Allowed

Markandey and Others v. State

Allahabad HC5 Aug 2019CRLA/1247/1987

Case brief

AI extract

What is this about?

In a murder appeal based on circumstantial evidence, the High Court acquitted the appellant. The Court found the chain of evidence incomplete due to missing motive against the appellant and a gap in the timeline of the victim's disappearance, rendering the conviction unsustainable.

What did the court decide?

The impugned judgment of conviction is set aside. The appellant is acquitted and released on bail.

Markandey and Others Vs State — Murder and Culpable Homicide | Allahabad HC (2019)

¶1

¶2

Court No. - 43

¶3

Criminal Appeal No.- 1247/1987

¶4

Appellant :- Markandey Respondent :- State of U.P. Counsel for Appellant :- Amit Kumar Srivastava Counsel for Respondent :- Archana Singh, A.G.A

¶5

Hon'ble Pankaj Naqvi,J. Hon'ble Suresh Kumar Gupta,J.

¶6

(Delivered by Pankaj Naqvi, J)

¶7

This criminal appeal is preferred against the judgment and order dated 30.4.1987, by the IVth Addl. Sessions Judge, Gorakhpur in S.T. No.304/1986, whereby appellants stand convicted / sentenced under Section 302 / 34 IPC to life imprisonment alongwith other ancillary conviction/sentences.

¶8

The prosecution case in brief is that Jai Gopal Mishra (victim) left his home on 4.2.1986 for an house errand after informing his daughter but did not return. P.W.1, the village chaukidar received information on 8.2.1986 at about 11 AM of the recovery of a dead body on the bank of river Rapti. He proceeded to the scene to see the body which was identified to be that of Jai Gopal Mishra. The body was left in the custody / supervision of accused – appellant/Markandey along with other co-villagers. The above information was entered at Sl. No.14 of the G.D, on 8.2.1986 at 14.30 hours, P.S.Campiarganj, Gorakhpur (Ext. Ka-1).

¶9

The inquest (Ext. Ka-4) was carried out on 8.2.1986 at about 16.45 hours to conclude at 18.20 hours in presence of inquest witnesses including accused –

¶10

¶11

appellant Markandey. The inquest indicated that the death was on account of drowning. The autopsy (Ext. Ka-3) was carried out on 9.2.1986 which indicated the following antemortem injuries:...

¶12

¼3½ e`R;q ds igys dh pksV &

¶13

1-&nk;s dku dk vk/kk Hkkx lkQ dVk FkkA

¶14

2- [kjk'k 1-5 ls-eh- x 0-5 ls-eh- ukd ij nkfgus rjQA

¶15

3- QVk gqvk ?kko 6 ls-eh- x 3 ls-eh- x ekal rd xgjk nkfgus rjQ psgjs ,oa xnZu ij tek gqvk [kwu ekStwn FkkA dkVus ij uhps dh ekalisf'k;ka Hkh {kfrxzLr Fkh dUtsLVsM FkkA

¶16

4- Hkqdk gqvk ?kko 2 ls-eh- x 2 ls-eh- x ekal rd xgjk nkfgus dku ds lkeus dh vksj fdukjs vanj dh vksj eq>s gq;s FksA tek gqvk [kwu FkkA

¶17

¼4½ efLr"d vo:) FkkA eseczsu vo:) FkkA eR;q iwoZ vkbZ pksVks ds dkj.k jDrlzko o lnes ds dkj.k er gqvkA

¶18

¼5½ ;g fjiksVZ esjs ys[k ,d gLrk{kj esa gSA tks izn'kZ d&3 gSA 4-2-86 dh jkr dh 10 cts ls ysdj lqcg ds chp dh e`R;q ugh gks ldrhA

¶19

¼6½ ftu ifjfLFkfr;ksa esa yk'k Fkh 24 ls 28 ?kaVs esa lM+u izkjaHk gks ldrh gSA ”

¶20

P.W.-2 & 4 stated that the accused – appellant Markandey confessed his guilt before them. P.W.-3 the last seen who stated that while he had gone to ease himself at the wee hours of 4.2.1986 at around 3-3.30 AM he saw the 3 accused persons along with one unknown on way to the river bed. P.W-5 also a last seen on 4.2.1986 at around 10 PM while on way to guard his fields saw the deceased along with 3 accused – appellants and 1 unknown were warming themselves over fire in front of the house of one Satya Deo. P.W.-6, daughter of the deceased deposed that on 4.2.1986 while her father (victim) had gone to Pipiganj to collect pension, returned at 6 PM but left again after 15 minutes on the pretext that after settling accounts with accused Ram Nath would return along with grass.

¶21

¶22

The accused in their statements claimed false implication in view of local village factionalism. No defence evidence was led.

¶23

The trial court after evaluating the evidence on record, convicted / sentenced the appellants as above.

¶24

During the pendency of the appeal, appellants no. 2 & 3 died, their appeals abated, appeal survives only in respect of appellant no. 1/Markandey.

¶25

We have heard Sri Amit Kumar Srivastava, learned counsel for the appellant and Ms. Archana Singh, the learned A.G.A.

¶26

Learned counsel for the appellants raised the following submissions:

¶27

i) A case of circumstantial evidence where all the links in the chain of circumstances are not established.

¶28

ii) Motive, if any, is against abated accused Ram Nath, appellant roped in, only because he happens to be his brother.

¶29

iii) The doctor who conducted the autopsy, was fixing the time of death on 7^th March whereas the last seen was on 4^th March, prosecution failed to explain as to who saw the victim during this interiginum.

¶30

iv) Extra judicial confession before P.W.'s 2 & 4 is unreliable.

¶31

¶32

The learned A.G.A. opposed the submissions.

¶33

This is a case based on circumstantial evidence as there are no eye witness. The Apex Court in a recent decision i.e, Criminal Appeal No.1193 of 2011 Chandru @ Chandrasekaran vs. State Represented by Deputy Superintendent of Police CB(CID) and another decided on 12.2.2019 summarised the law on circumstantial evidence as under:

¶34

"The law with regard to appreciation of circumstantial evidence has been clearly enunciated in the case of Hanumant v. State of Madhya Pradesh AIR 1952 SC 343, wherein this Court held as follows: "10......It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

¶35

10. This law has been consistently followed and has been repeated in catena of authorities. It is not necessary to refer to all the authorities. However, we may refer to Sir Alfred Wills book Wills on Circumstantial Evidence (Chapter VI) Butterworths, Seventh Edition, Pp 296-329, in which he has laid down the following Rules specially to be observed in the case of circumstantial evidence:

¶36

"RULE 1. - The facts alleged as the basis of any legal inference must be clearly proved, and beyond reasonable doubt connected with the factum probandum............

¶37

RULE 2. - The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability................

¶38

RULE 3. - In all cases, whether of direct or circumstantial evidence, the best evidence must be

¶39

¶40

adduced which the nature of the case admits.........

¶41

RULE 4. - In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt..................

¶42

RULE 5. - If there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."

¶43

11. The law can be summarised in the following terms:

¶44

1. The circumstances relied upon by the prosecution which lead to an inference to the guilt of the accused must be proved beyond doubt;

¶45

2. The circumstances should unerringly point towards the guilt of the accused;

¶46

3. The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused;

¶47

4. That there should be no probability of the crime having been committed by a person other than the accused.

¶48

The prosecution in order to succeed in the present case will have to establish the following links in the chain of circumstances:-

¶49

i) Victim went missing on 4.2.1986 at about 6 PM alleging that he was going to the house of abated accused Ram Nath to settle accounts in the same village and would return with grass.

¶50

ii) Victim did not return. P.W.-5, the last seen saw the victim on 4.2.1986 at about 10 PM in front of the house of one Satyadeo on way to guard his fields, while all of them were warming themselves around fire.

¶51

iii) P.W.-3 saw the accused – appellants on 5.2.1986

¶52

¶53

at about 3.30 AM coming from the river side.

¶54

iv) Recovery of the body of the victim on 8.2.1986 from the river bed and information to this effect given by P.W.-1, the village chaukidar to the P.S. concerned.

¶55

v) The victim died on 4.2.1986 between 10 PM and 3.30 AM on 5.2.1986.

¶56

vi) Motive to commit the murder of the victim.

¶57

P.W.-6 the daughter of the deceased stated that on 4.2.1986, her father / the deceased had gone to Pipiganj to withdraw his pension, returned at 6 in the evening to leave again after 15 minutes, on the pretext that he is going to the house of abated accused Ram Nath, a postal employee, to settle accounts and would return to have dinner. P.W.-6 waited till 11 PM but the victim / father did not return. P.W.-5 on 4.2.1986 while returning from his fields, at around 10 PM, saw the victim in the company of 3 appellants near the house of one Satyadev. P.W.-5 a heart patient but despite his failing health, was also doing the house-hold work. P.W.-3 is also last seen on 5.2.1986 at about 3.30 AM, who went a furlong away to ease himself although suffering from dysentery. Considering that this part of the country is quite cold in the wee hours of the first week of February as also the fact that the witness does not select a place to ease himself near a pond at a distance of 25-30 steps, rather a furlong away when he is suffering from dysentery, creates a doubt to his presence as last seen.

¶58

Admittedly the dead body was recovered from the river bed on 8.2.1986.

¶59

¶60

The inquest (Ext. Ka-4) of the deceased was carried out on 8.2.1986 at 16.45 hours in presence of Panch witnesses including appellant no. 1. The inquest witnesses opined that the cause of death was attributable to drowning. The autopsy (Ext. Ka-3) was carried out by P.W.-9 the doctor on 9.2.1986 at about 3 PM. He was ruling out the time of death from 4.2.1986 at about 10 PM till next morning and fixing the time of death in the intervening night of 6/7-2.1986, i.e., the prosecution was unable to explain as to where the victim was from 4.2.1986 till the intervening night of 6/7.2.1986.

¶61

Motive, if any, was with abated accused Ram Nath with whom the victim had to settle some accounts as the said accused being a postal employee used to assist the victim in withdrawing his pension as also he owed some money (Rs.30-35 thousand) to victim. Appellant Markandey is the brother of accused Ram Nath , prosecution had not alleged any motive against appellant/Markandey. Once motive is wanting in a case of circumstantial evidence, prosecution case comes under suspect.

¶62

The prosecution also relied on the extra-judicial confession made before P.W.-2, 4 and one Aniruddh. These witnesses are not holding any position of power or clout who could have come to the rescue of accused-appellants. Moreover extra-judicial confession is a weak evidence, unless corroborated by any credible evidence, it cannot be the basis for conviction. There is no collateral evidence to corroborate the extra-judicial confession.

¶63

The trial court proceeded to convict the appellants holding extra-judicial confession valid and links in the chain

¶64

¶65

of circumstances are complete and disbelieved the medical evidence in view of oral evidence was based on misreading of evidence.

¶66

We after considering the matter in entirety, are of the view that neither is any motive established nor the chain of circumstances complete so as to suggest that it was none else than the appellant who committed the murder of the deceased, the impugned judgement cannot be sustained, is liable to be set aside.

¶67

The appeal is allowed . The judgment and order dated 30.4.1987 is set aside. Appellant is acquitted of the charge. He is on bail. His bail bonds stand cancelled and surety discharged.

¶68

Office is directed to communicate this order to the court concerned. Compliance report be submitted within 2 months.

¶69

Order Date:- 5.8.2019

¶70

Chandra

¶71

(Suresh Kumar Gupta, J ) ( Pankaj Naqvi,J )

Markandey and Others v. State

Case brief

What is this about?

What did the court decide?

Markandey and Others v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Babu Lal and Others Vs State of U.P.

Tilku Ram and Others Vs State of U.P.

Ram Prakash Alias Sukhraj Vs State of U.P.

Kalyan Vs State

Sheetal Singh and Ors. Vs State of U.P.

Nanhe Vs State