of U.P. Vs. Arun Kumar Gupta  Insc 8 (8 January 2003)
Hegde & B.P. Singh. Santosh Hegde, J.
above appeals are filed against the judgment of the High Court of judicature at
Allahabad, Lucknow Bench, whereby the High
Court allowed the Criminal Appeal filed by the respondent against his
conviction and dismissed the Criminal Reference made by the third Additional
Sessions Judge Unnao for confirmation of death sentence awarded to the
respondent herein and five others were charged for offences punishable under
Sections 302 and 364 IPC before the said Trial Court at Unnao for having caused
the death of one Rakesh Kalra on 27th of May, 1988. The learned Sessions Judge
while acquitting five of the accused persons found the respondent herein guilty
of offence punishable under Section 302 for which he was awarded death penalty.
The respondent was found guilty of offence under Section 364 IPC for which he
was awarded life imprisonment. As stated above the appeal filed by the respondent
was allowed by the High Court, while the reference made by the Sessions Judge
was rejected consequently, the judgment and conviction recorded by the Trial
Court came to be set aside.
prosecution case in brief is that deceased, Rakesh was a good friend of
respondent and he had lent a sum of Rs. 10,000/- to the respondent, which the
respondent was avoiding to pay in spite of the repeated request from the
deceased. It is the case of the prosecution on 27th of May, 1988 when the
deceased had gone to the shop of PW-2 Chandraprakash, to solicit insurance
policies, the respondent came to the shop of PW-2 at about 2.30 P.M. on his scooter UGO 6070 and told the deceased that
he has made arrangement for repaying his loan. Therefore, he should come with
him to collect the money. The further case of the prosecution is that the
deceased accompanied the respondent on his scooter and went towards the refugee
colony. Thereafter, the whereabouts of the deceased was not known. Therefore,
at about 6.30 P.M. in the evening , PW-1, Satyapal,
father of the deceased being worried about the welfare of his son came to the
shop of PW-2 inquiring about the whereabouts of the deceased. Then PW-2
supposed to have told PW-1 about the respondent coming and taking the deceased
from his shop in the afternoon therefore, both PW-1 and PW-2 went to the house
of the respondent, where from a distance they saw the front door of the house
of the respondent was locked. These witnesses then returned to their respective
homes. The further case of the prosecution is on the next day i.e. on 28th of
May, 1988 at about 7.30 P.M. PW-1 went to the house of PW-2 and told him that
there was no news of his son or of the respondent. Therefore, he decided to
lodge a police complaint which was dictated by PW-1 to PW-2, and the same was
lodged with the police on that evening.
prosecution further states that about 10 P.M. the police went to the house of the respondent and tried to break open
the lock of the house. When this news of police having gone to the house of the
respondent was heard by PW-2, who incidentally, resides close by, he went to
the house of the respondent and witnessed the lock of the house being broken.
On entering the house the police recovered a body, packed in a sack in the gallary
of the house of the respondent which when opened was found to be the body of Rakesh.
On search of the dead body they found a sum of Rs. 566.50 from the inner pocket
of the pant of the deceased which was blood stained. Same was recovered under panchnama
exhibit-2. The prosecution further states at the time of the inquest held by
the PW-9 that they found a blood stained knife which was also seized and they
also collected blood stained earth from the house of the respondent under
prosecution further states that when the police searched for the respondent, he
was not available hence he was declared as an absconder by the competent court.
Prosecution states later he was arrested on 4th of June, 1988 from Pillibhit.
the course of further investigation, the prosecution came to know that PW-3, Lilaldhar
who was also residing near the house of the respondent in Punjabi colony had
seen the deceased and respondent entering the house of the respondent at about
3.00 or 3.15 P.M. on 27th of May, 1988. It is the case of the prosecution that
thereafter, the deceased was not seen alive.
prosecution further states that the respondent with the help of the other
accused persons had abducted the deceased because the respondent was offended
by the constant demand made by the deceased for the return of the money which
according to the prosecution had defamed the respondent.
basis of the above prosecution case, the Trial Court came to the conclusion
that prosecution has established beyond all reasonable doubt that the
respondent was responsible for the abduction and murder of the deceased. It
however held that the prosecution has failed to establish the same as against
other accused persons, consequently it acquitted the said accused persons while
it convicted the respondent of offences punishable under Sections 302 and 364
IPC and having come to the conclusion that the offence was one of the rarest of
the rare cases calling for capital punishment decided to impose that punishment
on the respondent, hence made the reference to the High Court as stated above.
The trial court also found the respondent guilty of the offences punishable
under Section 364 IPC for which a sentence of life imprisonment was awarded to
coming to the said conclusion, the trial court noticing the fact that the
prosecution case was based on circumstantial evidence, came to the conclusion
that following circumstances were clearly established by the prosecution
against the respondent. They are;
Deceased Rakesh and respondent, A.K. Gupta were good friends.
That the respondent was in need of money and had borrowed a sum of Rs. 10,000/-
from the deceased which the latter was repeatedly demanding to be repaid.
27.5.1988 the respondent had come to the shop of PW-2 when the deceased was
there and told him in the presence of PW-2 that he had made arrangement for the
repayment of money, therefore, the deceased should come and collect the same
from his house.
Deceased went along with the respondent on his scooter.
deceased was seen entering the house of the respondent accompanied with
respondent at about 3.00 to 3.15 p.m. by PW-3.
Even though the respondent was residing in the house in question, the house was
found locked on the evening of 27.5.1988 when PW-1 and PW-2 went to inquire
about the deceased.
Dead body of the deceased was recovered from the house of the respondent on the
night of 28.5.1988 along with a blood stained knife and blood stained earth.
respondent was absconding and was arrested only on 4th of June, 1988. The
Scooter belonging to the respondent bearing Number UGO 6070 was recovered at
the instance of one of the accused persons.
the above circumstances, the learned Sessions Judge came to the conclusion that
all the links necessary to form a complete chain of circumstances has been
proved beyond reasonable doubt against the respondent and on that basis it
convicted the respondent.
High Court per contra on re-appreciation of the evidence, came to the
conclusion that though some of the links in the chain of circumstances like;
Respondent and deceased were friends and used to visit each other;
had advanced money to the respondent; Still it came to the conclusion that the
prosecution has not established the fact that deceased was last seen with the
respondent, the body of the deceased was found in the house of the respondent
or the knife and blood stained earth was recovered from the house of the
respondent. According to the High Court these facts being important links in
chain of circumstantial evidence the same having not being established, it held
it not safe to base a conclusion.
these appeals, the learned counsel for the state contended that the high court
having accepted the finding of the learned Sessions Judge in regard to some of
the circumstances relied on by the prosecution erred in rejecting some other
circumstances without properly appreciating the evidence in that regard. It is
contended that from the evidence of PWs. 2 and 3 it is very clear that the
deceased was taken by the respondent to his house and thereafter he was not
seen alive and the prosecution has established the fact that the dead body of
the deceased was found from the house of the respondent, wherein he was staying
with his family. The learned counsel also pointed out that the fact that the
respondent was missing from the afternoon of 27th May, 1988 which also indicates the guilt of the accused person. He
also argued that the prosecution has established the motive for the murder.
contrary, on behalf of the respondent, it is contended that the High Court was
justified in disbelieving the evidence of PWs.2 and 3, who speak about the
meeting of the accused with the deceased on the afternoon of 27th May, 1988, as
also both of them entering the house of respondent around 3.00 or 3.15 P.M. on
27th May, 1988. In regard to the evidence of PW-2, the learned counsel
contended that he belongs to the same biradari of PW-1, the father of the
deceased and had taken an extraordinary interest in the investigation of this
case. Therefore, his evidence should be very cautiously considered. We will be
discussing the evidence of PW-2 separately when we take up for consideration
the discoveries made during the course of the investigation. Suffice it to note
at this stage that the High Court has cast very serious doubt on the veracity
of the evidence of this witness.
regard to PW-3, the learned counsel contended that if we carefully consider the
sequence of events as narrated by this witness, it is clear that this witness
could never have seen the deceased and the respondent near the house of
respondent at about 3.30
P.M. on that date. He
drew our attention to that part of the evidence of PW-3 wherein he had stated
that after lunch he had left his house around 2 P.M. and his house is about 30 to 35 meters from the
respondent's house. If that be so, this witness having left his house at 2 p.m. he could not have been near the house of the respondent at
about 3.30 P.M.
counsel also pointed out the discrepancy in the evidence of this witness as to
when he informed of this fact to PW-1 and also as to the delay in informing the
I.O., PW-9 this factum of he having seen deceased and the respondent on that
afternoon. The learned counsel also pointed out that even according to the
prosecution, the respondent was staying in the house in question with his wife
and young children, if that be so, it is highly improbable that any reasonable
person would take the deceased to that house where the family is living to
commit such a ghastly crime, hence the recovery of the dead body, knife and
bloodstained earth is a concocted story. He also pointed out that the high
court was justified in rejecting the recovery of the bloodstained knife and
earth from the house of the respondent because the prosecution did not send
those blood stained knife and the blood stained earth to the serologist for
examination, failure to do so according to the learned counsel throws very
serious doubt on this point of the prosecution case. In support of this
contention the learned counsel relied upon the judgment of this court in the
case of learned counsel then pointed out though PW-1 and 2 knew about the
incidence in the shop of PW-2 on the afternoon of 27th May, 1988 and that they
had suspected the respondent of having abducted the deceased on that very day
itself, inspite of the same no complaint was lodged till late evening of 28th
May, 1988, which also shows that entire prosecution case was built up after the
dead body of the deceased was found somewhere. He further pointed out from the
topography of the area where the dead body of the deceased was found that it
was a crowded locality with number of houses and shops still none of the
independent witnesses like the immediate neighbour or others who reside in that
locality or those who had assembled at the time of the alleged recovery of the
dead body have been examined and for reason better known only a few selected
persons were involved in the investigation and examined as witness by the
prosecution. In this regard he pointed that PW- 4, though not on immediate neighbour
of the house of respondent, he was summoned from his house to witness the
recoveries. Learned counsel points out that this witnesses happened to be a
member of the biradari of the PW-1 and resides behind the house of the I.O.,
PW-9. Elaborating this point the learned counsel argued when there were so many
independent people available at the spot, the prosecution has not explained why
particular persons had to be summoned from places away from the house where the
search was taking place. He also pointed out that this very witness has been
made the panch for all the recoveries made by the prosecution which also speaks
about the credibility of this witness. Learned counsel then pointed out the
various contradictions in the evidence of the prosecution witnesses as to the
breaking open of the lock of the respondents' house, switching on of the light
in that house and in regard to the presence of PW-9, the I.O. at the time of
the search. The learned counsel pointed out from the evidence of PW-9 himself
it is seen that he was there only till 11.30 P.M. in the night when the inquest
and seizure were going on in the house. While from the evidence of PW-7, the
other police officer he pointed out that this witness, PW-9 was present through
out the night till next morning when the search memos were prepared. He then
pointed out from the recovery punchnama that the same have come into existence
on the morning of 29th of May, 1988 therefore, he contended that it is possible
that almost all these recoveries including that the dead body was made only on
29th of May, 1988 and thereafter the complaint as presently found on record was
have heard the learned counsel and perused the records of the case and we are
inclined to concur with the judgement of the high court. As pointed out by the
high court that the prosecution though has been able to establish some of the
links in the chain of circumstances, it has failed to establish some of the
vital links beyond all reasonable doubts. Therefore, the high court was
justified in coming to the conclusion that the chain of circumstances in this
case is not complete. On examining the evidence of Liladhar, (PW-3), who
allegedly saw the deceased with respondent entering the house of the respondent
on 27th of May, 1988 at about 3.00 to 3.30 P.M. we notice that even in his
examination in chief had admitted that he did not inform this fact to the
father of the deceased, who at that point of time was searching for the
deceased. Though, in the cross-examination, he has tried to fill in this
omission, we think this circumstance is of such importance and if really he had
noticed the deceased entering the house of the respondent on that afternoon, he
would not have failed to mention this in his examination in chief itself, which
omission should be taken note of while appreciating his evidence. Then we
notice that this witness also belongs to the same biradari of PW-1 and was on
visiting terms with him. Thus he is also an interested witness.
also stated in his evidence that factum of seeing the deceased entering the
house of the respondent was mentioned by him for the first time to the
investigating officer when his statement was recorded even though ample
opportunity was there to mention the same earlier. This coupled with the fact
that the explanation given by him as to his presence near the house of the
respondent on the afternoon being doubtful we think the high court was
justified in coming to the conclusion that the evidence of this witness is not
wholly reliable. We will next discuss the probability of the recovery of the
dead body from the house of respondent. In this regard, we have already noted
the argument of the learned counsel for the respondent. Even according to the
prosecution, the house in question belongs to the respondent and he was staying
in that house with his family consisting of his wife and young children. The
house is situated in a crowded locality and large number of other houses and
shops are in the close vicinity. We agree with the learned counsel for the
respondent that no reasonable person would commit a ghastly murder like the one
with which we are concerned by taking the victim to such a house where his
family was residing.
has not produced any material to show either the presence or absence of the
family members of the respondent at the time of the murder in the house. That
apart it is highly unlikely that neighbours and passersby would not have been
attracted if really the deceased, who suffered as many as 30 injuries was
murdered in that house. Therefore, in all probability, the murder of the
deceased was not committed in the house of the respondent.
will now consider the recovery of the dead body, the bloodstained knife, the
bloodstained earth and such other things from the house of the respondent.
this regard, the prosecution relies on the evidence of PW-4. We have earlier
noticed PW-4 is not a resident in the immediate proximity of the house of the
respondent. He belongs to the same biradari of the complainant and lives behind
the house of the Investigating Officer, PW-9. We find no reasonable explanation
why such a person was called to be a witness to the recovery when there were
any number of people available and who are residents of the houses in the
immediate proximity of the house of the respondent. We also notice from the
records that large number of people were present at the time of the recovery,
therefore, prosecution should have come forward with some explanation why PW-4
was so selectively chosen to be the witness for the recoveries. We also notice,
though the preparation of memos of the recoveries took a long time still for
all the recoveries PW-4 is a common witness.
is also considerable discrepancy in regard to the manner in which PW-4 came to
be a witness to the recoveries. From the evidence on record, it is seen that at
one place it is stated that PW-4 had come to the house of respondent on hearing
the commotion that took place because of the breaking open of the lock of the
house. At another place, we find that I.O. PW-9 had summoned PW-4 from his
house to be a witness for the recovery. This discrepancy also adds to the doubt
in regard to the evidence of PW-4, therefore, in our opinion as held by the
High Court it is not safe to rely on the evidence of this witness.
and 9 who were police officers are also witnesses, who speak about the
recoveries made from the house of the respondent. PW-9 at one point says that
all the recoveries in question, were made by him and he left the house of the
respondent around 11.00 or 11.30 P.M. in the night of 28th of May, 1988. While
PW-7 who also present at that point of time says that PW-9 was there throughout
the night of 28th of May, 1988 till the morning of 29th of May, 1988 when the
recoveries were completed. Thus we find a material contradiction in the
evidence of these two witnesses. From the records, we see that the recoveries
of the bloodstained knife, the bloodstained earth was made on 29th of May,
1988. And according to the PW-9 he had made the recoveries and he had left the
place by about 11.30
P.M. in the night. It
is not possible to reconcile these two facts if actually PW-9 was the person
responsible for preparing the recovery memos then, the date 29th May does not
fit into prosecution case since according to this witness himself he left about
11.30 in the night of 28th of May, 1988. Therefore, there is force in the
arguments of the learned counsel for the respondent that these recoveries can
not be believed more so in the background of the fact that the bloodstained
knife, the bloodstained earth was not sent to the serologist. This court in
that :- "To add to this another important circumstance is the omission on
the part of the prosecution to send the bloodstained earth found at the place
of occurrence for chemical examination which could have fixed the situs of the
assault. In almost all criminal cases, the bloodstained earth found from the
place of occurrence is invariably sent to the Chemical Examiner and his report
along with the earth is produced in the court, and yet this is one exceptional
case where this procedure was departed from for reasons best known to the
prosecution. This also, therefore, shows that the defence version may be true.
It is well settled that it is not necessary for the defence to prove its case
with the same rigour as the prosecution is required to prove its case, and it
is sufficient if the defence succeeds in throwing a reasonable doubt on the
prosecution case which is sufficient to enable the Court to reject the
prosecution version." From the above decision of this Court it is clear
that in such circumstances when the prosecution fails to send the blood stained
material to the chemical examiner a reasonable doubt arises as to the
genuineness of the prosecution case in regard to the recovery of such material.
It is also relevant to notice at this stage the factum of recovery of the
bloodstained earth was not put to the respondent when his statement was
recorded under Section 313 Cr.P.C.
the above discrepancies noticed by us in the evidence of PWs 7 and 9 and also
from the omission on the part of the prosecution in sending bloodstained
material to the serologist we are constrained to doubt the prosecution case in
regard to the recovery.
to the evidence of PW-2, who says that he had seen the respondent take the
deceased from his shop on 27th May, 1988, it should be noticed that this person
is of the same biradari as of the deceased and was a close friend of the father
of the deceased for over 20 years. The defence has suggested that he is
actually the brother-in-law of PW-1, but the same is denied. The facts remains
that this witness is an interested witness.
the material produced by the prosecution, it shows that this witness was taking
extraordinary interest in the investigation and was present at practically
every important place and time in the course of the investigation. The High
Court has very elaborately discussed the evidence of this witness and has
rejected the same for good reasons with which we agree.
opinion, the evidence of this witness does not inspire much confidence.
the above discussion, in our opinion that the prosecution has been able to
establish only a motive as against the respondent for committing the murder,
while most of the circumstances which are otherwise important to be proved in
this case have not been established. We are of the opinion, the High Court was
justified in interfering with the judgment of the Sessions Judge and allowing
the reasons stated above, these appeals fail and the same are dismissed.