CASE NO.: Appeal (crl.) 409-410 of 1996 PETITIONER: State of U.P. RESPONDENT: Arun Kumar Gupta DATE OF JUDGMENT: 08/01/2003 BENCH: N. Santosh Hegde & B.P. Singh. JUDGMENT:
J U D G M E N T
SANTOSH HEGDE, J.
The above appeals are filed against the judgment of the
High Court of judicature at Allahabad, Lucknow Bench, whereby
the High Court allowed the Criminal Appeal filed by the
respondent against his conviction and dismissed the Criminal
Reference made by the third Additional Sessions Judge Unnao for
confirmation of death sentence awarded to the respondent.
The respondent herein and five others were charged for
offences punishable under Sections 302 and 364 IPC before the
said Trial Court at Unnao for having caused the death of one
Rakesh Kalra on 27th of May, 1988. The learned Sessions Judge
while acquitting five of the accused persons found the respondent
herein guilty of offence punishable under Section 302 for which
he was awarded death penalty. The respondent was found guilty
of offence under Section 364 IPC for which he was awarded life
imprisonment. As stated above the appeal filed by the respondent
was allowed by the High Court, while the reference made by the
Sessions Judge was rejected consequently, the judgment and
conviction recorded by the Trial Court came to be set aside.
The prosecution case in brief is that deceased, Rakesh was
a good friend of respondent and he had lent a sum of Rs. 10,000/-
to the respondent, which the respondent was avoiding to pay in
spite of the repeated request from the deceased. It is the case of
the prosecution on 27th of May, 1988 when the deceased had gone
to the shop of PW-2 Chandraprakash, to solicit insurance policies,
the respondent came to the shop of PW-2 at about 2.30 P.M. on
his scooter UGO 6070 and told the deceased that he has made
arrangement for repaying his loan. Therefore, he should come
with him to collect the money. The further case of the
prosecution is that the deceased accompanied the respondent on
his scooter and went towards the refugee colony. Thereafter, the
whereabouts of the deceased was not known. Therefore, at about
6.30 P.M. in the evening , PW-1, Satyapal, father of the deceased
being worried about the welfare of his son came to the shop of
PW-2 inquiring about the whereabouts of the deceased. Then
PW-2 supposed to have told PW-1 about the respondent coming
and taking the deceased from his shop in the afternoon therefore,
both PW-1 and PW-2 went to the house of the respondent, where
from a distance they saw the front door of the house of the
respondent was locked. These witnesses then returned to their
respective homes. The further case of the prosecution is on the
next day i.e. on 28th of May, 1988 at about 7.30 P.M. PW-1 went
to the house of PW-2 and told him that there was no news of his
son or of the respondent. Therefore, he decided to lodge a police
complaint which was dictated by PW-1 to PW-2, and the same
was lodged with the police on that evening.
The prosecution further states that about 10 P.M. the police
went to the house of the respondent and tried to break open the
lock of the house. When this news of police having gone to the
house of the respondent was heard by PW-2, who incidentally,
resides close by, he went to the house of the respondent and
witnessed the lock of the house being broken. On entering the
house the police recovered a body, packed in a sack in the gallary
of the house of the respondent which when opened was found to
be the body of Rakesh. On search of the dead body they found a
sum of Rs. 566.50 from the inner pocket of the pant of the
deceased which was blood stained. Same was recovered under
panchnama exhibit-2. The prosecution further states at the time of
the inquest held by the PW-9 that they found a blood stained
knife which was also seized and they also collected blood stained
earth from the house of the respondent under different
panchnamas.
The prosecution further states that when the police
searched for the respondent, he was not available hence he was
declared as an absconder by the competent court. Prosecution
states later he was arrested on 4th of June, 1988 from Pillibhit.
During the course of further investigation, the prosecution came to
know that PW-3, Lilaldhar who was also residing near the house
of the respondent in Punjabi colony had seen the deceased and
respondent entering the house of the respondent at about 3.00 or
3.15 P.M. on 27th of May, 1988. It is the case of the prosecution
that thereafter, the deceased was not seen alive.
The prosecution further states that the respondent with the
help of the other accused persons had abducted the deceased
because the respondent was offended by the constant demand
made by the deceased for the return of the money which
according to the prosecution had defamed the respondent.
On the basis of the above prosecution case, the Trial
Court came to the conclusion that prosecution has established
beyond all reasonable doubt that the respondent was responsible
for the abduction and murder of the deceased. It however held
that the prosecution has failed to establish the same as against
other accused persons, consequently it acquitted the said accused
persons while it convicted the respondent of offences punishable
under Sections 302 and 364 IPC and having come to the
conclusion that the offence was one of the rarest of the rare cases
calling for capital punishment decided to impose that punishment
on the respondent, hence made the reference to the High Court as
stated above. The trial court also found the respondent guilty of
the offences punishable under Section 364 IPC for which a
sentence of life imprisonment was awarded to the respondent.
While coming to the said conclusion, the trial court
noticing the fact that the prosecution case was based on
circumstantial evidence, came to the conclusion that following
circumstances were clearly established by the prosecution against
the respondent. They are;
a) Deceased Rakesh and respondent, A.K. Gupta were good
friends.
b) That the respondent was in need of money and had
borrowed a sum of Rs. 10,000/- from the deceased which
the latter was repeatedly demanding to be repaid.
c) On 27.5.1988 the respondent had come to the shop of
PW-2 when the deceased was there and told him in the
presence of PW-2 that he had made arrangement for the
repayment of money, therefore, the deceased should
come and collect the same from his house.
d) Deceased went along with the respondent on his scooter.
e) The deceased was seen entering the house of the
respondent accompanied with respondent at about 3.00 to
3.15 p.m. by PW-3.
f) Even though the respondent was residing in the house in
question, the house was found locked on the evening of
27.5.1988 when PW-1 and PW-2 went to inquire about
the deceased.
g) Dead body of the deceased was recovered from the house
of the respondent on the night of 28.5.1988 along with a
blood stained knife and blood stained earth.
h) The respondent was absconding and was arrested only on
4th of June, 1988. The Scooter belonging to the
respondent bearing Number UGO 6070 was recovered at
the instance of one of the accused persons.
From the above circumstances, the learned Sessions Judge
came to the conclusion that all the links necessary to form a
complete chain of circumstances has been proved beyond
reasonable doubt against the respondent and on that basis it
convicted the respondent.
The High Court per contra on re-appreciation of the
evidence, came to the conclusion that though some of the links
in the chain of circumstances like;
i) Respondent and deceased were friends and used to
visit each other;
Deceased had advanced money to the respondent; Still it
came to the conclusion that the prosecution has not established
the fact that deceased was last seen with the respondent, the
body of the deceased was found in the house of the respondent
or the knife and blood stained earth was recovered from the
house of the respondent. According to the High Court these
facts being important links in chain of circumstantial evidence
the same having not being established, it held it not safe to base
a conclusion.
In these appeals, the learned counsel for the state
contended that the high court having accepted the finding of the
learned Sessions Judge in regard to some of the circumstances
relied on by the prosecution erred in rejecting some other
circumstances without properly appreciating the evidence in
that regard. It is contended that from the evidence of PWs. 2
and 3 it is very clear that the deceased was taken by the
respondent to his house and thereafter he was not seen alive and
the prosecution has established the fact that the dead body of the
deceased was found from the house of the respondent, wherein
he was staying with his family. The learned counsel also pointed
out that the fact that the respondent was missing from the
afternoon of 27th May, 1988 which also indicates the guilt of the
accused person. He also argued that the prosecution has
established the motive for the murder.
On the contrary, on behalf of the respondent, it is
contended that the High Court was justified in disbelieving the
evidence of PWs.2 and 3, who speak about the meeting of the
accused with the deceased on the afternoon of 27th May, 1988,
as also both of them entering the house of respondent around
3.00 or 3.15 P.M. on 27th May, 1988. In regard to the
evidence of PW-2, the learned counsel contended that he
belongs to the same biradari of PW-1, the father of the
deceased and had taken an extraordinary interest in the
investigation of this case. Therefore, his evidence should be
very cautiously considered. We will be discussing the
evidence of PW-2 separately when we take up for
consideration the discoveries made during the course of the
investigation. Suffice it to note at this stage that the High
Court has cast very serious doubt on the veracity of the
evidence of this witness.
In regard to PW-3, the learned counsel contended that if
we carefully consider the sequence of events as narrated by
this witness, it is clear that this witness could never have seen
the deceased and the respondent near the house of respondent
at about 3.30 P.M. on that date. He drew our attention to that
part of the evidence of PW-3 wherein he had stated that after
lunch he had left his house around 2 P.M. and his house is
about 30 to 35 meters from the respondent’s house. If that be
so, this witness having left his house at 2 p.m. he could not
have been near the house of the respondent at about 3.30 P.M.
Learned counsel also pointed out the discrepancy in the
evidence of this witness as to when he informed of this fact to
PW-1 and also as to the delay in informing the I.O., PW-9 this
factum of he having seen deceased and the respondent on that
afternoon. The learned counsel also pointed out that even
according to the prosecution, the respondent was staying in the
house in question with his wife and young children, if that be
so, it is highly improbable that any reasonable person would
take the deceased to that house where the family is living to
commit such a ghastly crime, hence the recovery of the dead
body, knife and bloodstained earth is a concocted story. He
also pointed out that the high court was justified in rejecting
the recovery of the bloodstained knife and earth from the house
of the respondent because the prosecution did not send those
blood stained knife and the blood stained earth to the serologist
for examination, failure to do so according to the learned
counsel throws very serious doubt on this point of the
prosecution case. In support of this contention the learned
counsel relied upon the judgment of this court in the case of
Laxmi Singh Vs. State of Bihar (AIR 1976 SC 2263). The
learned counsel then pointed out though PW-1 and 2 knew
about the incidence in the shop of PW-2 on the afternoon of
27th May, 1988 and that they had suspected the respondent of
having abducted the deceased on that very day itself, inspite of
the same no complaint was lodged till late evening of 28th
May, 1988, which also shows that entire prosecution case was
built up after the dead body of the deceased was found
somewhere. He further pointed out from the topography of the
area where the dead body of the deceased was found that it was
a crowded locality with number of houses and shops still none
of the independent witnesses like the immediate neighbour or
others who reside in that locality or those who had assembled
at the time of the alleged recovery of the dead body have been
examined and for reason better known only a few selected
persons were involved in the investigation and examined as
witness by the prosecution. In this regard he pointed that PW-
4, though not on immediate neighbour of the house of
respondent, he was summoned from his house to witness the
recoveries. Learned counsel points out that this witnesses
happened to be a member of the biradari of the PW-1 and
resides behind the house of the I.O., PW-9. Elaborating this
point the learned counsel argued when there were so many
independent people available at the spot, the prosecution has
not explained why particular persons had to be summoned
from places away from the house where the search was taking
place. He also pointed out that this very witness has been
made the panch for all the recoveries made by the prosecution
which also speaks about the credibility of this witness. Learned
counsel then pointed out the various contradictions in the
evidence of the prosecution witnesses as to the breaking open
of the lock of the respondents’ house, switching on of the light
in that house and in regard to the presence of PW-9, the I.O. at
the time of the search. The learned counsel pointed out from
the evidence of PW-9 himself it is seen that he was there only
till 11.30 P.M. in the night when the inquest and seizure were
going on in the house. While from the evidence of PW-7, the
other police officer he pointed out that this witness, PW-9 was
present through out the night till next morning when the search
memos were prepared. He then pointed out from the recovery
punchnama that the same have come into existence on the
morning of 29th of May, 1988 therefore, he contended that it is
possible that almost all these recoveries including that the dead
body was made only on 29th of May, 1988 and thereafter the
complaint as presently found on record was lodged.
We have heard the learned counsel and perused the
records of the case and we are inclined to concur with the
judgement of the high court. As pointed out by the high court
that the prosecution though has been able to establish some of
the links in the chain of circumstances, it has failed to establish
some of the vital links beyond all reasonable doubts. Therefore,
the high court was justified in coming to the conclusion that the
chain of circumstances in this case is not complete. On
examining the evidence of Liladhar, (PW-3), who allegedly saw
the deceased with respondent entering the house of the
respondent on 27th of May, 1988 at about 3.00 to 3.30 P.M. we
notice that even in his examination in chief had admitted that he
did not inform this fact to the father of the deceased, who at that
point of time was searching for the deceased. Though, in the
cross-examination, he has tried to fill in this omission, we think
this circumstance is of such importance and if really he had
noticed the deceased entering the house of the respondent on
that afternoon, he would not have failed to mention this in his
examination in chief itself, which omission should be taken note
of while appreciating his evidence. Then we notice that this
witness also belongs to the same biradari of PW-1 and was on
visiting terms with him. Thus he is also an interested witness.
He also stated in his evidence that factum of seeing the deceased
entering the house of the respondent was mentioned by him for
the first time to the investigating officer when his statement was
recorded even though ample opportunity was there to mention
the same earlier. This coupled with the fact that the explanation
given by him as to his presence near the house of the respondent
on the afternoon being doubtful we think the high court was
justified in coming to the conclusion that the evidence of this
witness is not wholly reliable. We will next discuss the
probability of the recovery of the dead body from the house of
respondent. In this regard, we have already noted the argument
of the learned counsel for the respondent. Even according to the
prosecution, the house in question belongs to the respondent and
he was staying in that house with his family consisting of his
wife and young children. The house is situated in a crowded
locality and large number of other houses and shops are in the
close vicinity. We agree with the learned counsel for the
respondent that no reasonable person would commit a ghastly
murder like the one with which we are concerned by taking the
victim to such a house where his family was residing.
Prosecution has not produced any material to show either the
presence or absence of the family members of the respondent at
the time of the murder in the house. That apart it is highly
unlikely that neighbours and passersby would not have been
attracted if really the deceased, who suffered as many as 30
injuries was murdered in that house. Therefore, in all
probability, the murder of the deceased was not committed in the
house of the respondent.
We will now consider the recovery of the dead body, the
bloodstained knife, the bloodstained earth and such other things
from the house of the respondent.
In this regard, the prosecution relies on the evidence of
PW-4. We have earlier noticed PW-4 is not a resident in the
immediate proximity of the house of the respondent. He belongs
to the same biradari of the complainant and lives behind the
house of the Investigating Officer, PW-9. We find no
reasonable explanation why such a person was called to be a
witness to the recovery when there were any number of people
available and who are residents of the houses in the immediate
proximity of the house of the respondent. We also notice from
the records that large number of people were present at the time
of the recovery, therefore, prosecution should have come
forward with some explanation why PW-4 was so selectively
chosen to be the witness for the recoveries. We also notice,
though the preparation of memos of the recoveries took a long
time still for all the recoveries PW-4 is a common witness.
There is also considerable discrepancy in regard to the manner
in which PW-4 came to be a witness to the recoveries. From the
evidence on record, it is seen that at one place it is stated that
PW-4 had come to the house of respondent on hearing the
commotion that took place because of the breaking open of the
lock of the house. At another place, we find that I.O. PW-9 had
summoned PW-4 from his house to be a witness for the
recovery. This discrepancy also adds to the doubt in regard to
the evidence of PW-4, therefore, in our opinion as held by the
High Court it is not safe to rely on the evidence of this witness.
PWs-7 and 9 who were police officers are also witnesses, who
speak about the recoveries made from the house of the
respondent. PW-9 at one point says that all the recoveries in
question, were made by him and he left the house of the
respondent around 11.00 or 11.30 P.M. in the night of 28th of
May, 1988. While PW-7 who also present at that point of time
says that PW-9 was there throughout the night of 28th of May,
1988 till the morning of 29th of May, 1988 when the recoveries
were completed. Thus we find a material contradiction in the
evidence of these two witnesses. From the records, we see that
the recoveries of the bloodstained knife, the bloodstained earth
was made on 29th of May, 1988. And according to the PW-9 he
had made the recoveries and he had left the place by about 11.30
P.M. in the night. It is not possible to reconcile these two facts
if actually PW-9 was the person responsible for preparing the
recovery memos then, the date 29th May does not fit into
prosecution case since according to this witness himself he left
about 11.30 in the night of 28th of May, 1988. Therefore, there
is force in the arguments of the learned counsel for the
respondent that these recoveries can not be believed more so in
the background of the fact that the bloodstained knife, the
bloodstained earth was not sent to the serologist. This court in
the case of Laxmi Singh Vs. State of Bihar (supra) has stated
that :-
“To add to this another important
circumstance is the omission on the part of the
prosecution to send the bloodstained earth
found at the place of occurrence for chemical
examination which could have fixed the situs of
the assault. In almost all criminal cases, the
bloodstained earth found from the place of
occurrence is invariably sent to the Chemical
Examiner and his report along with the earth is
produced in the court, and yet this is one
exceptional case where this procedure was
departed from for reasons best known to the
prosecution. This also, therefore, shows that
the defence version may be true. It is well
settled that it is not necessary for the defence to
prove its case with the same rigour as the
prosecution is required to prove its case, and it
is sufficient if the defence succeeds in throwing
a reasonable doubt on the prosecution case
which is sufficient to enable the Court to reject
the prosecution version.”
From the above decision of this Court it is clear that in
such circumstances when the prosecution fails to send the blood
stained material to the chemical examiner a reasonable doubt
arises as to the genuineness of the prosecution case in regard to
the recovery of such material. It is also relevant to notice at this
stage the factum of recovery of the bloodstained earth was not
put to the respondent when his statement was recorded under
Section 313 Cr.P.C.
From the above discrepancies noticed by us in the
evidence of PWs 7 and 9 and also from the omission on the part
of the prosecution in sending bloodstained material to the
serologist we are constrained to doubt the prosecution case in
regard to the recovery.
Coming to the evidence of PW-2, who says that he had
seen the respondent take the deceased from his shop on 27th
May, 1988, it should be noticed that this person is of the same
biradari as of the deceased and was a close friend of the father of
the deceased for over 20 years. The defence has suggested that
he is actually the brother-in-law of PW-1, but the same is
denied. The facts remains that this witness is an interested
witness.
From the material produced by the prosecution, it shows
that this witness was taking extraordinary interest in the
investigation and was present at practically every important
place and time in the course of the investigation. The High
Court has very elaborately discussed the evidence of this witness
and has rejected the same for good reasons with which we agree.
In our opinion, the evidence of this witness does not inspire
much confidence.
From the above discussion, in our opinion that the
prosecution has been able to establish only a motive as against
the respondent for committing the murder, while most of the
circumstances which are otherwise important to be proved in
this case have not been established. We are of the opinion, the
High Court was justified in interfering with the judgment of the
Sessions Judge and allowing the appeal.
For the reasons stated above, these appeals fail and the
same are dismissed.