Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 181 of 2001 Old Number (Government Appeal No. 1925 of 1998) State of U.P. Now, State of Uttarakhand. ………. Appellant. Versus Smt. Kala and another. ……….. Respondents Present : Sri S.S. Adhikari, learned A.G.A. for the State/appellant. Sri U.P. S. Negi and Sri Raman Kumar Shah, Advocates for the respondents. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. (By Nirmal Yadav, J) This appeal preferred by the State of U.P. under section 378 (3) of Code of Criminal Procedure, 1973 (hereafter referred to as Cr.P.C.) is directed against the judgment dated 06.05.1998 passed by Sessions Judge, Pauri Garhwal in sessions trial no. 32 of 1996 whereby accused respondents Kala and Mahesh Chand Mishra along with Anand Prakash & Chintamani (both of them since deceased) have been acquitted of the charge of offences punishable under sections 302 read with section 34, 394 read with section 34, 201 read with section 34 of Indian Penal Code (hereinafter referred to as “IPC”). Accused Mahesh Chand Mishra and Chitamani have further been acquitted of the charge of offence punishable under section 411 IPC. Accused Anand Prakash and Chintamani Sanwal have since died, therefore, the appeal against them stands abated. 2 The criminal law was set in motion on the written complaint submitted by PW2 Birbal on 28.12.1995. According to the complainant, on 27.12.1995 he submitted a missing report (exhibit Ka-4) of Sarojini Devi, wife of his nephew Pratap Singh and her daughter Veena in police station Kotdwar. Pratap Singh, husband of the deceased Sarojini Devi, was serving in military. His wife along with her daughters and son was living in the village. Complainant along with Madan Mohan and other persons searched for Sarojini Devi and her daughter Veena. During the search, they found some bloodstains lying in the field outside the house of Pratap Singh. They also found some signs of dragging in the wheat field of Pratap Singh, which led to the backyard of accused Anand Prakash, where they found a pit freshly filled with earth. On suspicion, said pit was dug and dead bodies of Sarojini Devi as well as Veena were recovered. According to the complainant, Anand Prakash and his wife Kala used to quarrel with deceased Sarojini Devi on waterways. In this regard, Pratap Singh had made complaint against them in the month of August, 1995 and on account of the said grudge, accused had committed murder of Sarojini Devi and Veena. PW4 Sandeep and PW5 Reena, son and daughter of Sarojini Devi respectively, informed PW2 Birbal that when they came back from School they did not find 3 their mother and sister at home and their house was not locked. They made enquiries about them from Anand Prakash and his wife but both of them gave evasive replies. They spent the night in the house of Anand Prakash. Since children could not know whereabouts of their mother and sister, they informed PW2 Birbal in this regard, who reported the matter to police station Kotdwar and on the basis of said report chick First Information Report (exhibit Ka-19) was recorded on 28.12.1995 at about 12.05 noon. The investigation was entrusted to PW13 Sub Inspector Pramod Kumar Jain, who visited the spot, prepared inquest report (exhibit Ka-7 and exhibit Ka-8), police form 13 (exhibit Ka-11 and exhibit Ka-15), sketch of both the dead bodies (exhibit Ka-16 and exhibit Ka-17) and other formal papers. He also lifted simple earth as well as blood stained earth vide memo exhibit Ka-18. On the next day, PW3 Pratap Singh, husband of deceased Sarojini Devi, came back to the house from the place of posting and found that several house hold articles and jewellery were missing from his house. On 08.01.1996 accused Anand Prakash was arrested. He made a disclosure statement and got recovered the axe used in the commission of crime vide memo exhibit Ka-1. He also got recovered some jewellery which he had taken away from the house of Sarojini Devi vide memo exhibit Ka-2. Accused Mahesh Chand Mishra also made disclosure statement and got recovered household utensils from a bag vide memo exhibit Ka-3. Accused Kala made disclosure 4 statement and got recovered one spade and one iron tray, which were used in digging the pit and putting the earth on the dead bodies, the same were taken into possession vide memo exhibit Ka-5. Accused Chintamani also made disclosure statement and got recovered one suite case and one mosquito net which he had taken away from the house of Sarojini Devi and Pratap Singh, which were taken into possession vide memo exhibit Ka-6. On completion of the investigation, charge-sheet was submitted on 16.03.1996. The accused were chargesheeted under section 302 read with section 34, 201 read with section 34, 394 read with section 34 IPC and accused Anand Prakash, Chitamani and Mahesh Chand Mishra were further chargesheeted under section 411 IPC to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as fourteen witnesses. PW1 Madan Mohan was present at the time when pit was dug and recovery of dead bodies of Sarojini Devi and Veena, PW2 Birbal is the complainant, PW3 Pratap Singh, husband of deceased Sarojini Devi, PW4 Sandeep and PW5 Reena, are the son and daughter of deceased Sarojini Devi respectively, PW6 H.S. Rawat accompanied Birbal (PW2) when he lodged missing report of Sarojini Devi and Veena to the police station, which bears his signatures, PW7 Leela Dhar, is the witness of inquest report, PW8 Anil Sharma is driver 5 of three wheeler, in whose three wheeler accused had carried the utensils to some distance but when they wanted to go further along with utensils he refused to go, PW9 Harpal Singh, is the witness to the recovery of axe (exhibit Ka-1) at the behest of Anand Prakash and other articles like jewellery recovered at the instance of other accused persons, PW10 Sushil Kumar, was declared hostile, PW11 Sub Inspector Ram Kumar Sharma had prepared the inquest report of dead bodies of Sarojini Devi and Veena, PW12 Head Constable Gajraj Singh had entered GD report (exhibit Ka-20) of First Information Report (exhibit Ka-19), PW13 Sub Inspector Pramod Kumar Jain is the Investigating Officer and PW14 Harish Chand Singh Kalakoti conducted further the investigation after Sub Inspector Pramod Kumar Jain was transferred. Accused when examined under section 313 Cr.P.C. denied the incriminating evidence put to them and pleaded false implication. But they did not adduce any evidence in their defence. Since there is no ocular evidence, the entire prosecution case rests upon circumstantial evidence. The trial court after taking into consideration the facts and evidence available on record came to the conclusion that prosecution has failed to prove that accused were, in any manner, involved or connected with the murder of Sarojini Devi and her daughter Veena. Learned trial court did not find the testimony of PW4 Sandeep and PW5 Reena reliable and 6 trustworthy. Learned trial court observed that though both of them are alleged to have seen the accused persons digging a pit during night but they did not inform the same either to PW2 Birbal or to their father PW3 Pratap Singh even upto 28.12.1995, when the matter was reported. It has further been held that except that dead bodies were found in the backyard of the hut of Anand Prakash, there is no other evidence to connect the accused persons with the crime. It has further been observed that prosecution has failed to prove that the accused had any strong motive to commit the murder of Sarojini Devi and Veena. It has come in the evidence that Anand Prakash, Sarojini Devi were together facing trial in a complaint case made by a third person. Even PW3 Pratap Singh, husband of the deceased Sarojini Devi could not prove any enmity. Learned trial court has further held that the charge of committing theft is also not proved beyond doubt. Rather it appears that the allegations with regard to theft has been made to add gravity to the offence. Since both the accused as well as complainant belong to the same village and it is highly improbable that theft of household articles would be committed by co-villagers. It is further pointed out that none of the witnesses namely PW4 Sandeep, PW5 Reena and PW2 Birbal stated that they had noticed the house being ransacked. It has come in the evidence that both PW4 Sandeep and PW5 Reena had first gone to their house and when they did not find their mother and sister there, they informed PW2 Birbal. In case, 7 they had found the house being ransacked they would have certainly informed PW2 Birbal and he in turn would have mentioned the same in the missing report as well as in the chick First Information Report (exhibit Ka-19). Learned trial court has further come to the conclusion that recovery of alleged articles by the Investigating Officer is not as per provisions of section 27 of Evidence Act. It is further observed that memo of confession has been prepared by the police official but in the said memo the exact words used by accused persons giving information has not been reproduced. It has further been pointed out that there is no independent witness to prove the alleged recovery. The witnesses of the recovery are the Investigating Officer and PW9 Harpal Singh, who lived 15 kms. away from the house of Pratap Singh. PW9 Harpal Singh is said to have been working in Tehsil and his presence at the spot was highly improbable. It is pointed out that admittedly several persons of the locality had collected but none of them were joined as witness of recovery. We have heard learned counsel for the parties and perused the entire record. Learned AGA submitted that testimony of PW4 Sandeep and PW5 Reena appears to be quite natural. When they did not find their mother and sister at home, they made enquiries from Anand Prakash and his wife but they gave evasive replies to them i.e. their mother had gone to jungle and that she had gone towards hill side. They had also seen accused persons digging the pit 8 during the night. Learned AGA further pointed out that it has also come in the evidence that accused Kala, wife of Anand Prakash, had been quarrelling with Sarojini Devi on waterways. He further submitted that recovery of jewellery and other household articles further corroborates the prosecution case to complete the chain of circumstances. On the other hand, learned counsel for the respondents submitted that it is highly improbable that PW4 Sandeep and PW5 Reena had seen the accused persons digging the pit as they did not disclose this fact to PW2 Birbal when they met him in the morning of 27.12.1995. Learned counsel for the respondents further argued that motive allegedly put forward by the prosecution is not at all proved. There is nothing on record to show that accused had any enmity against the deceased and her daughter. Rather it has come in the evidence that deceased and accused were contesting a complaint case jointly. He further pointed out that PW7 Leela Dhar, witness of inquest report, has not supported the prosecution case. Learned counsel further argued that witnesses of recovery are Investigating Officer and PW9 Harpal Singh, whose presence at the spot is highly doubtful. Learned counsel for the respondents pointed out that name of Mahesh Chand Mishra and Chintamani does not find mention in the First Information Report. It is also argued that the prosecution has miserably failed to prove the complete the chain of circumstances to prove its case beyond reasonable shadow of doubt. He 9 further argued that if in a case of acquittal two views are possible, one which favours the accused should be adopted by the court and benefit be given to the accused. On careful consideration of arguments of both the parties, we are of the view that prosecution has not been able to prove the complete chain of circumstances and in such cases, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of guilt of accused. Circumstances, should be of a conclusive nature and should exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with innocence of the accused and it must be such as to show that within all human probabilities the act must have been done by accused. In the present case, the only strong evidence against the accused Anand Prakash (since deceased) and his wife is that dead bodies alleged to have been recovered from the backyard of their house. However, there is nothing on record to show as to whether the said hut is the residential house of Anand Prakash or it was simply a hut in the field of Anand Prakash. Presence of Anand Prakash and other accused digging the pit is not supported by any reliable witness. It is only PW4 Sandeep and PW5 Reena minor children of 10 deceased, who have stated that they heard noise of digging the pit and on hearing the noise, they had seen Anand Prakash, Kala, Mahesh Chand Mishra and four other persons digging the pit. They did not identify those four persons and none of them informed about this fact to PW2 Birbal, who allegedly met them in the morning. Even these children have not stated that they had seen the accused persons burying their mother and sister in the said pit. It appears that entire prosecution case is based on conjectures and surmises and there is no evidence to connect the accused with the alleged murder of both Sarojini Devi and Veena. As discussed above, even the alleged recovery of articles is not proved by any independent witness. It is well settled principal of law that when a case rests on circumstantial evidence, the prosecution has to prove its case beyond reasonable shadow of doubt and such evidence have to be shown to be clearly connected with the principle fact sought to be inferred from those circumstances. The cumulative effect of the chain of circumstances must be such as to negative the innocence of accused and bring home the offences beyond any reasonable doubt. Moreover, in case where two views are possible in a case of acquittal, in appeal the benefit will go to the accused. The Apex Court in the case of Allarakha K. Mansuri Vs. State of Gujrat reported in 2002 (1) RCR (Criminal) page 748 has held that in a case, where two 11 views are possible, one which favours the accused has to be adopted by the court. A Division Bench of Punjab and Haryana High Court in the case of State of Punjab Vs. Hansa Singh 2001 (1) RCR (Criminal) page 775 while dealing with an appeal against acquittal, has opined as under: “We are of the opinion that the matter would have to be examined in the light of the observations of the Hon’ble Supreme Court in Ashok Kumar Vs. State of Rajasthan, 1991 (1) SCC 166 which are that interference in an appeal against acquittal would be called for only if the judgment under appeal was perverse or based on misreading of evidence and merely because the appellate Court was inclined to take a different view could not be a reason calling for interference.” In the present case, the counsel for the appellant has failed to show that impugned judgment is perverse or based on misreading of evidence. In view of the above discussion, appeal fails and is dismissed. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) 08.09.2010 SKS