ARVIND KUMAR MISHRA ,J - (1.) We have heard learned AGA for the State and have also been taken through the impugned judgment of acquittal. The instant appeal has been directed against the judgment and order of acquittal dated 04.04.2014 passed by learned Additional Sessions Judge, Court No.12, Agra, in Sessions Trial No. 795 of 2007 and Sessions Trial No.796 of 2007 arising out of Case Crime No.290 of 2007 and Case Crime No.299 of 2007 under Sections 302 I.P.C. and 4/25 Arms Act respectively, Police Station Tajganj, District Agra. It is relevant to mention that incident of murder and recovery of knife were connected to one and the same incident, therefore, both the Sessions Trial No.795 of 2007 and Sessions Trial No.796 of 2007 were consolidated and decided by a common judgment.
(2.) THE prosecution case as emanates from perusal of the impugned judgment, reflects that complainant Natthi Lal lodged written report on 19.04.2007 at Police Station Tajganj, District Agra wherein allegations were made to the effect that his son Lakhan went to his roadside shop situated at Tiraha of Dixit Nurshing Home on 18.04.2007 at 6:00 a.m. but he did not return home till 9:00 p.m. When the complainant made search for him, one Maya Ram son of Channi Lal who also runs shop at the same place informed that Parvez son of Abdul Sattar along with his two companions around 12:00 noon was seen going along with his son. On 19.04.2007 around 7:00 a.m., the complainant went to the house of Parvez where he was told by Parvez's mother that Parvez has not come home since yesterday. When the complainant came back home, he was told by two persons that dead body of his son was lying on 100 feet road in front of Basaikhurd. The complainant went to the spot and identified the dead body to be that of his son. Parvez and his companions have killed his son. A case was registered at police station concerned at Case Crime No.290 of 2007 under Section 302 I.P.C. Thereafter relevant steps were taken by the Investigating Officer for preparing inquest report and other relevant papers for sending the dead body for post mortem examination and Investigating Officer also prepared site plan. Investigating Officer arrested accused Parvez and at the instance of accused, a knife was recovered on 26.04.2007. Therefore, a case at Crime No.299 of 2007 under Section 4/25 Arms Act was also registered against accused Parvez and relevant formalities were completed. The Investigating Officer after completing investigation of both the above cases filed charge sheet Ext. Ka -9 in Case Crime No.290 of 2007 under Section 302 I.P.C. and charge sheet Ext. Ka -17 in Case Crime No.299 of 2007 under Section 4/25 Arms Act. Thereafter the case was committed to the Court of Sessions for trial where the accused was heard on the point of framing of charge and prima facie ground was found existing for framing charge under aforesaid sections of Indian Penal Code and Arms Act respectively. Charges were read over and explained to the accused to which he pleaded not guilty and opted for trial. Prosecution in order to prove its case produced in all eleven witnesses namely complainant Natthi Lal PW -1, Amar Singh PW -2, Satish Kumar PW -3, Rajesh Kumar PW -4, Vinod PW -5, Ashok Kumar Savita PW -6, Pramod Kumar PW -7, Constable Collector Singh PW -8, Constable Pushpendra Singh PW -9, Constable Narendra Kumar PW -10 and Dr. R.S. Atendra PW -11. Thereafter evidence for the prosecution was closed. The statement of accused was recorded under Section 313 Cr.P.C., wherein accused submitted his false implication in the case. The accused was afforded opportunity to adduce evidence but he did not lead any evidence, whatsoever. The trial court after hearing both the sides found charges not proved against accused under Sections 302 I.P.C. and 4/25 Arms Act and acquitted the accused. Hence this appeal. The point involved for adjudication in this appeal is whether material on record was sufficient to convict the accused under aforesaid charges? Learned State Counsel has submitted that it is a case of circumstantial evidence based on last seen theory as deposed by Amar Singh PW -2. Last seen theory vis -a -vis material on record is sufficient to draw inference that accused Parvez murdered the deceased Lakhan, but the trial court did not properly appreciate evidence and material available on record and wrongly acquitted the accused. Judgment is both perverse and illegal. We may notice that it is a case where there is no eyewitness account of the fact of murder. The case in hand is based on circumstantial evidence and THEORY of last seen rests on the testimony of Amar Singh PW -2. It has come on record that complainant Natthi Lal had developed brotherly affection with him, therefore, testimony of Amar Singh PW -2 requires to be analyzed with caution and circumspection. This being circumstantial case, it is up to the prosecution to entwine chain of circumstances so complete and consistent that it will exclude every hypothesis of innocence of the accused and it will, in all probability, lead to the conclusion that it was the accused and accused only who committed the offence. We may notice as to whether the prosecution was able to consistently link circumstances so that hypothesis of guilt of the accused could be accepted as proved beyond reasonable doubt. In this context, testimony available on record in the form of PW -2 reveals that the deceased was seen along with Parvez around 2:00 or 3:00 p.m. on 18.04.2007, whereas, the first information report was lodged on 19.04.2007 at 9:05 a.m. The doctor witness PW -11 has suggested that duration of death was about 2/3 days old. It means that death might have been caused some time in the intervening night of 18/19.04.2007. Thus death of deceased Lakhan may have occured about 16 hours before the post mortem examination. As per record, a knife; said to be the weapon used in the commission of offence, was recovered on 26.04.2007 at the instance of accused Parvez who is said to have confessed to the police to have killed Lakhan with this knife. This particular piece of testimony, if taken as a whole, throws prosecution story in doubt, because in the post mortem examination report as many as nine antemortem injuries were found on the dead body of the deceased Lakhan and not a single injury is reported to be incised injury. But injuries reported are confined to contusions, abrasions and lacerated wounds only. Thus very recovery of knife is not supported by MEDICAL evidence. There is no clinching circumstance which could reveal that the deceased who is alleged to have been last seen with accused Parvez around 2:00 or 3:00 p.m. on 18.04.2007 remained with him in the intervening night of 18/19.04.2007. Therefore, THEORY of last seen does not inspire confidence, because there may be possibility that deceased might have parted away of his own and he might have gone anywhere. This possibility is strong enough to infer that the deceased might have come in contact with some other persons before night fell on the fateful day. It is hard to believe, in absence of any supporting material, that the deceased remained with Parvez till the time of his death. It cannot be said that it was accused Parvez and Parvez alone who remained with the deceased till night followed. The confession made by the accused to the police officer is not admissible in view of Section 25 of the Indian Evidence Act. It is noteworthy that prosecution witnesses of fact right from PW -3 up to PW -7 have turned hostile. No other circumstance or evidence has been placed on record which may lead us to believe that the offence was committed by none other than the accused. Thus the trial court has not committed any error while appreciating the circumstances and evidence available on record. Theory of last seen by itself will not warrant conviction of an accused unless the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. This very guideline in the matter of cases relating to circumstantial evidence has been elaborated by Hon'ble Apex Court in S.K. Yusuf Vs. State of West Bengal; 2011 (74) ACC 293 (SC). It is relevant to mention that Dr. R.S. Atendra PW -11 who conducted post mortem examination has categorically stated that ante -mortem injuries found on the body of the deceased may have been caused by some blunt object, therefore, possibility of use of knife in the very commission of crime is ruled out. Can it be said that the prosecution has been able to link chain of circumstances in a consistent way and the chains are so interlinked that it may exclude every hypothesis except the one sought to be proved. In the case of G. Parshwanath Vs. State of Karnataka reported in AIR 2010 SC 2914, Hon'ble Apex Court has observed that in the matter of circumstantial evidence, chain of evidence must be so COMPLETE as not to leave any reasonable ground for the conclusion consistent with innocence of the accused and must show that in all human probability, the act must have been done by the accused and accused himself. We may summarize that the chain of circumstances is not complete and conclusive. Prosecution is required to complete the chain of circumstances in such a manner as to unmistakably point to the guilt of the accused, if it has to secure conviction in a case based on circumstantial evidence. If chain is not complete conviction cannot be recorded. This aspect of circumstantial evidence has been affirmed by Hon'ble Apex Court in Birender Poddar Vs. State of Bihar; 2011 (74) ACC 283 (SC). Therefore, the trial court was justified in recording the verdict of acquittal which is based on material on record. Presumption of innocence runs in favour of the accused right from stage of commencement of trial and the same continues upto Appellate stage. In case finding of acquittal is recorded by the trial court and acquittal is found to be based on material on record then presumption of innocence is fortified and strengthened in favour of the accused as has been held by Hon'ble Apex Court in Kanhaiya Lal & Ors. v. State of Rajasthan; AIR 2013 SC 1940. Even in cases where two views regarding the same incident are possible then the view adhered to and adopted by the trial court will not be disturbed if material on record justifies the finding so recorded as has been held by Hon'ble Apex Court in Bhadragiri Venkata Ravi v. Public Prosecutor High Court of A.P., Hyderabad; 2013 (4) Supreme 450. Consequently, the appeal sans merits and the same is, accordingly, dismissed. Leave to appeal is refused. Let a copy of this order be certified to the court concerned. Order Date : - 28th July 2014 rkg;