Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 294

IN THE HIGH COURT OF ALLAHABAD
BACHCHOO LAL, SUBHASH CHANDRA SHARMA, JJ.
Bakshraj - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No.2027 of 2013
Decided on : 20-05-2021

Advocates:
Advocate Appeared:
For the Appellant : Amit Kumar Srivastava, Ramesh Kumar Mishra

Point of Law: Conviction set aside - Murder case - Quality of the prosecution evidence is too poor to satisfactorily establish any of the three circumstances for holding the appellants guilty of the offence of murder.

Headnote:
Indian Penal Code, 1860 - Section 302 - Code of Criminal Procedure, 1973 - Sections 207, 313 - Offence of Murder - Order of Conviction - Circumstantial Evidence - Deceased, brother of informant went to look after his fishes kept in tank but he did not return till the next day morning - Informant his brother were going to search about him towards tank meanwhile they saw some blood lying near chuck road in garden of Iqbal Bahadur Singh - They made search near that place and found dead body of their brother drenched with blood, under a mango tree in North East with marks of sharp weapon injuries on his head - On this they suspected that on account of old enmity Bakshraj s/o Binga and unknown persons had committed murder of their brother - Informant went to police station and by giving a written taharir lodged an F.I.R. as Crime under Section 302 I.P.C - Criminal Appeal is being preferred against judgment and order passed by Additional Sessions Judge, whereby appellant was convicted and sentenced for life imprisonment and fine in default of payment of fine to undergo for six months additional simple imprisonment.
Finding of the Court:
There may be some suspicion against the accused but as is often said suspicion, howsoever, strong cannot take place of proof. - Court, therefore, find and hold that conviction of appellants is based on completely insufficient evidence and is wholly unsustainable.-It is seen above that quality of prosecution evidence is too poor to satisfactorily establish any of three circumstances for holding appellants guilty of offence of murder. - As none of three circumstances were sufficiently proved, there is no question of taking them as links forming an unbroken chain that would lead to only possible inference regarding appellant's guilt. - But before parting with records of the case, court must sadly observe that so far as appellant is concerned, it's a case of no evidence at all - Seen for any angle conviction of appellant cannot be sustained. - Judgment and order of trial court is completely unsustainable. - Judgment and order is set aside. - Appellant is acquitted of charges and is directed to be released forthwith unless required in connection with any other case.
Result: Appeal Allowed

JUDGMENT :

Subhash Chandra Sharma, J.

1. The present Criminal Appeal is being preferred against the judgment and order dated 30.04.2013 passed by Additional Sessions Judge, (Ex Cadre Post) II, Fatehpur in Session Trial No.43 of 2010 (State vs. Bakshraj) arising out of Case Crime No.106 of 2009, under Section 302 I.P.C., Police Station Dhata, District Fatehpur, whereby the appellant was convicted and sentenced for life imprisonment and fine of Rs.10,000/-in default of payment of fine to undergo for six months additional simple imprisonment.

2. The prosecution case in brief is that on 09.10.2009 Rajan aged about 45 years (deceased) the brother of informant Bachcha Lal @ Chapra went to look after his fishes kept in tank namely Balram Pond in the evening at about 9:00 P.M. but he did not return till the next day morning. Thereafter, the informant his brother Kallu and Suraj were going to search about him towards the tank meanwhile they saw some blood lying near the chuck road in the garden of Iqbal Bahadur Singh. They made search near that place and found dead body of their brother drenched with blood, under a mango tree in the North East with marks of sharp weapon injuries on his head. On this they suspected that on account of old enmity Bakshraj s/o Binga and unknown persons had committed murder of their brother. Thereafter, informant Bachcha Lal @ Chapra went to police station Dhata at about 7:30 A.M on 10.10.2009 and by giving a written taharir lodged an F.I.R. as Crime No.106 of 2009, under Section 302 I.P.C.

3. Sub-Inspector Sri Vipin Kumar Trivedi proceeded to the place of occurrence and conducted inquest of deceased Rajan Pasi in presence of witnesses. He prepared inquest report and other essential papers for post mortem of deceased and sealed the dead body. It was handed over to constable Sunil Narain and constable Pramil Vivek to carry it for post mortem with essential papers.

4. Post mortem of dead body of deceased Rajan Pasi was conducted on 11.10.2009 at mortuary Fatehpur. Dr. R.K. Verma conducted the autopsy of the dead body of deceased Rajan Pasi on the same day at about 2:15 P.M. and prepared post mortem report which is Exhibit Ka 2. Details of post mortem report are as under:

External Examination

Aged about 45 years; after death about one and half day average built body rigor mortis was present on upper and lower extremities, eyes closed, mouth half open.

Ante Mortem Injuries

(i) incised wound at occipital area of head size 17cm x 2cm bone deep 6cm above the right ear;

(ii) incised wound at right side of neck size 3cm x 1cm bone deep, 7cm back to right ear;

(iii) incised wound at head posterior area size 3cm x 5cm bone deep, 8cm below to injury no.1;

(iv) incised wound at upper back at chin size 3 cm x 1 cm muscle deep, 3 cm below the 7th vertebra;

(v) incised wound at uper back size 4cm x 1cm muscle deep, 7cm below the right shoulder joint;

(vi) multiple abrasions at back size 5cm back to left shoulder joint size 10cm x 5cm;

(vii) abraded contusion at left elbow area posterior aspect in an area of 4cm x 3cm with dislocation of elbow joint;

External Examination

Neck-as mentioned above Skull-occipital and right temporal Bone-fractured Membrane-lacerated Brain-lacerated and about 100 ml clotted blood present in cavity Base-NAD Vertebrae-NAD Spinal Cord-not opened

Thorax

Walls, Ribs & Cartilages-NAD Pleuss-NAD Larynx, Trachea & Bronchai-NAD Right and Left Lungs-Pale Pericardium-NAD Heart-Empty Both Side Vessels-NAD

Abdomen

Walls-NAD Peritoneum-NAD Cavity-NAD Buccle Cavity-Teeth, Tongue and Pharyad 16/16 Oesophagus-NAD Contents in stomach-about 500ml semi digested food material present Small Intestine-Empty Large Intestine and its content-half filled with gases and faecel material Liver and Gall Bladder-Pale, Full Pancreas-NAD Spleen-Pale Kidenys-Both Pale Urinary Bladder-Half filled Genetic Organs-NAD Cause of Death-Shock and hemorrhage as a result of antemortem injuries.

5. Investigating Officer collected blood stained and plain soil fr