Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : S.302 IPC-cased Based On Circumstantial Evidence Failed To Prove Guilt Beyond Doubt-accused Acquitted.
JUDGEMENT TITLE : Dayashankar Vs. State Of U.P On 19/11/2007 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 2385 OF 1982
CORAM : Hon'ble Raghunath Kishore Rastogi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD


RESERVED.
Criminal Appeal No. 2385 Of 1982
Daya Shanker And Three Others . . . .. . . . . . . . . . . . . .Appellants.
Versus
State Of U.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .Respondent.
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Hon'ble K.S.Rakhra,J.
Hon'ble R.K. Rastogi,J.

( Delivered By Hon'ble R.K.Rastogi,J. )
. . . .

This Is An Appeal By Daya Shanker, Sarju Prasad, Bhagwati @ Nachkau And Ayodhya Against Judgment And Order Dated 2.9.1982 Passed By Sri Dinesh Chandra, Then IVAddl. Sessions Judge, Allahabad In Sessions Trial No. 78 Of 1982, State Vs. Daya Shanker And Others, Under Sections 302/34 And 201/34, I.P.C. Of Police Station Karchhana District Allahabad.
The Facts Giving Rise To This Appeal Are That On 8.10.1980 At About 8.30 A.M. Chhotey Lal Pandey Lodged F.I.R. At Police Station Karchhana District Allahabad With These Allegations That He Is Resident Of Village Tikri Police Station Karchhana District Allahabad. Accused Bhagawati, Ayodhya And Kanhaiya Lal Had Enmity With His Brother Mani Lal. On 7.10.1980 Mani Lal Had Gone To The Shop Of Bhagawat To Take Betel Leaves. He Left That Place At 10 A.M. But Did Not Return Back To His House Upto Evening. Then Chhotey Lal Pandey Etc. Started To Search Him But No Trace Of Mani Lal Was Found, Hence, Chhotey Lal Suspected That Aforesaid Bhagawati Prasad Etc. Might Have Confined Mani Lal Somewhere With An Intention To Kill Him And Prayed That Necessary Action Should Be Taken In The Matter.
On The Basis Of The Above Report, The Police Registered The Above Case Against The Said Three Persons Under Section 364, I.P.C. Dead Body Of Mani Lal Was Found In The Field Of Satya Narain On 9.10.1980 At 2 P.M. The Dead Body Was Sent For Postmortem Examination. The Postmortem Examination Was Conducted On 10.10.1980 At 4.20 P.M. And In The Opinion Of The Doctor, Death Had Taken Place About 3 - 4 Days Ago And The Entire Body Had Been Decomposed , And Eyes, Ears, Nose, Lips And Tongue Of The Body Were Missing. There Were Maggots And Insects In The Body And Cause Of Death Could Not Be Ascertained Due To Decomposition, Hence, Viscera Was Preserved. However, It Is Not Clear Whether Viscera Was Sent For Chemical Examination Or Not, And No Viscera Report Has Been Produced By The Prosecution.
After Recovery Of The Dead Body The Case Was Converted Under Section 302/201, I.P.C. And The Police After Completion Of The Investigation Submitted A Charge Sheet Against The Above Named Accused Bhagawati Prasad, And Ayodhya Prasad, Named In The F.I.R. And Against Daya Shanker And Sarju Prasad,whose Names Had Come Into Light During Investigation. No Charge Sheet Was Submitted Against Kanhaiya Lal, Named In The F.I.R.
All The Above Named Four Accused Persons Were Charged Under Sections 302/34 And 201/34 I.P.C. They Have Pleaded Not Guilty And Claimed To Be Tried.
The Prosecution Produced Onkar Nath Pandey As P.W.1. His Statement Was Recorded On 4.8.1982 And He Stated That About 21-22 Months Ago, He Had Gone To The Grinding Machine Shop Of Ram Kishan At Village Tikri And Was Returning Back To His Village Gidhora At About 7 --8 P.M., And When He Reached Near The Bridge Towards West Of Tikri He Saw The Accused Nachkau @ Bhagwati, Daya Shanker, Ayodhya And Sarju Prasad Carrying A Bag In Their Hands. He Enquired From Them About The Contents Of The Bag And Then Nachkau Told That There Was Manure In That Bag, Then He Proceeded To His House But On The Third Day He Came To Know That The Dead Body Of Mani Lal Was Found Near That Place, Then He Visited That Place And Upon An Inquiry Made By The Investigating Officer He Had Told That He Had Seen All The Four Accused Persons Carrying The Bag With Them.
Vishwanath Was Examined As P.W.2. He Stated That 21-22 Months Ago At About 10A.M. He Was Coming From Village Barsabal To His Village Gidhora And He Reached Village Tikri At 10 A.M. Mustaq Ahmad Alias Khatkhat Was Accompanying Him. He Passed Infront Of The House Of Chhotey Lal Pandey And Saw That All The Four Accused Persons Were Dragging Mani Lal Into The House Of Sarju Prasad. Thereafter He Came To Know That Mani Lal Alias Mani Shanker Had Disappeared.
Lala Singh Alias Rajeshwari Prasad Was Examined As P.W.3.He Stated That 21-22 Months Ago At About 10.30 A.M. Witness Shashi Singh Came To His House And Told Him That He Had Come From Jari Bazar And He Had Seen The Accused At Sehra-Mohra. Thereafter He Had Given Information At The Police Station Karchhana On 9.10.1980 At 2 P.M. That He Had Seen Dead Body Of Mani Lal In The Field Of Satya Narain.
Shashi Singh Has Been Examined As P.W.4. He Stated That 21-22 Months Ago He Was Coming From Jari Bazar And At Sehra Mohra Accused Nachkau @ Bhjagwati Prasad Ayodhya Prasad, Sarju And Daya Shanker Met Him At About 9 - 10 A.M. They Stopped Him And Stated That He Was Thakur And Zamindar And They Had Murdered Mani Shanker Two Days' Ago And Had Thrown His Dead Body In The Field Of Satya Narain And That He Should Protect Them. Then In Reply He Stated That He Would Not Say Any Thing To Any One. Thereafter He Told Lala Singh And Mustaq Of His Village That The Accused Had Murdered Mani Lal And His Dead Body Was Lying In The Field Of Satya Narain. Then He, Lala Singh And Mustaq Went To The Field Of Satya Narain Where The Dead Body Was Lying .
The Statement Of Chhotey Lal Was Recorded As P.W.5. He Stated That Mani Lal Was His Brother And He Was Acquainted With Accused Bhagawati Prasad, Ayodhya, Kanhaiya Lal. Bhagawati Prasad's Son-in-law Mangla, Who Was Resident Of Village Panasa, Had Disappeared About 1 ?? Years Before The Incident Of Murder Of Mani Lal. Bhagawati Prasad, Ayodhya And Kanhaiya Lal Had Suspicion That Mani Lal Had Murdered Mangla And Had Disposed Of His Dead Body, So They Were On Inimical Terms With Mani Lal And So They Had Murdered Mani Lal. He Further Stated That When Mani Lal's Whereabouts Could Not Be Known, He Had Gone To The Police Station And Had Lodged The Report Ex.Ka 1.
Sri Mukhtar Ahmad Was Examined As P.W.6. He Was Accompanying Vishwanath Prasad Pandey P.W.2 On 7.10.1980 At 10 A.M. And He Had Seen The Accused Persons Dragging Mani Lal Into The House Of Sarju Prasad.
Mustaq Ahmad Was Examined As P.W.7. He Stated That He Was Acquainted With Mani Lal Alias Mani Shanker And About 1?? - 1?? Years Ago He Was Standing At The Door Of Lala Singh ( P.W. 3 )and At That Time Thakur Shashi Singh (P.W.4) Reached There And Told That He Had Seen Daya Shanker, Ayodhya Prasad, Sarju And Nankau At Sehra Mohra And Then They Went To That Field Where The Dead Body Of Mani Lal Was Lying. Thereafter Inquest Report Of The Dead Body Was Prepared In His Presence On 9.10.1980 And He Had Signed This Inquest Report Ex.Ka 2.
Dr.R.N.Sharma, Who Was Examined As P.W. 8, Had Performed Postmortem Of The Dead Body Of Mani Lal On 10.10.1980 And Had Prepared Postmortem Report, Ex.Ka 3.
Sri Chaturgan Misra, Head Constable, Was Examined As P.W.9. He Had Prepared Chik Report Ex.Ka 4 On The Basis Of F.I.R. And Had Made Its Endorsement In The G.D. Ex.Ka 5. He Has Further Stated That On Receipt Of The Dead Body Of Mani Lal He Had Registered A Case Under Section 302 I.P.C. And Had Made An Endorsement In The G.D., Ex.Ka 6. He Stated That Accused Sarju Prasad And Daya Shanker Were Arrested And Were Admitted To The Police Station At 4.30 P.M. On 15.10.1980 And This Fact Was Noted In The G.D. At Rapat No. 27, Which Is Ex.Ka 7.
Sri Paras Nath Singh, Sub Inspector, P.W. 10 Had Investigated The Case .Torch Of Onkar Nath Pandey, In The Light Of Which He Had Seen The Bag In The Hands Of The Accused Persons, Was Produced Before Him And Then He Prepared Its Supurdaginama, Ex.Ka 8. He Further Stated That Thereafter This Case Was Investigated By The Station Officer Sri Markandey Singh And After Completion Of The Investigation Sri Markandey Singh Had Submitted Charge Sheet In The Case, Which Is Ex.Ka 9. He Also Proved The Site Plan Of The Place Of Incident, Which Is Ex.Ka 10 And That Of The Place Of Recovery Of The Dead Body, Ex.Ka 11.
Sri Raghuraj Singh, Constable, Was Examined As P.W.11. He Had Taken The Dead Body Of Mani Shanker From Tikri To Mortuary In Sealed Condition For Post-mortem Examination.
This Is The Entire Prosecution Evidence On Record.
All The Accused Have Denied The Prosecution Allegations In Their Statements Under Section 313 Cr.P.C. Accused Daya Shanker Stated That He Was Grazing Buffaloes At The Time Of Incident And Police Arrested Him In The Village And His Uncle Sarju Prasad Was Lying Ill In His House But The Police Arrested And Challaned Sarju Prasad Also And Falsely Implicated Them In This Case.
The Same Thing Was Stated By Sarju Prasad, Accused.
Accused, Bhagwati Prasad Stated That On 8.10.1980 Police Arrested Him, Ayodhya Prasad And Kanhaiya Lal And Kept Them At The Police Station For The Entire Night Of 8.10.1980, And Then Released Him On 9.10.1980 And Arrested Sarju Prasad And Then He Surrendered Before The Court And Obtained For Bail.
Accused, Ayodhya Prasad Stated That He Had Been Arrested By The Police On 8.10.1980 But The Police Released Him On 9.10.1980 And Then He Surrendered Before The Court And Obtained Bail.
The Accused Did Not Adduce Any Evidence In Defence.
The Learned Addl. Sessions Judge After Hearing The Case Came To The Conclusion That Charges Under Sections 302/34 And 201/34 I.P.C. Were Sufficiently Proved Against The Accused Persons. He, Therefore, Convicted Accused Daya Shanker, Sarju Prasad, Bhagwati Prasad And Ayodhya Prasad Under Section 302/34 I.P.C. And Sentenced Them To Life Imprisonment. They Were Also Convicted Under Section 201/34 I.P.C. And Were Sentenced To Two Years Rigorous Imprisonment. It Was Further Provided That Both The Sentences Shall Run Concurrently. Aggrieved, With The Aforesaid Judgment And Order, Accused, Daya Shanker, Sarju Prasad, Bhagwati Prasad And Ayodhya Prasad Filed This Appeal.
The Appellant Bhagwati Prasad Died During Pendency Of This Appeal, Hence, The Appeal In Respect Of Bhagwati Prasad Abated.
We Have Heard Sri P.N.Misra, Learned Senior Counsel, For The Remaining Appellants, Daya Shanker, Sarju Prasad And Ayodhya Prasad, And Sri Kamlesh Kumar Tiwari, A.G.A. For The State And Perused The Record.
It Is To Be Seen That In This Case There Is No Direct Evidence Of Murder Against The Accused Appellants And The Entire Case Is Based On Circumstantial Evidence.
The Learned Addl. Sessions Judge Has Relied Upon The Following Evidence For Conviction Of The Accused Persons:

1.Evidence Of Chhotey Lal P.W.5 Regarding Motive That Mangla Son-in-law Of Bhagwati Prasad Had Disappeared 1 ?? Years Before The Date Of Incident, So Bhagwati Prasad, Ayodhya And Kanhaiya Lal Were On Inimical Terms With Mani Lal Because They Suspected That Mani Lal Had Murdered Mangla Prasad And This Was The Motive For The Murder Of Mani Lal.
2.The Statements Of Vishwanath Prasad P.W.2, And Mukhtar Ahmad P.W.6, Who Have Stated That On 7.10.1980 At About 10 A.M. They Saw Accused Sarju Prsad, Daya Shanker, Ayodhya Prasad And Bhagwati Prasad Dragging Mani Lal Into The House Of Sarju Prasad.
3.Statement Of Onkar Nath Pandey P.W.1, Who Has Stated That About 21-22 Months Ago When He Reached Near The Well Towards West Of Tikri At About 7 To 8 P.M. He Saw The Accused Persons Carrying A Bag With Them And On Inquiry They Told That The Bag Contained Manure, But On Third Day The Dead Body Of Mani Lal Was Found Near That Place.
4.The Extra Judicial Confession Of The Accused Persons Before Shashi Singh, P.W.4.
The Learned Counsel For The Appellants Submitted That The Evidence In Support Of The Aforesaid Circumstances Is Not Trust Worthy. He Pointed Out That Chhotey Lal P.W.5 Had Admitted In His Cross Examination That No Report Was Lodged Against Him Or Mani Lal Regarding Dis-appearance Of Mangla And No Case Was Filed Against Them In Respect Of So Called Murder Of Mangla. He Submitted That If The Accused Had Any Suspicion That Mani Lal Had Murdered Mangla, Who Was Son-in-law Of Accused Bhagwati, They Must Have Lodged Report Against Mani Lal And Their Omission To Lodge Any Report Against Mani Lal Falsifies The Allegation Of Prosecution That The Accused Had Suspicion In Their Mind That Mani Lal Had Murdered Mangla.
The Learned Counsel For The Accused Appellant Submitted That In This Way The Motive As Propounded By The Prosecution Falls On The Ground.
As Regards The Allegation That Vishwanath Prasad P.W.2 And Mukhtar Ahmad P.W.6 Saw Mani Lal Being Dragged By The Accused Persons Into The House Of Sarju Prasad On 7.10.1980 At About 10 A.M.,he Submitted That Marriage Of The Daughter Of Shiv Murat, Real Brother Of Chhotey Lal And Mani Lal Had Taken Place With The Son Of Vishwanath Prasad P.W.2, As Admitted By P.W.1 Onkar Nath Pandey In His Statement. He Submitted That It Is Highly Improbable That Vishwanath, Who Was A Close Relative Of Mani Lal Saw Mani Lal Being Dragged By Four Accused Persons Inside The House Of Sarju Prasad, But He Inspite Of The Fact That He Was Not Alone And Was Accompanied By Mukhtar Ahmad P.W.6 Did Not Take Any Action To Rescue Mani Lal, Nor Did He Inform Chhotey Lal Etc. That Mani Lal Was Being Forcibly Dragged By The Accused Persons.
The Learned Counsel For The Appellants Submitted That Above Conduct Of Vishwanath Prasad Is Completely Un-natural And It Does Not Inspire Any Confidence And So The Statements Of Vishwanath Prasad P.W.2 And Mukhtar Ahmad P.W.6 That They Saw Mani Lal Being Dragged By The Accused Persons Cannot Be Believed.
As Regards The Statement Of Onkar Nath Pandey P.W.1 That He Had Seen The Accused Persons At About 7 To 8 P.M. In The Night Carrying A Bag With Them And That Upon Inquiry They Told Him That The Bag Contained Manure, And That On Third Day After This Incident The Dead Body Of Mani Lal Was Found Near That Place., The Learned Counsel For The Accused Appellant Submitted That It Cannot Be Concluded Simply On The Basis Of Recovery Of The Dead Body Of Mani Lal Near That Place, Where The Accused Had Been Allegedly Seen Carrying The Bag With Them, That Dead Body Of Mani Lal Was Being Carried In That Bag, When They Had Boldly Replied That The Bag Contained Manure.
As Regards The So Called Extra Judicial Confession Of The Accused Persons Before P.W.4 Shashi Singh, The Learned Counsel For The Accused Appellant Submitted That This Story Of Extra Judicial Confession That The Accused Persons Met Shashi Singh ( P.W. 4) Who Was Coming From The Market And That They Stopped Him At Sehra Mohra In The Broad Day Light At 9 To 10 A.M. And Said To Him That They Had Murdered Mani Shanker Two Days Ago And Had Thrown His Dead Body In The Field Of Satya Narain And Since He Was Thakur And Zamindar Of The Village, He Should Protect Them Is Far Away From Belief. He Submitted That The Aforesaid Mode Of Extra Judicial Confession Is Too Much Un-natural And Does Not Inspire Any Confidence. He Further Pointed Out That According To The Statement Of Shashi Singh, He Had Told About The Extra-judicial Confession Of Accused Persons To Lala Singh P.W.2 And Mukhtar Ahmad P.W.6, But Both These Witnesses Have Not Stated Even A Single Word About So Called Confession Of The Accused Persons In Their Statements Before The Court; And In This Way The Statement Of Shashi Singh (P.W.4) On The Point Does Not Create Any Confidence.
The Learned Counsel For The Appellants In This Way Contended That All The Circumstances Which Have Been Relied Upon By The Trial Court For Conviction Of The Accused Do Not Inspire Any Confidence And So The Accused Appellant Should Be Acquitted.
The Learned Counsel For The Appellants Also Cited Before Us A Ruling In The Case Of 'Bhupendra Nath Prasad Vs. State Of Bihar' 1992 SCC(Crl.)701. It Was A Case Of Poisoning , The Case Was Based On Circumstantial Evidence Only, And The Cause Of Death Was Not Conclusively Established, So The Accused Was Acquitted By The Hon'ble Apex Court. He Also Cited Before Us Another Ruling Of The Hon'ble Supreme Court In 'Madho Singh Vs. State Of Rajasthan' 2002(45) ACC 1184. In This Case Of Murder, There Was Evidence Of Last Seen Only, And Motive And Place Of Occurrence Were Not Proved, And Death Was Not Proved To Be Homicidal And So It Was Held That The Accused Could Not Be Convicted For Murder Merely On The Basis Of Suspicion And The Evidence Of Last Seen. He Contended That In The Present Case Also It Is Also Not Proved That There Was Homicidal Death Of Mani Lal, As The Doctor Conducting Postmortem Could Not Ascertain The Cause Of Death, So He Preserved Viscera; But Viscera Report Has Not Been Produced And There Is No Sufficient Circumstantial Evidence Connecting The Accused With The Crime, And So The Accused Should Be Acquitted.
Considering All The Facts And Circumstances And The Law Laid Down By Hon'ble Apex Court Quoted Above, We Are Of The View That The Prosecution Has Failed To Prove Its Case Against The Accused Persons Beyond All Reasonable Doubts And So The Accused Persons Deserve To Be Awarded Benefit Of Doubt And Consequently They Deserve To Be Acquitted Of The Charges Levelled Against Them. The Trial Court Fell In Error By Convicting The Accused For The Offences Under Sections 302/34 And 201/34 I.P.C.
The Appeal, Therefore, Deserves To Be Allowed And The Conviction Of The Accused -appellants For The Offences Under Sections 302/34 And 201/34 Deserves To Be Set Aside.
The Appeal Is Allowed And The Conviction Order Passed By The Learned IV Addl. Sessions Judge, Allahabad In Sessions Trial No. 78 Of 1992, State Vs. Daya Shanker And Others, Convicting The Accused-appellants, Ayodhya Prasad, Sarju And Daya Shanker, And Sentencing Them Under Sections 302/34 And 201/34, IP.C. Is Set Aside And They Are Acquitted Of The Aforesaid Charges. They Are On Bail. They Need No Surrender. Their Bail Bonds Are Cancelled And Sureties Discharged.
A Copy Of This Judgment Be Certified To The Trial Court For Information And Execution.

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