Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Case Of Circumstantial Evidence - All Circumstances Must Be Proved.
JUDGEMENT TITLE : Sanjay Vs. State Of U.P. On 23/02/2010 By Allahabad High Court
CORAM : Hon'ble Yatindra Singh,J. And Hon'ble B.N. Shukla,J.



1.Criminal Appeal No. 4865 Of 2009
Sanjay ... Appellant
State Of UP ... Respondent
2.Reference No. 10 Of 2009

Hon'ble Yatindra Singh, J.
Hon'ble B.N.Shukla, J.

(Delivered By Hon'ble Yatindra Singh, J)

1. The Main Question Involved In This Appeal Is,
'Whether The Circumstances Against The Appellant Are Established And Lead Only To His Guilt Or Not.'

2. Kallu Alias Ravindra (the Deceased) Was Last Seen On 13.5.2005 But Not Thereafter. On The Next Day, His Family Members Were Informed About A Mutilated Dead-body Lying Next To Lala's Brick Kiln. The Dead Body Was Naked: Its Head, Hands (between The Wrist And Elbow), And Legs (below The Knees) Were Chopped Off. The Dead Body Was Covered With Eight 'Kathal'.

3. The Family Members (mother, Father, Wife And Son At Least) Reached The Spot And Identified The Dead-body As That Of The Deceased. The Cycle Of The Deceased Was Also Found At 65 Paces From His Dead Body (site Plan Ex Ka-14).

4. Chhotey Lal Son Of Bhagawti Prasad (PW-1), Father Of The Deceased, Lodged An FIR At 8.30am On 14.5.2005 With The Allegations That:
The Deceased Along With One Suresh Pasi Work As A Labourer In The Canal. There Was Some Dispute Between Them Regarding Money;
On 13.5.2005, Suresh Pasi Came To The Gumti (गुमटी) (Kiosk) Of The Deceased And Took Him Away On The Pretext That Someone Is Calling Him At 'mori' (मोरी);
The Deceased Went There On A Cycle And Thereafter Never Came Back;
Today, They Were Informed About A Dead Body And Have Recognised It To Be Of The Deceased.
Suresh Pasi And His Companions Have Killed Him And Action Be Taken.

5. The Police Investigated The Case But Dropped It Against Suresh Pasi.

6. On 25.5.2005, Some Clothes, Said To Be Of The Deceased (blood Stained Short Sleeve Shirt, White Blood Stained Shirt And An Underwear), Were Recovered From The Dry Canal. On The Same Day, Sanjay (the Appellant) Was Taken Into Custody At About 2:30pm. On His Pointing,
Parts Of Dead Body (head, Part Of One Hand And Parts Of Both Legs) (recovery Memo Ex Ka-20) Were Recovered From A Well. They Were Tucked Inside A Pant (recovery Memo Ex Ka-2); And
A Chaapar (चापड़), (the Weapon Alleged To Have Been Used In The Crime) Was Recovered From The Tin Shed Of The Room Over The Pumping Set Of Idrish (recovery Memo Ex Ka-3).

7. The Distance Between The Well And The Tin Shed Is 90 Paces (site Plan Ex Ka-21) But There Is Nothing On The Record To Show The Distance Between The Place Where Dead Body Was Found And The Well Where Parts Of The Body Were Found Or The Dry Canal Where Clothes Have Been Found.

8. Subsequently, The Police Also Arrested Sant Lal Pattar And Filed Charge-sheet Against Both Of Them.

9. The Case Was Committed To The Court Of Session And Was Registered As ST No. 25 Of 2006. On 29.4.2005, The Additional Sessions Judge, Court No. 2, Allahabad (the ASJ) Framed Charges Against Them Under Sections 302 Read With Section 34 And 201 IPC.

10. Among The Other Documents, The Prosecution Filed The Following Documents:
Recovery Memo Of Blood Stained And Plain Earth Dated 14.5.2005 (Ex Ka-2);
Recovery Memo Of 8 'Katthal' Dated 14.5.2005 (Ex Ka-16);
Recovery Memo Of Cycle Dated 14.5.2005 (Ex Ka-17);
Recovery Memo Of Short Sleeve (half) Shirt, Baniyan, And Underwear Dated 25.5.2005 (Ex Ka-18);
Recovery Memo Of The Pants Of The Deceased Dated 25.5.2005 (Ex Ka-2);
Recovery Memo Of Head, Two Legs And One Hand Dated 25.5.2005 (Ex Ka-20);
Recovery Memo Of 'Chaapar' Dated 25.5.2005 (Ex Ka-3);
Post-mortem Report Of The Dead Body Dated 15.5.2005 (Ex Ka-6);
Post Mortem Report Of The Parts Of The Body Dated 27.5.2005 (Ex Ka-7);
Site Plan Where Dead Body And Cycle Was Found (Ex Ka-14);
Site Plan Of The Dry Canal Where Cloths Were Found (Ex Ka-19);
Site Plan Where Parts Of The Body And Chaapar Was Recovered (Ex Ka-21);

11. The Prosecution Has Examined The Following Witnesses:
Chhotey Lal Son Of Bhagwati (PW-1): Father Of The Deceased, Lodged The FIR;
Chhotey Lal Son Of Sukhambar (PW-2): Witness Of The Recovery Memos Of The Pant (Ex Ka-2), Parts Of The Body (Ex Ka-20), Chaapar (Ex Ka-3), Blood Stained And Plain Earth (Ex Ka-15), Kathal (Ex Ka-16), And Cycle (Ex Ka-17);
Guddi Devi (PW-3): Wife Of The Deceased;
Ravi Shanker (PW-4): Son Of The Deceased;
Matadeen (PW-5): Witness Of The Extra Judicial Confession But Was Declared Hostile;
Shivpoojan (PW-6): Head Constable, Prepared The Chik;
Dr. Ramesh Singh (PW-7): Doctor, Conducted The Post-mortem On The Body.
Surendra Narayan Rai (PW-8): Constable, Took The Body For The Post-mortem;
Dr. AK Chhada (PW-9): Doctor, Conducted The Post-mortem On The Parts Of The Body;
Rakesh Kumar (PW-10) First Investigating Officer (IO), Made The Recoveries;
Sushil Kumar (PW-11): Second Investigating Officer (IO;
Mohan Singh Yadav (PW-12): Constable, Took Parts Of The Body For The Post-mortem.

12. The Court Has Also Examined Laddu Yadav (CW-1) As A Court Witness.

13. The Statement Of Both The Accused Were Recorded On 15.6.2009. The Defence Also Produced Two Witnesses:
Ram Kishun (DW-1): Maternal Uncle Of The Appellant;
Harish Chand (DW-2): Cousin Of The Appellant.

14. The ASJ By His Judgement And Order Dated 29.7.2009 Acquitted Sant Lal Pattar But Convicted The Appellant. He Was Awarded The Following Sentences On 30.7.2009:
Death Sentence Under Section 302 IPC And A Fine Of Rs.5,000/-, In Default, Six Months Simple Imprisonment;
Seven Years RI Under Section 201 IPC And A Fine Of Rs.2000/- And In Default, Two Months Simple Imprisonment.

15. The Sessions Judge Has Also Sent Reference No. 10 Of 2009 For Confirmation Of Death Sentence. The Appellant Has Also Filed Criminal Appeal No. 4865 Of 2009.

16. We Have Heard Sri Samit Gopal And Sri Ajat Shatru Pandey, Counsel For The Appellant And Sri DR Chaudhary, Government Advocate.1 The Following Points Arise For Determination In The Case:
(i)Whether The Parts Of The Body Are Of The Deceased Body;
(ii)Whether The Circumstances Against The Appellant Are Established;
(iii)Whether The Appellant Is Guilty.

17. The Counsel For The Appellant Submitted That:
There Is Nothing To Connect The Parts Of The Body With The Deceased;
This Could Have Been Easily Done By Comparing The Blood Samples.

18. The Parts Of The Dead Body Were Recovered After 11 Days. It Is Not Clear If The Parts Of The Body Had Any Blood That Could Be Compared With The Blood Of The Deceased. There Is Neither Any Cross-examination From The Doctor Nor Any Suggestion To Him That It Could Be Done. No Authority Or Opinion Has Been Placed Before Us That It Could Be Done. In These Circumstances, Neither Any Benefit Can Be Availed By The Defence Nor Any Adverse Inference Be Drawn Against The Prosecution.

19. Blood Stained Cloths, Earth, And Chaapar Were Sent To Vidhi Vigyan Prayogshala, Lucknow. The Report Is On The Record (Paper No. 7Ka Dated 24.3.2006). It Is Signed And Sealed, Though It Is Not Exhibited. It States That Blood On The Chaapar Was Disintegrated And Its Origin Cannot Be Determined.

20. The Part Of The Body Were Tucked Inside Pant And Thrown Inside Well. This Pant Was Recognised By The Father Of The Deceased. This Is Also Mentioned In Recovery Memo (Ex Ka-2) As Well As Deposed By The First IO (PW-10) Who Had Made This Recovery. There Is Neither Any Cross-examination Nor Any Suggestion That The Pant Is Not Of The Deceased.

21. The Injuries In The Post-mortem Report On The Body Of The Deceased And The Part Of The Internal Examination Of Abdomen Are As Follows:
(a) External Examination
(i)Incised Wound 7 Cm X 10 Cm At Lower Part Of Neck At C4 Vertebra Level Separating Head From The Trunk.
(ii)Incised Wound 6 Cm X 4 Cm Over Left Forearm Separating Left Hand From Left Upper Limb, 16 Cm Below From Elbow Joint;
(iii)Incised Wound 5 Cm X 4 Cm Over Right Forearm Separating Right Hand From Right Upper Limb, 18 Cm Below From Right Elbow;
(iv)Incised Wound 6 Cm X 5 Cm Over Right Leg, Separating Right Foot From Right Leg; 32 Cm Below Right Knee;
(v)Incised Wound 6 Cm X 5 Cm On Left Leg Separating Left Foot From Left Leg, 32 Cm Below Left Knee Joint.
(b) Internal Examination;
(i) Stomach Contents Of: Contains 150 Gm Semi-digested Food Material.

22. The Post Mortem Report Of The Parts Of The Body Is As Follows:
(i)Incised Wound 10 Cm X 7 Cm Bone Deep On Neck At The Level Of III Cervical Vertebra Which Is Cut And Fractured Through And Through Separating Head From Body;
(ii)Incised Wound 6 Cm X 4 Cm Bone Deep On Right Wrist Joint Through And Through Separating Right Hand From Body With Cut And Fractured Of Underlying Bones;
(iii) Incised Wound 6 Cm X 5 Cm Bone Deep On Right Ankle Joint Through And Through Separating Right Foot From Body Cut And Fractured Underlying Bone;
(iv)Incised Wound 6 Cm X 5 Cm X Bone Deep In Left Ankle Joint Through And Through Separating Left Foot From Body With Cut And Fractured Underlying Bone.

23. The Post-mortem Of The Body Indicates That These Parts Broadly Correspond To The Body Of The Deceased. The Parts Of The Body Were Found In The Pant That The Deceased Was Wearing At The Time Of His Murder. It Is Established That These Parts Are Of The Deceased.

24. This Case Is Based On Circumstantial Evidence. The Law--when A Case Can Be Said To Be Proved Against An Accused On Circumstantial Evidence--has Been Established In Different Decisions (see Below For Citations)2. It Is As Follows:
(i)The Circumstances From Which The Conclusion Of Guilt Is To Be Drawn Should Or Must Be And Not 'may Be' Established.
(ii)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.
(iii)The Circumstances Should 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.

25. The Prosecution Has Pointed The Following Two Circumstances Against The Appellant:
(i)The Recovery Of The Weapon And The Parts Of The Body Have Been Done At The Instance Of The Appellant;
(ii)The Deceased Was Last Seen With The Appellant;

1st Circumstance: Proved―Recovery Is Valid
26. The Dead Body And The Cycle Was Recovered On 14.5.2005. Subsequently On 25.5.2005 Some Other Items Were Recovered:
(i)Clothes (white Colour Short Sleeve, Half Shirt, Blood Stained White Colour Baniyain And Blood Stained Underwear) (Ex Ka-18).
(ii)Parts Of Body (Ex Ka-20) Tucked Inside A Pant (Ex Ka-2).
(iii)Chaapar (the Weapon) (Ex Ka-3).
The Parts Of The Body Were Tucked Inside A Pant. The IO Has Made Two Separate Recovery Memos For Them: One For The Pant (Ex Ka-2) And The Other For The Parts Of The Body (Ex Ka-20)

27. Ramesh Kumar Was First Investigating Officer. He Has Recovered The Aforesaid Items. He Has Been Examined (PW-10). He Has Deposed That On 25.5.2005 First The Clothes Were Discovered Then The Appellant Was Arrested Thereafter. On His Disclosure, The Parts Of The Body (tucked Inside A Pant) And The Weapon Was Recovered. The Recoveries That Are At The Instance Of The Appellant (Ex Ka-2, 3 And 20) Are Also Singed By Him.

28. The Clothes Were Recognised By The Father Of The Deceased. This Fact Is Recorded In The Recovery Memo. This Is Also Deposed By The First IO (PW-10). It Is Proved That These Clothes Are Of The Deceased That He Was Wearing At The Time He Was Killed.

29. Chhote Lal Son Of Sukhamber (PW-2) Is Witness In Most Of The Recovery Memos (Ex Ka-2, 3, 15, 16, 17 And 20) But He Has Proved Ex Ka-2 And Ka-3. The Other Recovery Memos Including Ex Ka-20 (parts Of The Body) That Recovered Alongwith Ex Ka-2, Were Proved By The First IO (PW-10).

30. The Counsel For The Appellant Submitted That:
Recovery Should Be Disbelieved As There Is Delay;
The Appellant Has Been Implicated Due To Enmity.

31. There Is No Cross-examination Or Suggestion That Foul Smell Was Coming Out Of Well Which Could Have Indicated Presence Of Flesh In The Well. The Weapon And The Parts Of The Body Were Hidden From The General Public:
The Pant Alongwith Parts Of The Body Were Inside The Well. They Were Taken Out With The Help Of A Hook (कांटा) ;
Chaapar Was Recovered From The Tin Shed Over The Room On The Pumping Set Of One Idrish.
In Such A Situation, If There Is Any Delay Then The Recovery Cannot Be Faulted.

32. The Items Were Discovered As Soon As The Appellant Was Arrested. The Recovery Is Not Vitiated On The Ground That It Was Made After Some Time.

33. The Recovery Has Been Done By The Police. No Malafide Has Been Alleged Against The IO. The Parts Of The Body Decomposes And Rots. Had The Police Recovered It Earlier, They Would Have Shown It. There Is No Justification On The Part Of The Police To Wait Till The Arrest Of The Appellant. The Recovery Memos Also Record That They Have Been Recovered At The Instance Of The Appellant. They Are Signed By The Appellant Too. The Recoveries Are Valid And Are Not Vitiated.

2nd Circumstance: Last Seen―Not Proved
34. The Evidence Of Last Seen Has Been Deposed By Three Witnesses:
Guddi, The Wife Of The Deceased (PW-3);
Ravi Shanker, The Son Of The Deceased (PW-4); And
Laddu Yadav (CW-1).

Contradiction In Deposition Of Wife And Son
35. Guddi Devi (PW-3) Wife Of The Deceased, Has Deposed That:
The Deceased Used To Sell Eggs And Tea In A Gumati Near Road In The Village;
On The Fateful Day, She Had Gone Near Her Husband's Shop At 7:00pm To Purchase The Vegetables;
She Saw Sanjay Sitting There And Eating Egg;
Her Son Had Also Gone To The Gumti;
After Her Son Came Back From Gumti, The Deceased Also Came Back Home And Told Her That He Is Going To Mohan Ganj;

36. Ravi Shanker (PW-4), Son Of The Deceased, Has Deposed That:
On The Fateful Day, He Had Gone To His Father's Gumti;
He Saw Sanjay Sitting There And Eating Egg;
On The Invitation The Appellant, The Deceased Alongwith The Appellant Went To Mohan Ganj On My Cycle After Closing The Shop;
He Came Back Alongwith Items Of The Shop.

37. There Is Contradiction In Their Statements. According To Guddi (PW-3), The Deceased Came Back Home Before He Went To Mohan Ganj. However, According To Ravi Shanker (PW-4), The Deceased Went Away On A Cycle To Mohan Ganj Alongwith The Appellant Directly From The Shop And Never Came Back. The Case In The FIR Is Also That The Deceased Went From His Gumti To Mori And Then Was Never Seen.

38. This Contradiction Whether Sanjay Came To The House In The Fateful Night Or Not Creates Some Doubt On The Testimony Whether They Had Been To The Place Where The Deceased Used To Sell Eggs And Had Seen The Appellant There.

FIR Case Different
39. The Dead Body (without Body Parts) Was Recovered On The Next Day Morning. Everyone In The Family Had Gone On The Spot To See It. Thereafter, The FIR Was Lodged By The Father Of The Deceased. In This FIR, It Is Mentioned That In The Night At About 8:00 Pm One Suresh Pasi Informed The Deceased In The Gumti That Someone Is Calling Him At 'mori'. He Went With Him And Was Never Seen Thereafter. According To The FIR Version, The Deceased Had Gone With Suresh Pasi And Not The Appellant.

40. All Family Members Including Guddi (PW-3) And Ravi Shanker (PW-4) Were Present On The Next Day On The Spot. The Sub-inspector Was Also There. Thereafter The FIR Was Lodged. Yet, Different Version Is Mentioned In The FIR.

41. In The Cross-examination, The Wife Of The Deceased (PW-3) Has Deposed That Whatever She Has Deposed In The Court Was Never Informed To Sub-inspector At The Spot But Was Informed To Him After Three Days. If The Deceased Had Gone With The Appellant As Has Been Deposed Then This Ought To Have Been Informed On The Spot To The Sub-inspector And Not After Three Days. This Ought To Have Been Prosecution Case In The FIR.

Conduct Not Good―Yet Went With Appellant
42. Guddi (PW-3) And Ravi Shanker (PW-4) Have Deposed That:
The Conduct Of Sanjay Was Not Good;
The Deceased Used To Oppose Him; And
He Never Wanted That The Appellant Should Come To Their House.
It Is Strange That Despite This, The Deceased Had Chosen To Go Out With Him In The Night.

Court Witness Deposition―Doubtful
43. Laddoo Yadav (CW-1) Has Deposed As Court Witness. He Has Deposed That:
He Works In A Brick Kiln In Pyarepur;
On The Fateful Night, When He Was Going There At About 9:00 - 9:30pm Then He Passed Through Country Made Liquor Shop At Mohan Ganj. There He Saw The Appellant And The Deceased Drinking Liquor;
The Deceased Also Invited Him For Taking Liquor But He Said That As He Does Not Drink Liquor And Went To The Brick Kiln.

44. The Post-mortem Report Indicates Presence Of 150 Gms Of Semi-digested Food But There Is No Presence Of Alcohol. This Creates Doubt Whether CW-1 Had Seen The Deceased And The Appellant Together Drinking Liquor.

45. It Is Correct That The Doctor Was The Best Person To Depose Whether The Presence Of Liquor Could Be Noticed Or Not. Neither Any Question Nor Suggestion Was Put To Him. However, The Prosecution Cannot Take Any Benefit As Laddoo Yadav Is A Court Witness: He Was Not To Be Examined By The Prosecution. The Appellant Had No Knowledge What Will He Depose Or Whether He Will Be Examined Or Not. It Is The Prosecution That Should Have Examined Some Expert On The Point.

46. There Are Other Circumstances To Doubt The Testimony Of CW-1. CW-1 Has Deposed That:
He Works In A Brick Kiln But Neither Register Nor Any Documentary Evidence Has Been Produced To Show That He Had Gone There In That Night;
To His Knowledge, The IO Has Also Not Seen The Attendance Register At The Brick Kiln. The IO Also Does Not Depose That He Had Seen The Attendance Register);
He Does Not Take Liquor And Had Never Taken It With The Appellant Or The Deceased. Yet, He Had Gone To The Liquor Shop And Was Invited By The Appellant And The Deceased;
He Has Given Evidence Six Or Seven Time In Court Before That Date. He Appears To Be A Pocket Witness Of The Police And His Presence Is Doubtful.
It Will Not Be Proper To Place Any Reliance Upon His Testimony.

47. In Our Opinion, The Circumstance Of Being Last Seen Together Is Not Proved.

48. The Appellant Has Been Convicted Under Section 201 And 302 IPC. Is He Guilty Of Both Or Either Of Them?

Guilty Under Section 201 IPC
49. The Recovery Is Valid. The Recovery Of The Body As Well As Chaapar Are The Evidence For The Offence Of Murder. They Were Hidden So That They May Not Be Found And Disappear With Time. This Was With Intention Of Screening Offender From The Legal Punishment. The Appellant Is Guilty Under Section 201 IPC. His Conviction Under Section 201 IPC Is Upheld. But This May Not Be Said About The Conviction Under Section 302 IPC.

Not Guilty Of Murder
50.Motive Is Not Necessary Ingredient Of Murder But Assumes Importance In Case Of Circumstantial Evidence.

No Motive
51. There Is Some Hint Regarding Motive (see Cross-examination Of Guddi PW-3) So Far As Sant Lal Pattar Is Concerned. He Might Be Wanting Romantic Alliance With The Sister Of The Deceased That The Deceased Could Be Opposing. Sant Lal Pattar Was Also An Accused In This Case. However He Has Been Acquitted By Trial Court. There Is Neither Any Hint Nor Any Suggestion For Any Motive So Far As The Appellant Is Concerned.

52. The Method Of Killing The Deceased Is Cruel And Brutal:
The Body Of The Deceased Was Lying Naked. It Did Not Have Any Clothes;
The Legs, Hands, And Head Of The Deceased Were Chopped Off. All But One Hand Were Tucked Inside Pant And Thrown In The Well;
Some Blood Stained Clothes Were Found At The Third Place In The Dry Canal.

53. It Appears That Whosoever Had Killed The Deceased Was Very Angry With Him And The Murder Was Committed With Rage And Vengeance. This Can Only Be Done By A Person Who Had Strong Motive To Do So And There Is No Motive So Far As The Appellant Is Concerned.

Reason For Giving Benefit Of Doubt
54. This Case Is A Case Of Circumstantial Evidence. It Is Correct That We Have Upheld The Recovery. We Have Not Believed The Circumstance Of The Last Seen Together. There Is No Motive For The Murder, FIR Version Was Different, There Are Other Doubts Too. The Proved Circumstance (namely Recovery At The Instance Of The Appellant) Does Not Lead To Only One Hypothesis Namely Murder By The Appellant. It Cannot Be Said That The Prosecution Has Proved Its Case Beyond Reasonable Doubt Under Section 302 IPC. We Give Benefit Of Doubt To The Appellant So Far As Charge Of Murder Is Concerned.

55. Our Conclusions Are As Follows:
(i)The Recovery Of The Parts Of The Dead Body And Weapon Had Been Done On The Instance Of The Appellant. It Is Legal And Is Not Vitiated;
(ii)The Conviction Of The Appellant Under Section 201 IPC Is Upheld;
(iii)There Is No Credible Evidence To Show That:
The Appellant Was Having Egg In The Gumti Of The Deceased: Or
He Was Having Liquor With The Deceased In Mohan Ganj; Or
He Has Any Motive To Kill Him;
(iv)The Prosecution Has Not Been Able To Prove Its Case Beyond Reasonable Doubt Against The Appellant Under Section 302 IPC.

56. In View Of Our Conclusion, The Reference Is Not Accepted. The Appeal Is Partly Allowed Against The Conviction And Sentence Dated 29.7.2009 And 30.7.2009 Respectively Passed By Additional Sessions Judge, Court No. 6, Allahabad In ST No. 25 Of 2006. The Conviction Of The Appellant Under Section 302 IPC Is Set Aside But His Conviction Under Section 201 IPC Is Maintained. The Appellant's Sentence Is Reduced To Five Years Rigorous Imprisonment But The Fine And Default Stipulation Is Maintained. He Is In Custody; He Will Serve Out His Remaining Sentence.

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