CHANDRA PRAKASH Vs. STATE

JUDGEMENT

(1.) This appeal has been filed by appellants Chandra Prakash and Smt. Kewla Devi against the judgment and order dated 7. 9. 87 by Sri R. S. Pandey, II Additional Sessions Judge, Allahabad convic ting the appellants under Section 302 read with Section 34 and Section 201 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life and rigorous imprisonment for five years respectively for these offences. 2. The prosecution case, in brief, was that deceased Ved Prakash was the son of complainant Smt. Krishna Kumari, wife of Sri R. N. Srivastava. He was aged about 13 01 14 years at the time of occurrence. Sri R. N. Srivastava, husband of complainant Smt. Krishna Kumari, used to practice in medicine at Varanasi and used to reside in House No. 104 D. l. G. Colony there. Smt. Krishna Kumari also used to reside with her husband at Varanasi. At the time when the occurrence took place, Ved Prakash along with, his younger sister Suman used to reside at their father's house situated in Mohalla Himmatganj, Police Station Khuldbad of Allahabad City. Accused Smt. Kewla Devi, who is mother of accused Chandra Pra kash as well as Prabhu Narain, who is husband of Smt. Kewla Devi used to reside in a separate portion of the same house in the Mohalla Himmatganj. It is in evidence that Prabhu Narain Srivastava is the real brother of R. N. Srivastava, though this fact has not been mentioned in the first information report. It is alleged that the terms between the complainant and her family on one hand and the accused persons and their family on the other were extremely strained and bitter due to the fact Smt. Kewla Devi had lodged a first information report before this occurrence implicating Smt. Krishna Kumari in a theft case. Subsequently, there was another F. l. R. lodged by R. N. Srivastava against Chandra Prakash and others. The third F. I. R. was lodged by Km. Neelam, another daughter of the complainant, against Chandra Prakash. Due to these persons, there was extreme hostility between the two families. 3. The complainant also asserted that Smt. Kewla Devi used to say that deceased Ved Prakash had illicit relations with Km. Pushpa, who is the daughter of Smt. Kewla Devi. On 19. 2. 81, Chandra Prakash had threatenedt Ved Prakash to kill him. Subse quently, at "about 7. 00p. m. on that day when Ved Prakash and his sister Suman were taking their food, Smt. Kewla Devi and Chandra Prakash came to the gate of the house and called Ved Prakash. Ved Prakash left the house locking the gate from outside assuring his sister Suman that he" would come back soon. It was further alle'ged that when Ved Prakash did not return--during the night, Km. Suman proceeded to Varanasi where she informed her mother Smt. Krishna Kufnari about this fact. Smt. Krishna Kumari came to Allahabad along' with Km. Suman 'and found the outer gate of the house locked. She then lodged the first information report at the police station Khuldabad at 12. 05 a. m. in their night of= 19th/20th February, 1981. 4. Before the first information report was lodged by Smt. Krishna Kumari, the dead body of a boy was found lying at the railway track in the yard of Subedarganj Railway Station. The panchayatnama of the dead body was prepared and it was then sent for post-mortem examination treating the same to be the dead body of some unknown person. After the F. l. R. was lodged by Smt. Krishna Kumari, S. I. Ram Singh Tewari started the investigation in the matter. When he came to know about the recovery of the dead body of a boy at the place as mentioned above, he went to G. R. P. , Allahabad and then proceeded for the mortuary along with Smt. Krishna Kumari Smt. Krishna Kumari identified the dead body to be of her son Ved Prakash. 5. The post- mortem examination of the dead body was conducted and it was found that the death was caused due to strangula tion. The Investigatina Officer recorded the statements of witnesses and it was found that the deceased was last seen with accused persons including Prabhu Narain Srivastava, who has been acquitted in this case by the learned Additional Sessions Judge. It was also alleged that Km. Pushpa was medically examined and it was found that her case was of incomplete abortion. It was allegedly found that she was admitted in the Medical College earlier but she had gone away from that place. It was also said that a photograph of Km. Pushpa was found from a Almirah of deceased Ved Prakash on which the de ceased has-''written his name as well as the name of Km. Pushpa. 6. A charge-sheet was submitted against the accused persons and Prabhu Narain after completion of the investigation by the Investigating Officer. 7. All the three accused persons pleaded not guilty to the offences charged. Their contention was that they have been falsely implicated in this case due to enmity by the complainant Smt. Krishna Kumari. 8.-The prosecution examined as many as; twenty witnesses in this case. C. W. I Dr. Dhanesh Chandra Saxena was also ex amined by the court in this case. 9. The learned Additional Sessions Judge believing the prosecution case as against ' the appellants Smt. Kewla Devi and Chandra Prakash, convicted and sentenced them, as mentioned above. The evidence as against Prabhu Narain was not believed and he was acquitted of the offences. 10. In this case it has been argued on behalf of the appellants that the evidence produced by the prosecution was wholly unreliable and was totally insufficient to establish the guilt of the appellants. 11. We have heard the learned counsel for the appellants and the State as well as the learned counsel for the complainant. We have also perused the record of the case very carefully. 12. In this case, there is no direct evidence to prove the guilt of the appellants. The prosecution has relied on circumstantial evidence to establish that the murder of Ved Prakash has been committed by the accused persons. In-a case of circumstantial evidence, there- are five golden principles which must and should be established. The same are as follows: (i) The circumstances from which the conclusion of guilt-is to be drawn should be fully established; (ii) the facts so established should be con sistent 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; (iii) the circumstances should be of a con clusive nature and tendency; (iv) they should exclude every possible hypothesis except the one due to be proved; and (v) 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 pro babilities the act must have been done by the accused. It is to be seen whether the prosecution has, in this case, established these five prin ciples to bring home the guilt of the accused persons. The prosecution has first relied on the motive which led the accused to commit the murder of Ved Prakash. In this case it is not disputed that Smt. Kewla Devi and her husband as well as their son Chandra Prakash were very close relations of Smt. Krishna Kumari and of her husband R. N. Srivastava. Sri R. N. Srivastava is the real brother of Prabhu Narain. They resided in two separate portions of the same house in Mohalla Himmatganj of Allahabad City. Their relations were so bitter that Smt. Krishna Kumari did not disclose the fact of relationship in her first information report and in her statement before the trial court, as mentioned earlier. Accused Smt. Kewla Devi had lodged a first information report against Smt. Krishna Kumari accusing her of committing theft. According to Smt. Krishna Kumari the said F. I. R. was false. Subsequently, R. N. Srivastava lodged a F. I. R. against Chandra Prakash alleging that he was beaten by him at his house. Thereafter, Km. Neelam, who is the daughter of Smt. Krishna Kumari lodged another F. I. R. against Chandra Prakash alleging that he had committed theft at her house. Thus there were strained and bitter relations between the two families. Smt. Krishna Kumari has also in the F. I. R. asserted that on the day of occurrence, Chandra Prakash had threatened to kill Ved Prakash. It was also asserted that Ved Prakash had illicit relations with Km. Pushpa, who is the daughter of accused. It is on this point the prosecution has examined a large number of witnesses. In our opinion, it is not necessary to decide as to whether Km. Pushpa was a girl of immoral character or that she was medically examined and it was found that her case was that of in complete abortion. Km. Pushpa was not on trial in this case for the alleged abortion. There is no evidence to link the alleged abortion with deceased Ved Prakash who was first cousim of Km. Pushpa. Smt. Krishna Kumari is the only witness about the alleged illicit relations of the deceased with the first cousin whose age was about 14 years at the time of occurrence. It was alleged in her F. I. R. by Smt. Krishna Kumari that Kewla Devi says that Ved Prakash has illicit relations with Km. Pushpa. It is rather diffi cult to believe that a mother could say this thing in respect of her young unmarried daughter. In her statement before the trial court Smt. Krishna Kumari has merely stated that her son had relations with Km. Pushpa Devi. She just omitted to say that Smt. Kewla Devi used to admit the illicit relations of her own daughter with Ved Prakash. Smt. Kewla Devi has not even stated that the relations between Ved Prakash and Km. Pushpa were illicit. Obviously, both the parties are closely related to each other. The question as to whether the relationship between Km. Pushpa and Ved Prakash was moral or immoral will not be of much impor tance in the circumstances of the present case. The fact remains that the relations between the two families were extremely bitter and so much so that on the date of occurrence itself accused Chandra Prakash had allegedly threatened to kill Ved Prakash. 13. The prosecution has mainly relied on the statements of P. W. 1 Smt. Krishna Kumari; P. W. 2 Suman P. W. 6 Tribhuwan Singh; P. W. 7 Harish Chandra and P. W. 12 Abrar Ahmad in support of its allegation that the deceased was last seen with the accused. Smt. Krishna Kumari, who. had lodged the F. l. R. allegedly on the information supplied by Km. Suman, has asserted that Km. Suman came to Varanasi and intimated her about this occurrence. She came to Allahabad and found the outer gate of the house locked. She then broke open the lock and searched for Ved Prakash but he could not be traced out. She then lodged the first information report at the police station. Probably thinking that a question may be raised as to why she and not her husband, came to Allahabad on being informed about the occurrence and lodged the F. l. R. She tried to change the clear assertion made in the F. l. R. to the effect that her husband was practicing at Varanasi and was residing in house No. 104, D. I. G. colony there, she has, in her state ment before the trial court, stated that: actually her husband R. N. Srivastava was not present at Varanasi or Allahabad but he was actually practising in Balbarganj Sujanganj in district Jauripur. She further stated that she herself was residing in House No. 104 D. I. G. Colony at Varanasi for getting her children educated there. She then changed this statement and stated that she had gone to Varanasi for consultation with her brother. She then specifically stated that neither before the occurrence nor after the occurrence her husband R. N. Srivastava ever resided in house No. 104 D. I. G. Colony. She were confronted, with the earlier assertion made by her in the F. l. R. wherein she had alleged that her husband was practising at Varanasi and was residing at House No. 104 D. I. G. Colony, Varanasi. She stated that these facts were correctly mentioned in the F. l. R. she was also confronted with her statement under Section 161 Cr. P. C. and she admitted that this statement was correct and that her husband was practising at Varanasi and it was wrong to say that he was not practising at Varanasi. She again changed this statement and said that her husband did not reside at Varanasi but used to come there occasionally. She has, at every stage in her statement, tried to give contradictory statement on this point. Obviously, this witness had no compunction in deviating from the version as given in the F. l. R. as well as in the statement under Section 161 Cr. P. C. and making contradictory statements according to the exigencies. Obviously, she cannot be termed to be a truthful witness. 14. P. W. 2, Km. Suman has stated that at the time of occurrence, she and her brother Ved Prakash were residing in the house in question. She has further stated that at about 7. 00 p. m. , Smt. Kewla Devi and Chandra Prakash came to the gate of the house and called Ved Prakash. Ved Prakash had at that time just started taking food and had taken one spoonful or so of the food. On being called by the accused persons and after talking with them, he told her that he will be returning within five minutes. He then locked the gate from outside and went away with the accused persons. She has also stated that Ved Prakash did not return during the night and when he did not come back till 10. 00 a. m. on the next day, she got down from her roof with the help of a Papita plant and went to Varanasi to inform her parents. She came back to Allahabad along with her mother and after that her mother lodged the F. l. R. In her cross-examination, this witness has stated that there was no enmity between the two families. She has also stated that her father was not residing at Varanasi but was practising in district Jaunpur. She was confronted with her statement under Section 161 Cr. P. C. which was contradictory to the statement made by her before the trial court. She subsequently stated that on the date of occurrence itself, accused Chandra Prakash had threatened to kill Ved Prakash. Obviously this witness has no hesitation in changing earlier version given by her on these points in her statement under Section 161 Cr. P. C. According to the prosecution witnesses, there were strained relations between the two families and on the day of occurrence itself, accused Chandra Prakash had threa tened to kill Ved Prakash. It is really difficult to believe that in such circumstances Ved Prakash would have accompanied the accused persons merely on being asked by them. There is no assertion or circumstance to show as to what led the deceased to ignore the enmity between the families and the threat which had earlier been extended by Chandra Prakash on the same day. The conduct of Ved Prakash in such a circum stances could be said to be unnatural. Accord ing to Km. Suman,ved Prakash had just started eating when he was called by the accused persons. He immediately proceeded with the accused persons after locking the outer gate of the house from outside. This conduct would have been possible only if the relations between the accused persons and Ved Prakash had been extremely cordial and there had been some urgent matter compelling Ved Prakash to proceed with the accused persons without taking his food, which he had already started taking before the accused arrived at that place. In the present case, the facts are to the contrary. There was bitterness and hostility between the two families. A threat had been allegedly extended to Ved Prakash by accused Chandra Prakash on the same day and there was no urgent matter to be attended to by the deceased at that time. According to P. W. 6 Tribhuwan Singh he saw the deceased going with the accused. He asked them where they were going on which they said that they were going to cinema. It was at about 7. 00 p. m. when the accused persons came to the house of deceased to i take him. Going to cinema was not such an urgent matter which could have forced the deceased to leave his food and proceed with the accused persons. Km. Suman is obviously an interested and inimical Witness. Her statement about taking of the deceased by accused persons does not inspire any confidence. 15. P. W. 6 Tribhuwan Singh asserts that he had seen the accused persons with deceased Ved Prakash about one and half years earlier at about 7. 00 p. m. He has even stated that he became suspicious due to the enmity between the two parties on seeing them going together. He became apprehensive and enquired as to where they were going on which Ved Prakash told that they were going to cinema. He also stated that all the three persons proceeded towards Subedarganj on a rickshaw. He asked Chandra Prakash whether there was any cinema towards that side on which Chandra Prakash told him that" he will take a friend from Subedarganj and then proceed for the cinema. In his cross-examination, this witness has stated that there was bitter enmity between the two families since before this occurrence. He has also stated that this occurrence had taken place about one and half years earlier and there could be a difference of five to ten days in this period. Even if reliance is placed on the statement of this witness, it cannot be inferred that he had been the accused persons and Ved Prakash going away on a rickshaw on the evening preceding the murder of Ved Prakash. The date or day when he had allegedly seen the deceased Ved Prakash with the accused persons could not be fixed by the statement of this Witness that he had seen the deceased with the accused persons about one and half years earlier or by saying that there could be differ ence of five or ten days in this period. Further, as mentioned earlier, it is not possible to believe that Ved Prakash would have accom panied accused Chandra Prakash who had earlier in the day threatened to kill him in the background of bitter and strained relations between the two families. 16. The next witness to prove this fact is P. W. 7 Harish Chandra. This witness has stated that he saw the accused persons with Ved Prakash proceeding on a rickshaw towards Subedarganj Railway Station. He. has stated that accused prabhu Narain followed them on a bicycle. He stopped Prabhu Narain and asked him whether any work is to be done by him. Prabhu Narain said that he was in a hurry to go to his relations and he will talk to him 'later. This witness has further stated that when he went to the house of Prabhu Narain after 10,12 days, he found the shutter of his house closed. He then went to the house of Sri R. N. Srivastava and enquired from him whether he had any work on which Sri R. N. Srivastava started weeping and saying that his son was killed 1qj2 days earlier. He then told him that he had seen Ved Prakash accompanied by Chandra Prakash and his wife going towards the Subedarganj colony about 10,12 days earlier. He further stated that his statement was recorded by the Investigating Officer on the next day. In his cross-examination, this witness was confronted with his statement under Section 161 Cr. P. C. where he had not alleged that he came to the house of Prabhu Narain to ask for a job and on finding the house closed he went to the house of Sri R. N. Srivastava where the latter told him about the murder of his son 10,12 days earlier. In that statement, this witness had asserted that he came to know in the evening that Ved Prakash had died and his dead body had been found on the railway line at the Subedarganj Railway Station. He then went to the house of R. N. Srivastava on the next day in the noon in order to condole the death. The statement under Section 161 Cr. P. C. was recorded by the Investigating Officer on the day when this witness hat gone to the house of R. N. Srivastava to condole the death of his son. Obviously, this state ment is contradictory to the statement made by this witness in the trial court. This witness does not appear to be a truthful witness. 17. The last witness examined by the prosecution to prove that the deceased was la; seen with the accused is P. W. 12 Abrar Ahmai This witness has stated that he used to supply milk to the accused and because they did not pay the price of the milk for two months, he stopped the supply of milk. He further stated that about one and half years back at 7. 30 p. m. when he was standing at Chakia Crossing, he saw Chandra Prakash and his mother along with a boy proceeding from the side of Himmatganj. He stopped them and asked for his money on which they assured him that they will pay the money after arrang ing for the same. Then the three persons proceeded towards Subedarganj on the G. T. Road. This witness has identified the photo graph of deceased Ved Prakash. In his cross-examination, this witness stated that the occurrence had taken place about one and half years earlier and there could be a differ ence of about one or one and half months. This witness also stated that he had seen the photograph of the boy in the court for the first time and had not seen it earlier. He also stated that the accused have not paid his money up to the time his statement was recorded and this fact was not liked by him. The statement of this witness does not disclose the day/date on which he had allegedly seen the accused persons with a boy. It cannot be inferred from his state ment that he had seen the accused persons in the evening preceding the murder of Ved Prakash. So his assertion on this point cannot be of any use to the prosecution. Further the deceased was not known to the witness. He saw the photograph of the deceased for the first time in court one and half years after the occurrence and not earlier. The prosecution should have got the photograph of the deceased identified by this witness at the time when his state ment was recorded by the Investigating Officer so as to fix the identity of the person who was allegedly" seen by this witness. In our opinion, the statement of this wit ness cannot be relied upon and it cannot be said that this witness had really seen the deceased with the accused persons in the evening preceding his death. 18. The prosecution has thus, in this case, not been able to establish that the deceased Ved Prakash was last seen with the accused persons in the evening preceding his murder. In view of this fact the prosecution has totally (failed to bring home the guilt of the accused 'appellants. They are, therefore, entitled to acquittal. 19. In the result, the appeal Succeeds and is allowed. The appellants Chandra Prakash and Smt. Kewla Devi are acquitted of the offences under Sections 302/34 and 201 I. P. C. They are on bail. They need not surrender and their bail bonds are discharged. Petition Allowed. .