HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.48 Criminal Appeal No. 591 of 1986 1. [ENTITY] 2. [ENTITY] (dead) 3. [ENTITY] Appellants Vs. [ENTITY] Respondent For Appellant : Sri [ENTITY], Amicus for appellant no.1 Sri [ENTITY], for appellant no.3 For Respondent : Sri HMB Sinha, AGA Hon'ble [ENTITY], J.
Hon'ble [ENTITY], J.
Per: [ENTITY], J (26.9.[SECTION]9)
1. This appeal arises out of impugned judgment and order dated 18.2.1986 passed by the VIII Additional District and Sessions Judge, Ghaziabad in [CASE NUMBER], convicting the appellants under [SECTION] read with [SECTION] of [ACT] and sentencing them to undergo imprisonment for life and further convicting the appellants under [SECTION] of [ACT] and sentencing them to undergo three years' rigorous imprisonment, with a direction that both the sentences shall run concurrently.
2. In the present case, name of deceased is [ENTITY], wife of accused appellant no.1-[ENTITY]. The couple had two sons aged three years and one year. On 31.03.1982, accused [ENTITY] along with his children and the deceased had gone to attend the village fair at Sikri and on 2.4.1982, he returned from the said fair along with his two children only. He informed his brother-in-law [ENTITY] (PW-1) that in the fair, his wife went missing and despite extensive search when he could not get her, he returned along with his two children. Further case of the prosecution is that deceased [ENTITY] used to insult her husband [ENTITY] before the public at large and her husband [ENTITY] used to suspect her character. In the fair, accused [ENTITY] hatched conspiracy with his brother-in-law, accused [ENTITY] (died during pendency of the appeal) and [ENTITY] for eliminating the deceased and, accordingly, the same was done and after committing the murder of the deceased, her body was thrown near a brook. [ENTITY] (PW-1) brother of the deceased, after coming to know that his sister went missing from the village fair, lodged an FIR vide Ex.Ka.4 on 4.4.1982 at Police Station Civil Lines, Delhi. Based on this report, offence under [SECTION] of [ACT] was registered against accused-[ENTITY]. Later, on 5.4.1982, skin of left foot claw and skin of left hand claw were recovered near a brook at Sikri, Police Station Modi Nagar, District Gaziabad, U.P. In the recovery memo, it has been mentioned that there was no bone attached to the said skin. Further, red nail polish was noticed on four fingers and thumb. That apart, one pair of slipper and one bed sheet (chadar) were also seized. It is further case of the prosecution that on 10.04.1982 vide Ex.Ka.10, at the instance of accused persons, one dead body was recovered from a sugar cane field, which was wrapped in a bed sheet (chadar).
3. Inquest on the dead body of the deceased was conducted on 10.4.1982 and the body was sent for postmortem which was conducted vide Ex.Ka.11 on 11.4.1982 by Dr. [ENTITY] (PW-10). Autopsy Surgeon has found following injuries on the body of the deceased:
"(i) Old lacerated wound on the right side of the head in the area of parietal.
(ii) Incised wound 2 x 1-1/25 on left frontal bone.
(iii) Left radial ulna was fractured. "
According to autopsy surgeon, cause of death of the deceased was head injury, shock and haemorrhage.
4. After completing the investigation, charge-sheet was filed against four accused persons, namely [ENTITY], [ENTITY], [ENTITY] and [ENTITY] and while framing charge, the learned trial judge framed charge against them under [SECTION] and [SECTION] of [ACT].
5. So as to hold accused persons guilty, prosecution has examined twelve witnesses, whereas one defence witness has also been examined. Statements of accused persons were recorded under [SECTION] of [ACT] in which, they pleaded their innocence and false implication.
6. By the impugned judgement, trial judge has acquitted accused [ENTITY] of all the offences, whereas remaining three accused have been convicted and sentenced as mentioned in paragraph no. 1 of this judgement. Hence, this appeal. However, during pendency of this appeal, accused appellant no.2-[ENTITY] has expired and the present appeal is confined to accused appellant nos. 1 and 3 only.
7. Learned counsel for the appellants submits:
(i) that appellants have been convicted solely on the basis of circumstantial evidence but the nature of circumstantial evidence is so weak, which cannot be made basis for their conviction.
(ii) that identification of dead body itself is disputed and the prosecution has utterly failed to prove that two portions of the body recovered vide Ex.Ka.2 and Ex.Ka.10 were of the deceased.
(iii) that there is absolutely no evidence to show as to in what manner, deceased was murdered by the accused persons.
(iv) that evidence of so called last seen given by [ENTITY] (PW-5) and [ENTITY] (PW-6) is not conclusive and the mere fact that these two witnesses saw the appellants in the village fair, cannot lead to only conclusion that it is the appellants, who committed the murder of the deceased.
8. On the other hand, supporting the impugned judgment, it has been argued by the State counsel that conviction of the appellants is in accordance with law and there is no infirmity in the same. He submits that the conduct of the appellants, in particular, appellant no.1-[ENTITY] is very important where he did not lodged any report about the missing of his wife and returned from the village fair along with his two children.
9. We have heard learned counsel for the parties and perused the record.
10. [ENTITY] (PW-1), is a brother of the deceased, has stated that marriage of the deceased was solemnized with accused [ENTITY] about seven-eight years prior to the incident and that quite often they used to quarrel. About two and half years back, his sister along with her husband and two children had gone to see the village fair at Sikri, fromwhere accused appellant no.1 returned along with his two children and had informed that deceased went missing from the said fair. He states that he lodged the report Ex.Ka.4 based on which, the case was registered against appellant no.1. He further states that at the instance of this appellant, claws of one foot and one hand along with one pair of slipper and one sheet (chadar) were recovered near the brook, which were of the deceased. He further states that from another place, a dead body was recovered which was of his sister. He states that in the forearm of the deceased, her name was mentioned as '[ENTITY]'. In respect of accused [ENTITY], he has stated that he was informed by the villagers that accused [ENTITY] had also gone along with accused [ENTITY].
11. [ENTITY] (PW-2) is a witness of first recovery Ex.Ka.2 by which skin of left foot claw and skin of left hand claw along with one pair of slipper and one sheet (chadar) were recovered near the brook at Sikri, Modinagar, Ghaziabad.
12. [ENTITY] (PW-3) is a witness of recovery of a dead body vide Ex.Ka.3.
13. [ENTITY] (PW-4) took the body for post-mortem and assisted during initial investigation.
14. [ENTITY] (PW-5) is a witness of last seen. He states that along with one [ENTITY] and [ENTITY], he too had gone to the village fair and there he saw appellants [ENTITY], [ENTITY] along with deceased and two children. He states that about one and half lakhs people were there in the village fair and he reached at about 10:00 pm. He states that he cannot tell how many other persons were there along with [ENTITY] and [ENTITY].
15. [ENTITY] (PW-6), is another witness of last seen, his statement is almost similar to that of [ENTITY] (PW-5).
16. [ENTITY] (PW-7) is the first Investigating Officer.
17. [ENTITY] (PW-8) made GD entry regarding transfer of the case from Delhi to P.S. Modi Nagar, Uttar Pradesh. [ENTITY] (PW-9) assisted during investigation.
18. Dr. [ENTITY] (PW-10) conducted the postmortem on the body of the deceased.
19. [ENTITY] (PW-11) is the second Investigating Officer and [ENTITY] (PW-12) registered the first FIR at Delhi under [SECTION] of [ACT].
20. [ENTITY] (DW-1) has not stated anything specific, which may be of any help to the accused persons.
21. Close scrutiny of evidence makes it clear that deceased was the wife of accused [ENTITY] and had gone to see the village fair on 31.3.1982. From the fair, appellant [ENTITY] returned along with his two children without his wife. Appellant informed his brother-in-law (PW-1) that his wife went missing from the village fair and then at the instance of [ENTITY] (PW-1), FIR under [SECTION] of [ACT] was registered against the accused. True it is, that conduct of the appellant-[ENTITY] becomes suspicious as he failed to satisfactorily explain as to where his wife had gone but merely on the basis of this conduct, it cannot be held that he committed the murder of the deceased.
It is a settled position of law that in criminal trial, suspicion howsoever grave, cannot substitute proof. Recently in [PRECEDENT], the Apex Court, while dealing with a case, observed as under:
"On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof."
22. Vide Ex.Ka. 2, skin of left foot claw and skin of left hand claw along with one pair of slipper and one sheet (chadar) were recovered on 5.4.1982, but there is no conclusive evidence that the same were of the body of the deceased. Yet another recovery was affected on 10.4.1982 vide Ex.Ka.10 where one full dead body of a lady was recovered allegedly of the deceased. In the second recovery, nowhere it has been mentioned that any portion of the body was missing and the only thing which has been mentioned is that body was highly decomposed. If some portion of the body was recovered on 5.4.1982 then in the second recovery, it ought to have been mentioned that full body was not recovered and part of the same was missing. Furthermore, the body is said to have identified on the basis of her name [ENTITY], which was allegedly shown in the forearm of the deceased but merely on this basis, it cannot be said conclusively that the said body was of the deceased. Identification of the dead body is in fact not very clear as the same was highly decomposed. As per autopsy surgeon, face of the body was clear and identifiable, whereas the witnesses have not identified the same on the basis of her face.
23. Most important aspect of the case is that there is no conclusive evidence that it is the appellants who committed the murder of the deceased. No such incriminating evidence has been adduced by the prosecution pointing out the guilt of the appellants in commission of the murder of the deceased. The evidence of last seen is also not very conclusive and merely on the basis of said evidence, it cannot be said that it is the appellants who committed the murder of the deceased. The law in respect of last seen theory is well settled.
In [PRECEDENT], the Supreme Court while dealing with "last seen theory" observed as under:
"14. The courts below convicted the appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the appellants on 23-1-2001. Undoubtedly, the "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
15. Elaborating the principle of "last seen alive" in [PRECEDENT], this Court held as under :
"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of [SECTION] the [ACT] itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by [SECTION] the [ACT]. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. [SECTION] not shift the burden to prove in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in [ENTITY], In [PRECEDENT]"
24. Circumstantial evidence available on record is not good enough to hold the conviction of the accused-appellants. Law in respect of circumstantial evidence is very clear.
In [PRECEDENT], the Supreme Court, while dealing with circumstantial evidence, observed as under:
"11. In [PRECEDENT], which is one of the earliest decisions on the subject, this court observed as under:
"10. 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."
12. In [PRECEDENT], this court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:
"(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."
13. In [PRECEDENT], it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on 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."
In [PRECEDENT], the Apex Court, while dealing with circumstantial evidence, observed as under:
"29. It is obligatory on the part of the accused while being examined under [SECTION] of [ACT] to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide: Munish Mabar v. State of Haryana, AIR [SECTION]3 SC 912).
31. The prosecution successfully proved its case and, therefore, provisions of [SECTION] of the [ACT] come into play. The appellant/accused did not make any attempt, whatsoever, to rebut the said presumption contained therein. More so, [ENTITY], deceased died in the house of the appellant. He did not disclose as where he had been at the time of incident. In such a fact situation, the provisions of [SECTION] of the [ACT] may also be made applicable as the appellant/accused had special knowledge regarding such facts, though he failed to furnish any explanation thus, the court could draw an adverse inference against him."
In [PRECEDENT] (supra), the Supreme Court, while dealing with circumstantial evidence, observed as under:
"14. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in [PRECEDENT]. The relevant excerpts from para 153 of the decision is assuredly apposite:
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in [PRECEDENT] where the observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(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."
It has further been considered by this Court in Sujit Biswas Vs. State of Assam [SECTION]3(12) SCC 406 and Raja alias Rajinder Vs. State of Haryana [SECTION]5(11) SCC 43 that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused.
25. As already stated, the middle of suspicion definitely goes against accused [ENTITY] but that itself would not be sufficient to uphold his conviction. If the overall evidence is appreciated, that creates a doubt as to whether it is the appellant [ENTITY] who committed the murder of the deceased or not. If any such doubt if there, in the prosecution case, it is the appellants who are entitled to receive the benefit of the same. The trial court was not justified in convicting the appellants. Appellants are entitled for benefit of doubt.
26. The appeal is, accordingly, allowed. Appellants are reported to be on bail and, therefore, no further order is required.
27. We appreciate the assistance rendered by Sri [ENTITY], Amicus. He would be entitled to receive Rs.7,000/- towards his remuneration from the State Government.
Date: 26.9.[SECTION]9 RK/[ENTITY] ([ENTITY], J) ([ENTITY], J)