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2021 Supreme(All) 149
IN THE HIGH COURT OF ALLAHABAD
KAUSHAL JAYENDRA THAKER, GAUTAM CHOWDHARY, JJ.
Ram Pal – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 231 of 2012
Decided On : 29-01-2021
Advocate Appeared:
For the Appellant : Rajesh Kumar Mishra.
Point of Law: dead body of the deceased was found floating in the well, postmortem was conducted and it was partially decomposed. Investigation led to the arrest of the appellant therein and there was a confession made by the appellant. Appellant alone was convicted by the courts below which has been upturned by the Hon'ble apex court. The circumstantial evidence which prosecution has relied has to prove the guilt of the appellant beyond all human probability
Headnote:
Indian Penal Code, 1860 - Sections 302, 201 and 394 - Offence of Murder - Voluntarily causing hurt by dangerous weapons - Appeal challenges judgment and order - Appeal against Conviction - Factual matrix of the case in hand, as gleaned from pleadings and submissions of the parties as also the record is that a complaint was moved by Suraj Kumar to police authority at Kannauj stating that Ram Beti, wife of late brother of Suraj Kumar and, daughter of Ram Beti were gone missing from 12.00 noon on the said date and he suspects that they have been abducted and killed as his search for them turned in failure –
Finding of the Court:
Dead body of deceased was found floating in the well, postmortem was conducted and it was partially decomposed - Investigation led to the arrest of the appellant therein and there was a confession made by appellant - Appellant alone was convicted by courts below which has been upturned by Hon'ble apex court - Circumstantial evidence which prosecution has relied has to prove the guilt of appellant beyond all human probability - It must point out that it was the accused and accused alone who had perpetrated the offence - In our case there was no recovery from accused, hence, we are unable to agree with learned A.G.A. that section 114 of Indian Evidence Act, 1872 be read into and that decision which have been cited would apply to facts of this case –
Result:Appeal allowed
JUDGMENT :
KAUSHAL JAYENDRA THAKER, J.
1. Heard Sri. Rajesh Kumar Mishra, learned counsel for the appellant and learned A.G.A. for the State.
2. This appeal challenges the judgment and order dated 1.12.2011 passed by the Additional Sessions Judge, Kannauj in Sessions Trial No. 93 of 2011 convicting Ram Pal, appellant, for commission of offence under Sections 302, 201 and and 394 of Indian Penal Code, 1860 (hereinafter referred to as I.P.C.).
3. The factual matrix of the case in hand, as gleaned from the pleadings and submissions of the parties as also the record is that on 2.9.1992, a complaint was moved by Suraj Kumar to the police authority at Kannauj stating that Ram Beti, wife of the late brother of Suraj Kumar and Kumari Draupadi alias Bauna, daughter of Ram Beti were gone missing from 12.00 noon on the said date and he suspects that they have been abducted and killed as his search for them turned in failure.
4. On the aforesaid complaint, G.D. Report No. 43 was made at 21.30 hrs on 2.9.1992 and the matter was investigated, during investigation, dead bodies of Ram Beti and Draupadi alias Bauna were found from the place of incident, description of the same were written in G.D. Report No. 2 at 00.15 hrs on 3.9.1992 on the basis of which Case Crime No. 548 of 1992 under Sections 302 and 201 of I.P.C. was lodged and investigation was moved into motion and after recording statements of various persons, the Investigating Officer submitted the charge-sheet to the competent court on 9.2.1993.
5. The accused was facing charges which were exclusively triable by the Court of Sessions, he was committed to it.
6. On being summoned, the accused pleaded not guilty and wanted to be tried.
7. The prosecution examined about 6 witnesses who are as follows:
| 1. | Deposition of Prem Shanker | 27.01.2011 | PW-1 |
| 2. | Deposition of Dr. Prithibi Raj Singh | 14.03.2011 | PW-2 |
| 3. | Deposition of Ved Prakash Giri | 07.04.2011 | PW-3 |
| 4. | Deposition of Ram Nandani | 05.05.2011 | PW-4 |
| 5. | Deposition of Ram Ratan | 18.06.2011 | PW-5 |
| 6. | Deposition of Pradeep Pradhan | 18.07.2011 | PW-6 |
8. In support of ocular version following documents were filed:
| 1. | Written Report and Application | 02.02.1992 | Ex.Ka.1 and Ex. Ka.3 |
| 2. | Recovery memo and Supurdginama of Lock and Goods | 03.09.1992 | Ex.Ka.14 |
| 3. | Recovery Memo of White Cloth | 03.09.1992 | Ex.Ka.15 |
| 4. | Recovery Memo of ‘Suti Nara’ (Kamarband) | 03.09.1992 | Ex.Ka.16 |
| 5. | Postmortem Report | 03.09.1992 | Ex.Ka.3 |
| 6. | Postmortem Report | 03.09.1992 | Ex.Ka.4 |
| 7. | Panchayatnama | 03.09.1992 | Ex. Ka.6 |
| 8. | Charge-sheet | 09.02.1993 | Ex. Ka.17 |
9. On the witnesses being examined and the prosecution having concluded its evidence, the accused was put to questions under Section 313 Cr.P.C.
10. Hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant as mentioned aforesaid. Being aggrieved and dissatisfied with the impugned judgment, the appellant has preferred this appeal.
11. Learned counsel for the appellant has contended that there are several missing links and the learned judge has committed a grave error in convicting the accused on the basis of the statements made by witnesses who are not reliable.
12. Learned counsel for the appellant has relied on the decision in Nizam and Another vs. State of Rajasthan, 2015 Law Suit (SC) 826 and has contended that the circumstantial chain was full of gaps; there is no consistency in their depositions and convection is based on mere hypothesis of the facts that the accused was working at the place where the dead bodies of the deceased were found.
13. He has further submitted that no incriminating circumstances have been proved against the accused also except the one wherein he was alleged to working in the house of deceased. It is submitted by the learned cou
