Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 289

IN THE HIGH COURT OF ALLAHABAD
PRITINKER DIWAKER, NALIN KUMAR SRIVASTAVA, JJ.
Mahendra Singh and Another - Appellants
Versus
State of U.P. - Respondent
Criminal Appeal Nos. 1568, 1971 of 2020
Decided On : 03-03-2023

Advocates Appeared:
For the Appellant : Dinesh Kumar, Shri Krishan Yadav.
For the Respondent: G.A., Ankit Agarval.

Point of Law : Last seen theory not to be true, motive was not proved, recovery of firearm was doubtful, material contradictions found in evidence rendered and no sufficient link to come to irresistible conclusion pointing guilt only to appellant, it was reiterated that mere suspicion, howsoever strong it may be, cannot be a substitute for acceptable evidence.

Headnote:
Indian Penal Code,1860 - Section 302, 201, 120-B, 34, 404 - Offence of Murder – Criminal Cospiracy – Act done by several persons - Charged - F.I.R., which was lodged on basis of the written report Ex.Ka.-1 given by informant Bacchu Singh, wherein it was narrated that informant is an employee in Railway Department and has cordial relations with his neighbour accused, who uses to come to his house - Informant and his brothers have executed an agreement to sale and informant got Rs.2 lakh as his share, which were kept in his house - Informant's daughter received a phone call who wanted to have a chat with her mother, wife of the informant - After receiving the call, Laxmi took some articles in a bag and went away from house stating that she was going to her parental home at village Nahra and to come back after two hours was seen by many people going towards alongwith accused on Roadways - Informant made a phone call to in evening when she did not reach Nahra, but she was in haste and was unable to talk and subsequently her phone was switched off - Informant found that Rs.2 lakh, gold & silver jewels and clothings were missing from the house - After search, he found and identified dead body at Post-mortem House - Whether having taken cumulatively, circumstances are forming chain which is so complete that there is no escape from conclusion that within all normal and human probabilities, crime was committed by accused only and none else and aforesaid conclusion must be free from any other hypothesis than that of guilt of accused - In continuation of the scrutiny of evidence regarding recovery of murder weapons, Court attention is also drawn to fact that no FSL Report in respect of murder weapon, knives, is available on record to connect them with alleged offence despite fact that they were sent for chemical examination, as stated by P.W.8, Investigating Officer. [Para 85]
Finding of Court : Court are of considered view that prosecution has miserably failed to prove its case beyond reasonable doubt - Learned trial court though has analysed several factors relating to case, but has not scrutinized evidence on record in proper and legal manner and thereby, has accorded a perverse finding of conviction - Chain of circumstances is never complete, which was essential to record a conviction of an accused in a case based on circumstantial evidence - All material circumstances, like last seen, motive, recovery of murder weapon, extra judicial confession have not been proved for want of cogent and reliable evidence -Evidence rendered by prosecution is shaky and not trustworthy - Medical evidence stands against prosecution version - All these shortcomings denude prosecution case and in aforesaid legal and factual scenario, Court have no option but to set-aside impugned judgment and order and to record acquittal of all appellants - Impugned judgment and order of conviction and sentence, which has been sought to be assailed, calls for and deserves interference.
Result : Criminal appeals allowed

JUDGMENT :

Nalin Kumar Srivastava, J.

1. Heard Sri Shri Krishan Yadav and Sri Kripa Kant Pandey, learned counsel for the appellants and Sri Amit Sinha, learned A.G.A. for the State.

2. The validity and sustainability of the judgment and order dated 26.02.2020 passed by Additional Sessions Judge, Court No.4 / Special Judge, Mathura in Sessions Trial No.663 of 2011 (State Vs. Mahendra Singh and others) arising out of Crime No.238 of 2011 under Section 302, 201, 120-B, 34, 404 IPC, Police Station Chatta, District Mathura and Sessions Trial No.304 of 2012 (State Vs. Mahendra Singh) arising out of Crime No.241 of 2011 under Section 4/25 Arms Act, Police Station Chatta, District Mathura and Sessions Trial No.305 of 2012 (State Vs. Ganga Dhar) arising out of Crime No.242 of 2011 under Section 25 Arms Act, Police Station Chatta, District Mathura has been challenged by way of instant criminal appeals, whereby the appellants Mahendra Singh, Ganga Dhar and Baniya @ Balveer were convicted and sentenced to undergo imprisonment for life under Section 302/34 IPC with a fine of Rs.10,000/- each, in default thereof, to further undergo three months additional simple imprisonment, to undergo imprisonment for life under Section 120-B IPC with a fine of Rs.5000/- each, in default thereof, to further undergo three months additional simple imprisonment, to undergo three years rigorous imprisonment under Section 201 IPC with a fine of Rs.500/-each, in default thereof, to further undergo fifteen days additional simple imprisonment, to undergo two years imprisonment under Section 404 IPC with a fine of Rs.500/- each, in default thereof, to further undergo fifteen days additional simple imprisonment. Further, appellants Mahendra Singh and Ganga Dhar were convicted and sentenced to undergo two years imprisonment under Section 4/25 Arms Act with a fine of Rs.500/-each, in default thereof, to further undergo fifteen days additional simple imprisonment. All sentences were directed to run concurrently.

3. The prosecution story, in brief, finds place in the F.I.R., which was lodged on the basis of the written report Ex.Ka.-1 given by informant Bacchu Singh, wherein it was narrated that the informant is an employee in Railway Department and has cordial relations with his neighbour accused Mahendra Singh, who uses to come to his house. The informant and his brothers have executed an agreement to sale on 08.07.2011 and the informant got Rs.2 lakh as his share, which were kept in his house. On 12.07.2011, the informant's daughter Bhagwan Dei received a phone call by Mahendra who wanted to have a chat with her mother Laxmi, wife of the informant. After receiving the call, Laxmi took some articles in a bag and went away from house stating that she was going to her parental home at village Nahra and to come back after two hours. Laxmi was seen by many people going towards Chatta alongwith accused Mahendra on Akbarpur Roadways. The informant made a phone call to Laxmi in the evening when she did not reach Nahra, but she was in haste and was unable to talk and subsequently her phone was switched off. The informant found that Rs.2 lakh, gold & silver jewels and clothings were missing from the house. After search, he found and identified the dead body of Laxmi at the Post-mortem House, Mathura on 15.07.2011.

4. F.I.R. Ex.Ka.-10 was lodged against the named accused Mahendra Singh on 16.07.2011 at 13:00 P.M. by Constable Clerk Krishan Pal Singh, who also prepared the registration G.D. Ex.Ka.-11.

5. The investigation ensued and was taken over by C.O. Devendra Singh, who performed the proceedings of the investigation and during the course of investigation, the statements of relevant witnesses were recorded by him. The call details record of the mobile phones of the accused and deceased was also obtained. The dead body of the deceased was recovered and cash money and murder weapon knives were also retrived on the pointing out of the accused persons. The investigating officer also