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ALLAHABAD HIGH COURT
Suneet Kumar and Dinesh Pathak, JJ.
Chatthoo Chero —Appellant
versus
State of U.P. —Respondent
Jail Appeal No.116 of 2019
Decided on 7.4.2022
(A) Criminal Procedure Code, 1973 – Section 313 – Indian Evidence Act, 1872 – Section 106 – Examination of accused – Fact that a defence may not have been taken by accused under Section 313 Cr.P.C. again cannot absolve prosecution from proving its case beyond all reasonable doubt – If there are materials which prosecution is unable to answer, weakness in defence taken cannot become strength of prosecution to claim that in the circumstances it was not required to prove anything – Section 106 of Evidence Act, is not intended to relieve prosecution of its burden to prove guilt of accused beyond reasonable doubt, but section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding existence of certain other facts, unless accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive court to draw a different inference. (Paras 28 and 32)
(B) Indian Penal Code, 1860 – Section 302 – Murder – Life sentence – Appellant came to be convicted on his confessional statement and recovery of assault weapon on his pointing out – Confessional statement will not be read against appellant and conviction would not rest on recovery of assault weapon alone in backdrop of statement of witnesses and cite plan showing that room of deceased was accessible to one and all, including, strangers – Motive has not been proved nor assigned for commission of offence – Links in chain of circumstances is necessary to be established for conviction resting upon circumstantial evidence – Suspicion, however, grave cannot take form of proof – Under Section 27 of Evidence Act, mere recovery of blood stained weapon (axe) cannot be construed as providing acceptable proof for murder without there being any substantive evidence – Having regard to prosecution evidence and testimony of independent witness, trial court committed error in convicting appellant merely on strength of recovery of crime weapon on pointing out of appellant – Motive has also not been proved which was relevant in given case solely based on circumstantial evidence – Impugned judgment and order of conviction and sentence set aside. (Paras 35, 36, 37, 38, 45, 47 and 48)
(C) Criminal Law – Circumstantial evidence – In a case based on circumstantial evidence, motive assumes great significance – It is not as if motive alone becomes crucial link in the case to be established by prosecution and in its absence case of prosecution must be discarded – But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of accused. (Para 39)
(D) Indian Evidence Act, 1872 – Section 27 – Disclosure Statement – With regard to Section 27 of Evidence Act, what is important is discovery of material object at disclosure of accused but such disclosure alone would not automatically lead to conclusion that offence was also committed by accused – Thereafter, burden lies on prosecution to establish a close link between discovery of material objects and its use in commission of offence – What is admissible under Section 27 is information leading to discovery and not any opinion formed on it by prosecution – It can seldom happen that information leading to discovery of a fact forms foundation of prosecution case – It is one link in chain of proof and other links must be forged in manner allowed by law. (Paras 42 and 44)
Result: Jail Appeal allowed.
JUDGMENT
Suneet Kumar, J.—Heard Sri Mohit Behari Mathur, Amicus Curiae, for the appellant and learned A.G.A. for the State.
2. The instant appeal has been filed against the judgment and order dated 22.06.2019 passed by Additional Sessions Judge, Fast Track Court, Sonbhadra, in Sessions Trial No. 66 of 2014 (State Versus Chatthoo Chero) under section 302 I.P.C., convicting the appellant.
3. As per prosecution case, the appellant/complainant lodged F.I.R. being Case Crime No. 120 of 2014, under section 302 I.P.C. on 30.04.2014, at 10.05 a.m. alleging that as per usual routine the family after taking dinner retired to sleep. The wife of the complainant/deceased (Shakuntala Chero), aged about 42 years, alongwith infant child, aged about three years, went to sleep at the DHABA behind the house. The complainant and his other two sons and two daughters slept in the DHABA on the opposite side of the house. In the morning, his son Kamlesh went behind and saw his mother (deceased) lying dead on the cot; there was blood all over and he ran and informed the complainant.
4. It is alleged that some unknown person caused injury on the neck by a sharp weapon. The incident occurred in the night of 29/30.04.2014. The panchayatnama was conducted on the same day commencing 11.10 a.m. The complainant is one of the witnesses to the Panchayatnama.
5. As per the opinion of the Panchayatnama witnesses, some unknown person caused injury on the neck by a ‘tangi’ (axe). The Station House Officer (SHO) Ravindra Bhushan Maurya alongwith two constables visited the site of the incident on 04.05.2014, he found the complainant present. On interrogation, the appellant/complainant confessed having committed the offence at about 3.00 a.m. in the morning of 30.04.2014 by Kulhari (axe) slaughtering the neck of his wife. The accused/complainant informed the Investigating Officer (I.O.) that he is prepared to recover the crime weapon which he had hidden nearby after the incident. Accordingly, the accused/appellant was taken into custody at 13.00 hours, the I.O. and other officials alongwith independent witnesses followed the accused who recovered the axe. Post Mortem on the body of the deceased was co nducted on 01.05.2014 at 3.00 p.m. The injuries noted are as follows:-
Anti-mortem injury
1. lacerated wound 7 cm x 2 cm on left neck, depth 9 cm. and 6 cm. below the left ear; neck bone fracture;
2. urinary bladder empty, uterus empty; dal and rice 200 gm. was found in the stomach, body weight 50 kg, aged about 42 years;
6. Forensic lab report notes that human blood was found on axe (kulhari), Kathari (thick Blanket), cord of cot, blouse, broken piece of glass bangles.
7. The prosecution to prove the charge in all examined 11 witnesses, 7 witnesses of fact and rest formal witnesses. The documentary evidence relied upon by the prosecution is marked Ex.-Ka-1 to Ex.-Ka-8.
8. Rajpati (P.W.-1) aged about 22 years, daughter of appellant-accused, reiterated the F.I.R. version and stated that the incident is of 29/30.04.2014, she alongwith her sister (Savita) was sleeping in a room, in another room her mother along with her younger brother (Vimlesh) was sleeping which is on the rear of the building. Her father (accused) alongwith her two brothers Santosh and Kamlesh were sleeping at the Dhaba on the opposite side of the building. Her brother went to pick mahua in the morning. P.W.-1 further stated that she proceeded towards the hilly area for answering nature’s call; after sometime, her sister and brother returned and they saw her mother lying on the cot, and blood on the floor. Some unknown person had caused injury on the neck with an axe. In cross-examination, she stated that she was unaware as to who caused the injury. She, however, stated that there was some quarrel with her neighbour Rajnath Bharti. She further stated that the door of the house was open being the month of summer.
9. Savita (P.W.-2) aged about 28 years, daughter of the appellant-accused stated
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