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2003 DIGILAW 560 (ALL)

NAHAR SINGH v. STATE OF U P

2003-03-12

K.N.OJHA, M.C.JAIN

body2003
M. C. JAIN, J. The deceased of the felony which is the subject- matter of scrutiny in this appeal was Kaliram. His wife Smt. Kela and the present appellant Nahar Singh were tried for his murder before the then VI Additional Sessions Judge, Meerut in Sessions Trial No. 352 of 1979. The charges were of Sections 120-B, 302 and 201 IPC. By the judgment dated 15/17-12-1980, the trial Court acquitted Smt. Kala-wife of the deceased but convicted the appellant Nahar Singh under Section 302/201 IPC. He has been sentenced to undergo life imprisonment for the former offence and five years rigorous imprisonment for the latter, both the sentences to run concurrently. 2. The wife of the deceased and the present appellant were allegedly having illicit intimacy which used to be detested and demurred by the deceased. The appellant, therefore, allegedly did away with the deceased in criminal conspiracy with the deceaseds wife. The deceased and the appellant had allegedly consumed liquor at the house of the former and left on 9-5-1979 at about 8 or 9 p. m. It was on 13-5- 1979 that deceaseds cousin brother Sukhbir Singh PW 4 lodged an information with the police that the deceased was missing from the village since 9-5-1979. It was also stated in his written report that he was searched in his relations but his whereabouts could not be known. The wife of the deceased also left the village on 13-5-1979 and it was not known where she had gone, either to her father house or to some other place. The report was taken down in the general diary as Dariyaft hal. 3. On 14-5-1979 Kasim Ali PW 5 found a dead-body floating in the well of Alimuddin in village Phalawada when he was going to village Batnaur at about 8 or 9 p. m. This information was taken down in the general diary and the police swung in action. The dead-body was taken out from the well and post- mortem was conducted there on 15-5-1979 at 2. 30 p. m. by Dr. P. N. Khanna PW 1. The deceased aged about 25 years and about 5 days had passed since he died. According to the post-mortem report, no mark of ante-mortem injury was evident due to decomposition. The dead-body was taken out from the well and post- mortem was conducted there on 15-5-1979 at 2. 30 p. m. by Dr. P. N. Khanna PW 1. The deceased aged about 25 years and about 5 days had passed since he died. According to the post-mortem report, no mark of ante-mortem injury was evident due to decomposition. The investigation revealed that on 9-5- 1979 the deceased and the appellant had consumed liquor whereafter, they had left for Urs Mela and further that illicit intimacy of the wife of the deceased with the appellant was the cause of his murder by the appellant. 4. At the trial the prosecution examined 13 witnesses. The most material testimony is of Latur PW 2 aged about 10 years (child witness), son of the deceased. 5. The accused pleaded false implication due to party faction. 6. We have heard Sri N. K. Dwivedi, holding brief of Sri B. D. Pandey, learned Counsel for the appellant and Sri A. K. Verma, learned AGA for the State. 7. It has come in the testimony of the child witness Latur PW 2 (son of the deceased) that the appellant used to visit his house in the absence of his father and his mother used to send him out on some pretext. According to him, his father used to question his mother about the visit of the appellant to her and there used to be quarrels between the two on this account. In the fateful night also at about 8 p. m. , the appellant and his father consumed liquor and then left for seeing the Mela at Phalawada. It was Sukhbir Singh PW 4, cousin brother of the deceased who had given information at the police station on 13-5-1979 regarding his disappearance since 9-5-1979. Kasim PW 5 had found the dead-body floating in the well of Alimuddin on 14-5-1979. It were Jilley Singh PW 3 and Pheru PW 6 who had seen the deceased and the appellant at about 8 or 9 p. m. going together on the way to Phalawada. Both of them were seemingly tipsy and disclosed that they were going to Mela in Phalawada. Katar Singh PW 9 had last seen both of them in the fair of Phalawada. He had found both of them to be intoxicated and at about 2. Both of them were seemingly tipsy and disclosed that they were going to Mela in Phalawada. Katar Singh PW 9 had last seen both of them in the fair of Phalawada. He had found both of them to be intoxicated and at about 2. 30 or 3 Oclock in the morning they told him that they were going back home. To say shortly, the evidence o f Jilley Singh PW 3, Pheru PW 6 and Katar Singh PW 9 is of having last seen the deceased in the company of the appellant in the night of 9/10-5-1979. 8. Obviously, the case is of circumstantial nature with no direct evidence. In a case depending wholly on circumstantial evidence, the circumstances from which the inference of guilt is to be drawn should be fully established by unimpeachable evidence and should be of determinative tendency unerringly pointing towards the guilt of the accused. The circumstances taken together must be incapable of any reasonable hypothesis save that of the guilt of the accused. When the present case is examined in the light of this broad principle, several unpatchable holes are apparent which shake the finding of guilt recorded by the trial Court. 9. It has first to be pointed out that the report of the disappearance was lodged by the cousin brother of the deceased, namely, Sukhbir Singh PW 4 after four days on 13-5-1979 without naming anybody even on suspicion. The scrutiny of his testimony delivered before the Court makes it clear that he was aware of the alleged liaison between the wife of the deceased and Nahar Singh appellant. Still, there is not a whisper about it in the information that he passed on at the police station regarding disappearance of the deceased. In his information he stated that on 13-5-1979 the wife of the deceased also left the village. It is also clear from his statement that the deceased and the appellant used to consume liquor together, meaning thereby that their relations were normal. 10. So far as the statement of child witness Latur PW 2 (son of the deceased) is concerned, it has come down from his testimony that at the time of appearing as a witness he was living with his Phupha Ram Kishan. The possibility of his having given tutored statement at the instant of his Phupha Ram Kishan cannot be ruled out. The possibility of his having given tutored statement at the instant of his Phupha Ram Kishan cannot be ruled out. We also note that what he stated in his examination-in-chief was completely disturbed by him in his cross-examination. The statement made by him in his cross- examination is that he used to be present at his house at the time of the visit of the appellant to his mother and they used to talk in his presence. His mother did not use to ask him to go out at that time. Still, he insisted that his statement was also correct that his mother used to send him out on some pretext. His self-conflicting version is confused and confounded leading nowhere. 11. It is further to be noted that no mark of ante-mortem injury was found in the post-mortem report. In case the appellant wanted to murder him, he would have definitely caused injuries to him before pushing him down in the well so as to make sure of his death. Merely pushing down in the well was not sufficient because the possibility of his being saved and taken out from the well was there on alarm raised by him from inside the well. 12. Moroeover, it is the own case of the prosecution that the appellant and the deceased had consumed liquor at the house of the latter before leaving for Mela in Phalawda in the night of 9- 5-1979. Now, two things are possible. First, the deceased was in the know of goings on between the appellant and his wife and his tacit consent was there for their so-called affair. Second, he was not aware of the illicit connection between his wife and the appellant. In either case, he would not be a hurdle in carrying on of the illicit liaison between the two. Therefore, there could be no need for the appellant for doing away with the deceased. Rather, he would not have thought of murdering the deceased because in that eventuality, he would have taken upon himself the burden and dependence of the deceaseds wife. In other words, he would have increased his liability unnecessarily for taking her care and of her personal problems. The existing scenario was most comfortable to him. Rather, he would not have thought of murdering the deceased because in that eventuality, he would have taken upon himself the burden and dependence of the deceaseds wife. In other words, he would have increased his liability unnecessarily for taking her care and of her personal problems. The existing scenario was most comfortable to him. Her husband was there to look after her and to take care of her personal and family problems and he was enjoying illicit intimacy with her by her full support and connivance. Judged from this angle too, it does not pass the test of scrutiny that the appellant must have murdered him. 13. The evidence of the deceased having been last seen in the company of the appellant does not go to fasten culpability on the head of the appellant. We do not know as to whether and where the deceased and the appellant had parted in the way. The deceased being in highly intoxicated state could have himself fallen in the well and it is possible that because of inebriated state he could not make an alarm from inside the well for being saved. It is usually possible that at the dead hour of the night, nobody could hear his alarm even if it was raised from inside the well. 14. On overall consideration, we are of the opinion that the case of the prosecution against the appellant is woven on suspicion only. From the range of suspicion it has not reached the realm of certainty that he was the culprit who cut short the life of the deceased. 15. We accordingly allow this appeal and set aside the conviction and sentence passed against the appellant by the Court below. He is already on bail. 16. The office shall send a copy of this judgment along with record to the Court below for needful necessary entry in the concerned register under intimation to this Court within two months. Appeal allowed. .