Rakesh Tiwari, J.@mdashHeard learned Counsel for the appellant, learned AGA for the accused-respondents and perused the record. In view of the judgment rendered in'' the case of Lekhraj v. State of U.P. and others (Criminal Misc. Application) under section 372 Cr.P.C. (Leave to Appeal) No. 6 of 2014 decided on 10th October, 2014, no leave to appeal is required for the victim to prefer an appeal on the grounds mentioned in proviso to section 372 Cr.P.C. as he has indefeasible statutory right to file the appeal.
2. This Criminal Appeal No. 48 of 2013 along with Criminal Misc. Application (Leave to Appeal) No. 48 of 2013, under section 372 Cr.P.C. has been preferred challenging the impugned judgment and order dated 12.12.2012 passed by the Addl. Sessions Judge, Court No. 7, Kanpur Dehat in S.T. No. 7 of 2008 (State v. Atul Dubey and others) acquitting the accused-respondents of the charges framed against them under sections 304 IPC read with section 34 IPC.
3. The prosecution story, in brief, is that on 23.11.2004 an information was given by Sri Ravish Katiyar at Police Station Bilhaur, District Kanpur Nagar to the effect that an unknown person has died due to collision with a vehicle on the G.T. road near the temple of Jangleshwar whose dead body and shoes were lying there in a scattered manner. This information was registered in the G.D. (Ex. Ka-9). On the basis of this information, a police team was proceeded towards the spot.
4. Complainant Ashok Kumar Gupta also moved an application on 26.11.2004 before the S.O. of Police Station Bilhaur, District Kanpur Nagar stating that his son Amit alias Gaurav had gone to attend the marriage ceremony of Umesh alias Gopi son of Hari Krishna Verma resident of Mohalla Bastiram Pipalwali Gali Chhibramau, District Kannauj, which was scheduled to be held at Shivraj Pur. After attending the marriage, his son along with other persons got seated in vehicle Marshal No. 74/9702 for proceeding towards Chhibramau. It is said that Atul Dubey son of Ram Pal Dubey, resident of mohalla Chhpatti, Chhibramau, Kishan alias Krishna Verma son of Raghuvir Verma, resident of Mohalla Bastiram, Pipal Wali Gali, Chhibramau, District Kannauj, who were also seated along with his son in the aforesaid vehicle, started beating his son and in between Araul and Gangupur near the temple of Baba Jangleshwar threw, him out of the vehicle, as a result of which his son died. This incident is said to have taken place in the night of 22/23.11.2004.
5. Pursuant to the report, crime No. 447 of 2004, under section 304 IPC was registered on 27.11.2004 at P.S. Bilhaur, Kanpur Nagar. After investigation, the I.O. submitted charge-sheet against the accused persons under sections 304 IPC.
6. The case on being committed to the Court of Session, the charge under section 304 read with section 34 IPC was framed against the accused-respondents who denied the charges and claimed trial.
7. In order to prove its case the prosecution examined eight witnesses, namely, Ashok Kumar (PW-1) Diwakar Gupta alias Debu Gupta (PW-2), Rajesh alias Raju Verma (PW-3), Ravi Shankar Gupta (PW-4), Dr. Ramesh Pati Tripathi (PW-5), S.I. Pratap Singh (PW-6) S.I. Ashok Kumar Pandey (PW-7), Rajendra Singh (PW-8), Retired Dy. Madan Lal Ahirwar (PW-9) and S.I. Dineshwar Pandey (PW-10). and Dr. S.K. Dubey (PW-11) whereas the accused persons in their statements under section 313 Cr.P.C. denied the entire circumstances appearing in story against them stating that they have been falsely implicated in this case. The accused-respondents produced one defence witness, namely, Radhey Shyam Verma (DW-1).
8. After considering the evidence, material on record and hearing Counsel for the parties, the Trial Court acquitted the accused-respondents vide impugned judgment and order dated 12.12.2012 holding that the prosecution has failed to prove its case beyond all reasonable doubts.
9. The impugned judgment is assailed on the ground that the dying declaration of deceased was recorded by the Magistrate after satisfaction of the doctor that he was able to make the statement; that it is well settled principle of law that the dying declaration itself is sufficient evidence for conviction; that the impugned judgment and order of the Trial Court is against the facts and law, weight of evidence on record, without application of mind, illegal, arbitrary and unjustified hence, doubt on the dying declaration cannot be created. In the circumstances, the impugned judgment and order is liable to be set aside.
10. The evidence adduced by the prosecution before the Trial Court shows that Ashok Kumar Gupta (PW-1) in his evidence stated that his son Amit alias Gaurav went to attend the marriage ceremony of Umesh alias Gopi son of Hari Krishna Verma resident of Mohalla Bastiram Pipalwali Gali Chhibramau, District Kannauj, which was scheduled to be held at Shivraj Pur. He has also stated that after attending the marriage Rajesh alias Raju got his son along with other ten persons seated in vehicle Marshal No. 74/9702 for proceeding towards Chhibramau. He has further stated that besides his son Atul Dubey son of Ram Pal Dubey, Ram Kishan son of Devi Prasad, Kanhaiya Lal son of Ram Lal, Lalu Verma son of Kanhaiya Lal, Kishan alias Krishna Verma son of Raghuvir, Vijay Narain Dubey son Munna Lal Dube, Shivnand Verma son of Munna Lal Verma, Manoj Verma son of Shiv Mohan Vema, Sunil Dixit son of Hari Dixit and Naresh Dixit son of Mukut Bihari Dixit were also seated and on way in between Araul and Gangupur near the temple of Baba Jangleshwar they assaulted and threw him out of the vehicle, as a result of which he died.
11. Diwakar Gupta (PW-2) has stated in his evidence that deceased along with other persons had gone to attend the marriage ceremony of Gopi son of Harikishan Verma at Shivrajpur on 22.1.2004 by Marshal Jeep of Atul Dubey. After Jaimal the deceased told Rajesh Verma, the brother of bride for making arrangements to return whereupon he got him seated in the aforesaid jeep along with other persons. When the son of Ashok Gupta did not return then he enquired from Rajesh Verma, who told that he got him seated along with the accused persons in the jeep. He has further stated that police of Bilhaur started searching the 10 accused persons in Chhibramau but the accused persons were found to have been fled away from their houses. The aforesaid 10 accused persons returned and came to his house at about 7.00-7.30 A.M. in the first week of July, 2005. When he enquired the reasons of their fleeing away from their houses, they told that he can save them from Ashok Gupta. The accused persons had told him that they had committed mistake in a drunken state as a result of which deceased-Gaurava died. This witness tried to know the reasons from the accused persons as to how and in what manner the death of Gaurava had occurred but nothing came out from his statement which may indicate as to who had committed the murder by running over the jeep on deceased and in what manner the death had occurred.
12. The incident is said to have taken place on 22/23.11.2004 but the alleged confession of the crime by the accused persons was made in July, 2005. No other persons were present at the time of confession. No other independent witness has been examined to support the alleged confession made by the accused persons. It is not possible that after eight months of the occurrence the accused persons came at the house of this witness and had made such confessional statement. This witness appears to be an interested witness, hence, his evidence cannot be relied upon.
13. Rajesh alias Raju (PW-3) in his evidence has stated that he had no knowledge by which vehicle the accused persons had gone to attend the marriage ceremony of Gopi son of Harikishan Verma. Hence, it is not established that deceased-Amit Gupta alias Gaurava along with other accused persons had returned from the marriage ceremony by the vehicle of Atul Dube.
14. Ravi Shankar Gupta (PW-4) has stated in his evidence that he had identified eight accused persons present in Trial Court. When this witness had known the accused persons from before why he had not lodged the report at the police Chowki whereas the distance of Police Chowki Araul from the place of occurrence was 1-1/2 kms. He has stated that he neither had got down from the vehicle nor he had tried to save the deceased. Hence, his statement that he had seen the accused persons beating the deceased cannot be relied upon. He is a chance witness.
15. Sri Rabish Katiyar had informed the police regarding dead body of an unknown person found near the temple of Jangleshwar but the prosecution has not examined him. Firstly, SI Sri Radhey Yadav investigated the case. After investigation he came to the conclusion that the offence under section 304 IPC was not made out as the death had occurred due to collision of an unknown vehicle. There was no evidence against the accused persons and they had been wrongly named in the FIR. Hence, the case was converted into 279, 304-A IPC from section 304 IPC. Thereafter, the investigation was transferred to Mainpuri where the I.O. recorded the statement of the complainant along with Sri Rabish Katiyar.
16. The I.O. S.I. (Retd.) Madan Lal Ahirwar (PW-9) has stated in his statement that the names of accused Shiv Nand Verma and Ram Prakash Verma were not came to light before the investigation. He had brought the names of ten accused persons to light on the basis of statement of the complainant. The statement of former I.O. Radhey Yadav was not recorded while his statement was necessary. The prosecution has not examined those witnesses whose statements were recorded by I.O. P.W.9 and on the basis of which the case was converted into under section 304 IPC.
17. No independent eye-witness of the occurrence has been produced by the prosecution in support of its case. The case rests upon circumstantial evidence.
18. This case rests upon circumstantial evidence. Before a case against an accused resting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as held by the Apex Court:
"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;
2. The facts so established should be consistent with the hypothesis of guilt and 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."
19. These five golden principles constitute the panchsheel of the proof in a case based on circumstantial ev(sic)ce and in the absence of a corpus delicti .
20. In the cases of circumstantial evidence rendered in Baba Ram Das alias Tarlok Singh v. State of Punjab 11/1998 C.C.R. 16 (P&H), Shyamal Shah and others v. State of West Bengal 2014 ACR 444 (SC), Shyodan v. State of U.P. (2014) (1) AAR 337 (Alld.), State of Gujarat v. Ratan Singh alias Chini Bhai 2014 (85) ACC 670 (SC),
21. The law firmly entrenched by the Apex Court is that there can be no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence in view of the decision rendered in
22. In the case of
23. From the statement of the witnesses, the chain of circumstantial evidence being incomplete, therefore, in our considered opinion, the Trial Court has not committed any illegality or infirmity in acquitting the accused persons through the impugned judgment and order dated 12.12.2012 which requires no interference by this Court. For the reasons stated above, the Criminal Appeal lacks merit and is dismissed at the admission stage itself.
