2003 Supreme(SC) 9

2003(1) Supreme 175
SUPREME COURT OF INDIA
(From Allahabad High Court)
N. Santosh Hegde & B.P. Singh, JJ.
State of U.P. -Appellant
versus
Arun Kumar Gupta -Respondent
Criminal Appeal Nos. 409-410/1996
Decided on 8-1-2003
Counsel for the Parties :
For the Appellant : C.D. Singh, Pramod Swarup, Advocates.
For the Respondent : R.K. Shukla, Sr. Advocate, Jabar Singh, Sandhya Goswami, Advocates.

IMPORTANT POINT
Excepting motive for crime by respondent, prosecution has failed to prove most of the circumstances which are otherwise important to be proved for a case of murder and abduction based on circumstantial evidence. High Court was thus right in interfering with judgment of trial Court and allowing the appeal.

Headnote:Indian Penal Code, 1860-Sections 302 and 364-Offences of abduction and murder-Respondent was convicted for having caused death of Rajesh Kalla on circumstantial evidence by trial Court-High Court acquitted on ground of incomplete chain of events-Recoveries of dead body from house of respondent, blood stained earth, knife not proved by chemical examination or through independent evidence-Evidence of interest and stock witnesses-Result-Acquittal by High Court is well founded-Appeal dismissed AIR 1976 SC 2263 relied on.

       Held : We have heard the learned counsel and perused the records of the case and we are inclined to concur with the judgement of the High Court. As pointed out by the High Court that the prosecution though has been able to establish some of the links in the chain of circumstances, it has failed to establish some of the vital links beyond all reasonable doubts. Therefore, the High Court was justified in coming to the conclusion that the chain of circumstances in this case is not complete. On examining the evidence of Liladhar, (PW-3), who allegedly saw the deceased with respondent entering the house of the respondent on 27th of May, 1988 at about 3.00 to 3.30 P.M. we notice that even in his examination in chief had admitted that he did not inform this fact to the father of the deceased, who at that point of time was searching for the deceased. Though, in the cross-examination, he has tried to fill in this omission, we think this circumstance is of such importance and if really he had noticed the deceased entering the house of the respondent on that afternoon, he would not have failed to mention this in his examination in chief itself, which omission should be taken note of while appreciating his evidence. Then we notice that this witness also belongs to the same biradari of PW-1 and was on visiting terms with him. Thus he is also an interested witness. He also stated in his evidence that factum of seeing the deceased entering the house of the respondent was mentioned by him for the first time to the investigating officer when his statement was recorded even though ample opportunity was there to mention the same earlier. This coupled with the fact that the explanation given by him as to his presence near the house of the respondent on the afternoon being doubtful, we think the High Court was justified in coming to the conclusion that the evidence of this witness is not wholly reliable. We will next discuss the probability of the recovery of the dead body from the house of respondent. In this regard, we have already noted the argument of the learned counsel for the respondent. Even according to the prosecution, the house in question belongs to the respondent and he was staying in that house with his family consisting of his wife and young children. The house is situated in a crowded locality and large number of other houses and shops are in the close vicinity. We agree with the learned counsel for the respondent that no reasonable person would commit a ghastly murder like the one with which we are concerned by taking the victim to such a house where his family was residing. Prosecution has not produced any material to show either the presence or absence of the family members of the respondent at the time of the murder in the house. That apart it is highly unlikely that neighbours and passersby would not have been attracted if really the deceased, who suffered as many as 30 injuries was murdered in that house. Therefore, in all probability, the murder of the deceased was not committed in the house of the respondent. (Para 14)

       Held (on recoveries) : These recoveries can not be believed more so in the background of the fact that the bloodstained knife, the bloodstained earth was not sent to the serologist. (Para 16)

       Held further : Coming to the evidence of PW-2, who says that he had seen the respondent take the deceased from his shop on 27th May, 1988, it should be noticed that this person is of the same biradari as of the deceased and was a close friend of the father of the deceased for over 20 years. The defence has suggested that he is actually the brother-in-law of PW-1, but the same is denied. The facts remains that this witness is an interested witness. From the material produced by the prosecution, it shows that this witness was taking extraordinary interest in the investigation and was present at practically every important place and time in the course of the investigation. The High Court has very elaborately discussed the evidence of this witness and has rejected the same for good reasons with which we agree. In our opinion, the evidence of this witness does not inspire much confidence. From the above discussion, in our opinion that the prosecution has been able to establish only a motive as against the respondent for committing the murder, while most of the circumstances which are otherwise important to be proved in this case have not been established. We are of the opinion, the High Court was justified in interfering with the judgment of the Sessions Judge and allowing the appeal. (Paras 19, 20 and 21)

       Held consequently : For the reasons stated above, these appeals fail and the same are dismissed. (Para 22)