State of U.P. Vs. Vijai Kumar Kori [Allahabad High Court, 31-05-2016]

Section 378 of Code of Criminal Procedure, 1973 does not put any restriction on the powers of appellate Court in dealing with appeal against acquittal. It has been interpreted to give appellate Court full power to appreciate, review and reconsider the evidence on record and to reach its own conclusion on the basis of such evidence.


# HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Hon’ble Ajai Lamba, J. and Hon’ble Ravindra Nath Mishra-II,J.

31.05.2016

CRIMINAL APPEAL No. – 2454 of 2009

Appellant:- State Of U.P. (State Appeal) Respondent:-Vijai Kumar Kori Counsel for Appellant:- Govt. Advocate, Shishir Pradhan Counsel for Respondent:- Gulam Mustafa

 

(Delivered by Hon’ble Ravindra Nath Mishra-II, J. )

1. Challenge, in this criminal appeal, is to judgment dated 6th April, 2009 passed by Additional Sessions Judge, Court No. 5, District Unnao in Sessions Trial No. 281 of 2007, under Sections 364, 302/34 and 201 I.P.C., Police Station Gangaghat, District Unnao, whereby the respondents-accused are acquitted of the charges levelled against them.

2. Factual matrix of the case, giving rise to this appeal, is that a missing report (Exhibit Ka-4) was given by father of deceased Sri Vipin Narain Tiwari at Police Station Gangaghat on 7th March, 2006 that his son Ashish Narain Tiwari aged about 20 years was missing since 6th March, 2006. On 8th March, 2006, an F.I.R. ( Exhibit Ka-5) was lodged at Police Station Ajgain, District Unnao at 22.30 on an application given by one Chhatrapal Yadav that a dead body of unknown person was found in charred condition near his field. Station Officer of Police Station Ajgain thereupon took the dead body in his custody and conducted Panchayatnama (Exhibit Ka-10). Autopsy (Exhibit Ka-7) was conducted on the cadaver of the deceased on 9th March, 2006 in which whole body was found to be in charred condition except sole. After postmortem the dead body was identified by Sri Vipin Narain Tiwari in mortuary as that of his missing son Ashish Narain Tiwari. He, thereafter, gave an application (Exhibit Ka-1) to Station House Officer, Ajgain, District Unnao that his son had left his house on 6th March, 2006 at about 5 O’ clock in the evening for Badshah Gym, but he did not come back. After publication of news in newspaper that a dead body of an unknown person was found, he came to mortuary and identified the dead body. The dead body was handed over to the complainant Vipin Narain Tiwari for its last rites. During investigation the complainant moved an application (Exhibit Ka-2) on 11.03.2006 to Superintendent of Police, Unnao, stating that his son Ashish Tiwari was kidnapped and killed by his friends and in order to destroy the evidence they threw him in area lying under Police Station Ajgain in charred condition. The investigation was conducted by Station House Officer, Gangaghat, which culminated in filing of charge-sheet under Sections 364, 302 and 201 I.P.C. Case was committed to the Court of Sessions where the Additional Sessions Judge, Unnao framed charges against the accused Vijay Kumar Kori, Mohm. Shafique @ Hero and Mohm. Ashif under Sections 302 and201 I.P.C. Additional Charge under section 364 I.P.C was framed against accused Vijay Kumar Kori. Charges were read over and explained to the accused persons which were denied by them. They pleaded not guilty and claimed to be tried.

3. At the trial, prosecution examined PW-1 Vipin Narain Tiwari, who has proved missing report (Exhibit Ka-4) and application moved by him on 09.03.2006 (Exhibit Ka-1). He has also stated on oath that his son Ashish Tiwari had gone to Badshah Gym on 06.03.2006 at 5 O’ clock in the evening by his Hero Honda motorcycle thereafter he did not return. PW-2 Rajesh Pandey has stated that on 06.03.2006 he was going to Lucknow by driving his own truck loaded with Morang. Between 6-7 p.m. he stopped at Unnao bypass for tea. where he saw accused Mohammad Asif coming on motorcycle. Accused Vijay was sitting on rear seat and deceased Ashish was in between them. Accused Sharif was on another motorcycle. They were going towards Ajgain. He also called Ashish, but perhaps he did not listen his voice and motorcycle proceeded towards Ajgain. After 4-5 days, when he returned, he came to know that Ashish has been murdered and his dead body has been found in Ajgain. Then he told it to Sri Vipin Narain Tiwari. PW-3 Raj Kishore Singh is also witness of last seen. He had also seen deceased Ashish on motorcycle on which accused Vijay was sitting on rear seat, however, he could not identify the person driving the motorcycle. He had also tried to intercept Ashish, but he did not stop. PW-4 Cp. 402 Shiv Pal has proved missing report (Exhibit Ka-4) and corresponding entry in G.D. No. 3 upon 1.00 a.m. dated 07.03.2006 (Exhibit Ka-4). PW-5 H.C. Arun Kumar Singh has proved Chik F.I.R. No. 30/06 (Exhibit Ka-5) and corresponding entry in G.D. (Exhibit Ka-6). PW-6 is Dr. Shiv Kumar, who has conducted postmortem of the dead body and stated that the dead body was completely charred therefore cause of death and time could not be ascertained, Postmortem report is (Exhibit Ka-7). Left humorous bone and one rib were preserved by the doctor for D.N.A. Test. PW-7 S.I. Ashok Kumar Yadav is investigating officer, but he did not record statement of any witness. PW-8 S.I. Dhirendra Singh recorded statement of accused Vijay and Gym owner Ravi Kumar and thereafter the investigation was transferred to PW-9 S.O. Brijesh Kumar Pandey, who concluded the investigation and filed charge-sheet (Exhibit Ka-8). PW-10 S.I. Rakesh Kumar Singh, who had done Panchayatnama (Exhibit Ka-10) and prepared site-plan (Exhibit Ka-9). Letter to CMO, Photo of dead body, Challan are Exhibit Ka-11 to Ka-14 respectively. DNA report is Exhibit Ka-21 and Ka-22.

4. On appreciation of evidence adduced by the prosecution, the trial Court held that no case was made out against accused persons under Sections 364, 302 and 201 I.P.C, therefore, the accused persons were acquitted of the charges levelled against them. Feeling aggrieved by the impugned Judgment passed by the trial Court the appellant-State has preferred this appeal, which has come up before us for hearing.

5. This Court has heard the learned Additional Government Advocate Mrs. Smiti Sahai for the appellant-State and the learned counsel for the accused-respondents at length and considered the evidence forming part of this appeal.

6. Learned counsel for the appellant-State has argued that the impugned judgment is not sustainable in eyes of law, as it is against record. It is also argued that the trial Court has wrongly held that PW-2 Rajesh Pandey and PW-3 Raj Kishore Singh are chance witnesses; that conduct of the witnesses are unnatural; that chain of circumstances is not complete; that there are contradictions in the statement of witnesses; that motive and extrajudicial confession made by accused-respondent are not proved. There is sufficient material on record to prove charges against the respondents-accused.

7. Per contra, learned counsel for the accused-respondents has argued that the conduct of the witnesses is unnatural, motive to commit offence is not established and there is nothing on record to evidence to establish illicit relations of the deceased with sister of Asif. Thus, as per his contention, Chain of circumstances is also not complete. The trial Court has committed no mistake in arriving at the conclusion that the prosecution has miserably failed to establish charges against the accused-respondents.

8. Accused persons in their statements recorded under Section 313 Cr.P.C. pleaded their ignorance and filed copy of fees receipt, admit card and identity card. Admit card of National Institute of Fashion Technology, inland receipt telegram and registry receipt.

9. Before coming to the spectrum of the prosecution case, we think it proper to dwell upon the scope of the power of appellate Court in an appeal against an order of acquittal.

# Section 378 of Code of Criminal Procedure, 1973

deals with appeal in case of acquittal which is as under:-

# 378. Appeal in case of acquittal

(1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub- sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court 2 or an order of acquittal passed by the Court of Session in revision.]

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub- section (3), to the High Court from the order of acquittal.

(3) No appeal under sub- section (1) or sub- section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub- section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If in any case, the application under sub- section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub- section (1) or under sub- section (2).”

10. Section 378 of Code of Criminal Procedure, 1973 (hereafter referred to Code of 1973) does not put any restriction on the powers of appellate Court in dealing with appeal against acquittal. It has been interpreted to give appellate Court full power to appreciate, review and reconsider the evidence on record and to reach its own conclusion on the basis of such evidence.

11. Under fundamental principles of criminal jurisprudence there is a presumption of innocence available that every person shall be presumed to be innocent unless he is proved to be guilty and this presumption of innocence is reinforced, reaffirmed and strengthened when judgment of acquittal is given by the trial Court. Thus, there is double presumption of innocence in case of acquittal of accused.

12. A rule of caution was, therefore, propounded by the Apex Court where in

# Surajpal Singh v. State 1952 SCR 193

power of reversal by appellate court in appeal against acquittal was held to be qualified by the expression “substantial and compelling reasons” because the trial Court had the advantage of observing demeanor of witnesses whose evidence has been recorded in his presence.

13. But in

# Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120

a three-Judge Bench of Hon’ble Supreme Court held that expression “substantial and compelling reasons” cannot be applied rigidly in every case and the appellate Court has still power of re-appraisal, review and reconsider the material on record and to reach its own conclusion.

14. Similarly, in

# Ramaphupala Reddy v. State of Andhra Pradesh AIR 1971 SC 460

expression (a) substantial and compelling reasons; (b) good and sufficiently cogent reasons; (c) strong reasons were held not to curtail the power of an appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion. However, following the decision of Sanwant Singh Vs State of Rajasthan (Supra) Hon’ble Apex Court added another to the test laid down in Sanwant Singh Case–

” —–that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal. Therefore, “if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the findings of the trial court”. If this additional test is applied to the instant case the conclusion is compulsive that the High Court has exceeded its powers in setting aside the order of acquittal recorded by the trial court.”

(Emphasis is given by us)

15. In

# Chandrappa and others v. State of Karnakata 2007 (4) SCC 415

Hon’ble Supreme Court considered almost all leading decisions on the point and the following general principles regarding powers of an appellate court while dealing with an appeal against acquittal were culled out.

“(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

(Emphasis is given by us)

16. The above view has been further endorsed in subsequent decisions of Hon’ble Apex Court. In

# Maloth Somaraju vs State Of A.P  (2011) 10 SCR 349

it is observed;

“5. The law dealing with the judgments of acquittal is now settled. There can be no two opinions that merely because the acquittal is found to be wrong and another view can be taken, the judgment of acquittal cannot be upset. The appellate Court has more and serious responsibility while dealing with the judgment of acquittal and unless the acquittal is found to be perverse or not at all supportable and where the appellate Court comes to the conclusion that conviction is a must, the judgment of acquittal cannot be upset. We have to examine as to whether the High Court, while upsetting the acquittal, has taken such care and it is quite clear from the High Court’s judgment that the High Court has certainly taken that care.”

17. In the light of above noted principles governing the scope and ambit of power of appellate court in appeal against acquittal, we have to consider the facts and circumstance of the present case.

18. In order to bring home guilt of a person, prosecution has to tender evidences in a Court of law, which may be either direct or circumstantial. Direct evidence proves or disproves a fact directly. Evidence is said to be direct, if it consists of an eyewitness account of the facts in issue. Perhaps the most commonly-known type of direct evidence is eyewitness testimony, where a witness describes exactly what she saw, heard, or experienced. Circumstantial evidence may be called indirect evidence. Circumstantial evidence does not directly prove the fact in issue or factum probandi, but is evidence of another fact or group of facts from which one may, by process of intuitive reasoning, infer about the truth of the fact in question or factum probandi. Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge. The law draws no distinction between circumstantial evidence and direct evidence in terms of weight or importance. Either type of evidence may be enough to establish guilt beyond a reasonable doubt, depending on the facts of the case. Human agency may be at fault while expressing picturization of actual evidence, but the circumstance cannot fail. Therefore, many a times it is said that “a man may tell a lie, but circumstances do not”. In cases where evidence of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should at the first instance be fully established.

19. Law relating to circumstantial evidence is very-well crystallized by catena of decisions by the Hon’ble Supreme Court. In a leading case of circumstantial evidence

# Sharad Birdhi Chand Sarda vs State of Maharashtra AIR 1984 SC 1622

the observations made by the Hon’ble Supreme Court may be extracted as under:-

“150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.

151. 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. State of Madhya Pradesh, 1952 SCR 1091 : (AIR 1952 SC 343).

This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of

# Tufail v. State of Uttar Pradesh, (1969) 3 SCC 198

and

# Ramgopal v State of Maharashtra, AIR 1972 SC 656.

It may be useful to extract what Mahajan, J. has laid down in Hanumant’s case (at pp. 345-46 of AIR) (supra) :

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 for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

152. 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 :

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

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 Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622)

where the following observations were made : 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.

(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.

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

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

(Emphasis given by us)

20. Further elaborating above five golden principles governing the case based on circumstantial evidence Hon’ble Apex Court in

# G. Parshwnath Vs State of Karnataka (2010) AIR SCW 5052

has observed-

” In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court.”

21. In the light of above noted principles relating to the case based on circumstantial evidence, we have to consider the circumstance relied upon by the prosecution in the present case.

22. The first circumstance, relied upon by the prosecution, is that deceased Ashish Tiwari was resident of Aadarsh Nagar, Shuklaganj, Police Station Gangaghat, District Unnao. He used to go Badshah Gym regularly. On 6th March, 2006 also he had gone to Badshah Gym as usual in the evening but thereafter he did not return. Since 6th March he was missing. A missing report (Exhibit Ka-4) was lodged by his father Vipin Narain Tiwari in Police Station Gangaghat on 07.03.2006. This fact is not disputed by the respondents. The missing report is on record which is proved by PW-1 Vipin Narain Tiwari.

23. The second circumstance is that accused Vijay Kori, who was friend of the deceased, was also absconding. He was not picking up his phone. On enquiry the owner of Badshah Gym Shyam Mishra told him (the complainant) that accused Vijay Kori had taken Ashish Tiwari with him on motorcycle. However Shyam Mishra, the owner of the Gym and crucial witness of kidnapping is not examined to prove this fact. Thus there is nothing on record to establish that Ashish was forcibly taken away by accused Vijay Kori from Badshah Gym on 6th March 2006.

24. The third circumstance relied upon by the prosecution is that the deceased Ashish Tiwari was seen in the company of respondent-accused Vijay Kumar Kori and Mohd. Asif going towards Ajgain on motorcycle on 6th March, 2006 between 6-7 p.m. on Unnao bypass by witnesses PW-2 Rajesh Pandey and PW-3 Raj Kishore Singh and thereafter Ashish Narain Tiwari was not seen and his dead body was found near the field of Sushil Kumar Yadav on 7th March, 2006 which was identified by the complainant as his son. The trial Court found PW-2 Rajesh Pandey and PW-3 Raj Kishore Singh not reliable on the ground that they are merely chance witnesses and their presence on the scene of occurrence was not natural. Learned State counsel has submitted that these two witnesses were natural witnesses and they cannot be termed as chance witnesses. It has also been submitted that the prosecution has succeeded in proving the guilt of respondents-accused beyond reasonable doubt and the trial Court has committed illegality in not accepting their testimony.

25. Per contra, learned counsel for the respondents has vehemently argued that the witnesses were chance witnesses. The prosecution could not explain how they were present on the scene of occurrence.

26. Learned counsel for both the parties have cited various authorities as regards the chance witness from which reference may be made to the pronouncement of Hon’ble Apex Court in the case of

# Rana Partap and Others V. State of Haryana reported in 1983 (3) SCC 327

which reads as under:-

“—————– We do not understand the expression ‘chance witnesses’. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses’. The expression ‘chance witnesses’ is borrowed from countries where every man’s home is considered his castle and every one must have an explanation for his presence elsewhere or in another man’s castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are ‘chance witnesses’ even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence.”

(Emphasis given by us)

27. The above view taken by Hon’ble Apex Court was also followed in

# Vikram Singh and others V. State of Punjab (2010) 3 SCC 56

and till today it still holds good and settled law on the point that even if a witness is a chance witness or a related witness, even then his evidence cannot be discarded solely on the ground that he was a chance or a related witness.

28. Now the question arises as to whether witnesses PW-2 Rajesh Pandey and PW-3 Raj Kishore Singh may be termed as chance witnesses. The trial Court has given several reasons for disbelieving the testimony of these witnesses. He has termed them as chance witnesses. According to the trial Court the reason for presence of PW-2 at the scene of occurrence is not natural. He was just passing-through Unnao Highway while Going to Lucknow and there he stopped to have tea. Prosecution has also not explained as to how PW-2 Rajesh Pandey knows Mohd. Asif and Shafiq Mohd. The trial Court has concluded that he was not present on the place, but the investigating officer has planted him to be there. Similarly, as regards PW-3 Raj Kishore Singh the trial Court has disbelieved the reason for his presence given by him at the place in question. PW-3 has stated that his wife has two Bighas of land in Gadar and to look after that he had gone there. But the witness was not able to show either by oral or documentary evidence that his wife had any piece of land in Gadar and he was there to look after the crops. Learned counsel for the State has put-forth the argument that even if these two witnesses are termed as chance witnesses, their evidence cannot be brushed aside by reason of their being chance witness.

29. It is now well settled position of law that evidence of chance witness requires a very cautious and close scrutiny and a chance witness must adequately narrate his present at the place of occurrence. The observation made by Hon’ble Apex Court in

# Jarnail Singh vs State of Punjab, (2009) 9 SCC 719

may be extracted below;

“15. The evdence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence

# Satbir v Surat Singh (1997) 4 SCC 192

# Harjinder Singh v State of Gujarat (2004) 11 SCC 253

# Acharaparambath & Anr. v State of Kerala (2006) 13 SCC 643

and

# Sarvesh Narain Shukla v Daroga Singh and Ors. (2007) 13 SCC 360

Deposition of a chance witness whose presence at the place of incident remains doubtful should be discrded (vide

# Shankarlal v State of Rajasthan (2004) 10 SCC 632

Conduct of the chance witness, subsequent to the incident may also taken into consideration particularly as to whether he has informed anyone else in the village about the incident. (vide Thangaiya v State of Tamil Nadu (2005) 9 SCC 650.”

30. From the perusal of statement of PW-1 it transpires that he came to know about accused persons on 08 March 2006 itself and he had moved an application in this regard. He has also deposed in his cross-examination that in application dated 11 March 2006 he had also mentioned names of witnesses Rajesh Pandey and Raj Kishore Singh. But neither there is any application of 08 March on record nor application of 09 March contains names of persons from whom he had come to know about the accused.

31. PW-2 Rajesh Pandey in examination in chief, has stated that he was a truck driver and he had gone to Lucknow, driving a loaded truck. When he came back after 4-5 days he came to know about the murder of complainant’s son Ashish Tiwari, but in cross-examination he has admitted that he had reached his home in Kidwai Nagar on 08.03.2006 and on 08.03.2006 itself through newspaper he came to know that Ashish was murdered. If it is true then why he did not disclose the names of accused on 08.03.2006 to the complainant. This question affects the credibility of the witness.

32. Similarly, presence of PW-3 Raj Kishore Singh at the place in question is also without any reason. Though in his statement it has come that his wife had approx two bighas of land in Gadar which he has given on batai and from there only he was coming to his home when he saw deceased and accused Vijay Kumar Kori, but he could not withstand the cross-examination by the accused. He admitted in his cross-examination that he had no house in Gadar, he did not know arazi number of land in Gadar in the name of his wife. This is also material to note that the witness was knowing the complainant since before the incident and he used to visit complainant’s house. He has also stated that since 09.03.2006 he was regularly reading the news of murder of complainant’s son Ashish Kumar, but it is beyond apprehension why he did not disclose this fact to the complainant that he saw his son in the company of accused. PW-3 in his examination-in-chief itself has admitted that he told this fact to the complainant after several months. P.W-3 has also stated that when he saw accused and deceased on Unnao bye-pass, it was dusk and it was slight dark. The head light of motor-cycle was on. It is surprising how the witness could see in the light of motor-cycle coming from opposite direction. This shows that he was not present at the place in question. He was planted witness. Hence his testimony is not at all reliable.

33. Apart from this, PW-3 has also admitted that he knew only accused Vijay Kumar Kori. The person, who was driving the motorcycle, was not known to him, nor he can tell his name. Both the witnesses have not named accused Shafiq Mohd in their statements . Thus, there is no incriminating evidence on record against accused Shafiq Mohd.

34. The fourth circumstance cited by the prosecution is that the deceased had illicit relation with sister of Mohd. Asif. That was motive for commission of the crime. It is argued by the learned A.G.A that motive itself constitutes a link in the chain of circumstances. Illicit relationship of the deceased Ashish with sister of accused Mohd. Asif is said to be motive for commission of crime. It has been contended by the respondent-accused is that though the prosecution has alleged the deceased to have illicit relation with sister of Mohd. Asif but no evidence was adduced to prove this motive. Mere allegation without evidence is of no use.

35. Undisputedly, the present case rests on circumstantial evidence. Hence, proof of motive is essential to bring home the guilt of the accused, which is lacking in the present case. There is nothing on record to establish that the deceased had illicit relation with sister of Mohd. Asif. PW-1 Vipin Narain Tiwari has been cross-examined on this point, who has stated that on the basis of newspaper he came to know about illicit relationship of his son Ashish with sister of Asif, but this fact is not established. It is entirely based on hearsay evidence.

36. Now explaining the importance of proof motive in cases based on circumstantial evidence Hon’ble Apex Court has observed in

# G. Parshwanath vs State Of Karnataka, 2010 AIR SCW 5052

as follows-

“However, in a case based on circumstantial evidence where proved circumstances complete the chain of evidence, it cannot be said that in absence of motive, the other proved circumstances are of no consequence. The absence of motive, however, puts the court on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof. There is no absolute legal proposition of law that in the absence of any motive an accused cannot be convicted under Section 302 IPC. Effect of absence of motive would depend on the facts of each case.”

(Emphasis given by us)

37. As it has been seen above, in the present case motive is not proved but it is of little importance if the chain of circumstances is established. In absence of motive Court is required to scrutinize the circumstances more carefully but the prosecution has also miserably failed to establish chain of circumstances. Hence case against respondents-accused is not proved.

38. Undisputedly, the present case rests on circumstantial evidence. Hence, proof of motive is essential to bring home the guilt of the accused, which is lacking in the present case. There is nothing on record to establish that the deceased had illicit relation with sister of Mohd. Asif. PW-1 Vipin Narain Tiwari has been cross-examined on this point, who has stated that on the basis of newspaper he came to know about illicit relationship of his son Ashish with sister of Asif, but this fact is not established. It is entirely based on hearsay evidence.

39. Prosecution has also tried to prove guilt of the accused persons on the basis of extra-judicial confession. PW-1 has stated in examination-in-chief that after name of the accused came into light, and the investigating agency put pressure on them the accused persons came to him and confessed their guilt to him that they had killed Ashish on very trifle matter. They should be pardoned. Though in examination-in-chief PW-1 has stated this fact but he has not made it clear as to when the accused persons came to him. It is also not clear where had they come and that whether all of the accused or only some of them had come. Hence, on this vague statement of PW-1 inference of guilt of accused cannot be drawn.

40. Thus, we are of the view that the trial Court has rightly concluded that the witnesses examined by the prosecution are not reliable as they are not natural witness, but planted by the investigating agency. They had not seen the deceased in the company of the accused persons. They have been planted by the investigating agency. Prosecution story is based on incredible story and the prosecution has miserably failed to established the guilt of the accused persons. The trial Court has considered the evidence available on record and has critically appreciated the evidence. We are also of the view that the conclusion of the trial Court cannot be said to be palpably wrong, erroneous and unsustainable.

41. Consequently, for the reasons given above, we are of the view that the appeal has no merit and is liable to be dismissed.

42. It is, accordingly, dismissed.

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