Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : S.302 IPC Circumstantial Evidence Of Last Seen-extra Judl.confession-accused Acquitted.
JUDGEMENT TITLE : Nawal Singh Vs. State Of U.P. On 15/11/2007 By Allahabad High Court
CORAM : Hon'ble Kawaljeet Singh Rakhra,J. And Hon'ble Raghunath Kishore Rastogi,J.


Court No. 54.
Criminal Appeal No. 2008 Of 1982

Nawal Singh . . . . . . . . . . . . . . .. . . . . . . . . . . . . .Appellant.
State Of U.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Respondent.
Criminal Appeal No. 2009 Of 1982

Sudesh Pal . . . . . . . . . . . . . . . .. . . . . . . . . . . . . .Appellant.
State Of U.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Respondent.
Hon'ble K.S.Rakhra,J.
Hon'ble R.K. Rastogi,J.

These Are Two Appeals Against Judgment And Order Dated 10.8.1982 Passed By The VIth Addl. Sessions Judge, Ghaziabad In Sessions Trial No. 229 Of 1978, State Vs. Sudesh Pal And Another, Whereby Both The Appellants In Two Appeals Have Been Convicted Under Section 302/34 And Sentenced To Life Imprisonment.
As Per The Prosecution Story, One Kamal Singh, Brother Of P.W.2 Shish Pal, Was Done To Death Some Time In Between The Night Of 31.5.1976/1.6.1976 In Village Atoota Within The Circle Of Police Station Babugarh District Ghaziabad. He Was At His Tube-well And Was Killed By Some Unknown Persons. First Informant Shish Pal Singh Came To Know Of This Incident Through His Brother Hari Ram At Hapur, He Was Also Told That At About 10 P.M. Deceased Kamal Singh Was On The Roof Of His Tube-well And Was Taking Meals When Two Unknown Persons Were Also Sitting With Him. This Was Witnessed By P.W.3 Hari Raj Singh, Village Pradhan And Resident Of Village Simrauli And His Servant Dungar P.W.4, Who Also Was Accompanying Him. They Were Going To Milk Dairy Of Hari Raj Singh In Village Bachhlauta On His Tractor When The Tractor Broke-down Near A Brick-kiln In Village Upera And They Were Going To Bachhlauta On Foot. The Informant Was Further Told That At About 10.30 P.M. A Mechanic Had Heard Two Persons Calling Kamal Singh By Name. Shish Pal Singh On The Information Conveyed To Him Lodged A Report Stating The Above Facts And Showing His Suspicion That Kamal Singh Might Have Been Done To Death By Those Four Persons, I.e. Those Two Who Were Sitting On The Roof Of The Tube-well With Him And Those Two Who Were Later On Seen Calling Him By Name Loudly. On The Basis Of That Report A Case Was Registered On 1.6.1976 Under Section 302, I.P.C.
Investigation Of This Crime Was Taken Up By Harish Chandra Rana, S.I. P.W.8. Since It Was A Blind Murder, The Link Which, According To The Prosecution, Came To Light Between Crime And The Appellants, Was An Extra Judicial Confession Allegedly Made By Appellant Sudesh Pal On 13.6.1976 Before Shyam Singh P.W.5, Who Was A Land Holder At Village Upera And Is Related To Pradhan Of Village Upera. The First Informant Shish Pal Is Pradhan Of Village Atoota. It Is Stated That The Extra-judicial Confession Was Made By Sudesh Pal Appellant In Presence Of Village Pradhan Kaley Singh Requesting Shyam Singh To Come To His Rescue. Sudesh Pal Told Him That He Had Committed Murder Of Kamal Singh On The Instigation Of One Afla Singh. He Disclosed To Him That Deceased Kamal Singh Of Village Atoota And Afla Singh Of Village Bachlauta Had Illicit Relations With A Lady Allabuxi And In That Connection Afla Singh Was Having Ill Will Against Kamal Singh And Wanted To Eliminate Him. Afla Singh Also Instigated Him By Saying That Deceased Kamal Singh Has Constructed A Tube-well In Village Atoota Near The Tube Well Of Sudesh Pal Appellant And This Has Reduced Demand Of Water Supply From Other Villagers And So Sudesh Pal's Income Had Been Adversely Affected. Motivated By This Incident And The Instigation Of Afla Singh, Sudesh Pal Appellant With The Assistance Of His Servant Dunger And Afla Singh And Another Committed This Murder. Sudesh Pal Appellant Also Disclosed Before Shyam Singh That On The Fate Ful Night He And Kamal Singh Had Consumed Alcohol And Thereafter When Kamal Singh Became Sleepy, The Appellant Went To Bachhlota And Then He Returned Again To The Said Tube-well Along With Afla And Other Person. He Then Called Kamal Singh Loudly But Did Not Get Any Response. He Then Went To The Roof Of The Tube-well Of Kamal Singh And Attacked Him. Kamal Singh Jumped From The Roof And Appellant Sudesh Pal Also Jumped On Him, And Kamal Singh Was Then Attacked By Four Persons,i.e. Sudesh Pal, His Brother-in-law, Nawal Singh, Afla And Another.
The Prosecution Further Claimed That Shyam Singh P.W.5 On 13.6.1976 Itself Disclosed To The Police That Sudesh Pal Had Made This Extra Judicial Confession Before Him. Thereafter Sudesh Pal And Nawal Were Arrested On 14.6.1976 And Were Subjected To Test Identification Parade On 24.2.1977. Four Witnesses Hari Raj, Dungar, Alwar And Shivbaran Singh Participated In Test Identification Parade. Nawal Singh, Who Was Resident Of Village Bichhlauta Was Rightly Identified By Four Witnesses Whereas Sudesh Pal Appellant Was Identified By Hari Raj And Dungar.
On The Basis Of The Above Circumstances And Evidence The Police Submitted Charge Sheet Against Nawal Singh And Sudesh Pal. There Is Nothing On Record To Show As To What Step Was Taken In Regard To Afla Singh Of Village Bichhlauta. It May Be Mentioned Here That Alwar Singh And Shiv Baran Singh Both Are Residents Of Village Atoota And It Has Come In The Evidence That Alwar Singh, Shiv Baran Singh, Hari Raj And Dungar Were Coming On A Tractor From Kuchesar Road. The Tractor Belonged To Alwar. The Tractor Broke Down Near The Brick-kiln At Rupera. Hari Raj And Dungar Went Towards Bichhrota Whereas Alwar And Shiv Baran Singh Spent Night On The Tractor Itself. The Police Has Not Recovered Any Weapon Of Assault Or Blood Stains On The Clothes Of Any Of The Appellants. The Dead Body Of Kamal Singh Was Found In A Field At A Distance Of About 40 Paces From The Tube-well. It Was Sent For Autopsy Which Was Performed On 1.6.1976 At 4 P.M. The Victim Had Incised And Lacerated Wounds 12 In Number On His Body, Which Were The Cause Of His Death.
Dr.Vinay Krishna Matin P.W.1, Who Had Performed Autopsy, Had Opined That The Victim Might Have Died Six Hours After Taking His Last Meal.
The Stand Taken By The Appellants In The Trial Court Was That They Were Known To Identifying Witnesses From Before And That They Have Been Falsely Implicated On Account Of Political Enmity.
Before The Trial Court, Nine Witnesses Were Examined By The Prosecution But No Evidence Was Led By The Appellants In Their Defence.
The Witnesses Examined By The Prosecution, Namely, Hari Raj P.W.3, Dungar P.W.4 And Alwar P.W.6, Claimed To Have Seen The Deceased Sitting With The Appellants On 31.5.1976 At About 10 P.M. On His Tube-well. Shyam Singh P.W.5 Is The Sole Witness Of Extra-judicial Confession. P.W.2 Shish Pal, The Informant, Too, Had No Personal Knowledge About The Facts Mentioned Above, And He Had Lodged The Report On The Basis Of The Information Given By Hari Raj, Who Also Later Became The Scribe Of The Report. Dr. Vinay Krishna Matin P.W.1 Is The Witness Who Had Conducted Postmortem Examination Of The Dead Body Of The Deceased. P.W.7 Digvijay Singh Registered The Crime At The Police Station On Lodging Of The Report By The First Informant. P.W.9 Vijay Pal Singh Is A Constable And Formal Witness Of The Fact That The Accused Were Kept Baparda. P.W.8 Harish Chandra Rana Is The Investigating Officer.
Before Proceeding Further, A Reference May Be Made To Topography Of The Village And Distance Of One Place From The Other, Which Shall Be Relevant In Order To Appreciate The Evidence.
The Incident Took Place In Village Atoota And The Witnesses Hari Raj Singh And Dungar Were Residing At Village Simrauli, Which Is At A Distance Of About 3 To 4 Miles From Village Atoota. This Has Come In The Statement Of P.W.2 Shish Pal And Also In The Statement Of P.W.4 Dungar. Bichhlauta Is The Place Where Hari Raj Had His Milk Dairy And To This Dairy He Was Going With Dungar At The Time When He Last Saw Kamal Singh At The Tube-well. This Village Bichhlauta Is Also 3 To 3 ?? Miles Away From Village Atoota.
The Trial Court On The Basis Of The Testimony Of Hari Raj, Dungar, Alwar Coupled With The Testimony Of Shyam Singh And Keeping In View The Circumstances Of The Case Found The Charge Against The Two Appellants Proved And Accordingly Convicted Them And Sentenced Them To Life Imprisonment, As Mentioned Earlier.
We Have Heard Sri Onkar Singh Assisted By Sri Amit Chaudhary,learned Counselfor The Appellants And Sri Kamlesh Kumar Tiwari, Learned A.G.A. For The State, And Have Also Gone Through The Entire Evidence On Record As Well As The Judgment Of The Trial Court.
Argument Of Sri Onkar Singh, Learned Counsel For The Appellant Is That The Prosecution Witnesses In This Case Were Wholly Un Reliable And Untrust Worthy. The Learned Counsel Argued That There Was No Occasion For The Appellant Sudesh Pal To Make Extra Judicial Confession Before Shyam Singh P.W.5 And Also There Was No Occasion For Hari Raj And Dungar To Go To The Tube-well Of Kamal Singh In The Night On 31.5.1976 And They Had No Occasion To See That The Appellants Were Sitting With Kamal Singh At The Roof Of His Tube-well. He Has Further Argued That Nawal Singh Is The Brother-in-law ( Sala ) Of Sudesh Pal And Was Residing In An Adjoining Village Which Was At A Distance Of One Mile Only. He Was Visiting The Appellant Sudesh Pal In Village Atoota And Further The Witnesses Alwar And Shiv Baran, Who Are Residents Of Atoota Knew The Two Appellants From Before. Similarly, He Argued That Hari Raj And Dungar, Who Are Also Of Adjoining Village, Had Known Nawal Singh From Before. The Test Identification Against Nawal Singh And Sudesh Pal Had Accordingly No Legal Value. He Further Argued That There Was No Motive Indicated By The Prosecution For Commission Of This Crime.
The Learned A.G.A.,on The Other Hand, Contended That The Extra Judicial Confession Made By Appellant Sudesh Pal Before P.W.5 Shyam Singh On 13.6.1976 Is A Genuine And Honest Confession, And It Contained The Motive For Commission Of Crime. He Has Further Argued That Extra Judicial Confession Stands Duly Corroborated By The Statement Of Hari Raj, Dungar And Alwar.
We Have Examined The Entire Evidence On The Record And The Aforesaid Circumstances And Submissions Made By The Learned Counsel.

The Link Between The Present Crime And The Appellants Was First Indicated In The Extra Judicial Confession Made By Sudesh Pal Before Shyam Singh P.W.5. The Extra Judicial Confession Is By Its Nature A Weak Type Of Evidence And A Duty Is Cast Upon The Court To Look For Corroboration From Other Reliable Evidence On Record. This Was Observed By Hon'ble Apex Court In 'Balwinder Singh Vs. State Of Punjab' 1996 SCC(Cri) 59.
A Careful Examination Of The Circumstances Would Reveal That Extra Judicial Confession In Instant Case Is Not Reliable. Naturally An Extra Judicial Confession Is Made By An Accused Before A Person From Whom He Generally Expects Some Help And Is Confident That The Person Before Whom He Is Making Extra Judicial Confession Would Not Betray Him. There Is Nothing On Record To Show That Sudesh Pal Resident Of Village Atoota Had Any Relationship Or Friendship With Shyam Singh P.W.5, Who Is An Agriculturist And Relation Of Pradhan Of Village Simrauli Kaley Singh. Although He Admitted That He Has Contact With The Local Police, Yet In Our Opinion It Was Not Sufficient To Motivate Sudesh Pal To Make Extra Judicial Confession, As Claimed By The Prosecution. There Is Nothing On Record To Show That Between The Date Of Incident And The Date Of The Alleged Extra Judicial Confession There Was Any Circumstance Raising Suspicion About Involvement Of Sudesh Pal In Commission Of The Crime. The Police Was Not Searching Sudesh Pal Nor Was Raiding His House, So It Is Very Difficult To Believe That Sudesh Pal Made Extra Judicial Confession Before A Stranger With A Prayer That He Should Come To His Rescue.
It Is Further Significant To Note That Prosecution Has Examined Only Shyam Singh P.W.5 To Prove Extra Judicial Confession, Which Was Allegedly Made In Presence Of Village Pradhan Kaley Singh. The Prosecution Has Not Produced Kaley Singh. The Prosecution Has Thus Deprived The Defence Of The Opportunity To Cross Examine The Witness. The Alleged Extra Judicial Confession Refers To Motive For Which The Offence Was Committed. Although Shish Pal, Who Was Examined As P.W.2, Could Have Knowledge About The Motive For Which The Evidence Was Recorded, Yet In His Deposition He Has Not Mentioned Anything About The Alleged Motive. He Remained Fully Silent About The Illicit Relations Of Allabuxi With Afla Singh And Kamal Singh, Deceased. He Is Also Silent About Any Controversy Or Dis-pleasure Or Inconvenience With Regard To Boring Of Tube-well By Kamal Singh. There Is Also No Evidence That Sudesh Pal Already Had A Tube-well And Kamal Singh Subsequently Got A New Tube-well Bored Near His Tube-well.
We Are, Therefore, Of The Opinion That The Prosecution Has Not Adduced Any Evidence To Establish Motive For Commission Of Crime. As Mentioned Earlier No Body Claims To Have Seen The Commission Of The Murder. The Case Rests On Circumstantial Evidence And The Evidence Of Last Seen. The Extra Judicial Confession Relied Upon By The Prosecution Is Not Free From Suspicion And Is Not Reliable.
Coming To The Evidence Of Last Seen It Is Settled Law That Theory Of Last Seen Comes Into Play Where Time Gap Between The Point Of Time, When The Accused And Deceased Were Last Seen Together And When The Deceased Was Found Dead, Is So Small That The Possibility Of Any Person Other Than The Accused Being Author Of The Crime, Becomes Impossible. Reference Can Be Made To The Case 'Ramreddy Rajeshkhanna Reddy & Another Vs. State Of Andhra Pradesh' AIR 2006 SC 1656.
In The Instant Case There Is No Evidence To Show That The Deceased Died At The Time Immediately After The Two Appellants Were Allegedly Last Seen By The Witnesses With The Deceased Kamal Singh. The Brother Of First Informant, Hari Ram Singh, Who Had Given Information Of Murder Of Kamal Singh To The Informant Has Not Been Examined By The Prosecution To Show As To When He Came To Know About The Death Of Kamal Singh. The Testimony Of P.W.1 Dr. Vinay Krishna Matin Shows That Kamal Singh Had Died At Least After Six Hours Of Taking Of His Meals. The Prosecution Claims That When The Witness Saw The Appellant With The Deceased, He Was Taking Meals. This Means That Kamal Singh Died At Least After Six Hours Of Being Last Seen By The Witnesses Sitting With The Appellant. Since There Was No Motive For Commission Of The Crime, It Cannot Be Necessarily Inferred That The Appellants Had Committed The Murder, Even If For A Moment, We Accept The Testimony Of The Witnesses, Who Had Last Seen Him. As We Shall Discuss Hereafter The Testimony Of The Witnesses Of Last Seen Is Also Not Reliable.
A Perusal Of The Testimony Of The Witnesses Of Last Seen Would Show That P.W.3 Hari Raj Singh And P.W.4 Dungar Were Going Together Towards Village Bachhlauta Where Hari Raj Singh Was Having His Dairy. They Had No Occasion Nor Any Purpose To Go To The Tube-well Of Kamal Singh. It Has Come In Evidence That This Tube Well Is At A Distance Of About 30 To 40 Yards From The Passage Through Which They Were Going. P.W.3 Hari Raj Singh Has Stated That He Along With His Servant Dungar Was Returning From Kuchesar Road On Tractor Which Belonged To A Person Of Village Atoota And This Fact He Came To Know Subsequently. Similar Stand Was Taken By P.W.4 Dungar, Who Stated That He Does Not Know As To Who Was The Owner Of The Tractor. P.W.6 Alwar Singh Resident Of Village Atoota Has Stated That He Is Owner Of The Tractor. It Appears That Hari Raj Singh And Dungar Knew Alwar Singh From Before But They Concealed This Fact Only To Pretend That They Had Not Known The People Of Village Atoota Because Appellant Sudesh Pal Is Also Of Village Atoota And These Two Witnesses Participated In The Test Identification Parade And Claimed To Have Rightly Identified Sudesh Pal Whereas Appellant Sudesh Pal Claimed That They Knew Him From Before. P.W.6 Alwar Singh Makes The Position Clear By Saying That He Along With Bharat Singh Was Coming From Kuchesar Road On His Tractor And Hari Raj Singh Of Village Simrauli, And His Servant Dungar Were Also Accompanying Them.
In The Circumstances Of The Case, We Are Of The Opinion That Hari Raj Singh And Dungar Purposely Stated Falsely That They Did Not Know To Whom The Tractor Belonged And This They Did In Order To Conceal The Fact That They Know The Persons Living In Village Atoota, Since Atoota And Village Simrauli Are At A Close Distance Of Two Miles And Hari Raj, Who Is Resident Of Village Simrauli Having Milk Dairy At Bachhlauta Has To Pass Through Village Atoota Which Falls In The Way. Similarly, Since Nawal Is Sala Of Sudesh Pal And Is Resident Of Bachlauta, Which Is Only At A Distance Of Three Miles From Atoota His Frequent Visits To Sudesh Pal In Village Atoota Cannot Be Ruled Out. We Are, Therefore, Of The View That There Is Very Strong Possibility Of All The Four Identifying Witnesses, Hari Raj Singh, Dungar, Alwar And Shish Pal ( Who Had Identified Nawal Singh In The Test Identification Parade) And Of Hari Raj Singh And Dungar Who Had Identified Sudesh Pal That They Knew Them From Before.
Not Only This, It Is Further To Be Kept In Mind That The Present Two Appellants Were Apprehended On 13.6.1976, But There Is No Explanation As To Why They Were Subjected To Test Identification Parade As Late As On 24.2.1977, I.e. After Expiry Of Eight Months. An Unexplained And Undue Delay In Holding Test Identification Parade Also Adversely Affects The Value Of Test Identification Parade.
It Is Well Settled Law That The Prosecution Has To Establish Its Allegation Beyond All Reasonable Doubt And The Court Should Take Utmost Precaution In Finding The Accused Guilty On The Basis Of Circumstantial Evidence. In 'Sardar Khan Vs. State Of Karnataka' 2004 (2)SCC 442 The Apex Court Has Held That On The Basis Of Circumstantial Evidence Conviction Can Be Made Only If The Circumstances Are Firmly And Cogently Established And Such Established Circumstances Should Have A Tendency To Unerringly Point To The Guilt Of The Accused, And Cumulatively They Should Form Complete Chain To Leave No Escape From The Conclusion That Within All Human Probability The Crime Is Committed By Accused And None Else.
Applying The Above Test To The Present Case, We Are Of The Definite Opinion That The Chain Of Circumstances To Establish Commission Of Crime By The Appellants Is Not Complete And The Circumstances Fail To Establish That The Offence Alleged To Be Committed By The Appellants Could Not Have Been Committed By Any Body Else. We Are Of The Opinion That The Trial Court Committed Illegality And Gross Error In Accepting The Prosecution Evidence As Sufficient And Reliable To Hold The Appellants Guilty. In Our Opinion, The Appellants Are Entitled To Acquittal.

We, Therefore, Allow The Criminal Appeal No. 2008 Of 1982 , Nawal Saingh Vs. State Of U.P., And Criminal Appeal No.2009 Of 1982, Sudesh Pal Vs. State Of U.P. , And Set Aside Their Conviction Under Section 302/34 I.P.C. As Well As Sentence Of Life Imprisonment Imposed On Them. They Are Acquitted Of The Charge Levelled Against Them. They Are On Bail. Their Personal And Surety Bonds Are Discharged. They Need Not Surrender.
Let A Copy Of This Judgment Be Placed On The File Of Criminal Appeal No. 2009 Of 1982.
A Copy Of This Judgment Be Certified To The Trial Court For Information And Execution.

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