{"id":170609,"date":"2003-01-08T00:00:00","date_gmt":"2003-01-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-arun-kumar-gupta-on-8-january-2003"},"modified":"2019-02-24T02:28:47","modified_gmt":"2019-02-23T20:58:47","slug":"state-of-u-p-vs-arun-kumar-gupta-on-8-january-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-arun-kumar-gupta-on-8-january-2003","title":{"rendered":"State Of U.P vs Arun Kumar Gupta on 8 January, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U.P vs Arun Kumar Gupta on 8 January, 2003<\/div>\n
Author: S Hegde<\/div>\n
Bench: N. Santosh Hegde, B.P. Singh.<\/div>\n
           CASE NO.:\nAppeal (crl.)  409-410 of 1996\n\nPETITIONER:\nState of U.P.\n\nRESPONDENT:\nArun Kumar Gupta\n\nDATE OF JUDGMENT: 08\/01\/2003\n\nBENCH:\nN. Santosh Hegde & B.P. Singh.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
SANTOSH HEGDE, J.\n<\/p>\n
\t\tThe above appeals are filed against the judgment of the
\nHigh Court of judicature at Allahabad, Lucknow Bench, whereby
\nthe High Court allowed the Criminal Appeal filed by  the
\nrespondent against his conviction and dismissed the Criminal
\nReference made by the third Additional Sessions Judge Unnao for
\nconfirmation of death sentence awarded to the respondent.
\n\t\tThe respondent herein and five others were charged for
\noffences punishable under Sections 302 and 364 IPC before the
\nsaid Trial Court at Unnao for having caused the death of one
\nRakesh Kalra on 27th of May, 1988.  The learned Sessions Judge
\nwhile acquitting five of the accused persons found the respondent
\nherein guilty of offence punishable under Section 302 for which
\nhe was awarded death penalty. The respondent was found guilty
\nof offence under Section 364 IPC for which he was awarded life
\nimprisonment.  As stated above the appeal filed by the respondent
\nwas allowed by the High Court, while the reference made by the
\nSessions Judge was rejected consequently, the judgment and
\nconviction recorded by the Trial Court came to be set aside.
\n\t\tThe prosecution case in brief is that deceased, Rakesh was
\na good friend of respondent  and he had lent a sum of Rs. 10,000\/-
\nto the respondent, which the respondent was avoiding to pay in
\nspite of  the repeated request from the deceased.  It is the case of
\nthe prosecution on 27th of May, 1988 when the deceased had gone
\nto the shop of PW-2 Chandraprakash, to solicit insurance policies,
\nthe respondent came to the shop of PW-2 at about 2.30 P.M. on
\nhis scooter UGO 6070 and told the deceased that he has made
\narrangement for repaying his loan.  Therefore, he should come
\nwith him to collect the money.\tThe further case of the
\nprosecution is that the deceased accompanied the respondent on
\nhis scooter and went towards the refugee colony.  Thereafter, the
\nwhereabouts of the deceased was not known.  Therefore,\tat  about
\n6.30 P.M. in the evening , PW-1, Satyapal, father  of the deceased
\nbeing worried about the welfare of his son came to the shop of
\nPW-2 inquiring about the whereabouts of the deceased.  Then
\nPW-2 supposed to  have told PW-1 about the respondent coming
\nand taking the deceased from his shop in the afternoon therefore,
\nboth PW-1 and PW-2 went to the house of the respondent, where
\nfrom a distance they saw the front door of the house of the
\nrespondent was locked.\tThese witnesses then returned to their
\nrespective homes. The further case of the prosecution is on the
\nnext day i.e. on 28th of May, 1988 at about 7.30 P.M. PW-1 went
\nto the house of PW-2 and told him that there was no news of his
\nson or of the respondent.  Therefore, he decided to lodge a police
\ncomplaint which was dictated by PW-1 to PW-2, and the same
\nwas lodged with the police on that evening.\n<\/p>\n
\t\tThe prosecution further states that about 10 P.M. the police
\nwent to the house of the respondent and tried to break open the
\nlock of the house. When this news of police having gone to the
\nhouse of the respondent was heard by PW-2, who incidentally,
\nresides close by, he went to the house of the respondent and
\nwitnessed  the lock of the house being broken.\tOn entering  the
\nhouse the police recovered a body, packed in a sack in the gallary
\nof  the house of the respondent which when opened was found to
\nbe the body of Rakesh.\tOn search of the dead body they found a
\nsum of\tRs. 566.50 from the inner pocket of the pant of the
\ndeceased which was blood stained.  Same was recovered under
\npanchnama exhibit-2.  The prosecution further states at the time of
\nthe inquest held by the PW-9 that they found  a blood stained
\nknife which was also seized and they also collected blood stained
\nearth from the house of the respondent under different
\npanchnamas.\n<\/p>\n
\t\tThe prosecution further states that when the police
\nsearched for the respondent, he was not available hence he was
\ndeclared as an absconder by the competent court. Prosecution
\nstates later he was arrested on 4th of June, 1988 from Pillibhit.
\nDuring the course of further investigation, the prosecution came to
\nknow that PW-3, Lilaldhar who was also residing near the house
\nof the respondent in Punjabi colony had seen the deceased and
\nrespondent entering the house of the respondent at about 3.00 or
\n3.15 P.M. on 27th of May, 1988.\t It is the case of the prosecution
\nthat thereafter, the deceased was not seen alive.
\n\t\tThe prosecution further states that the respondent with the
\nhelp of the other accused persons had abducted the deceased
\nbecause the respondent was offended by the constant demand
\nmade by the deceased for the return of the money which
\naccording to the prosecution had defamed the respondent.
\n\t\tOn the basis of the above prosecution case, the Trial
\nCourt came to the conclusion that prosecution has established
\nbeyond all reasonable doubt that the respondent was responsible
\nfor the abduction and murder of the deceased. It however held
\nthat the prosecution has failed to establish the same as against
\nother accused persons, consequently it acquitted the said accused
\npersons while it convicted the respondent of offences punishable
\nunder Sections 302 and 364 IPC and having come to the
\nconclusion that the offence was one of the rarest of the rare cases
\ncalling for capital punishment decided to impose that punishment
\non the respondent, hence made the reference to the High Court as
\nstated above.  The trial court also found the respondent guilty of
\nthe offences punishable under Section 364 IPC for which a
\nsentence of life imprisonment was awarded to the respondent.
\n\t\tWhile coming to the said conclusion, the trial court
\nnoticing the fact that the prosecution case was based on
\ncircumstantial evidence, came to the conclusion that following
\ncircumstances were clearly established by the prosecution against
\nthe respondent.\t They are;\n<\/p>\n
a)\tDeceased Rakesh and respondent, A.K. Gupta were good
\nfriends.\n<\/p>\n
b)\tThat the respondent was in need of money and had
\nborrowed a sum of Rs. 10,000\/- from the deceased which
\nthe latter was repeatedly demanding to be repaid.\n<\/p>\n
c)\tOn 27.5.1988 the respondent had come to the shop of
\nPW-2 when the deceased was there and told him in the
\npresence of PW-2 that he had made arrangement for the
\nrepayment of money, therefore, the deceased should
\ncome and collect the same from his house.\n<\/p>\n
d)\tDeceased went along with the respondent on his scooter.\n<\/p>\n
e)\tThe deceased was seen entering the house of the
\nrespondent accompanied with respondent at about 3.00 to
\n3.15 p.m. by PW-3.\n<\/p>\n
f)\tEven though the respondent was residing in the house in
\nquestion, the house was found locked on the evening of
\n27.5.1988 when PW-1 and PW-2 went to inquire about
\nthe deceased.\n<\/p>\n
g)\tDead body of the deceased was recovered from the house
\nof the respondent on the night of 28.5.1988 along with a
\nblood stained knife and blood stained earth.\n<\/p>\n
h)\tThe respondent was absconding and was arrested only on
\n4th of June, 1988.  The Scooter belonging to the
\nrespondent bearing Number UGO 6070 was recovered at
\nthe instance of one of the accused persons.\n<\/p>\n
From the above circumstances, the learned Sessions Judge
\ncame to the conclusion that all the links necessary to form a
\ncomplete chain of circumstances has been proved beyond
\nreasonable doubt against the respondent and on that basis it
\nconvicted the respondent.\n<\/p>\n
The High Court per contra on re-appreciation  of the
\nevidence, came to the conclusion that though some of the links
\nin the chain of circumstances like;\n<\/p>\n
i)\tRespondent and deceased were friends and used to
\nvisit  each other;\n<\/p>\n
Deceased had advanced money to the respondent; Still it
\ncame to the conclusion that the prosecution has not established
\nthe fact that deceased was last seen with the respondent, the
\nbody of the deceased was found in the house of the respondent
\nor the knife and blood stained earth was recovered from the
\nhouse of the respondent.  According to the High Court these
\nfacts being important links in chain of circumstantial evidence
\nthe same having not being established, it held it not safe to base
\na conclusion.\n<\/p>\n
In these appeals, the learned counsel for the state
\ncontended that the high court having accepted the finding of the
\nlearned Sessions  Judge in regard to some of the circumstances
\nrelied on by the prosecution erred in rejecting some other
\ncircumstances without properly appreciating  the evidence in
\nthat regard.  It is contended that from the evidence of PWs. 2
\nand 3 it is very clear that the\t deceased was taken by the
\nrespondent to his house and thereafter he was not seen alive and
\nthe prosecution has established the fact that the dead body of the
\ndeceased was found from the house of the respondent, wherein
\nhe was staying with his family. The learned counsel also pointed
\nout that the fact that the respondent was missing from the
\nafternoon of 27th May, 1988 which also indicates the guilt of the
\naccused person. He also argued that the prosecution has
\nestablished  the motive for the murder.\n<\/p>\n
\tOn the contrary, on behalf of the respondent, it is
\ncontended that the High Court was justified in disbelieving the
\nevidence of PWs.2 and 3, who speak about the meeting of the
\naccused with the deceased on the afternoon of 27th May, 1988,
\nas also both of them entering the house of respondent around
\n3.00 or 3.15 P.M. on 27th May, 1988.  In regard to the
\nevidence of PW-2, the learned counsel contended that he
\nbelongs to the same biradari of PW-1, the father of the
\ndeceased and had taken an extraordinary interest in the
\ninvestigation of this case.  Therefore, his evidence should be
\nvery cautiously considered.  We will be discussing the
\nevidence of PW-2 separately when we take up for
\nconsideration the discoveries made during the course of the
\ninvestigation.\tSuffice it to note at this stage that the High
\nCourt has cast very serious doubt on the veracity of the
\nevidence of this witness.\n<\/p>\n
\tIn regard to PW-3, the learned counsel contended that if
\nwe carefully consider the sequence of events as narrated by
\nthis witness, it is clear that this witness could never have seen
\nthe deceased and the respondent near the house of respondent
\nat about 3.30 P.M. on that date.  He drew our attention to that
\npart of the evidence of PW-3 wherein he had stated that after
\nlunch he had left his house around 2 P.M. and his house is
\nabout 30 to 35 meters from the respondent’s house. If that be
\nso, this witness having left his house at 2 p.m. he could not
\nhave been near the house of the respondent at about 3.30 P.M.
\nLearned counsel also pointed out the discrepancy in the
\nevidence of this witness as to when he informed of this fact to
\nPW-1 and also as to the delay in informing the I.O., PW-9 this
\nfactum of he having seen deceased and the respondent on that
\nafternoon. The learned counsel also pointed out that even
\naccording to the prosecution, the respondent was staying in the
\nhouse in question with his wife and young children, if that be
\nso, it is highly improbable that any reasonable person would
\ntake the deceased to that house where the family is living to
\ncommit such a ghastly crime, hence the recovery of the dead
\nbody, knife and bloodstained earth is a concocted story. He
\nalso pointed out that the high court was justified in rejecting
\nthe recovery of the bloodstained knife and earth from the house
\nof the respondent because the prosecution did not send those
\nblood stained knife and the blood stained earth to the serologist
\nfor examination, failure to do so according to the learned
\ncounsel throws very serious doubt on this point of the
\nprosecution case.  In support of this contention the learned
\ncounsel relied upon the judgment of this court in the case of
\nLaxmi Singh Vs. State of Bihar (AIR 1976 SC 2263). The
\nlearned counsel then pointed out though PW-1 and 2 knew
\nabout the incidence in the shop of PW-2 on the afternoon of
\n27th May, 1988 and that they had suspected the respondent of
\nhaving abducted the deceased on that very day itself, inspite of
\nthe same no complaint was lodged till late evening of 28th
\nMay, 1988, which also shows that entire prosecution case was
\nbuilt up after the dead body of the deceased was found
\nsomewhere.  He further pointed out from the topography of the
\narea where the dead body of the deceased was found that it was
\na crowded locality with number of houses and shops still none
\nof the independent witnesses like the immediate neighbour or
\nothers who reside in that locality or those who had assembled
\nat the time of the alleged recovery of the dead body have been
\nexamined  and for reason better known only   a few selected
\npersons were involved in the investigation and examined as
\nwitness by the prosecution. In this regard he pointed that PW-
\n4, though not on immediate neighbour of the house of
\nrespondent, he was summoned from his house to witness the
\nrecoveries.  Learned counsel points out that this witnesses
\nhappened to be a member of the biradari\t of the PW-1 and
\nresides behind the house of the I.O., PW-9. Elaborating this
\npoint the learned counsel argued when there were so many
\nindependent  people available at the spot, the prosecution has
\nnot explained why particular persons had to be summoned
\nfrom  places away from the house  where the search was taking
\nplace.\tHe also pointed out that this very witness has been
\nmade the panch for all the recoveries made by the prosecution
\nwhich also speaks about the credibility of this witness. Learned
\ncounsel then pointed out the various contradictions in the
\nevidence of the prosecution witnesses as to the breaking open
\nof the lock of the respondents’ house, switching on of the light
\nin that house and in regard to the presence of PW-9, the I.O. at
\nthe time of the search. The learned counsel pointed out from
\nthe evidence  of PW-9 himself it is seen that he was there only
\ntill 11.30 P.M. in the night when the inquest and seizure were
\ngoing on in the house.\tWhile from the evidence of PW-7, the
\nother police officer he pointed out that this witness, PW-9 was
\npresent through out the night till next morning when the search
\nmemos were prepared. He then pointed out from the recovery
\npunchnama that the same have come into existence on the
\nmorning of 29th of May, 1988 therefore, he contended that it is
\npossible that almost all these recoveries including that the dead
\nbody was made only on 29th of May, 1988 and thereafter the
\ncomplaint as presently found on record was lodged.
\nWe have heard the learned counsel and perused the
\nrecords of the case and we are inclined to concur with the
\njudgement of the high court.   As pointed out by the high court
\nthat the prosecution though has been able to establish some of
\nthe links in the chain of circumstances, it has failed to establish
\nsome of the vital links beyond all reasonable doubts.  Therefore,
\nthe high court was justified in coming to the conclusion that the
\nchain of circumstances in this case is not complete. On
\nexamining the evidence of  Liladhar, (PW-3), who allegedly saw
\nthe deceased with respondent entering the house of the
\nrespondent on 27th of May, 1988 at about 3.00 to 3.30 P.M.  we
\nnotice that even in his examination in chief had admitted that he
\ndid not inform this fact to the father of the deceased, who at that
\npoint of time was searching for the deceased.  Though, in the
\ncross-examination, he has tried to fill in this omission, we think
\nthis circumstance is of such importance and if really he had
\nnoticed the deceased entering the house of the respondent on
\nthat afternoon, he would not have failed to mention this in his
\nexamination in chief itself, which omission should be taken note
\nof while appreciating his evidence. Then we notice that this
\nwitness also belongs to the same biradari of PW-1 and was on
\nvisiting terms with him.  Thus he is also an interested witness.
\nHe also stated in his evidence that factum of seeing the deceased
\nentering the house of the respondent was mentioned by him for
\nthe first time to the investigating officer when his statement was
\nrecorded even though ample opportunity was there to mention
\nthe same earlier.   This coupled with the fact that the explanation
\ngiven by him as to his presence near the house of the respondent
\non the afternoon being doubtful we think the high court was
\njustified in coming to the conclusion that the evidence of this
\nwitness is not wholly reliable. We will next discuss the
\nprobability of the recovery of the dead body from the house of
\nrespondent.  In this regard, we have already noted the argument
\nof the learned counsel for the respondent.  Even according to the
\nprosecution, the house in question belongs to the respondent and
\nhe was staying in that house with his family consisting of his
\nwife and young children.  The house is situated in a crowded
\nlocality and large number of other houses and shops are in the
\nclose vicinity.\t We agree with the learned counsel for the
\nrespondent that no reasonable person would commit a ghastly
\nmurder like the one with which we are concerned by taking the
\nvictim to such a house where his family was residing.
\nProsecution has not produced any material to show either the
\npresence or absence of the family members of the respondent at
\nthe time of the murder in the house.  That apart it is highly
\nunlikely that neighbours and passersby would not have been
\nattracted if really the deceased, who suffered as many as 30
\ninjuries was murdered in that house.  Therefore, in all
\nprobability, the murder of the deceased was not committed in the
\nhouse of the respondent.\n<\/p>\n
We will now consider the recovery of the dead body, the
\nbloodstained knife, the bloodstained earth and such other things
\nfrom the house of the respondent.\n<\/p>\n
In this regard, the prosecution relies on the evidence of
\nPW-4.  We have earlier noticed PW-4 is not a resident in the
\nimmediate proximity of the house of the respondent.  He belongs
\nto the same biradari of the complainant and lives behind the
\nhouse of the Investigating Officer, PW-9.  We find no
\nreasonable explanation why such a person was called to be a
\nwitness to the recovery when there were any number of people
\navailable and who are residents of the houses in the immediate
\nproximity of the house of the respondent.   We also notice from
\nthe records that large number of people were present at the time
\nof the recovery, therefore, prosecution should have come
\nforward with some explanation why PW-4 was so selectively
\nchosen to be the witness for the recoveries.  We also notice,
\nthough the preparation of memos of the recoveries took a long
\ntime still for all the recoveries PW-4 is a common witness.
\nThere is also considerable discrepancy in regard to the manner
\nin which PW-4 came to be a witness to the recoveries.  From the
\nevidence on record, it is seen that at one place it is stated that
\nPW-4 had come to the house of respondent on hearing the
\ncommotion that took place because of the breaking open of the
\nlock of the house.  At another place, we find that I.O. PW-9 had
\nsummoned PW-4 from his house to be a witness for the
\nrecovery.  This discrepancy also adds to the doubt in regard to
\nthe evidence of PW-4, therefore, in our opinion as held by the
\nHigh Court it is not safe to rely on the evidence of this witness.
\nPWs-7 and 9 who were police officers are also witnesses, who
\nspeak about the recoveries made from the house of the
\nrespondent.  PW-9 at one point says that all the recoveries in
\nquestion, were made by him and he left the house of the
\nrespondent around 11.00 or 11.30 P.M. in the night of 28th of
\nMay, 1988.  While PW-7 who also present at that point of time
\nsays that PW-9 was there throughout the night of 28th of May,
\n1988 till the morning of 29th of May, 1988 when the recoveries
\nwere completed.\t Thus we find a material contradiction in the
\nevidence of these two witnesses.  From the records, we see that
\nthe recoveries of the bloodstained knife, the bloodstained earth
\nwas made on 29th of May, 1988.\tAnd according to the PW-9 he
\nhad made the recoveries and he had left the place by about 11.30
\nP.M. in the night.  It is not possible to reconcile these two facts
\nif actually PW-9 was the person responsible for preparing the
\nrecovery memos then, the date 29th May does not fit into
\nprosecution case since according to this witness himself he left
\nabout 11.30 in the night of 28th of May, 1988.\tTherefore, there
\nis force in the\t arguments of the learned counsel for the
\nrespondent that these recoveries can not be believed more so in
\nthe background of the fact that the bloodstained knife, the
\nbloodstained earth was not sent to the serologist.  This court in
\nthe case of Laxmi Singh Vs. State of Bihar (supra) has stated
\nthat :-\n<\/p>\n
“To add to this another important
\ncircumstance is the omission on the part of the
\nprosecution to send the bloodstained earth
\nfound at the place of occurrence  for chemical
\nexamination which could have fixed the situs of
\nthe assault. In almost all criminal cases, the
\nbloodstained  earth found from the place of
\noccurrence is invariably sent to the Chemical
\nExaminer and his report along with the earth is
\nproduced in the court, and yet this is one
\nexceptional case where this procedure was
\ndeparted from for reasons best known to the
\nprosecution.  This also, therefore, shows that
\nthe defence version may be true. It is well
\nsettled that it is not necessary for the defence to
\nprove its case with the same rigour as the
\nprosecution is required to prove its case, and it
\nis sufficient if the defence succeeds in throwing
\na reasonable doubt on the prosecution case
\nwhich is sufficient to enable the Court to reject
\nthe prosecution version.”\n<\/p>\n
From the above decision of this Court it is clear that in
\nsuch circumstances when the prosecution fails to send the blood
\nstained material to the chemical examiner a reasonable doubt
\narises as to the genuineness of the prosecution case in regard to
\nthe recovery of such material.\tIt is also relevant to notice at this
\nstage the factum of recovery of the bloodstained earth was not
\nput to the respondent when his statement was recorded under
\nSection 313 Cr.P.C.\n<\/p>\n
From the above discrepancies noticed by us  in the
\nevidence of PWs 7 and 9 and also from the omission on the part
\nof the prosecution in sending bloodstained material to the
\nserologist we are constrained to doubt the prosecution case in
\nregard to the recovery.\n<\/p>\n
Coming to the evidence of PW-2, who says that he had
\nseen the respondent take the deceased from his shop on 27th
\nMay, 1988, it should be noticed that this person is of the same
\nbiradari as of the deceased and was a close friend of the father of
\nthe deceased for over 20 years.\t The defence has suggested  that
\nhe is actually the brother-in-law of PW-1, but the same is
\ndenied.\t The facts remains that this witness is an interested
\nwitness.\n<\/p>\n
From the material produced by the prosecution, it shows
\nthat this witness was taking extraordinary interest in the
\ninvestigation and was present at practically every important
\nplace and time in the course of the investigation.  The High
\nCourt has very elaborately discussed the evidence of this witness
\nand has rejected the same for good reasons with which we agree.
\nIn our opinion, the evidence of this witness does not inspire
\nmuch confidence.\n<\/p>\n
From the above discussion, in our opinion that the
\nprosecution has been able to establish only a motive as against
\nthe respondent for committing the murder, while most of the
\ncircumstances which are otherwise important to be proved in
\nthis case have not been established.  We are of the opinion, the
\nHigh Court was justified in interfering with the judgment of the
\nSessions Judge and allowing the appeal.\n<\/p>\n
For the reasons stated above, these appeals fail and the
\nsame are dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U.P vs Arun Kumar Gupta on 8 January, 2003 Author: S Hegde Bench: N. Santosh Hegde, B.P. Singh. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-170609","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U.P vs Arun Kumar Gupta on 8 January, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-arun-kumar-gupta-on-8-january-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of U.P vs Arun Kumar Gupta on 8 January, 2003 - 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