returned home and on the next date they gathered the courage to report the offence to the Police Station.

On the basis of the said written report, Exhibit Ka-2, Case Crime No.29/13 under Section 302 IPC & 3(2)5 SC/ST Act was registered against the two accused Ram Nath and Ayodhya Prasad and the Chick FIR Exhibit Ka-2 was prepared.

The gist of the prosecution case was recorded by P.W.4 Constable Clerk 614 Mahendra Pratap Singh in the General Diary at serial no.12 at 8.00 A.M. on 18.5.2013 Exhibit Ka-3. The investigation of the case was entrusted to P.W.6 Circle Officer Kehar Singh Rana, who after registration of the case, reached the place of incident, recorded the statements of the witness Santosh held inquest on the bodies of the deceased and got inquest reports Exhibit Ka-8 & Exhibit Ka-9 prepared along with the related documents through S.O. Police Station Nagla Sindhi. He also inspected the place of incident and prepared the site plan Exhibit Ka-6. After completing the inquest proceeding he dispatched the dead bodies in sealed condition to the District Hospital for post-mortem examination.

The post-mortem was carried out by P.W.5, the Doctor on 19.5.2013 and in the report the injuries on the body as well as the cause of death with regard to deceased Ela alias Dinesh, the following was recorded:-

ष्सूजन 6 ग 5 सी0 एम0 Left lumber region (2) Multiple abrasion with contusion over the front of chest 15 cm. x 10 cm. (3) Multiple abraded contusion over the upper part front of ;अप0द्ध in an area 6 cm. x 4 cm. (4) Mainly left Temporal Bone. Brain में clotted Blood है। (5) Hips में Fracture है 2 cm. से 5 cm. left side में (6) Plura & lungs फट गये थे। (7) दाहिना फेफडा congested था। Chest cavity में blood था।  अमाशय खाली था। छोटी आंत मे semi digested food था।   बडी आंत मे feacal Matter (ल्ैटिृन के पार्टस) थे। Death due to coma as a result AMI (Head Injury)."

With regard to deceased Sundari, the following was recorded:-

"Ligature mark 35 cm. x 2 cm. situated around the neck 5 cm.

Below the chin in circuling complete neck Horizontally Place.

Death is due to asphyxia as a Result of Anti-mortem strangulation."

The Investigating Officer after completing the investigation filed charge sheet under Sections 302 IPC & 3(2)5 SC/ST Act, Exhibit Ka-7 against the appellant before the Chief Judicial Magistrate, Forizabad, who committed the accused for trial to the Court of Sessions Judge, Firozabad where the case was registered as Sessions Trial No.125 of 2013, State Vs. Ram Nath & another and made over for trial from there to the Court of Additional Sessions Judge, Court No.2, Firozabad, who on the basis of the material on record framed charge against both the accused under Sections 302 IPC & 3(2)5 SC/ST Act. The accused-appellant abjured the charge and claimed trial.

The prosecution in order to prove its case produced as many as seven witnesses out of whom P.W.1 Bihari Lal, P.W.2 Rahul, P.W.3 Kanta Prasad were examined as witnesses of fact while P.W.4 Constable Clerk 614 Mahendra Pratap Singh, who had prepared the Chik FIR and the relevant general diary entry, P.W.5 Dr. Manoj Kumar Katara, who had conducted the post-mortem examination on the dead bodies of the deceased Ela alias Dinesh and Km. Sundary and prepared their post-mortem reports Exhibit Ka-4 & Exhibit Ka-5, P.W.6 Circle Officer Kehar Singh the Investigating Officer of the case who had completed the investigation and filed charge sheet Exhibit Ka-7 against both the accused-appellants and the P.W.7 Inspector Ramesh Chandra Tiwari, who prepared the inquest reports of the deceased Exhibit Ka-8 & Exhibit Ka-9 and other related documents, namely specific scene, photo nash, letters addressed to Chief Medical Officer, letters addressed to R.I. and Challan Lash Exhibit Ka-10, Exhibit Ka-11, Exhibit Ka-12, Exhibit Ka-13 and Exhibit Ka-14 pertaining to deceased Ela alias Dinesh and letter addressed to Chief Medical Officer, sample seal, photo nash, letter addressed to R.I and Challan nash of deceased Sundary Exhibit Ka-15, Exhibit Ka-16, Exhibit Ka-17, Exhibit Ka-18 & Exhibit Ka-19 were produced as formal witness.

The statement of the accused was recorded on 24.9.2014 under Section 313 Cr.P.C. wherein he denied all the charges levelled against him.

During trial, the accused-appellants in their statements recorded under Section 313 Cr.P.C. on 24.9.2014 denied all the charges levelled against them and alleged false implication.

The learned Sessions Judge, Court No.2, Firozabad considered the submissions as well as the depositions made before him and also took the notice of the fact that all the material witnesses had turned hostile. Learned Sessions Judge after considering the evidence of D.W.1 recorded that D.W.1 Bachan Singh had stated in the cross-examination that his house was at a distance of 12 Kos from the house of Ram Nath and based upon the said deposition alone, recorded that it appears on account of circumstances that Ram Nath came to his home in the night and on seeing both the deceased in compromising position, killed both of them. The learned Sessions Judge further recorded that when the deceased Ela alias Dinesh tried to run, they were pulled and killed and because of the same mud must have appeared on the bodies. Learned Sessions Judge also recorded that it was not plausible that a person in whose residence murder took place did not report the same to the Police which fact goes against the accused Ram Nath which establishes that Ram Nath was guilty of the murders. He further recorded that in the era of modern means of transport like motorcycle a distance of 12 Kos is not much and can be covered easily. Thus, recording that the witnesses can lie but the circumstances cannot, he proceeded to hold Ram Nath guilty of offences under Section 302 IPC and proceeded to sentence Ram Nath to life imprisonment under Section 302 IPC and also imposed a fine of Rs.10,000/- and provided that on failure to pay the fine, appellant-Ram Nath will undergo a further rigorous imprisonment of three months. Hence, this appeal.

It is contended by the appellant's counsel that the evidence on record does not in any way established the complicity of Ram Nath, the evidence on record does not in any way implicate the appellant with the offence. There is no positive evidence on record against the appellant to establish the charges, the theory of circumstantial evidence is without any basis as there is no chain of evidence established by the prosecution and, thus, the judgment impugned in appeal is liable to be set aside.

Per contra, Ms. Manju Thakur, learned Additional Government Advocate tried to defend the judgment on the ground that the bodies were recovered from the house of Ram Nath and the reasoning given in the impugned judgment cannot be faulted with and the appellant has been rightly convicted and awarded the sentence.

We have heard the learned counsel for the parties and perused the entire lower Court record carefully.

The questions to be considered by us, are whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts and whether the appellant can be prosecuted only on the basis of circumstantial evidence as has been done by the Court below.

There is no dispute about the fact that the instant case is based upon circumstantial evidence and no one had seen the accused-appellants committing the murder of the deceased.

In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, it was held by the Apex Court that, the onus is on the prosecution to prove, that the chain is complete and that falsity or untenability of the defence set up by the accused, cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;

(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".

Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it."

We now proceed to evaluate and scrutinize the evidence on record in the background of the principles propounded by the Apex Court in the case of Sharad Birdhichand Sarda (supra) which a Court must keep in mind while deciding a case based upon circumstantial evidence.

P.W.1 Bihari Lal son of Viddya Ram in the statement before the Court below categorically stated in his cross-examination that he had not seen Ram Nath killing his brother Ela alias Dinesh. He also stated that he was informed of the incident at about 6.00 A.M. in the morning that his brother Ela alias Dinesh and Sundari had been killed by someone and their bodies were lying in the house of Ram Nath. He also categorically stated that he has not seen anyone killing his brother Ela alias Dinesh and Sundari, He had no information as to who had killed them. He further stated that he was unhappy on account of death of his brother and on the instigation of certain villagers, he had signed the report. He further categorically stated that on the date of the incident, he had not seen Ayodhya Prasad and Ram Nath coming out of the house at 3.00 A.M. He also categorically stated that he had not heard Ram Nath saying that he has killed Sundari and Ela alias Dinesh and that the Police had not enquired anything from him.

P.W.2, Rahul son of Kundan Singh was declared hostile by the Court. He categorically stated that he had not heard Ram Nath saying that he had killed Ela alias Dinesh and his daughter Sundari nor had he heard Ram Nath saying that he had seen both of them in compromising position which could not be tolerated.

P.W.3, Kanta Prasad son of Chiranji Lal, categorically stated that on the date of the incident i.e. 18.5.2013 he was not in the village Niyamtpur and further stated that he had not gone to the house of Ram Nath and he was not aware as to who had killed his nephew Ela alias Dinesh and Sundari. The Session Court declared the said witness as hostile.

It is noteworthy that despite the fact that P.W.1 had failed to support the prosecution case, he was neither declared hostile nor he was recalled by the prosecution for re-examination. Similarly, when P.W.2 and P.W.3 Rahul and Kanta Prasad were declared hostile and upon being confronted by the D.G.C. (Criminal) during their cross-examination with their statements recorded under Section 161 Cr.P.C. in which they had allegedly supported the prosecution case, they denied having made any such statements before the Investigating Officer, P.W.6 Kehar Singh, Investigating Officer of the case, was not confronted by the D.G.C. (Criminal) with the above mentioned portions of the testimonies of P.W.2 & P.W.3.

P.W.4, the Clerk of the Police Station deposed that a report was lodged with regard to the said incident on which the first information report was registered. There was no deposition with regard to the incident.

P.W.5, the Doctor who had conducted the post-mortem examination deposed with regard to the injuries found over the bodies which had led to death of Ela alias Dinesh and Sundari.

P.W.6, Sri Kehar Singh, Circle Officer deposed with regard to the lodging of the first information report and drawing of the site plan as well as the arrest of the accused. He specifically stated in his cross-examination that the dead body of Ela alias Dinesh was coated with mud (Keechad). He also in his cross-examination stated that his signatures were absent on the Panchayat Nama.

P.W.7, Ramesh Chandra Tiwari, Inspector in his deposition stated that the body of the victim was coated with black mud. During his cross-examination, he stated that the body of Ela alias Dinesh appeared to have been taken from one spot to the other.

The accused in his support had adduced the evidence of D.W.1, Bachan Singh, the brother-in-law of Ram Nath who deposed before the Court below that his daughter Neeraj was getting married on 17.5.2013 and for the said marriage, Ram Nath along with entire family had come to their village on 15.5.2013 except Sundari, who stayed in her house and that Ram Nath and his family stayed with them till 7.00 A.M. on 18.5.2013.

The records of the case and deposition of witnesses as quoted herein above reveal that the deposition of P.W.1 does not in any way prove or establish the complicity of the appellant. The deposition of P.W.2, who was declared as hostile also does not in any way establish the complicity of the offence in any manner. The deposition of P.W.3 also who was declared hostile does not in any way establish the complicity of the appellant with the offence in question. The depositions of P.W.4, P.W.5 & P.W.6 as already discussed herein above do not in any manner link the appellant with the commission of the offence in question.

Coming to the deposition of D.W.1, which is the sole basis for the learned Sessions Judge to presume the circumstances against the appellant, in the cross-examination there is neither any suggestion nor any attempt by the prosecution to establish the circumstances which could lead to the presumption of Ram Nath going from the house of Bachan Singh to his own house at a distance of 12 Kos to commit the murder. No suggestion was put forwarded to establish that Ram Nath owned any Motorcycle or any vehicle as has been recorded in the impugned judgment. There is no suggestion to establish that Ram Nath went from the house of Bachan Singh to his own house and came back after committing the murder as has been believed by the learned Sessions Judge.

The evidence of the witnesses considered along with the evidence of D.W.1 do not in any way link the appellant directly or indirectly with the actual act leading to the death of the deceased. It is well settled law that suspicion however, grave cannot take place of proof and the prosecution in order to succeed, cannot succeed only on the evidence which in the realm of "may be true" but has to conform to "must be true".

In the present case, learned Sessions Judge has erred in convicting the appellant by adopting the theory of circumstantial evidence whereas no such circumstances were either established or even came out of the evidence deposed before the learned Sessions Judge. No attempt was made by the prosecution or by the Sessions Judge to establish that now a single person, namely the appellant could murder two adults without any weapon whatsoever. The case in hand, clearly establishes that the learned Sessions Judge has completely misdirected himself in convicting the appellant without there being any evidence on record to establish his complicity with the offence in question.

We have no hesitation in holding that the prosecution has failed to establish its case against the appellant beyond all reasonable doubts.

The appeal is allowed. The judgment and order dated 28.10.2014 passed by Additional Sessions Judge, Court No.2, District Firozabad, in Special Sessions Trial No.125 of 2013, convicting the appellant for an offence under Section 302 IPC and sentencing him to life imprisonment and a fine of Rs.10,000/-, is set aside. The appellant Ram Nath is acquitted of all the charges framed against him. He shall be discharged forthwith. The appellant is in jail, he shall be released forthwith, if he is not wanted in any other case. However, he shall comply with the mandatory requirement of provisions of Section 437-A Cr.P.C.

There shall be no order as to costs.

Let a copy of this judgement be sent to the learned Sessions Judge, Firozabad for ensuring compliance.