Allowed

Surendra Sharma @ Bittu v. State of U.P.

Allahabad HC25 Jul 2023CRLA/6674/2011

Case brief

AI extract

What is this about?

High Court allowed criminal appeals challenging conviction for murder and rape. The bench held that the prosecution failed to complete the chain of circumstantial evidence, relying on unreliable witnesses, a weak extra-judicial confession, and an unreliable recovery of the weapon. The conviction was set aside.

What did the court decide?

Impugned judgment and order of conviction and sentence dated 16.11.2011 set aside; appellants set free forthwith unless wanted in other cases.

Surendra Sharma @ Bittu Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:148441-DB

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Court No. - 46

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Case :- CRIMINAL APPEAL No. - 6674 of 2011

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Appellant :- Surendra Sharma @ Bittu Respondent :- State of U.P. Counsel for Appellant :- N.K. Sharma,Sunil Kumar Yadav,Vivek Singh Counsel for Respondent :- Govt. Advocate,Ajay Kumar Singh

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Connected with

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Case :- CRIMINAL APPEAL No. - 176 of 2012

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Appellant :- Satendra @ Bona Respondent :- State of U.P. Counsel for Appellant :- Sunil Vashisth,Akhilesh Tripathi,Jitendra Rana,Prashant Vyas,Sunil Kumar Yadav Counsel for Respondent :- Govt. Advocate

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Connected with

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Case :- CRIMINAL APPEAL No. - 7254 of 2011

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Appellant :- Krishna Respondent :- State of U.P. Counsel for Appellant :- S.S. Shah,Avnish Kumar Srivastava,Dileep Kumar,G.S. Hajela,Hari Om Khare,Rajrshi Gupta,Sunil Kumar Yadav Counsel for Respondent :- Govt. Advocate,Ajay Kumar Singh

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Hon'ble Ashwani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.

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Heard Mr. Rajrshi Gupta and Mr. Gaurav Kumar Yadav, learned counsel for the appellant, Mrs. Archana Singh, learned AGA for the State.

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Accused appellants Surendra Sharma @ Bittu, Krishna and Satendra @ Bauna have been convicted in Sessions Trial No.1283 of 2007 and sentenced under section 376/511 IPC to undergo seven years rigorous imprisonment and section 302/34 IPC to undergo life imprisonment and a fine of Rs.7000/- and in default of payment of fine, one year rigorous imprisonment in Case Crime No.440 of 2007 under Sections 302/07 and 376/511 IPC vide judgment and order passed by the court below dated 16.11.2011.

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Aggrieved by it, the aforesaid three appellants have preferred Criminal Appeal Nos.6674 of 2011 ( Surendra Sharma @ Bittu Vs. State of U.P.), 7254 of 2011 (Krishna Vs. State of U.P.) and 176 of 2012 (Satendra @ Bona Vs. State of U.P.). All the given appeals are being disposed of by this common judgment and order. Criminal Appeal No.6674 of 2011 ( Surendra Sharma @ Bittu Vs. State of U.P.) is taken as the lead case.

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Prosecution case proceeds on a written report of the informant Mangeram (P.W.-1) stating that his wife Mithilesh aged 35 years had gone to the forest to fetch fodder for the cattle but had not returned till afternoon. The informant alongwith others went out to locate her and found the deadbody of his wife in the sugarcane field of one Mangru Nai. Neck of the deceased had been slit. On the basis of such written report dated 25.09.2007 (Ext. Ka-1), First Information Report came to be lodged as Case Crime No.340 of 2007, under Section 302 I.P.C. against unknown persons. The inquest was conducted on 25.09.2007 (Ext. Ka-9). The inquest witnesses found the neck of the deceased to have been slit. In order to ascertain the exact cause of death of the deceased, the inquest witnesses opined that postmortem be conducted on the dead-body. The body of the deceased was accordingly sealed and the post-mortem was conducted on the next day i.e. on 26.09.2007.

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As per the post-mortem report (Ext. Ka-3), the deceased was aged about 35 years, she was an average built lady, rigor mortis had passed off in upper limbs and was present in lower limbs. The deceased had died about a day prior to the conduct of post-mortem. The doctor found existence of following ante-mortem injuries on the body of the deceased:-

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Incised wound 7x 2 cm throat cut present in front of neck upper part from mid line to both sides of neck. 6 cm below the tip of chin. Trachea oesophagus large vessels cut.

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Contusion 8 cm x 1.5 x transversely present on the medial aspect of right thigh of upper part.

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Contusion 9 cm x 2 cm transversely present anterior medial aspect of left thigh of upper part.

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As per the doctor, the cause of death was shock and haemorrhage on account of ante-mortem injuries.

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The investigation proceeded and the role of the appellants surfaced in the statement of P.W.-2, who claimed that extra judicial confession had been made by the three accused, who wanted his help in resolving the dispute. The three accused allegedly confessed to the crime committed in the matter. The implication of the three accused also surfaced on the basis of statement of P.W.-1 Mangeram, who claimed that Khemchandra S/o Harvans and Ramanand informed him that the three accused were standing near the place where the deceased was cutting fodder and were talking amongst themselves. Sudar and Mahavir also allegedly saw the accused in a perplexed state soon after the incident. The accused-appellants were therefore arrested and on their pointing out the weapon of assault namely; Daranti was recovered at a distance of nearly ten steps from the place of occurrence on 28.09.2007 in respect of which, a recovery memo was prepared (Ex. Ka-2). Recovery has been relied upon by virtue of Section 27 of the Indian Evidence Act to implicate the accused-appellants. Ultimately all the three accused have been charge-sheeted on 18.10.2008 (Ex. Ka-6). The concerned Magistrate took cognizance and committed the case to the court of sessions, where it got registered as Sessions Trial No.1283 of 2007. The concerned Special Judge framed charges against the accused-appellants under Sections 302/34 & 376/511 I.P.C. During the course of trial, the prosecution has adduced following documentary evidences:-

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Written Report (Ex. Ka-1)

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Recovery Memo (Ex. Ka-2

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Post-mortem Report (Ex. Ka-3)

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Chik F.I.R. (Ex. Ka-4)

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Carbon Copy of G.D. Entry (Ex. Ka-5)

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Charge-sheet (Ex. Ka-6)

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Site plan of the incident (Ex. Ka-7)

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Site plan of recovery (Ex. Ka-8)

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Panchnama (Ex. Ka-9)

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Letter to C.M.O. (Ex. Ka-10)

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Letter to R.I. (Ex. Ka-11)

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Photo Nash (Ex. Ka-12)

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Challan Nash (Ex. Ka-13)

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Sample Stamp (Ex. Ka-14)

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F.S.L. Reports (Ex. Ka-15 & 16)

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In addition to the above, the prosecution has adduced oral testimony of following witnesses:-

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Mangeram (P.W.-1)

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Tukeshwar Saini (P.W.-2)

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Mahaveer (P.W.-3)

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Dr. N.K. Gupta (P.W.-4)

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Sukhpal, Constable Clerk (P.W.-5)

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Dalchandra Pravodh, S.I. (P.W.-6)

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Harsaran Sharma, S.H.O. (P.W.-7)

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Khemchandra (P.W.-8)

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Charan Singh, S.O. (P.W.-9)

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Suresh Chandra Gupta, S.I. (P.W.-10)

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After the evidence was led by the prosecution, the incriminating material collected against the accused-appellants was confronted to them for recording their statements under Section 313 Cr.P.C. All the accusedappellants denied their implication and also disputed the recovery of Daranti on their pointing. They also claimed that they have been falsely implicated in the matter.

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It may be worth noticing that the clothes worn by the deceased as also Daranti (weapon of assault) and blood-stain and plain soil collected from the place of occurrence, were sent for Scientific Examination by the F.S.L. The report of the F.S.L. dated 22.10.2007 has been produced as per which, the Daranti contained blood-stains. Other recovered items including the clothes worn by the deceased as well as the plain and blood-stain soil, etc. also contained blood. Blood found on the Salwar and Daranti were determined as human blood. However, further classification could not be made as the blood was found disintegrated. No semen was found on any of the recovered items.

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Trial court on the basis of evidence led in the matter, came to a conclusion that the prosecution has been able to establish the guilt of the accused-appellants beyond reasonable doubt on the touchstone of a case based on a circumstantial evidence and has consequently convicted the accused-appellants in Sessions Trial No.1283 of 2007 and sentenced each of them in Case Crime No.440 of 2007 under Sections 302/34 & 376/511 IPC.

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Learned counsel for the appellant submits that neither the recovery of daranti is reliable nor there exists any other material on record to implicate the accused-appellant and, therefore, the judgment of conviction and sentence is wholly perverse and is liable to be set aside.

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Mrs. Archana Singh for the State, on the other hand, submits that the court below has meticulously examined the evidence on record and has returned the findings of conviction and sentence against the accused appellant which requires no interference.

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We have heard the learned counsel for the parties and have perused the material on record including the lower court record.

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This is a case based on circumstantial evidence. The prosecution case is based on the written report of the husband of the deceased who found the dead body of his wife in the sugarcane field of Mangu Nai on 25.09.2007. None had apparently seen the incident and there is no ocular testimony of the incident on record. The ostensible purpose for visit of the deceased to the field, was to fetch fodder.

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The implication of accused-appellants has essentially surfaced on the basis of statement made by husband of the deceased Mangeram who alleged that he was informed by Khemchandra son of Harivansh and Ramanand that they saw the three accused standing and talking amongst themselves close to the place where the deceased was collecting fodder. So far as Khemchandra is concerned, who allegedly gave such information to P.W.-1 has appeared as P.W.-8 and has turned hostile. He has not supported the prosecution case of seeing the three accused near the place where the deceased was lastly collecting fodder. The other witness who allegedly saw such incident namely

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Ramanand has not been produced. In such circumstances, the prosecution case about the accused appellants having been seen near the place of occurrence has not been proved.

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The other material which has surfaced on record against the accused appellants is the extra judicial confession made by the accused appellants before P.W.-2 Tukeshwar Saini. This witness has stated that the three accused came to him at 7:30 in the morning i.e. 26.09.2007 and sought his help in resolving the issue as they had killed the deceased. In the crossexamination this witness has clearly admitted that the news of death of the deceased had appeared in the newspaper on 26.09.2007 and he had come to know of this incident even prior to the three accused allegedly meeting him. He claims that during panchayat election, he had met the accused Satyendra but he has not been able to explain as to when he had actually met him. The extra-judicial confession is otherwise evidence of weak nature. We have perused the testimony of P.W.-2 and do not find his deposition to be convincing or reliable. This witness apparently is the Chairman of the Saini Community to which the deceased belonged and his involvement due to political reasons in the matter cannot be ruled out. This witness has otherwise not disclosed any close association or relations with the accused and we find it somewhat unusual that persons not connected with him directly would come for his help in the matter where they have killed the deceased. The testimony of P.W.-2 therefore is not of much help to the cause of the prosecution.

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The statement of Mahaveer (P.W.-3) that he saw the three accused in perplexed state soon after the incident, on its own is also not convincing, inasmuch as neither particulars of the time of such incident has been disclosed in the examination-in-chief nor even the month of the incident could be narrated by the witness. The witness is resident of another village Machhra. Being a chance witness, his testimony requires strict scrutiny. The witness has stated in his examination-in-chief that on the date of the incident, he was coming from village Pudhi to village Machhra via Govindpuri because culvert of his village was damaged. In his cross-

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examination the witness has stated that he had gone to the house of Mangeram, his maternal uncle at village Pudhi but the witness has failed to tell the name of the father of Mangeram or the other brother of Mangeram. The witness has also feigned ignorance about the other material particulars. The witness has denied that he has given any affidavit with regard to the incident. When confronted with the document on record (paper no.31 Kha/ 4-5) the witness has admitted that he has given this affidavit to SSP. However, he has denied the averment of the affidavit that he came to know on the third day of the incident that these persons have committed the murder of Mithilesh when she had gone to fetch fodder. The witness has further stated that he came to know about the incident on the same day is also contradicted. His both statements however are claimed to be correct. So his testimony is full of contradictions. It is not inspiring. Being a chance witness otherwise the testimony cannot be relied upon.

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The only other material relied by the prosecution against the appellant is the alleged recovery of daranti. The recovery memo has been exhibited as Ka-2. From the perusal of the recovery memo, it is apparent that recovery has been made from near the place of incident. As per the recovery memo, the daranti was at a distance of 7-8 steps from the place of occurrence, which is otherwise an open field. We find it difficult to rely upon such recovery as the Investigating Officer was otherwise expected to have searched areas close to the place where the dead body was found and in the event such daranti was lying at such close distance, it would have easily been noticed when the dead body was taken from the place of occurrence. The only independent witness to this recovery is Mangeram who is the husband of the deceased. The other public witness of this recovery is Jaikaran who has not been produced. In such circumstance, we do not find the recovery to have been proved on the pointing out of the accused-appellant, based upon his prior disclosure made to the police while in custody. Such recovery is, therefore, not qualify to be an admissible material in terms of Section 27 of the Evidence Act.

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The prosecution has also not been able to establish the motive for commission of the offence. The ostensible motive for crime is alleged sexual assault on the deceased, to which she objected. However, the postmortem report does not reveal any injuries on the private parts of the deceased. No semen etc. has otherwise been found on the spot or from the body of the deceased. The mere fact that contusion was found on the thigh of the deceased also would not lead to an an inference that the deceased was subjected to sexual assault. Motive otherwise assumes significance in a case of circumstantial evidence and the case of the prosecution is substantially weakened if it fails to prove the motive.

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In order to establish a case of circumstantial evidence, the prosecution is otherwise expected to complete the chain of events which points exclusively to the hypothesis of guilt on part of the accused. Law with regard to conviction in a case of circumstantial evidence has been summed up by the Supreme Court in Sharad Birdichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, which has acquired the status of a locus classicus on the issue. The judgment has been followed recently by the Supreme Court in Nagendra Shah vs. State of Bihar, (2021) 10 SCC 725 and while applying the five golden principles to observeed as under in paragraph 17 of the judgment:-

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"17. As the entire case is based on circumstantial evidence, we may make a useful reference to a leading decision of this Court on the subject. In Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487] , in para 153, this Court has laid down five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Para 153 reads thus : (SCC p. 185)

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"153. 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

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inShivaji Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033] wherein the following observations were made : (SCC p. 807, para 19)

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''19. ... 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,

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(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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When we analyse the evidence in the light of the law laid down by the Supreme Court on the subject, we are of the considered opinion that the prosecution has failed to complete the chain of events so as to point exclusively to the hypothesis of guilt against the accused. In that view of the matter, we do not approve the findings of the guilt returned by the court below. We also find that the court below has virtually accepted the case of the prosecution without subjecting the testimony of the witnesses to a closure examination in light of the applicable laws. The court below has discounted the fact that two witnesses on whose statement the appellants implication surfaced have not supported the prosecution case at the stage of trial. The extra judicial confession made to P.W.-2 and its evidentiary value has also not been correctly appreciated. The aspect of recovery has also not been examined in light of our observation made above. In that view of the matter the finding of guilt returned by the court below as well as its consequential sentence awarded vide judgment and order dated 16.11.2011 cannot be sustained.

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Consequently, the appeals succeed and are allowed. The impugned judgment and order of conviction and sentence dated 16.11.2011 is set aside. In the event the appellants are on bail, their sureties and bonds shall stand discharged or if the appellants are in jail, they shall be set free forthwith, unless they are wanted in any other case, subject to compliance of section 437A Cr.P.C.

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Order Date :- 25.7.2023 Zafar/ C. MANI

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Digitally signed by :- CHANDRAMANI VERMA High Court of Judicature at Allahabad

Surendra Sharma @ Bittu v. State of U.P.

Case brief

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Surendra Sharma @ Bittu v. State of U.P.

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