Allowed

Chhotey Lal v. State of U.P.

Allahabad HC9 Jul 2019JAPL/2853/2017

Case brief

AI extract

What is this about?

Jail appeal against conviction under Sections 302 and 201 IPC for the murder of the appellant's father, whose body was found in a well. The court found no ocular evidence, an incomplete chain of circumstances, improved and untrustworthy testimony, and an unsustainable motive, and acquitted the appellant.

What did the court decide?

Appeal allowed; impugned judgment dated 19.01.2017 set aside; appellant Chhotey Lal acquitted of the charges and directed to be released forthwith.

Chhotey Lal Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2019)

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AFR Reserved on : 22.02.2019 Delivered on : 09.07.2019

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Court No. - 34

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Case :- JAIL APPEAL No. - 2853 of 2017

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Appellant :- Chhotey Lal Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Pradeep Kumar Mishra (A.C.) Counsel for Respondent :- G.A., Nikhil Chaturvedi (AGA)

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajendra Kumar-IV,J.

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(Delivered by Hon'ble Sudhir Agarwal,J.)

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Present Jail Appeal has been filed under Section 383 Cr.P.C. by accused-appellant Chhotey Lal through Superintendent of Jail, Kaushambi against judgment and order dated 19.01.2017, passed by Sri Ram Chandra Yadav, Additional Sessions Judge, Court No.5, Kaushambi in Sessions Trial No.177 of 2010 (State v. Chhotey Lal) relating to Case Crime No.754 of 2009, Police Station Saini, District Kaushambi, convicting accused-appellant under Section 302 IPC and sentencing him to undergo life imprisonment with a fine of Rs. 10,000/- and in default of payment of fine, he has to undergo ten months additional imprisonment. Further under Section 201 I.P.C., accused-appellant has been sentenced to undergo 2 years imprisonment with fine of Rs. 2,000/- and in default of payment of fine, two months additional imprisonment was awarded. Both sentences were directed to run concurrently.

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Factual matrix of the case as emerging from First Information Report (hereinafter referred to as “FIR”) as well as material placed on record is as follows.

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A First Information Report was lodged by P.W.-1 Rakesh Kumar resident of Sirathu P.S. Kaushambi on 16.12.2009 at P.S. Saini with the allegation that Informant's father Basudeo aged about 90 years used to reside in a cottage near the well in his field situate in Mohalla Kaithanbag for more than 10 years. He used to cook and take his meal there and looked after the fields. The day before the incident, Informant

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had gone to his father's place of residence and after seeing him returned to his house at 9:00 p.m. On 16.12.2009 when went to the fields, he noticed blood stains inside the cottage. His father was absent therefrom. He also noticed mark of dragging along with blood stains from hut to the well. When he peeped into the well, he saw his father's dead body lying in the well. According to Informant, some unknown persons had assaulted and murdered his father.

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On the basis of written report, Ex. Ka-1, Constable Satya Prakash Mishra registered the case and prepared Chick F.I.R. (Ex.Ka-14) at Case Crime No. 754 of 2009, under Section 302 I.P.C. He also made an entry of the incident in G.D. on 16.12.2009 at 9:30 p.m. After registration of case, investigation was undertaken by P.W-5 Inspector Ram Ashish Singh. He rushed to spot, prepared site plan (Ex.Ka-3), collected sleepers of deceased, strings of cot, pieces of clothes, plain and blood stained earth and prepared recovery memos in respect thereof. Sri L.R. Verma, Chowki In-charge, Sirathu, had conducted proceedings of inquest and prepared Panchayatnama (Ex.Ka-8). He also prepared necessary documents namely, police form 13 (Ex.Ka-9), Photonash (Ex.Ka-10), letter to R.I., Police lines (Ex.Ka-11), specimen seal (Ex.Ka-12), letter to C.M.O. (Ex.Ka-13) with the request to conduct autopsy over the dead body of deceased Basudeo.

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Autopsy on the dead body of the deceased was conducted by P.W.-5 Dr. Shazi Rahil, who was then Medical Officer at new Primary Health Centre Gauspur, District Kaushambi. According to him, deceased was aged about 90 years of average body built. About 1½ days had passed since his death and rigour mortis had passed through upper limbs and present in lower limb. The Doctor found following ante mortem injuries from his person.

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(i) Lacerated wound of 5 x 3 cm x bone deep, present in front of nose passing from medial side of left eyebrow up to left side forehead with underlying bone fracture present.

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(ii) Lacerated wound of 5 cm x 2 cm x bone deep, present on left side maindable with underlying bone and all teeth, fracture present. (iii) Contused swelling of 5 cm x 6 cm x bone deep, present on upper side of left arm with underlying bone fracture present.

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(iv) Lacerated wound of 10 cm x 9 cm x bone deep, present on back of left thigh with underlying bone fracture present.

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On internal examination about 200 ml semi digested food was found in stomach and small intestine was half full. No other abnormality detected. In the opinion of Doctor, death was caused due to coma, instantaneous death as a result of ante mortem injuries to brain. P.W.-3 thereafter prepared post mortem report Ex.Ka-2.

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P.W.-5 Investigating Officer (hereinafter referred to as 'I.O.') arrested the accused-appellant, recorded evidence of witnesses and collected evidence. He also prepared recovery memo Ex.Ka-5 with respect to recovery of a cycle and a Will (Ex.Ka-7) executed by deceased Basudeo in favour of his grandson Vikas Kumar. After concluding investigation, he submitted charge sheet Ex.Ka-6 in Court against the accused-appellant, Chhotey Lal, and co-accused Govind (deceased) under Sections 302/201 I.P.C.

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Cognizance of offence was taken by Chief Judicial Magistrate, Kaushambi on 8.3.2010. The offences being exclusively triable by Court of Sessions, after making compliance under section 207 Cr.P.C., case was committed to the Court of Sessions for trial. The then Sessions Judge framed following charges against accused under Sections 302 and 201 IPC :-

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" मै टी. एम. खॉन सत्र न्यायाधीश कौशाम्बी आप छोटे लाल व गोिवन्द प्रसाद को िनम्निलिखत अपराध के आरोप से आरोिपत

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करता हूँ।

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प्रथम यह िक- िदनॉक 15./16.12.2009 को समय 9 बजे रात स्थानखेत मे ित स्थत झोपड़ी वादी बहद ग्राम कैथनबाग थाना सैनी जनपद कौशाम्बी मे आप अिभियुक्त गण ने वादी के िपता बास देव सरोज की मारकर हत्या कर िदये। इस प्रकार आप सब का यह कृत्य धारा 302 भिा.द.स. के अन्तगरत दण्डनीय अपराध है जो इस न्यायालय के संज्ञान मे है।

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िद्वितीय यह िक- िदनॉक उपरोक्त िदनॉक, समय व स्थान मे आप अिभियुक्तगण ने वादी के िपता बासदेव सरोज की की हत्या करने के बाद उसकी लाश को कुये मे फेक िदये इस प्रकार आप सब का यह कृत्य धारा 201 भिा.द.स. के अन्तगरत दण्डनीय अपराध है जो इस न्यायालय के संज्ञान मे है।

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अत: एतत् द्विारा आपको िनदेिशत िकया जाता है िक उक्त अपराध के आरोप मे आपका िवचारण इसी न्यायालय द्विारा िकया जायेगा।"

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“I, T.M. Khan, Sessions Judge, Kaushambi do hereby charge you, Chhotey Lal and Govind Prasad with the following charge for the offences:

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Firstly, that on the intervening night of 15/16.12.2009 at 9 pm, in the hut of the Informant situated in the field within the limits of Village Kaithanbagh, PS Saini, District Kaushambi; you the accused persons by assaulting killed complainant's father Basdeo Saroj. Thus, this act of yours is an offence punishable under Section 302 of IPC, which is within the cognizance of the court.

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Secondly, that on the aforesaid date, time and place, you the accused persons, after killing complainant's father Basdeo Saroj, threw his dead body into a well. Thus, this offence of yours is punishable under Section 201 of IPC, which is within the cognizance of this court.

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Hence, it is hereby directed that you be tried by this court for the said offences.”

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(English Translation by Court)

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Both accused Chotey Lal (appellant) and Govind pleaded not guilty

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and claimed to be tried. Accused Govind died during course of trial and proceedings against him stood abated vide order dated 20.10.2015 by Additional Sessions Judge, Court No. 5, Kaushambi.

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In support of its case, prosecution examined, in all six, witnesses out of whom, PW-1 Rakesh Kumar, PW-2 Laxman and PW-4 Durga Prasad are witnesses of fact. Rest are formal witnesses. PW-3 Dr. Shazi Raheel had conducted post mortem on the dead body of deceased and has proved post mortem report (Ex.Ka-2). PW-5 Ram Ashish Singh is the I.O., who has proved various documents, namely, site plan Ex.Ka-3, Panchayatnama Ex.Ka-8, Police Form 13 Ex.Ka-9, Photo Nash Ex.Ka-10, letter to R.I., Police lines, Kaushambi Ex.Ka-11, specimen seal Ex.Ka-12 and letter to C.M.O. Ex.Ka-13. He has also proved Ex.Ka-5 recovery memo, pertaining to recovery of cycle and Will (Ex.Ka-7) executed by deceased Basudeo in favour of his grandson Vikas Kumar and charge sheet (Ex.Ka-6). PW-6 Ghanshyam Pandey is the scribe of Chick F.I.R. and has proved Chick F.I.R. (Ex.Ka-14) and copy of entry made in G.D. (Ex.Ka-15).

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After conclusion of prosecution evidence, statement of accusedappellant under Section 313 Cr.P.C. was recorded by Trial Court, explaining all incriminating and other evidence as well as circumstances to him. Accused denied prosecution story at all and all formalities of investigation were said to be wrong. He claimed false implication on account of enmity. However, he did not adduce any evidence in defence.

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After analysing entire evidence led by prosecution, Trial Court convicted and sentenced accused-appellant as stated above. Feeling aggrieved with the impugned order of conviction and sentence, present appeal has been filed from Jail through Jail Superintendent, Kaushambi.

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Trial Court has found its conclusion of guilt of accused-appellant on following findings of fact :-

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(I) Informant Rakesh Kumar (PW-1) has proved motive that

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deceased has executed 'Will' in favour of son of accusedappellant on account whereof accused-appellant was annoyed. (II) Informant in the evening of fateful night, when intended to go to sleep with his father, met accused-appellant and Govind Prasad who chased him whereon he run and came back to his house. In the morning, when he went to the field, found none in the hut except blood stains. Dead body of his father, was found in the Well.

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(III) PW-2, Lakshman, eldest son of deceased and elder brother of accused-appellant and PW-1, Informant, saw his father, Informant Rakesh Kumar, accused-appellant Chhotey Lal and Govind in the field when his father told that due to scarcity of water, agricultural field has reduced and accused-appellant may sell land of his share to get tube-well installed. This conversation took place at around 4:00 p.m. PW-2 along with his brother-inlaw Dukhram went to work at the field and when reached near Machine of Munna Pandey, met Chhotey Lal and Govind in front of Balika Inter College. Chhotey Lal was riding bicycle and Govind was pillion-rider. They went to the tube-well of Munna Pandey and waited for Vijay for about half an hour. When he did not come, they walked towards Kaithan Bagh and when reached near boundary of Balika Inter Collage, they (PW-2 and his brother-in-law), saw accused appellant and Govind coming back on bicycle and told them that you (PW-2 and his brother-in-law) had seen them and should not give this information to anyone else, otherwise their life will be in danger. They got afraid and went back to the house at Koripur from the side of Kaithan Bagh. In the morning at 10:00 a.m., information of death of his father was received by PW-2, therefore, not only the fact that accusedappellant and Govind had gone to the field of deceased but also threatened them is a relevant factor pointing towards the guilt of

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accused-appellant.

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(IV) PW-4, Durga Prasad, is also relative of deceased since deceased is his maternal uncle. He is witness to prove recovery of sleepers with blood stains and other items from the place of incident by Police and has proved the document paper no. 7/Ka/1.

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(V) PW-5, Ram Ashish Singh, proved extra judicial confession by Govind and accused-appellant and also caused discovery of Cycle and 'Will'. Copy of 'Will' was Ex.Ka-5 and mentioned in case diary as Parcha No.4. Original 'Will' was also placed on record which was discovered from the possession of accused and it was marked as Ex.Ka-7.

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Treating above circumstance to be sufficient to hold the accusedappellant guilty, Trial Court has convicted accused-appellant and passed the order which is impugned in this appeal.

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We have heard Sri Pradeep Kumar Mishra, Advocate (Amicus Curiae) for appellant and Sri Nikhil Chaturvedi, learned A.G.A for Staterespondents at length and have gone through the record available on file carefully.

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Learned Amicus Curiae, appearing for accused-appellant, contended that on mere conjuncture and surmises, without any credible evidence accused-appellant has been held guilty and assailed the judgement of Court below, broadly, on the following grounds:-

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(i) There is no eye witness to the incident.

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(ii) Even chain of circumstantial evidence has not been proved by prosecution.

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(iii) It is not a case where accused-appellant was seen last in the company of deceased and thereafter he was found dead. Here accused-appellant, as per prosecution witnesses, PW-1 and 2, was seen elsewhere and allegedly threatened them and this has been taken to be a ground for holding accused-appellant guilty.

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(iv) The alleged motive is also very week inasmuch as appellant's father executed 'Will' in favour of son of accused-appellant. Hence there is no question of any annoyance or malafide on the part of accused-appellant since 'Will' was admittedly executed in favour of his (accused-appellant) own son.

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(v) Nobody has seen accused-appellant in field, in the company of deceased, and there is no discovery of any weapon or other item causing injuries to deceased which have been found in the post mortem report.

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(vi) The intention of false implication of accused-appellant on the part of PW-1 and PW-2, who are both real brothers of accusedappellant is more probable for the reason that 'Will' was executed by deceased in favour of son of accused-appellant and therefore, other two brothers of appellant i.e. PW-1 and PW-2 has a reason to get annoyed and they had a probable motive to commit crime or falsely implicate appellant.

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(vii) It is a case where accused-appellant has been implicated virtually without any evidence and prosecution has miserably failed to prove its case beyond reasonable doubt, hence, Trial Court has committed manifest error in recording verdict of guilt of appellant.

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Learned AGA, on the contrary, has submitted that PW-1 has clearly stated that he had seen accused-appellant and has also proved motive and PW-2 has proved the fact that accused-appellant was seen while going to the field and coming back and also threatened him of not disclosing this fact otherwise he will be killed and this shows that it is only accusedappellant, who had committed crime and none else. Moreover, confession of accused-appellant before Police when he was arrested and discovery of 'Will' from the possession of accused-appellant also fortify inference of guilt on the part of accused-appellant, therefore, chain of circumstances is complete and judgement of Trial Court warrants no interference.

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We have carefully heard learned counsels for parties, submissions advanced by them and perused the record in entirety.

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Admittedly, here is a case, not based on ocular testimony of any witness. Informant Rakesh Kumar, youngest son of deceased Basudeo, has stated that he returned from the field, after meeting his father, around 9:00 p.m. in the night. When in the morning, he went to the field, found blood stains in the cottage / hut but his father was not there and he saw signs of dragging and blood stains on the ground leading to the well and found his father's dead body in the Well. There is no indication that he has any suspicion against the accused-appellant or that he had seen accused appellant and his relative Govind at any point of time, either in the evening preceding the incident or in the morning when dead body was discovered.

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Fard dated 19.12.2009 is in respect of discovery of bicycle and 'Will' from the house of Govind. It is alleged that accused-appellant and Govind were arrested on 19.12.2009 when they were sitting on Puliya over Nahar, they told that 'Will' is at the residence of Govind and they can get it discovered and thereafter, 'Will' was found at the house of Govind on the instruction of Govind. It is also mentioned that accused-appellant told that weapon, i.e., Mungari used for causing injuries to deceased Basudeo was thrown at the site. Fard memo dated 16.12.2009 mentioned discovery of wooden Mungari with blood stains at the place where dead body of deceased was discovered. Thus, discovery of weapon is on 18.12.2009 though accused-appellant was arrested on 19.12.2009, hence, there cannot be said to be any recovery of weapon of crime on the information given by accused-appellant while in custody, and Section 27 of Evidence Act, has not applicable. Post mortem report shows three lacerated wounds, two on the face and head and one on the thigh.

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Copy of 'Will' is on record as Ex. Ka-7 and it shows that Basudeo had three sons Lakshamn, Chhotey Lal and Rakesh Kumar. Lakshman was residing at the place of in-laws i.e. Koripur, Tehsil Manjhanpur,

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District Kaushambi and Rakesh Kumar was residing separately from Basudeo. At the time of writing 'Will' deceased was aged about 75 years and found it difficult to take care of himself. His wife had also died about two years back. Vikas Kumar, son of accused-appellant Chhotey Lal, was residing with deceased since childhood and used to take care of deceased throughout and pleased with the services rendered by grandson, Vikas Kumar, deceased found it appropriate to bequeath his entire movable and immovable property of which he was owner and in possession, in favour of Vikas Kumar, son of accused-appellant. This Will is dated 8.2.2007.

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The incident took place in the night of 15/16^th December, 2009 and first witness i.e. PW-1 was examined on 21.5.2013. Here the statement is different than what has been said in F.I.R. He has said that on the date of incident, in the evening, he was at his field and after meeting his father came back to his house. Thereafter, again he went for watering the field where he got late and thought of staying and sleeping with the father but in the way Govind and Chhotey Lal met him and chased him. He came to his house running and in the morning, when went to the field, found blood stains in the cottage/ hut but his father was not present. He found signs of dragging and blood on the ground and when saw in the well, his father's dead body was there. In cross-examination, PW-1, could give no reason as to why this important fact that he was chased by Govind and Chhote Lal in the night of incident was not mentioned in F.I.R. He said that to save his life he ran towards forest and also cried but no body came due to winter time. In the morning he went to Police Chowki and explained every thing but did not go to Police Chowki in the evening. This statement of PW-1, in our view, is doubtful and untrustworthy for the reason that from this statement of PW-1, it is evident that in the night itself, Informant got a different inimical treatment from Govind and Chhotey Lal so much so that Informant had to run to save his life and go towards forest also but in F.I.R., registered in the morning, no such fact has been mentioned. In F.I.R. he has simply said that after meeting his father he came to his house

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around 9:00 p.m. and then in the morning found dead body of his father in the well. The statement of PW-1 recorded after more than three and half years is clearly improved one and names of accused-appellant and Govind have been included therein to make out a case supporting prosecution against appellant. He has also admitted that he did not disclose their names, either in the F.I.R. or to police when lodged report not any one in the village.

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We also find it difficult to understand the alleged motive on the part of the appellant whose son was the beneficiary of 'Will' executed by deceased, inasmuch as, deceased instead of bequeathing his property to his any individual son, or more than one or all, chose to bequeath entire property to his grandson, i.e., son of accused-appellant. Therefore, in effect appellant is also a beneficiary, hence, there was no occasion of bearing any enmity, in the mind of accused-appellant. Instead loosers were the two sons, namely, Informant, Rakesh Kumar, PW-1; and, another witness, PW-2, Lakshman, who had reason to get annoyed from their father for bequeathing entire property to their nephew i.e. grand son of deceased, son of accused-appellant.

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PW-2, Lakshman, elder son of deceased, and elder brother of accused-appellant and also PW-1, Informant, admittedly were residing in the village of in-laws, i.e., village Koripur where he has land and house. He has also admitted that his father has four Bigha land out of which distributed, one Bigha land to each son and one Bigha was kept for himself. He had visited his father about four days earlier to the date of incident, when other two brothers and Govind Prasad i.e. Samdhi of accused-appellant were also sitting there. The deceased told them that due to shortage of water, agricultural field is reducing, therefore, his land be sold to get a tube-well installed. Thereafter he has narrated further incident stating that he along with his brother-in-law, Dukhram, and Dr. Mohan, resident of Koripur, reached near machine of Munna Pandey from the site of Kathan Bagh and in the front of Balika Inter College, met

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Chhotey Lal and Govind. Both were on bicycle.

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PW-2 and his companions went to the tubwell of Munna Pandey and waited for Vijay, for about half an hour, but he did not come. Thereafter they came back from the site of Kaithan Bagh near boundary wall of Balika Inter College again, met Chhotey Lal and Govind coming on the same cycle, who said that they should not disclose this fact of having seen Chhotey Lal and Govind, going and coming to the field, to any one else, they (PW-2 and his companions) may loose their life. Afraid of this threat, PW-2 and his companion went to village Koripur from the site of Kaithan Bagh. Here the statement of PW-2 apparently is contrary to the statement of PW-1 inasmuch as in F.I.R., PW-1 has categorically mentioned that he came back from the field leaving his father at the field, around 9:00 p.m.

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In the oral deposition, PW-1 has not mentioned any specific time but he has proved report, therefore, time mentioned therein also has been proved by him. The deceased was therefore, alive till 9:00 p.m. PW-2 according to his own statement met his father and others at 4:00 p.m. at the residence and thereafter further statement nowhere talks of alleged site, and Govind Prasad and Chhotey Lal, which may come beyond 9:00 p.m. In the cross-examination PW-2 has also said that he met his father about 3 days back before the incident and Informant told him around 8:00 in the morning that he had lodged report. The time of report registered by police is 9:30 a.m. on 16.12.2009. Here also PW-2 has not said that he discussed or have any suspicion over Chhotey Lal and Govind Prasad or that he was threatened by them in preceding evening.

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PW-1 on the one side said that Chhotey Lal was not present at the place of incident when police took out dead body of deceased from Well but PW-2 said that Chhotey Lal was present when dead body was taking away. In the cross-examination PW-2 has also admitted that police initially arrested all three brothers and also Govind Prasad and his son, thereafter PW-1 and Pw-2 were released and accused-appellant, Govind

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Prasad and his son were kept in lookup. At the Police Station they remained for about four hours and then came to their house. Police sent Chhotey Lal and Govind Prasad to jail. He also admitted that police got signature of PW-1 and PW-2 both on a plain paper which is paper no. 7/ka/2. The aforesaid statement of PW-2 which was also recorded in October, 2013 ex facie lacks credibility and has several gaps. If PW-2 and others, who accompanied him, were threatened by Chhotey Lal and Govind why this fact was not disclosed to the Informant when PW-2 talked Informant in the morning of 16th December, 2009 at 8:00 AM and it appears that both these witnesses have made this statement as an afterthought for some other reasons. This is also fortified from the fact that the relations of PW-1 and PW-2 are cordial but not with accused appellant. This statement of PW-2 in cross-examination we may reproduce as under:

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esjk o esjs HkkbZ NksVsyky dk vkil esa [kkunku ugh gSA esjk vkSj esjs HkkbZ jkds'k dk vkil esa [kkunku gSA -

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Me and my brother Chhotey Lal share no family bonds. Me and my brother Rakesh share family bonds.

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(English Translation by Court)

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There is no other evidence which may implicate accused-appellant in the incident in question to show that the offence was committed by him.

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PW-5, Ramashish Singh, Investing Officer though has stated that accused-appellant admitted guilt when he was arrested on 16.12.2009 and his statement was recorded and also discovered cycle and 'Will' from the possession of the accused-appellant but, in our view, this statement of PW-5 does not advance the case at all. Execution of a 'Will', which admittedly was a registered document in favour of son of accusedappellant is not disputed and since 'Will' was in the name of son of accused-appellant, if it was in possession of accused-appellant, there was nothing unusual. After all, beneficiary of 'Will' was the son of accused-

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appellant, hence, indirectly even appellant was beneficiary.

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The alleged admission before Police is inadmissible in evidence. As per PW-5, Chhotey Lal was arrested on 16.12.2009 itself and as per statement of PW-2 all the three brothers were taken in custody by Police on 16.12.2009 but later on PWs-1 and 2 were released but Chhotey Lal and Govind and son of Govind Prasad were sent to Jail. PW-2 has also stated that PW-1 and PW-2 were interrogated separately by Police on 16.12.2009 but PW-5 has stated that he recorded statement of Lakshaman PW-2 on 17.12.2009 since on the earlier date he was trying to investigate as to who has committed crime. This is also self contradictory inasmuch as he has also said that he already arrested Chhotey Lal on 16.12.2009.

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The conduct of Chhotely Lal also shows that he was present when dead body of deceased was taken out of Well and also present at the time of preparation of Panchayatnama. This has been said by PW-5 himself and the relevant statement reads as under:

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iapukek ds le; eqfYte NksVsyky ekStwn FkkA

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Accused Chhotey Lal was present at the time of inquest.

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(English Translation by Court)

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yk'k dq, ls fudkyus esa NksVsyky o vU; yksx Fks A

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Chhotey Lal and others were amongst the persons who had taken out the dead body from the Well.

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(English Translation by Court)

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PW-5 in cross-examination has also said that accused-appellant and Govind were implicated by police and taken to be accused in the case on the basis of statement of PW-2 and one Dukhram Pasi but Dukhram Pasi has not been examined at all while statement of Lakshman, as we have already discussed, is quite untrustworthy. More so, when he himself has admitted that his relations with accused-appellant were not cordial and instead PW-1 and PW-2 were having better relations.

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Looking to the entire discussion made above, we are clearly of the

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view that neither there is any complete chain of circumstances which has been proved by prosecution which may indicate towards guilt of accusedappellant only what to say of completion of chain of circumstances, nor there is any trustworthy evidence to prove or even indicate towards guilt of accused-appellant. Police having been influenced by statement of PW-2 as admitted by PW-5 has implicated accused-appellant in the case in hand though it found no evidence against him. It appears that accused-appellant has been prosecuted only to claim a good work by Police though it could not collect any credible or trustworthy evidence against him and on the basis of interested witnesses and also misconstruing alleged motive, accused-appellant has been prosecuted. Unfortunately, Trial Court has also misled itself by not looking into all these aspects.

¶97

In criminal cases, law is well settled that no person can be convicted on mere suspicion and instead prosecution has heavy burden to prove its case beyond reasonable doubt. It is not the weakness in defence of accused which may help the prosecution but prosecution has to stand on its own to prove guilt, particularly when trial is totally dependant on circumstantial evidence for the reason that degree of proof in the case based on circumstantial evidence is serious in the sense that chain of circumstances has to be proved to the extent which may lead to only one inference that it is only the accused, who has committed the crime and none else.

¶98

In a case, which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link in chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all circumstances must be consistent only with guilt of accused.

¶99

In Hanumant vs. The State of Madhya Pradesh, AIR 1952 SC 343 , as long back as in 1952, Hon'ble Mahajan, J. expounded various concomitant of proof of a case based purely on circumstantial evidence and said:

¶100

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¶101

"... 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 ...... it must be such as to show that within all human probability the act must have been done by the accused. "

¶102

(emphasis added)"

¶103

In Hukum Singh vs. State of Rajasthan, AIR 1977 SC 1063 , Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person.

¶104

In Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 , Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent :-

¶105

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established .

¶106

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused , that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

¶107

(3) the circumstances should be of a conclusive nature and tendency.

¶108

(4) they should exclude every possible hypothesis except the one to be proved, and

¶109

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (emphasis added)

¶110

39. In Ashok Kumar Chatterjee vs. State of Madhya Pradesh, AIR

¶111

1989 SC 1890 , Court said:

¶112

"...when a case rests upon circumstantial evidence such evidence must satisfy the following tests :-

¶113

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;

¶114

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¶115

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused ;

¶116

(3) the circumstances, taken cumulatively; should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and,

¶117

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

¶118

(emphasis added)

¶119

40. In C. Chenga Reddy and others vs. State of Andhra Pradesh, 1996(10) SCC 193 , Court said:

¶120

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature . Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." (emphasis added)

¶121

In Bodh Raj @ Bodha and others vs. State of Jammu and Kashmir, 2002(8) SCC 45 Court quoted from Sir Alfred Wills, "Wills' Circumstantial Evidence" (Chapter VI) and in para 15 of judgement said:

¶122

"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

¶123

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

¶124

(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

¶125

(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, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted ." (emphasis added)

¶126

The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Another v. Registrar General High Court of Karnataka and Another, 2007(4) SCC 713 and Tomaso Bruno vs. State of U.P., 2015(7) SCC 178 .

¶127

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¶128

In view of discussion made hereinabove, we have no hesitation in holding that accused-appellant cannot be said to be guilty in the the case in hand and prosecution has miserably failed to prove its case beyond reasonable doubt. The judgement of Trial Court, therefore, cannot be sustained.

¶129

In the result, appeal succeeds and is hereby allowed . Impugned judgment and order dated 19.01.2017 is hereby set aside. Accusedappellant Chhotey Lal is acquitted of charges levelled against him. He is in jail and shall be released forthwith, if not wanted in any other case.

¶130

Keeping in view provisions of Section 437-A Cr.P.C., AppellantChhotey Lal is directed to forthwith furnish a personal bond of the sum of Rs. Ten Thousand and two reliable Sureties each of the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.

¶131

Lower Court record along with a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.

¶132

Before parting, we provide that Sri Pradeep Kumar Mishra, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal and assisted Court very diligently, shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment. Order Date :- 09.07.2019 Manoj

Chhotey Lal v. State of U.P.

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Chhotey Lal v. State of U.P.

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