1. Both, the Criminal Appeal as well as Capital Sentence Reference arise out of the same judgment and order dated 22-5-2000 passed by Sri Sardar Akhtar, Special Judge, (S.C./S.T. Act), Gonda in Sessions Trial (Special) No. 136 of 1996, whereby the appellant has been convicted of death sentence together with fine amounting to Rs. 10,000/- for the offence punishable Under Section 302, I.P.C., ten years R.I. and a fine amounting to Rs. 5,000/ – for the offence punishable under Section 364, I.P.C., seven years R.I. and a fine amounting to Rs. 5,000/- for the offence punishable Under Section 201, I.P.C. and imprisonment for life and a fine amounting to Rs. 5.000/- for the offence punishable Under Section 3(2)(5), S.C./S.T. Act.
2. We have heard the learned counsel for the parties and have gone through the record.
3. In the instant case, no one is alleged tc have seen the occurrence of murder etc. and the prosecution has built its case on circumstantial evidence. It was held by the Hon’ble Supreme Court in the ruling reported in 1976 SCC (Criminal) 120 : (AIR 1976 SC 917), Chand Mai v. State of Rajasthan, that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances, from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, 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. That is to say, the circumstances should be of incapable of explanation on any reasonable hypothesis save that of the accused’s guilt. The same view has been followed by the Hon’ble Supreme Court in the subsequent ruling also as reported in 1991 SCC 27 : (AIR 1991 SC 1388), Jaharlal Das v. State of Orissa.
4. In the instant case, however, the prosecution could not establish its case against the accused cogently and firmly. The circumstantial evidence adduced by the prosecution is not of a definite tendency unerringly pointing towards the guilt of the accused and the circumstances, taken cumulatively do not form a complete chain to prove its probability that the crime was committed by the accused appellant Raksha Ram.
5. The prosecution has examined the informant Smt. Janak Dulari as PW-1 in order to prove the chain of motive of the accused in committing the present crime. The informant Smt. Janak Dulari, PW-1 has deposed that she had illicit connection with the accused appellant Raksha Ram and when her husband came to know regarding this illicit connection he had rebuked the informant and had asked her to tell the accused appellant Raksha Ram not to use to visit the residence of the informant. The appellant Raksha Ram became annoyed and has committed the present crime due to the aforesaid motive. The prosecution has however not examined Kripa Kori, the husband of the informant Smt. Janak Dulari to corroborate the informant. Moreover, motive “howsoever strong”, alone cannot form the basis of conviction. It is never incumbent on the prosecution to prove the motive for the crime. Often a motive is indicated to high-lighten the probability that the offence was committed by the person who has impelled by that motive. But if the crime is alleged to have been committed for a particular motive, it is relevant to enquiry whether the pattern of the crime fits in with the alleged motive, as has been held by Hon’ble Supreme Court in the ruling reported in 1974 SCCR 106 : (AIR 1974 SC 1740), State of U.P. v. Hari Prasad. In another ruling also, it has been held by Hon’ble Supreme Court in the ruling reported in 1979 Cri LJ 1057 (SC) : (AIR 1979 SC 1382), State v. Gulzari Lal Tandon that the motive plays an important part in a case based on circumstantial evidence and the accused can be convicted on circumstantial evidence only if the circumstances are wholly inconsistent with the innocence of the accused.
6. The prosecution has examined PW-2 Jagdish and PW-3 Rajendra aged about 13 years and 9 years respectively to prove the chain of the accused being seen for the last time in the company of the deceased. On being cross-examined PW-2 has admitted that he has not told the informant regarding the deceased Rajesh Kori being seen for the last time in the company of the accused appellant Raksha Ram. Under these circumstances, it cannot be ruled out that the case of the accused appellant Raksha Ram being seen for the last time in the company of the deceased was concocted, as suggested by the learned defence counsel and accordingly, we find it difficult to place reliance on the evidence adduced by the prosecution regarding deceased being seen for the last time in the company of the accused appellant Raksha Ram. The prosecution has thus failed to prove this chain also.
7. Much reliance has been placed by the prosecution regarding the recovery of dead body at the instance of the accused which is alleged to be the recovery made under Section 27 of Evidence Act. The evidence adduced on behalf of the prosecution is contradictory. In the recovery memo Exhibit Ka-6, it has been alleged that the dead body of the deceased Rakesh Kori was recovered by the police at the instance of the accused appellant Raksha Ram and the prosecution has examined Sri Ram Dev Vimal, Dy. S.P. As PW-6 who has proved the aforesaid re- covery memo Exhibit Ka-6. The evidence on record in this regard is contradictory. PW 5, constable 320 CP Ajay Kumar Yadav stated in the very beginning in his examination-in-chief itself on 10-9-1996 that he was informed at Police Station Kotwali Dehat, Balrampur that a boy has been murdered and his dead body has been thrown in cane field. This is contradicted by PW-6, C.O. Sri Ram Dev Vimal, according to which he had arrested the accused appellant Raksha Ram at about 1.30 p.m. and the cane field is about 1 km away from the place where the accused appellant was apprehended and that dead body was recovered at about 2.30-3.00 p.m. The inquest memo however shows that it was the informant Smt. Janak Dulari who had for the first time gave the information at police station regarding recovery of dead body. The circumstances as alleged by the prosecution regarding recovery of the dead body at the instance of the accused have not been mentioned in the inquest re- port rather inquest report contradicts the prosecution case when it has been in the inquest report that the dead body was seen by the informant Smt. Janak Dulari herself for the first time. There is no evidence show- ing that the accused was present near the place where the dead body was found. In a case of like nature where the case was based on circumstantial evidence and where there was no evidence showing that the accused was present near the place where the dead body was found and the evidence of the pros- ecution in this regard was contradictory, it has been held by the Hon’ble Supreme Court that the alleged recovery of dead body Under Section 27 of Evidence Act is not ac-ceptable as per ruling reported in 1991 (3) SCC 27, Jaharlal Das v. State of Orissa.
8. Under these circumstances, we find that the case of the prosecution based on circumstantial evidence is not believable and the accused appellant Raksha Ram is liable to be acquitted of the charges punishable Under Sections 302/201, I.P.C.,Under Section 364, I.P.C. and Section 3(2)(5) of S.C./S.T. Act. The judgment and order dated 22-5-2000 passed by Sri Sardar Akhtar, Special Judge, (S.C./S.T. Act), Gonda in Sessions Trial (Special) No. 136 of 1996 is set aside.
9. The appeal is allowed. The conviction and sentence awarded to the appellant Raksha Ram in Special Sessions Trial No. 136 of 1996 by the Special Judge, S.C./S.T. Act, Gonda on 22-5-2000 is set aside. The reference sent by the trial Judge is rejected. The appellant is in jail. He shall be released from jail at once unless wanted in any other case.