Penal Code, 1860 – Ss. 301 & 201 - Motive - Circumstantial Evidence - Acquittal [CASE LAW]

Penal Code, 1860 – Ss. 301 & 201 - Motive - Circumstantial Evidence - deceased was seen alive in the company of appellant - appellant has confessed his crime and made a disclosure statement - recovery of shovel was not linked in commission of offence - The deceased was selling tea and refreshment and the possibility of shovel being in his shop is doubtful - The prosecution has failed to complete the chain in the present case from the very inception, the manner, in which, the deceased had died - Appeal is allowed - Judgment and order is set aside - appellant is acquitted by giving him the benefit of doubt.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Coram: Hon’ble Rajiv Sharma, J Hon’ble U.C. Dhyani, J

Criminal Appeal No. 400 of 2013

Date of Judgment - 21.11.2017

Jitendra Punetha @ Jitu ....Appellant

Versus

State .…Respondent

Mr. B.S. Adhikari, Advocate for the appellant.

Mr. Amit Bhatt, Dy.A.G. for the State.

Per: Hon’ble Rajiv Sharma, J

This appeal is directed against the judgment and order dated 03/04.09.2013, rendered by learned Sessions Judge, Pithoragarh in Sessions Trial No.09 of 2012, whereby the appellant was charged with and tried for the offences under Section 301 and 201 IPC. The appellant was convicted and sentenced to undergo lift imprisonment under Section 302 IPC and to pay a fine of Rs.20,000/- and in default of payment of fine to undergo additional imprisonment for a period of one year. The appellant was further convicted and sentenced to undergo three years’ rigorous imprisonment under Section 201 IPC and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo six months’ additional simple imprisonment.

2. The case of the prosecution, in a nutshell, is that Prakash Chandra Punetha lodged a report to the effect that on 10.03.2012 at 8:30 AM, Jitendra Punetha @ Jitu and Pushkar Singh told him that his brother was lying unconscious in the room. He along with his relatives reached the shop of his brother. He found his brother dead. The appellant told him at 8:30 AM, three persons had come in a vehicle and left the deceased Brij Mohan behind. Thereafter, they left for their houses. According to him some unknown person has killed his brother. The body wassent for postmortem examination. The matter was investigated and the challan was put up after completing all the codal formalities. The prosecution has examined as many as twelve witnesses in its support. The statement of the appellant was also recorded under Section 313 of Cr.P.C. He has denied the case of the prosecution. The appellant was convicted and sentenced, as noticed hereinabove. Hence, this appeal.

3. Learned Counsel for the appellant has vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt against the appellant. Learned counsel appearing on behalf of the State has supported the judgment and order dated 03/04.09.2013.

4. We have heard learned counsel for both the parties and perused the judgment and record very carefully.

5. PW1 Prakash Chandra Punetha testified that on 10.03.2012 at 08:30 AM, he was in his house. The appellant along with Pushkar Singh came to his house. They apprised him that his brother was lying unconscious in the shop. He went to the shop of his brother near ARTO office. The windows of shop were closed but the door was open. He entered inside the room. He saw the dead body of his brother. His brother has received injury on his head. Blood was oozing out from the same. The bed sheet was soaked with blood. He sent Jitendra Punetha and Pushkar Singh to his village Silpata to inform the villagers about the incident. His relatives and co-villagers reached the spot. In the meantime, he inquired from the appellant about the incident. He told him that Deepak Kumar Gupta, Deepak Chand and Abhishek Rawat had come to drop the deceased in the shop. Jitendra Punetha was present in the shop. Thereafter, he inquired from Pushkar Singh. He told that inthe morning, he had gone to the shop of Brij Mohan. He asked about Brij Mohan. Brij Mohan did not respond. Thereafter, he went to the house of Bhatt Ji. He met Jitendra Punetha. Thereafter, they came and informed him about the incident. At the time of preparing the panchayatnama, three persons namely Deepak Kumar Gupta, Deepak Chand and Abhishek Rawat came to the spot. He inquired about his brother. They told him that on 09.03.2012 at about 08:00 PM, his brother was found drunk near Rayi Bridge. They decided to drop him at his shop. They met Jitendra Punetha near the shop. He took the deceased inside the shop. The appellant told them not to worry about Brij Mohan. He will take care of him. Thereafter, they left the shop. In his cross-examination, he has deposed that his brother told him twice or thrice that the appellant has to pay his brother some money for taking refreshment at his brother’s shop. He has also admitted in his cross-examination that shovel was not recovered in his presence. His house was situated at a distance of 500-800 meters from his brother’s shop.

6. PW2 Deepak Chand testified that on 09.03.2012, he has closed his shop. He went towards the bridge. He met Deepak Kumar Gupta and Abhishek Rawat. They greeted each other on the occasion of Holi. In the meantime, Brij Mohan came on the spot. He was drunk. They offered him to drop in his shop in the car. Thereafter, they took him in the car towards ARTO office. They dropped him. They helped him to reach the shop. The shop was locked. Key could not be recovered. The lock was broken. Three people came on the spot. They told them since the key was not available, they will break the lock. They broke the lock. Two persons out of three went towards upper side. The accused was in the room. They made the deceased lie on the bed. Jitendra Punetha told him that he would take care of him.They told appellant that the deceased was intoxicated and when you leave the house, you kindly lock the door. The third person namely Abhishek Rawat was sitting in the car. In his cross-examination, he has admitted that when he met Brij Mohan, he was drunk.

7. PW3 Deepak Kumar Gupta has also corroborated the statement of PW2 Deepak Chand. He also testified that Brij Mohan was drunk. They have dropped him at his shop. He was accompanied by Abhishek Rawat, PW2 Deepak Chand. Since Brij Mohan was drunk, he and PW2 Deepak Chand gave him support and took the deceased in his shop. They asked for key from Brij Mohan. The key was not traceable. Brij Mohan told them to break the lock. PW2 Deepak Chand started shaking the lock. In the meantime, three people came on the spot. One of the persons was accused. The lock was broken. The light was switched on. He saw the appellant in the room. Brij Mohan and the accused sat on the cot. They told Jitendra Punetha that the deceased was staggering. He was drunk and he should lock the door from outside.

8. PW4 Pushkar Singh has deposed that the deceased was going towards the shop. He did not utter anything to him. He was with his friend Digamber Punetha. At about 08:30 PM, Jitendra Punetha came to his room. The appellant told him that somebody was breaking the lock. He along with Digamber Punetha and the appellant came out. He shouted who was breaking the lock. The shop was situated at a distance of 12-15 meters from his room. He did not hear any noise. He has further deposed that when he and Digamber Punetha went to sleep, the appellant was standing outside the shop. He was declared hostile and cross-examined by learned A.D.G.C. on this point.

9. PW5 Harish Chandra Punetha has deposed that he was told by his mother that Brij Mohan was found dead in his shop. He reached the spot. He informed the police about the same.

10. PW6 Manoj Punetha has deposed that on 10.03.2012, he reached the spot. He was also the party to panchayatnama. The blood soaked soil was recovered in his presence.

11. PW7 Anil Martoliya has deposed that they received the secret information. The appellant was coming towards them. The appellant was interrogated. The appellant in the presence of S.I. Prakash Singh Danu told that he has killed the deceased with spade. Thereafter, said with shovel and he has hidden the shovel and he could get it recovered. Thereafter, they went towards ARTO office. The accused got recovered shovel from the river-bed. The accused was arrested. He has categorically admitted that no independent witness at the time of disclosure and at the time of recovery of shovel was associated. His explanation was that nobody had come forward to become independent witness.

12. PW8 Balwant Singh is a formal witness.

13. PW9 Dr. Naresh Sharma has conducted the postmortem examination. According to him, the cause of death was coma due to ante mortem head injury.

14. PW10 Lalit Chandra Aagri is a formal witness.

15. PW11 Aan Singh is a formal witness.

16. PW12 S.I. Prakash Singh Danu was the Investigating Officer. He has deposed that on 13.03.2012, they went towards ARTO office. The accused was interrogated. He made the extrajudicial confession.According to him, he has hit the deceased with shovel. He has hidden the same in the river bed, which he could get recovered. He went inside the river and recovered the shovel. He prepared the recovery memo. In his crossexamination, he has admitted that the signature of independent witness was not received on exhibit Ka-8.

17. According to PW2 Deepak Chand and PW3 Deepak Kumar Gupta, the deceased was drunk. He was found near the bridge. They along with their friend Abhishek Rawat have taken the deceased to his shop. He was dropped there. It has come in the statements of PW2 Deepak Chand and PW3 Deepak Kumar Gupta that the door was locked. The key was not available. They decided to break the lock. In the meantime, three persons came on the spot. They left the deceased in his shop. They assured them to look after the deceased. In the morning, the dead body was recovered. PW2 Deepak Chand and PW3 Deepak Kumar Gupta have categorically deposed that the deceased was drunk but no trace of ethyl alcohol was found in the dead body.

18. It has come in the statements of PW2 Deepak Chand and PW3 Deepak Kumar Gupta that the deceased was not able to walk. They have supported him to reach the shop. In case, the deceased was drunk, the traces of ethyl alcohol were bound to be present in the body. But as per the postmortem report, the traces of ethyl alcohol were not found in the body. Thus, the statements of PW2 Deepak Chand and PW3 Deepak Kumar Gupta are not reliable.

19. The present case is based on circumstantial evidence. In order to prove the case based on circumstantial evidence, the chain must be complete. All the circumstances must point out exclusively towards the guilty of the accused.

20. The motive attributed to the appellant is that he owned some money to his brother. There is no tangible evidence on record how much money appellant owned his brother. If his brother had owned some money, the same should have been reduced to writing.

21. Their Lordships of the Hon’ble Supreme Court in 1984 Vol 4 S.C.C. 116 in the case of Sharad Birdichand Sarda Vs. State of Maharashtra have laid down the following conditions, the prosecution must satisfy in a case based on circumstantial evidence.

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: 

(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 Sahabrao Bobade v. State of Maharashtra19 where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] 

“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.”

22. Their Lordships of the Hon’ble Supreme Court in 2012 (10) SCC 464, in the case of “Munish Mubar Vs. State of Haryana”, have held that in a case of circumstantial evidence, circumstances must be fully established and allfacts so established, must be consistent with hypothesis regarding guilt of accused. It is further held that in the case of circumstantial evidence motive assumes great significance and importance. Their Lordships have held as under:-

“28. Undoubtedly, in a case of circumstantial evidence, all the circumstances must be fully established and all the facts so established, must be consistent with the hypothesis regarding the guilt of the accused. The circumstances so established should exclude every other possible hypothesis except the one sought to be proved. The circumstances must be conclusive in nature. The circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused.”

23. Their Lordships of the Hon’ble Supreme Court in (2013) 4 Supreme Court Cases 122, in the case of “Subodh Nath and another Vs. State of Tripura”, have held that motive becomes relevant as an additional circumstance in a case where prosecution seeks to prove the guilt by circumstantial evidence only. Their Lordships have held as under:-

“6. Mr Chauhan next pointed out some discrepancies in the evidence of PW 2 and PW 13. He pointed out that PW 2 had stated in his evidence that PW 13 had told him that Appellant 1 (Subodh) had restrained him and had threatened him if he disclosed it to anyone that he had dealt an axe-blow on the deceased. PW 13, on the other hand, has not said that Appellant 1 (Subodh) had restrained him and threatened him, but has only said that Appellant 2 (Paritosh) ran after him. He also pointed out the discrepancies in the evidence of PW 1 and PW 13. He submitted that while PW 1 has stated that PW 13 had accompanied him to search for the deceased, PW 13 had stated that he never accompanied PW 1 to search for the dead body of the deceased. He also pointed out some discrepancies in the evidence of PW 2 and PW 19, the investigating officer. He finally submitted that in this case the weapons with which the deceased was alleged to have been killed by the appellants have not been recovered nor any motive of the appellants to kill the deceased proved. He argued that this is a clear case in which the appellants should have beenacquitted of the charge under Section 302 read with Section 34 IPC.

16. Once we find that the eyewitness account of PW 13 is corroborated by material particulars and is reliable, we cannot discard his evidence only on the ground that there are some discrepancies in the evidence of PW 1, PW 2, PW 13 and PW 19. As has been held by this Court in State of Rajasthan v. Kalki6, in the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are “material discrepancies” so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses. The learned counsel for the appellants is right that the prosecution has not been able to establish the motive of Appellant 1 to kill the deceased but as there is direct evidence of the accused having committed the offence, motive becomes irrelevant. Motive becomes relevant as an additional circumstance in a case where the prosecution seeks to prove the guilt by circumstantial evidence only.”

24. Their Lordships of the Hon’ble Supreme Court in (2013) 12 Supreme Court Cases 551, in the case of “Rishipal Vs. State of Uttarakhand”, have held that while motive does not have a major role to play in cases based on eyewitness account of incident, it assumes importance in cases that rest entirely on circumstantial evidence. Their Lordships have held as under:-

“15. The second aspect to which we must straightaway refer is the absence of any motive for the appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the appellant nor is there any evidence to prove any such enmity. All that was suggested by the learned counsel appearing for the State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant Dr Mohd. Alam had given to him. That argument has not impressed us. If the motive behind the alleged murder was to somehow take away the car, it was not necessary for the appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as though Abdul Mabood was driving the car and was in control thereof so that without removing him from the scene it was difficult for the appellant to succeed in his design. The prosecution case on the contrary is that the appellant had induced the complainant to part with the car and a sum of Rs 15,000. The appellant has been rightly convicted for that fraudulent act which conviction we have affirmed. Such being the position, the car was already in the possessionand control of the appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well settled that while motive does not have a major role to play in cases based on eyewitness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. (See Sukhram v. State of Maharashtra, Sunil Clifford Daniel v. State of Punjab and Pannayar v. State of T.N.) Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside.”

25. Their Lordships of the Hon’ble Supreme Court in (2015) 12 Supreme Court Cases 644, in the case of “Vijay Shankar Vs. State of Haryana”, have summarized the principles of circumstantial evidence as under:-

“8. There is no eyewitness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda v. State of Maharashtra. The same view was reiterated in Bablu v. State of Rajasthan.”

26. The case of the prosecution is also that the deceased was seen alive in the company of appellant. It has come in record that PW2 Deepak Chand and PW3 Deepak Kumar Gupta and Abhishek Rawat had gone to drop the deceased at his shop in the car. Infact, PW2 Deepak Chand, PW3 Deepak Kumar Gupta and Abhishek Rawat were seen in the company of deceased. The police has not seized the car. The statement of PW4 Pushkar Singh has was not corroborated by anyone. Digamber Singh, who came along with PW4 Pushkar Singh on the spot was not examined.

27. It has come in the statement of PW4 Pushkar Singh that they have come to their houses. Abhishek Rawatwas standing outside. The Court put a question to this witness when he and Digamber went back to their houses, where Jitendra Punetha had gone. The answer given by PW4 Pushkar Singh was that he did not remember. He has denied the contents of statement made under Section 161 of Cr.P.C.

28. In fact, the deceased was accompanied by PW2 Deepak Chand, PW3 Deepak Kumar Gupta and Abhishek Rawat. These persons have brought deceased to his shop and according to them, he was drunk.

29. The case of the prosecution is also that the appellant has confessed his crime and made a disclosure statement. According to the prosecution, the shovel was got recovered at the instance of the appellant from the river bed. It has come in the statement of official witnesses that the independent witnesses were not associated at the time when the alleged disclosure statement was made or at the time when the recovery was made. The independent witnesses were available but they were not associated at the time of confession and at the time when shovel was recovered. The shovel was also sent for FSL examination. No blood was found in it vide Exhibit Ka-23. The recovery of shovel was not linked in commission of offence. The deceased was selling tea and refreshment and the possibility of shovel being in his shop is doubtful.

30. The prosecution has failed to complete the chain in the present case from the very inception, the manner, in which, the deceased had died.

31. Learned Trial Court has misread the evidence. Accordingly, the appeal is allowed. Judgment and order dated 03/04.09.2013 is set-aside. The appellant is acquitted by giving him the benefit of doubt. Appellant isalready on bail. He need not to surrender. His bail bonds and sureties are discharged.

32. Let a copy of this judgment along with LCR be sent back to the trial court for forthwith compliance.