Dismissed

Puran Chand v. State of U.P.

Allahabad HC2 Aug 2019JAPL/4358/2015

Case brief

AI extract

What is this about?

Jail appeal by a father convicted of murdering his own son and causing disappearance of evidence, with recovery of a knife. The prosecution case rested on circumstantial evidence: last seen, extra-judicial confession to relatives, and recovery of the body and weapon. The court found the chain complete, upheld the conviction and sentence, and dismissed the appeal.

What the court decided

AI extract

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

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Reserved on 15.05.2019 Delivered on 02.08.2019

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Court No. - 34 Case :- JAIL APPEAL No. - 4358 of 2015

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Appellant :- Puran Chand Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Anil Kumar Pandey,Puran Mohammad (A.C.) Counsel for Respondent :- Ratan Singh (A.G.A.)

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Hon'ble Sudhir Agarwal,J. Hon'ble Virendra Kumar Srivastava,J.

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(Delivered by Hon'ble Virendra Kumar Srivastava,J.)

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The present jail appeal under Section 383 Cr.P.C. has been filed by accused-appellant Puran Chand (appellant) through Superintendent of Jail, Agra against the judgment and order dated 27.5.2015 passed by Addl. Session Judge, Court No. 7, Agra in Session Trial No. 667 of 2012, convicted under Section 302, 201 I.P.C. and U/s 4/25 Arms Act, 1959 (hereinafter referred to as ‘Act, 1959’). He has been sentenced to undergo life imprisonment along with a fine of Rs. 25,000/- for offence U/s 302 I.P.C. in default of payment of fine, he has to undergo one year additional imprisonment; one year rigorous imprisonment and a fine of Rs. 3,000/- for offence U/s 201 I.P.C. and in default of payment of fine, he has further to undergo one month simple imprisonment; and, one year rigorous imprisonment along with fine of Rs. 3,000/- for offence U/s 4/25 Act, 1959. In default of payment of fine, he has further to undergo one month additional simple imprisonment. All the sentences are directed to run concurrently.

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The brief facts of prosecution case are that P.W.1, Angad, is son of Puran Chand, accused-appellant (appellant). Appellant, Puran Chand had taken away his son Akash (deceased), younger brother of P.W.1-Angad, on 31.8.2012 in the presence of P.W.1, Angad, his mother Shakuntla (P.W.3), his sisters Sapna and Anju but both of them did not return. P.W.1 Angad and other family members

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including one Avinash son of Bhavani Shankar and Jai Singh began to search of his father, appellant Puran, and, his brother Akash. On 3.9.2012, appellant met with P.W.1 Angad but he did not respond to the query made by him regarding Akash (deceased). Thereafter, P.W.1 Angad, his uncle Prahlad and many other people, namely, Yogesh, Bula, Gautam, Puran, residents of his village inquired the appellant forcibly, whereupon he (appellant) confessed that he had murdered his son and thrown his dead body in a ditch. On his confessional statement, P.W.1 and the person present at that time rushed towards the place with appellant Puran where dead body was thrown. Appellant shown the place where dead body of deceased was lying. His both limbs were damaged by insects. They brought out the dead body from the ditch at 8:30 p.m.

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P.W.1 Angad gave a written information at Police Station (P.S.) Sikandra, District Agra against appellant, Puran Chand, whereupon First Information Report (‘F.I.R.’) (Ex.Ka.1) of Case Crime No. 703 of 2012 under Sections 302 and 201 I.P.C. was lodged against appellant.

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Investigation of the case was entrusted to S.I. Ravindra Kumar Singh (P.W.8) who proceeded for investigation. On his direction S.I. Shyam Singh (P.W.4) conducted inquest proceeding of deceased Akash, prepared inquest report (Ex.Ka.2), other relevant papers relating to inquest proceeding and handed over dead body of deceased in sealed condition to Constable Police (Const.) Sukhvir Singh and Constable Police (Const.) Virendra Singh. The dead body was sent to Mortuary of District Agra for post-mortem along with relevant papers i.e. challan-nash, photo-nash etc. which was received in sealed condition by P.W.6 Dr. Amit Rawat on 4.9.2012. The post-mortem was conducted on 4.9.2012 at 3:50 p.m. and post-mortem report (Ex.Ka.9) was prepared. According to PW-6, dead body was found average built, rigor mortis was over, the de-composition process of the dead body was started, skin were peeled out and maggots were present, abdomen was distended, faecal matter were coming out of anus. According to him, following antemortem injuries were found on the body:-

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I. Cut wound in the area of 10 cm X 10 cm was present in front of neck reaching till cervical vertebra depth. II. Skin and muscles of the skin were not present.

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In internal examination, a fracture on parietal bone was present on right side of skull, brain and its membranes was not present, fracture was also found on 3^rd , 4^th and 5^th survical vertebra, lungs and its membranes were decomposed. The upper portion of trachea was cut and both the chamber of heart were empty and its inner captivity was soften. Waterish liquid was found in stomach, digested food particles and gases were present in small intestine and faecal matter and gases were also present in large intestine. Liver and spleen were soft. According to him, dead body was four days old and death would have been caused by ante-mortem injury caused in the evening on 31.8.2012 by knife.

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During investigation, S.I. Ravindra Kumar Singh (PW-8) arrested accused-appellant who confessed his offence and disclosed that the knife whereby he had committed murder of his son, had been kept by him in bushes which may be given by him. At the pointing out of accusedappellant, weapon used in the offence i.e. knife was recovered on 6.9.2012 at 5:15 a.m. and its recovery memo was prepared. Statement of witnesses were recorded, place of occurrence was inspected and after investigation, charge-sheet under Section 302, 201 I.P.C. and under Section 4/25 Act, 1959 was filed against appellant.

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Cognizance of the offence was taken by C.J.M, Agra. The case being exclusively triable by Session Court, it was committed to the Court of Sessions Agra on 30.10.2012 who framed charges on 7.2.2013 which are as under:-

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I, Sunil Kumar Gupta, Sessions Judge, Agra, hereby charge you Puran Chand as follows:

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Firstly, that you some time on 31.8.2012 in village Artoni, near canal, situated within the police circle of P.S. Sikandra, District Agra, did commit murder by intentionally causing the death of Akash, and thereby committed an offence punishable under Section 302 IPC and within the cognizance of this Court.

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Secondly, that you some time on the aforesaid date and place, knowing that certain offence, to wit, murder of Akash, punishable with life imprisonment, has been comitted, did cause certain evidence of the said offence to disappear, to wit, threw the dead body in the pit near canal, with the intention of screening you from legal punishment, and thereby committed an offence punishable under Section 201 IPC and within the cognizance of this Court.

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And I hereby direct that you be tried by this Court on the said charge.

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Charges were read over and explained to the accused-appellant who pleaded not guilty and claimed to be tried.

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Then the case was transferred to Additional Session Court No. 7, Agra who framed charge on 28.10.2014 under Section 4/25 Act, 1959 which is as under:-

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eSa] iadt dqekj flag] vij lS'kUl tt] dksVZ ua-&7] vkxjk] vki iwju pUn dks fuEuor~ vkjksfir djrk gWw& fd] fnukWd 06-09-2012 dks vki le; djhc 5- 15 ,-,e- ij o LFkku&pkS/kjh dh vkVk pDdh ds mRrj jsyos ykbZu ls djhc 65 dne igys] iwjc dh vksj fLFkr >kM+h] vUrxZr Fkkuk&fldUnjk] ftyk&vkxjk esa vkius viuh fu'kkunsgh ij ikSyhFkhu esa j[kk gqvk ,d uktk;t pkdw] ftldk Qy&9-00 ls-eh- ls YkEck Fkk] iqfyl dks cjken djk;k] ftlds j[kus dk vkids ikl dksbZ ykbZlsUl ugha Fkk] tks fd m-iz- 'kklu dh foKfIr la[;k&3411@vkj-11&ih-&5&682&90 fnukWfdr 22-101990 }kjk fuf"k) gS vkSj mlds }kjk vkius ,d ,slk vijk/k fd;k] tks vk;q/k vf/kfu;e dh /kkjk&4@25 ds v/khu] naMuh; gS] ftlds izlaKku ysus dh vf/kdkfjrk bl U;k;ky; dks izkIr gSA

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vkSj ,rn~ }kjk eSa] vkidks fufnZ"V djrk gWw fd vkidk mDr vkjksi ds izfr fopkj.k gksosA

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“I Pankaj Kumar Singh, Additional Sessions Judge, Court No. 7, charge you, Pooran Chand, with the following:-

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That on 06.09.2012 at around 5:15 a.m., you, from the bushes towards east at the distance of around 65 paces before the railway line north of the flour ill owned by Chaudhary, provided leads and helped the police to recover an illegal

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knife with blades measuring 9.00 cm long wrapped in a po\ lythene bag, for which you had no licence to keep, and which is prohibited as per the notification no. 3411/R.11-P.-5-68292 dated 22.10.1990, and using which you committed an offence punishable u/s 4/25 of the Arms Act and the jurisdiction to take cognizance whereof is with this Court.

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I hereby, direct that you be tried by this Court for the aforesaid charges.” (Translated by Court in English)

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In support of prosecution case, prosecution examined eight witnesses out of whom P.W.1 Angad (son of appellant), P.W.2 Avinash, son-in-law of (appellant’s brother) , P.W.3 Shakuntala @ Guddi, (wife of appellant) are witnesses of fact and rest are formal witnesses. P.W. 4 S.I. Shyam Singh is a witness of inquest proceeding, P.W.5 Const. Awadhesh Kumar is a witness who has registered the F.I.R. on the basis of written report (Ex.Ka.1), prepared chick report and made entry of the occurrence in General Diary, P.W.6, Dr. Amit Rawat has conducted the autopsy of the dead body, P.W.7 Rajesh Kumar Dwivedi is a witness of recovery of weapon used in offence i.e. knife and of recovery memo, P.W.8 Ravindra Kumar Singh is Investigating Officer who has conducted the investigation, prepared site plan and submitted charge-sheet against appellant.

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After closure of prosecution evidence, accused was examined under Section 313 Cr.P.C. wherein he denied prosecution version and stated that he is innocent and has been falsely implicated; he had neither taken away the deceased Akash nor killed him or thrown his dead body in ditch; his relation with his wife was not cordial; he does not take liquor also; and charge-sheet has wrongly been submitted upon a false investigation against him. However, no evidence in defence was adduced by him as he denied to produce the same.

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On hearing counsel for the parties, learned Additional Session Judge found accused-appellant Puran Chand guilty of the charge under Sections 302, 201 I.P.C. and Section 4/25 of Act, 1959 and accordingly convicted and

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sentenced as above. Aggrieved by the impugned judgment and order, appellant had preferred this appeal.

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We have heard Sri Anil Kumar Pandey, learned counsel for appellant and Sri Ratan Singh, learned A.G.A. for State. 14. It has been argued by learned counsel for appellant that no eyewitness of the incident has been produced by prosecution; Angad (P.W.1), Avinash (P.W.2) and Shakuntala @ Guddi (P.W.3) are interested witnesses and they are not eye witness; there was dispute and strained relationship with accused-appellant and Shakuntala (P.W.3); prosecution has failed to prove motive of the incident; there is no occasion or reason to accusedappellant to kill his own son; Medical evidence is not supported by ocular evidence; recovery of knife is doubtful; First Information Report has been lodged after a delay of four days without any justification; accused-appellant is innocent and has falsely been implicated and findings recorded by Trial Court are against the provision of law. It is argued that judgment and order of Trial Court is liable to be set aside and appeal deserves to be allowed.

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Per-contra, learned A.G.A. has argued that in this case, accusedappellant is the father of deceased who had taken away deceased from his house and later on murdered him; presence of Angad (P.W.1) (brother of deceased); Shakuntala @ Guddi (P.W.3) (mother of deceased) at the place from where from appellant had taken away deceased is quite natural and their statements are trustworthy; deceased was lastly seen (before his death) with accused-appellant; extrajudicial confession made by appellant and recovery of dead body of deceased in pursuance of confessional statement made by and on the pointing out of appellant is very well established by prosecution witness Angad (P.W.1) and Avinash (P.W.2); prosecution has also established recovery of weapons i.e. knife used in the murder of deceased recovered and produced by appellant; there is no delay in F.I.R. in peculiar facts and circumstances of this case; ocular evidence is fully supported by the medical evidence; and there is no illegality or infirmity in the impugned judgment and order, hence, Appeal is liable to be dismissed.

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We have considered rival submissions of learned counsel for the parties and have gone through the entire record. 17. Angad (P.W. 1) is real brother of deceased as well as son of accusedappellant. In his examination-in-chief, he has stated that at the time of occurrence, he, his mother Shakuntala (P.W.3), his brother Akash (deceased) and his another brother Dheeru were sitting at his house. At that time, appellant, his father Puran Chand, came at house at about quarter to 4 p.m. to 4:00 p.m. and asked Akash (deceased) to a company him as he would give some food items and money to him and carried away Akash from there. When Akash (deceased) and his father appellant Puran Chand did not return, they, (Angad, P.W.1 and others) tried to search them out. He has further stated that after 3-4 days, his father met him, sitting near B.A.M.S. College, and at that time, his brother-in-law Avinash (P.W.2) and one tempo driver Jai Singh were also present there. Seeing them, his father Puran Chand tried to run away but they chased, caught him and brought at his house, where his Tau (uncle) namely Prahlad, Jai Singh, Hathi and many other people were present. They tactfully enquired his father whereafter appellant told them that he had killed his son Akash and thrown his dead body in a ditch near canal. Thereafter they and other villagers rushed to the place i.e. ditch situated nearby the canal. His father appellant pointed out and shown dead body of Akash lying in ditch. The dead body was taken out from that ditch at 8:30 – 9:00 p.m. Thereafter he lodged F.I.R. (Ex.Ka.1). Police had come and prepared panchayatnama (inquest report), sealed the dead body. Verifying his signature on inquest report he has further stated that meanwhile his father (appellant) escaped away somewhere by taking advantage of crowd, gathered there.

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P.W.2 Avinash, cousin brother-in-law of deceased, has stated that at the time of incident his wife was at her parent’s house and informed him that her father and brother Akash were missing since a few days and they were in search but failed to locate them. On the request of his wife, he reached at his in law’s house (sasural) Artoni. On the next day, he and P.W.1 Angad tried to search appellant at all the possible places where he used to work but persons

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who supposed to know whereabouts of appellant Puran Chand failed to disclose anything and told that appellant had not come there since many days. Some people told that deceased Akash was lastly seen with his father (accused-appellant). They continued their search. Meanwhile an auto driver Jai Singh informed them that appellant-Puran Chand was present near B.A.M.S. College. On that information, they rushed towards that College and found appellant sitting there. When appellant saw them he began trembling. They caught appellant and enquired regarding Akash but he did not disclose any thing, whereafter, they brought him (appellant) to their house and enquired tactfully, then appellant stated that he had murdered Akash and thrown his dead body in a ditch/pit nearby the canal. He has further stated that on the request of persons assembled there, appellant Puran Chand proceeded and led them to the ditch where he had thrown the dead body of deceased Akash. They saw that the dead body had decomposed. It was brought out from the ditch and P.W.1 Angad went to lodge F.I.R. Police came at 8:00-8:30 p.m. at the place of occurrence, prepared inquest report and he put his signature on it.

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P.W.3 Shakuntala @ Guddi, mother of deceased as well as wife of accused-appellant, has stated that at the time of occurrence she was present with her sons Akash, P.W.1 Angad, and Dheeru and daughters Sapna and Anju at her house. Her husband Puran Chand (appellant) came and took away her son Akash from there. She asked him as to where he was taking away her son but he did not respond. Her husband and son Akash did not return. Her son P.W.1 Angad and son-in-law P.W.2 Avinash began to search them and on 4^th day his husband met them near College. Upon interrogation made by her brother-in-law (jeth) and children, appellant Puran Chand disclosed that he had killed Akash with knife and thrown his dead body in a ditch. Thereafter they, along with appellant Pooran Chand, went toward ditch where he had thrown dead body of Akash and she got fainted when saw dead body of her son. F.I.R. was lodged by her son P.W. 1 Angad. She has further stated that her husband (accused-appellant) used to fight with her after taking liquor and also used to say that he would ruin her. Her daughter

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Neeraj aged about 6 years was already missing since 6-7 years and whenever she used to request appellant to search her out, he refused to do so.

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P.W.4 Sub-Inspector Shyam Singh, a witness of inquest report has stated that on 3-4.9.2012 he was posted at police station Sikandra District Agra and on that day he had conducted inquest of dead body of deceased Akash, sealed it, prepared inquest report (Ex.Ka.2) and other relevant papers as request letter of R.I. to C.M.O., challan nash, report of CMO, photo (sketch) nash (Ex.Ka.3 to 6) and handed the dead body for post-mortem to Const. Sukhveer Singh and Const. Virendra Singh.

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P.W.5 Const. Clerk Awadhesh Kumar is a witness who prepared Chick F.I.R. and report of General Diary dated 3.9.2012. He has stated that on 3.9.2012 he was posted as constable clerk at P.S. Sikandra District Agra and on that day, P.W.1 Angad had filed a written information and on the basis whereof he had prepared chick report no. 484 of 2012 (Ex.Ka.7) pertaining to Criminal Case No. 703 of 2012 (State vs. Puran Chand) under Section 302, 201 I.P.C. and made relevant entry in this regard in G.D. Report No. 57 (Ex. Ka.8) at 22:30 p.m.

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P.W.6, Dr. Amit Rawat, has stated that on 4.9.2012, he was posted at District Hospital Agra and on that day at 3:50 p.m., he had conducted postmortem examination on corpse of deceased Akash aged about 11 years, whose dead body was brought and identified by Constable Police of P.S. Sikandra along with 8 relevant police papers (ante-mortem injury and the condition of dead body found by this witness has already been discussed in preceding paras of this judgment). He has also stated that deceased had died on 31.8.2012 at any time in evening due to ante-mortem injuries which would have been caused by knife.

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P.W.7 Rajesh Kumar Dwivedi was produced by prosecution to prove recovery of weapon (knife) used in murder of deceased Akash. He has stated that on 6.9.2012, he and P.W.8 S.I. R.K.Singh were on petrolling duty in search for wanted criminals and on the information of Informer (Mukhbir), he reached at Sherjang Dargah and arrested appellant Puran Chand from the

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tin shed who confessed his guilt before P.W.8, S.I. Ravindra Kumar Singh, and disclosed that the knife whereby he had murdered his son Akash had been kept by him in a secret place in bush and he could get it recovered. On the disclosure statement given by appellant, he along with P.W.8 R.K. Singh came at cross-road (Chauraha) and proceeded towards railway-line as led by appellant. On reaching the place situated nearby 65 steps from railway-line, appellant searched and took out a blood stained knife wrapped in a polythene from clump of Khajur bushes. He has further stated that the knife was taken into custody at 5:15 p.m. and again wrapped in that polythene and thereafter sealed in a cloth along. Sample of seal and recovery memo (Ex.Ka.10) was prepared by him and copy whereof was also given to the appellant.

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S.I. Ravindra Kumar Singh, P.W.8 is Investigating Officer of the case. He has stated that on 3.9.2012 he was posted at Sikandara as Station Officer and on that day on 22:30 p.m. on the information of P.W.1 Angad, Case Crime No. 703 of 2012, under Sections 302 and 201 I.P.C. was lodged against his father Puran Chand. He had directed P.W.4 S.I. Shyam Singh for inquest of deceased Akash and during investigation, statement of witnesses were recorded by him. He had inspected the place of occurrence and prepared its site plan (Ex.Ka.11). On 6.9.2012, accused-appellant Puran Chand was arrested on 4:40 a.m. from a tin shed situated near by Sher Ganj Dargah who confessed the guilt and also stated that he had kept knife, hidden in bushes. At his disclosure statement and his pointing out, the said knife was recovered at 5:15 a.m. from place where he had kept the same and was again wrapped in that polythene and sealed it in a cloth. Sample seal and recovery memo were prepared. Site Plan (Ex.Ka.12) of recovery of knife was prepared by him. He has also identified and verified the knife (Mat.Ex.Ka.3), produced before Trial Court, the polythene and cloth (Mat.Ex.Ka.1 and Mat.Ex.Ka.2) wherein it was wrapped and sealed. During investigation, he has also recorded statements of P.W.7 S.I. Rajesh Kumar Dwivedi, Const. Virendra Singh, Const. Jugal Kishor, Const. Ashok Kumar, Const. Awadhesh Kumar, Const. Mukhtyar, Jai Singh, Raja Babu, Rajesh ,

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Smt. Guddi, (P.W.3); Smt. Shyam Singh, (P.W.4); Const. Sukhbir Singh and Dr. Amit Rawat (P.W.6) and upon conclusion of investigation, filed chargesheet (Ex.Ka.13) in his own handwriting against appellant Pooran Chand U/ s 302 / 201 I.P.C.

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At the very outset, it is pertinent to note at this juncture that in this case, prosecution has not produced any eye-witness who has seen accused causing murder of his own son Akash. The prosecution case is based on the circumstantial evidence. The law regarding circumstantial evidence is well established. It has been held that in a case based on circumstantial evidence, prosecution has to establish and prove each and every piece of incriminating circumstances by relevant and admissible evidence that which must form a complete chain of evidence whereby the only one conclusion can be drawn i.e. guilt of accused and that conclusion must be beyond reasonable doubt. 26. In Sharad Birdhi Chand Sarda vs. State of Maharashtra AIR 1984 SC 1622 relying on Hanumant vs. State of Madhya Pradesh (1952) 1 SCR 1091 and Shivaji Sahebrao Bobade and another vs. State of Maharashtra AIR 1973 SC 2622, in para no. 152 and 153 of judgment Court has held:-

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“Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh. (1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):

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"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 far a conclusion consistent with the innocence of the accused and it must be

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

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A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:

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"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

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

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

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(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.

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These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

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Thus it has to be seen in this case, whether prosecution has succeeded to establish all the circumstances which may lead to only one conclusion that the accused has committed murder of his son.

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The first circumstance established by prosecution is that the deceased was lastly seen before his death with accused Puran Chand as he took away deceased in the garb of giving him some money and eatable items.

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Thereafter neither deceased nor accused-appellant were seen or returned to their home. These circumstances have been established by prosecution successfully. P.W.1 Angad is real son of accused-appellant and also real brother of deceased Akash. He has stated that at the time when his father accused Puran Chand came at his house, he, his mother P.W. 3 Shakuntala @ Guddi, and another brother Dheeru were sitting at his house. Appellant asked deceased Akash to accompany him as he will provide some eatable items and give money. On that pretext he had taken away deceased Akash but neither deceased Akash nor appellant returned back. After 3-4 days, his father met him sitting nearby B.A.M.S. College and looking them, he (appellant Puran Chand) tried to run away but caught by them and upon tactful interrogation regarding whereabouts of deceased Akash, he confessed and stated that had killed his son and thrown dead body into ditch nearby canal. This witness has also stated that thereafter he along with some villager went with appellant to the place where dead body of Akash was lying in a ditch.

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P.W.3 Shakuntala @ Guddi who is wife of accused-appellant and mother of deceased Akash has also corroborated the prosecution story and stated in the same way as stated by P.W.1 Angad. P.W.2 Avinash who is sonin-law of appellant has also corroborated prosecution story and stated that upon information that appellant along with his son was not traceable since few days, he reached village Atroni (Sasural) and tried to search out appellant Puran Chand and deceased Akash with P.W.1 Angad. After few days, appellant was located nearby B.A.M.S. College and as appellant saw them, tried to run away but was caught by them and upon interrogation, confessed, that he had killed his son Akash and thrown his dead body into a ditch. PW-2 has also stated that upon the pointing out of appellant, dead body of Akash was recovered from ditch.

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These witnesses have been cross-examined before Trial Court by defence counsel at length but nothing has come out in their crossexamination to create any doubt in the statement of these witnesses. Thus prosecution has successfully established the facts and circumstances that the

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deceased was taken away by his own father on on the day of occurrence i.e. 31.8.2012 and was not found or seen alive thereafter.

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The evidence of last seen in kidnapping and murder cases is a vital piece of evidence of prosecution and if accused fails to account for as to what happened to the deceased or kidnapped person after last seen with him, it will be presumed that accused-appellant is involved in committing murder of the deceased.

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In Sucha Singh vs. State of Punjab (2001) 4 SCC 375, while noticing the gravity of offence and murder, Court has held as under:

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“We are mindful of what is frequently happening during these days. Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle to be laid down is that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others”.

¶93

It is also pertinent to mention at this juncture that the conduct of accused-appellant is also relevant in this case. From the statement of P.W.1 Angad, P.W.2 Avinash and P.W.3 Shakuntala @ Guddi, it is evident that since the date and time when appellant took away his son Akash from his house in the presence of these witnesses, neither he nor deceased Akash returned at his home and they could not be located even on herculean search and efforts made by aforesaid witnesses. After 3-4 days, when appellant Puran was located by the aforesaid witnesses and met with them he tried to run away but could not succeed and caught by them. These facts and circumstances have been stated and established by prosecution witnesses and during their cross-examination nothing has come out to shake their evidence.

¶94

Another circumstance, relied upon by prosecution, is the extra judicial confession made by accused-appellant to P.W.1 Angad and P.W.2 Avinash in the presence of many people of village including his family members.

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According to P.W.1 Angad and P.W.2 Avinash, upon interrogation made by them regarding whereabouts of the deceased Akash, accused had voluntarily confessed his guilt and said that he had killed Akash and thrown his dead body in ditch. This extra judicial confession is followed and corroborated by the recovery of dead body at the pointing out of appellant.

¶98

It is true that normally extrajudicial confession is treated as weak type of prosecution evidence, but if it is made by accused to his own kith and kin and followed by recovery of corpus, it becomes more reliable evidence than other evidence. In this the extrajudicial confession, made by appellant to his own son, followed recovery of dead body of deceased has greater value and importance to prove prosecution case. Thus extra judicial confession made by accused also corroborates with the prosecution story. 36. In addition to above, next incriminating circumstance is that the appellant had also made a statement before Investigating Officer in police custody that the weapon whereby he had committed murder of deceased had been concealed by him in a secret place in shrub and bushes situated nearby railway-line and the said weapon was handed over by appellant himself to the police persons on 6.9.2012 at 5:15 a.m. The said knife having blood stained was wrapped in a polythene. In order to prove recovery of weapons, prosecution had produced P.W.7 S.I. Rajesh Kumar Dwivedi and P.W.8 S.I. Ravindra Kumar Singh who have stated that in their presence the accusedappellant had confessed offence and also got the knife (weapons used in murder) recovered from bushes situated nearby railway line. These witnesses were also examined at length before Trial Court but nothing have come out to dislodge the statement of these witnesses.

¶99

So far as the submission of learned counsel for appellant is concerned that no eye witness has been produced by prosecution, and P.W.1 Angad, P.W.2 Avinash and P.W.3 Shakuntala @ Guddi are not independent witness, they are interested witness and relations between P.W.3 Shakuntala @ Guddi and appellant was not good at the time of occurrence, we find that the prosecution case is based on circumstantial evidence. Prosecution is expected to prove its case only by the best possible evidence and in such

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type of cases direct evidence if not available to prosecution it cannot be expected to lead the same. Prosecution, in such case, can prove its case only by best circumstantial evidence. In this case, prosecution has successfully proved that father of deceased Akash was lastly seen with deceased and thereafter neither deceased Akash was seen nor his father appellant till recovery of dead body of deceased which was recovered at the disclosure of statement made by appellant at his pointing out.

¶103

It is well settled that only on the ground that witnesses are relative or kith and kins of deceased, their evidence cannot be disbelieved. In such type of cases, only requirement is that evidence of such witnesses be dealt with much care and caution.

¶104

In Masalti and others vs. State of U.P. 1965 SC 202, while dealing with the evidence of reliability and admissibility of interested witnesses Court has held as under:-

¶105

"...............But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.........."

¶106

40. Similarly, in Mohabbat vs. State of M. P., (2009) 13 SCC 630 , Court held as under :

¶107

"...........Relationship is not a factor to affect credibility of a witness. It is more often than not a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible...............…"

¶108

In this case, P.W.1 Angad and P.W.3 Shakuntala @ Guddi is son and wife of accused-appellant whereas P.W.2 Avinash is son-in-law of real brother of accused-appellant Puran Chand. They very well knew that they

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are giving statement against own father, husband and uncle father in law. Learned counsel for appellant has not shown any reason or justification as to why these witnesses would give evidence against their nearest relative, head of family as well as natural guardian because they very well knew that they would loose his company. Learned counsel has also not shown any reason or justification why these witnesses are giving false evidence leaving aside the real culprit. In absence of such justification or explanation, evidence of these witnesses become more natural, trustworthy and reliable in this particular case and otherwise submission of the learned counsel for appellant has no force.

¶112

So far as the issue of lack motive or ill will and any reason for an appellant to cause the death of his own son, is concerned, it is settled law that motive is a state of mind and lies especially within the knowledge of that particular person. Nobody can ascertain the motive or criminal intent of any person. It can be ascertained by act and behavior of the accused himself. The evidence regarding this can hardly be produced by prosecution. As regards the importance of existence of motive in a criminal case based on circumstantial evidence, Court in Shivaji Genu Mohite vs. State of Maharashtra, AIR 1973 SC 55, has held as under:-

¶113

“As stated earlier, the fact that the prosecution in a given case has been able to discover a sufficient motive or not cannot weigh against the testimony of any eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such case if a motive is properly proved such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if a motive is not established the evidence of any eye-witness is rendered untrustworthy.”

¶114

Recently in Sukhpal Singh vs. State of Punjab (Criminal Appeal No. 1697 of 2009 decided on 12.2.2019), while dealing with the inability of prosecution to establish a motive in a case based on circumstantial evidence,

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observing that it is not always fatal to the prosecution case, Court dismissed appeal filed by accused and held as under:-

¶118

“We would think that why it is true that if the prosecution establishes a motive for the accused to commit a crime it will undoubtedly strengthen the prosecution version based on circumstantial evidence but that is for cry from saying that absence of a motive for the commission of a crime by the accused will irrespective on other material available before the court by way of circumstantial evidence be fatal to the prosecution.”

¶119

Moreover Section 106 of Indian Evidence Act, 1872 (hereinafter referred to as ‘Act,1872’) casts a duty and burden on the accused to disclose any fact which is specially within his knowledge. Section 106 of the Act, 1872 reads as under:-

¶120

Section.106. Burden of proving fact especially within knowledge.

¶121

When any fact is especially within the knowledge of any person,the burden of proving that facts is upon him.

¶122

Illustrations:-

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(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

¶124

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

¶125

In this case, it is well known to appellant that how and why he had killed his son and if he denies to disclose it, it will be impossible for any person to know criminal mentality or motive of appellant behind the said brutal and inhuman murder of his own son. The prosecution in this case could only prove and establish that the appellant had taken away deceased from his house and neither appellant nor deceased were seen thereafter till recovery of dead body of deceased at the pointing out of appellant which have been successfully proved by prosecution. In addition to it prosecution had also proved that appellant was habitual drunker and addict of ganja and

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bhaang. He does not do anything and always quarrel with his wife P.W.3 and used to say that he will ruin her.

¶129

Thus we are of the view that even if prosecution has not proved motive or ill will or reason for crime by cogent evidence, yet prosecution case will not suffer on this ground alone.

¶130

According to prosecution version, appellant Puran Chand has confessed that he had killed deceased by knife. P.W.6 Dr. Amit Rawat has also stated that deceased would have died at any time in the evening of 31.8.2012 by ante mortem injury caused by knife. A blood stained knife was also recovered and produced by accused himself to Investigating Officer of this case and P.W.8 S.I. Ravindra Kumar Singh has proved alleged recovery of knife before Trial Court successfully. Thus prosecution version has also been supported and corroborated by medical evidence. The argument raised by learned counsel for appellant in this regard has no force.

¶131

The next submission of learned counsel for appellant is that recovery of knife is doubtful. It is evident from the material available on record that appellant Puran Chand was arrested by police on 6.9.2012 at 4:40 a.m. when he was trying to hide himself at Sher Jang Dargah. P.W.7 S.I. Rajesh Kumar Dwivedi in cross-examination has stated that after arrest of appellant he was searched out and no incriminating article was recovered from his personal search. He has further stated in cross-examination that near cross-road (golchakkar), appellant Puran Chand got the blood knife recovered hidden in bushes. P.W.8 S.I. Ravindra Kumar Singh has also stated that accusedappellant Puran Chand got the knife recovered on 6.9.2012 at 5:15 p.m. from the bushes nearby railway line. The said recovered knife along with polythene were also produced before Trial Court and proved as Material Ex.Ka.2 and 3. These witnesses were cross-examined by defence at length but nothing has come out in their statements to doubt that recovery of knife.

¶132

So far as the submission regarding delay in lodging of F.I.R., is concerned, it is settled principle of Criminal Juris-prudence that there is no fixed time of lodging First Information Report. It depends upon the facts and

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circumstances of each case. Prosecution case can not be disbelieved only on the ground of delay in lodging F.I.R., if delay in lodging F.I.R. is explained. Mere delay cannot affect veracity of prosecution case. Only it has to be seen whether delay in causing F.I.R. is natural, probable and justified or not and also whether there was any chance of false implication of appellant. Supreme Court while dismissing appeal filed by accused-appellant in Cr. Appeal No. 1100 of 2009 decided on 27.11.2018 in Palani vs. State of Tamilnadu has held as under:

¶136

“……….Delay in setting the law into motion by lodging the complaint is normally viewed by the Courts in suspicion because there is possibility of concoction of evidence against the accused. In such cases, it becomes necessary for the prosecution to satisfactorily explain the delay in registration of F.I.R. But there may be cases where the delay in registration of the F.I.R. is inevitable and the same has to be considered. Even a long delay can be condoned if the witness has no motive for falsely implicating the accused……….”

¶137

In the case in hand, deceased was taken away by his own father appellant Puran Chand on 31.8.2012. P.W.1 Angad and his other relatives were in search of appellant Puran Chand and deceased Akash since they did not return their home in the evening of that day. In such cases, where a child is taken away by his own father, a man of common prudence may presume and expect that such child would be very safe in the arms and custody of his father. No body can presume that son would be so unlucky and unfortunate that he would have been murdered by his own father who is supposed to be his best protector, next to the God.

¶138

Hence, F.I.R. has been lodged on 03.9.2012, just after it came to the knowledge of P.W.1 Angad that his own father has committed murder of deceased Akash and dead body was recovered at the pointing out of appellant. Nothing is on record whereupon it can be presumed that prosecution witnesses were inimical to appellant. We are of the view that there is no delay in lodging F.I.R. and if any delay has been caused that is

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justifiable in facts and circumstances of this case. Thus there is no force in the argument of learned counsel for appellant.

¶142

It is also pertinent to mention at this stage that all the witnesses were put to lengthy cross-examination by defence counsel before Trial Court but nothing could be extracted by way of cross-examination so as to doubt veracity of their testimonies. The prosecution evidence is well supported by medical evidence. According to examination-in-chief and cross-examination of all the witnesses, each and every circumstances of the case had been proved by prosecution which lead to only one conclusion that the said offence was committed only by the accused-appellant. The circumstances proved by prosecution are so interlinked that only one conclusion as to guilt of accused can be drawn. No other interference can be drawn from the evidence produced by prosecution. There is nothing on record to show that the prosecution witnesses who are nearest relative of accused-appellant had any animus against him so as to implicate him falsely absorbing the actual assailant.

¶143

Trial Court has elaborately discussed prosecution in the light of arguments advanced by prosecution as well as defence. In our view, impugned judgment and order requires no interference and is liable to be affirmed.

¶144

Now the next question is “whether sentences is just, proper or not?”

¶145

In this case, appellant Puran Chand has been found guilty and convicted by Trial Court under Section 302, 201 I.P.C. and 4/25 Act, 1959. He has been sentenced for offence under Section 302 I.P.C. for life imprisonment along with a fine of Rs.25,000/-, for an offence under Section 201 I.P.C. and 4/25 Act, 1959 for rigorous imprisonment of one year each, and fine of Rs. 3,000/- for each offence.

¶146

It is settled principle of sentencing and penology that undue sympathy in awarding sentence with accused is not required. The object of sentencing in criminal law should be to protect society and also to deter criminals by

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awarding appropriate sentence. In this regard, Court in State of Madhya Pradesh Vs. Saleem @ Chamaru, AIR 2005 SC 3996, has said as under:-

¶150

"10. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".

¶151

Looking into the nature and gravity of the offence, we are of the view that punishment awarded by Trial Court is just and appropriate and requires no interference. Appeal is liable to be dismissed and impugned judgment and order passed by the learned Trial Court is liable to be affirmed.

¶152

In the light of above discussions, appeal is hereby dismissed . Impugned judgment and order dated 27.5.2015 passed by Additional Sessions Judge, Court No.7, Agra in Sessions Trial No.667 of 2012 (State vs. Puran Chand) is maintained and affirmed.

¶153

Let a copy of this judgment along with lower court record be sent to Additional Session Judge, Court No. 7, Agra for necessary information and compliance.

¶154

A compliance report be sent to this Court.

¶155

Copy of this judgment be also supplied to the appellant through Superintendent of Jail, concerned.

¶156

Order Date :- 02.08.2019

¶157

Saurabh

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Jail Appeal No. 4358 of 2015

Puran Chand v. State of U.P.

Case brief

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Puran Chand v. State of U.P.

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