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2018 DIGILAW 1725 (ALL)

Gajendra v. State of U. P.

2018-08-06

RAM SURAT RAM (MAURYA), UMESH CHANDRA TRIPATHI

body2018
JUDGMENT : Ram Surat Ram (Maurya), J. Heard Sri Samarth Sinha, for the appellant, Sri Anil Kumar Kushwaha, A.G.A., for State of U.P. 2. Gajendra (the appellant) has filed this appeal, from his conviction and sentence passed by Additional Session's Judge, Court No. 11, Meerut, dated 05.09.2008, in S.T. No. 369 of 2007, State vs. Gajendra (arising out of Case Crime No. 7 of 2007, under Section 302, 201 IPC, P.S. Kharkhauda, district Meerut), convicting him under Section 302 and 201 IPC and awarding sentence of imprisonment for life along with fine of Rs. 10,000/- (ten thousand) under Section 302 IPC and five years rigorous imprisonment along with fine of Rs. 5000/- (five thousand) under Section 201 IPC. Both the sentences were to run concurrently. 3. On the complaint (Ex-Ka-1) of Ram Autar (PW-1), FIR (Ex-Ka-5) of Case Crime No. 7 of 2007, under Section 302, 201 IPC was registered at P.S. Kharkhauda, by Head Constable Amar Singh (PW-6) on 10.01.2007 at 13:45 hours, against Gajendra (the appellant) and his sister Samantera. It has been stated in the complaint that Sushila aged about 30 years (sister of the informant) was married to Gajendra, resident of village Kaili, PS Kharkhauda, about 9 years ago. From the said wedlock, they had three children. The accused used to demand money from his sister by way of debt. Due to not satisfying demand of money, Gajendra and his sister Samantera used to assault her. On 08.01.2007, Samantera informed him on phone that his sister Sushila was missing. Since then they were searching her. The accused murdered his sister on 08.01.2007 in evening and buried the dead body in his room digging a pit. He received information from the neighbourer of the accused, in this respect on telephone, on 10.01.2007 that dead body of Sushila was lying in her in-law's house of village Kaili. The accused have committed murder of his sister. 4. After registration of FIR, SHO Nirmal Singh (PW-7) started investigation. After copying check FIR in case diary, he recorded statement of Ram Autar, the informant and Anand Pal Singh, the scribe. He came on the spot along with SI Puran Singh and other police personnel. On his direction SI Puran Singh conducted Inquest (Ex-Ka-2) of the dead body of Sushila on 10.01.2007 up to 15:45 hours. After copying check FIR in case diary, he recorded statement of Ram Autar, the informant and Anand Pal Singh, the scribe. He came on the spot along with SI Puran Singh and other police personnel. On his direction SI Puran Singh conducted Inquest (Ex-Ka-2) of the dead body of Sushila on 10.01.2007 up to 15:45 hours. He prepared photo lash and letters to the authorities for conducting postmortem of the dead body (Ex-Ka-7 to Ka-11). Vishal (minor) son of the accused gave one shawl to him, which was allegedly used to strangulate the deceased. He prepared its recovery memo (Ex-Ka-3). He inspected the spot and prepared site-plan (Ex-Ka-12). Thereafter, he copied the Inquest in case diary and recorded statements of witnesses of the Inquest as well as Devendra and Vijendra, witnesses on the spot. He arrested the appellant on 12.01.2007 and recorded his statement. On 14.01.2007, he recorded statement of Bimlesh and Kamlesh (sister and brother of the deceased). On 18.01.2007, he recorded statements of other witnesses. After completion of investigation, he submitted charge sheet (Ex-Ka-13) against Gajendra and exonerated Samantera. On which cognizance was taken. 5. Dr. Satish Kumar (PW-5) conducted autopsy of the dead body on 10.01.2007 at 10:00 PM and prepared postmortem report (Ex-Ka-4), in which following ante-mortem injuries were noted:- (i) Faint contusion 14 cm x 2.5 cm on front side of neck, 6 cm below front chin, 5 cm below from right ear, 4 cm below from left ear. Gap interval is 17 cm. Ecelysis present around injury. Extranassafir of clotted and fluid blood in soft tissues of neck under injury. (ii) Contusion 6 cm x 2 cm on left side, front of chest, 13 cm below from left nipple at 5:00 clock position. (iii) Contusion 4 cm x 2 cm on outer aspect of lower part of left forearm 3 cm above waist. (iv) Abraded contusion 16 cm x 2 cm on medial aspect of left thigh 11 cm above from knee. (v) Abrasion 2 cm x 0.5 cm on front of right knee. According to him injury no. 1 was caused strangulation with the help of clothes. Injuries 2 to 5 were caused through blunt object. Cause of death was noted as "Asphyxia due to ante-mortem strangulation". Duration of death was noted as two to three days. 6. On committal, the case was registered as S.T. No. 369 of 2007. According to him injury no. 1 was caused strangulation with the help of clothes. Injuries 2 to 5 were caused through blunt object. Cause of death was noted as "Asphyxia due to ante-mortem strangulation". Duration of death was noted as two to three days. 6. On committal, the case was registered as S.T. No. 369 of 2007. XIth Additional Sessions Judge, framed charges on 16.05.2007 against the appellant. The appellant denied charges and claimed trial. In order to prove the charges, the prosecution examined Ram Autar (PW-1), the informant and brother of the deceased, Kamal Singh (PW-2), the brother of deceased, Javed Alam (PW-3), witness of Inquest, Abdul Munaf (PW-4), witness of recovery of shawl, Dr. Satish Kumar (PW-5), to prove postmortem report, Head Constable Amar Singh (PW-6), to prove check FIR, SI Nirmal Singh (PW-7) Investigating Officer, to prove investigation and charge sheet. 7. All the incriminatory materials and facts were put to the accused, under Section 313 CrPC. He denied the evidence and materials. He stated that Sushila was a lady of loose character. He made complaint to the informant Ram Autar and his brother Kamal Singh in respect of her bad character. Due to which they annoyed and used to keep enmity with him. Due to this enmity Ram Autar has falsely implicated him in this case, with deliberation and consultation of the police. Sushila was murdered outside of his house by some unknown assailant, due to her loose character. He did not commit her murder. The appellant did not adduce any evidence, in his defence. 8. Additional Session's Judge, after hearing the parties, by the impugned judgment held that from statement of Ram Autar and Kamal Singh (PW-1 and 2), it is proved that the appellant and his sister Samantera used to demand money from the deceased for purchasing a cart and due to not fulfillment of the demand, they always used to assault her. Samantera informed them on 08.01.2007, that their sister was missing, thereafter, they began to search her. On 10.01.2007, some unknown person, informed them on telephone, that her sister was murdered by the appellant and his sister and dead body was buried in his house itself. Samantera informed them on 08.01.2007, that their sister was missing, thereafter, they began to search her. On 10.01.2007, some unknown person, informed them on telephone, that her sister was murdered by the appellant and his sister and dead body was buried in his house itself. Then they came to the house of the appellant and traced the dead body of Sushila, which was put in a pit, covering the body with earth, stone and salt, with an intention to cause disappearance of the evidence of the commission of that offence. From where it was brought out after digging the pit. The appellant did not maintain his wife and children, due to which the deceased had opened a grocery shop in one room of her house. From postmortem report, it is proved that the deceased was murdered by strangulation. It was not possible for an outsider to commit murder of the wife of the appellant and to bury the dead body in his house. Various contradiction in the statements of the witnesses were minor and natural. On these findings, he convicted the appellant, under Section 302 and 201 IPC and sentenced as mentioned above. Hence, this appeal has been filed. 9. The counsel for the appellant submitted that Smt. Bimlesh, elder sister of Smt. Sushila (the deceased) was married to Suresh, elder brother of the appellant. All the family members were residing in the same house. Smt. Bimlesh is the best evidence to prove the alleged torture and assault of Smt. Sushila due to not satisfying the demand of money by her. She could have been produced as witness for recovery of the dead body from the house of the appellant. The appellant earlier made some complaint in respect of character of the deceased to her brothers. Due to that reason, they falsely implicated the appellant in this case in collusion with the police. The appellant is an innocent person. He has three children from the deceased and no motive to commit her murder. Same allegation was made against Samantera, sister of the appellant. She has been exonerated by the police. Recovery of dead body from a pit in the room of the appellant is not proved. The case is based upon circumstantial evidence. Links of the circumstances are not closely connected to prove the guilt of the appellant. The appellant is entitled to benefits of doubts. She has been exonerated by the police. Recovery of dead body from a pit in the room of the appellant is not proved. The case is based upon circumstantial evidence. Links of the circumstances are not closely connected to prove the guilt of the appellant. The appellant is entitled to benefits of doubts. At the most the appellant can be convicted under Section 304 IPC. He relied upon judgment of Supreme Court in Vikramjit Singh v. State of Punjab, (2006) 12 SCC 306 , in which it has been held that Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule e.g. where burden of proof may be imposed upon the accused by reason of a statute. It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well-settled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt. Dhan Raj @ Dhand v. State of Haryana, (2014) 6 SCC 745 , in which it has been held that the circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused. A court has to examine the entire evidence in its entirety especially in case of circumstantial evidence and ensure that the only inference drawn from the evidence is the guilt of the accused. If more than one inference can be drawn then the accused must have the benefit of doubt as it is not the court's job to assume and only when guilt beyond reasonable doubt is proved then it is fair to record conviction. If more than one inference can be drawn then the accused must have the benefit of doubt as it is not the court's job to assume and only when guilt beyond reasonable doubt is proved then it is fair to record conviction. In case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence, and the circumstances so proved must form a complete chain without giving any chance of surmise or conjecture and must also be consistent with the guilt of the accused. Judgment of this Court in Uma Shankar And Another vs. The State, 2016 (95) AllCrC 666 and Dr. Smt. Nupur Talwar vs. State of U.P. (2017 (1) ADJ 586 (DB). Judgment of Delhi High Court in Criminal Appeal No. 892 of 2009 Shiv Kumar vs. State (NCT) of Delhi (decided on 30.04.2014), in which it has been held that if death was caused without premeditation of mind in a sudden fight, then the offence is punishable under Section 304 IPC. 10. We have considered the arguments of counsel for the parties and examined the record. The prosecution case is based upon circumstantial evidence in the present case. According to the prosecution, Sushila (the deceased) was married to Gajendra (the appellant) 9 years ago from the date of occurrence. Gajendra used to demand Rs. 20000/- from Sushila to purchase a cart. As this demand could not be satisfied by the brothers of Sushila, Gajendra and his sister Samantera used to torture and assault her time to time. On 08.01.2007, Samantera informed Ram Autar (PW-1) that Sushila was missing. Since then they were searching her. On 10.01.2007, some unknown person informed on telephone that Sushila was murdered and her dead body was buried in the house of the appellant. On which Ram Autar and Kamal Singh (PW-1 and 2), along with several other persons of their village came to the house of the appellant and inquired about Sushila. When they made pressure, then Samantera informed the room where dead body was buried. Thereafter, dead body was brought out, digging that place by them. 11. On which Ram Autar and Kamal Singh (PW-1 and 2), along with several other persons of their village came to the house of the appellant and inquired about Sushila. When they made pressure, then Samantera informed the room where dead body was buried. Thereafter, dead body was brought out, digging that place by them. 11. Although there are contradictions between the statements of the witnesses, on various particulars, but the facts that Sushila (the deceased) was married to Gajendra (the appellant), she was living at the house of the appellant along with her three children on the date of occurrence and her dead body was buried in one room of the house of the appellant, from where it was brought out, are fully proved. From postmortem report (Ex-Ka-4) and statement of Dr. Satish Kumar (PW-5), it is proved that death of Sushila was caused by strangulation. These circumstances are closely connected and prove the charges against the appellant as it was not possible for an outsider to bury the dead body in the inner room of the appellant. The appellant stated that Sushila was a lady of loose character and had relation with several other persons and she was murdered by unknown persons outside of his house. This statement is not liable to be believed inasmuch as there is no explanation as to how her dead body was buried in the inner room of the appellant. 12. The appellant stated that Sushila was a lady of loose character and had relation with several other persons and she was murdered by unknown persons outside of his house. This statement is not liable to be believed inasmuch as there is no explanation as to how her dead body was buried in the inner room of the appellant. 12. Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , has held five golden principles which have been stated to constitute the "panchsheel" of the proof of the case based on circumstantial evidence are: (i) that the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established; (ii) that the facts so established should be consistent 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) that the circumstances should be of a conclusive nature and tendency; (iv) that they should exclude every possible hypothesis except the one to be proved; and (v) that 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. 13. In Satish Nirankari v. State of Rajasthan, (2017) 8 SCC 497 , has held that it is now well established, by a catena of judgments of this Court, that circumstantial evidence of the following character needs to be fully established: (i) Circumstances should be fully proved. (ii) Circumstances should be conclusive in nature. (iii) All the facts established should be consistent only with the hypothesis of guilt. (iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused (see State of U.P. v. Ravindra Prakash Mittal, (1992) 3 SCC 300 ; Chandrakant Chimanlal Desai v. State of Gujarat, (1992) 1 SCC 473 ). It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence, the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person. The following tests laid down in Padala Veera Reddy v. State of A.P., (1991) SCC (Cri) 407 also need to be kept in mind: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." Sir Alfred Wills in his book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: "(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and if there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." 14. Explanation given by the appellant is incompatible. Explanation given by the appellant is incompatible. From the fact that the dead body was buried in the inner room of the house of the appellant, the only conclusion can be drawn that the appellant has caused death of Sushila. Supreme Court in Pershadi v. State of U.P., AIR 1957 SC 211 , State of M.P. v. Ratan Lal, AIR 1994 SC 458 , Anthony D'Souza v. State of Karnataka, (2003) 1 SCC 259 and Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 , has held that where an accused furnishes false answers as regards proved facts, the Court ought to draw an adverse inference qua him and such an inference shall become an additional circumstance to prove the guilt of the accused. In this regard, the prosecution seeks to place reliance on the judgments of this Court in where this Court has drawn an adverse inference for wrong answers given by the appellant under Section 313 CrPC. 15. However, Supreme Court in State of M.P. v. Shivshankar, (2014) 10 SCC 366 , has held that help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight' occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. 16. Although, in the present case, the prosecution tried to prove that murder of Sushila was committed due to non-fulfillment of demand of Rs. 20000/- made by the appellant. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. 16. Although, in the present case, the prosecution tried to prove that murder of Sushila was committed due to non-fulfillment of demand of Rs. 20000/- made by the appellant. But the allegation in this respect is vague. On the other hand it has been accepted to Ram Autar and Kamal Singh (PW-1 and 2) that 9 years has passed after marriage and from this matrimonial relation, Sushila had three issues. Kamal Singh (PW-2) has stated that the deceased had open a grocery shop in one room of her house, from which she was earning her livelihood. Thus it is admitted that the family of the appellant had some source of livelihood. Postmortem report shows that apart from ligature mark on the neck, there were three contusion and one abrasion on the body of the deceased, which might have been caused due to resistance at the time of strangulation. It was a case of sudden fight between husband and wife and the case falls within Exception IV to Section 300 Cr.P.C. 17. In the result, the appeal partly succeeds and is partly allowed. The judgment and sentence passed by Additional Session's Judge, Court No. 11, Meerut, dated 05.09.2008, in S.T. No. 369 of 2007, State vs. Gajendra (arising out of Case Crime No. 7 of 2007, under Section 302, 201 IPC, P.S. Kharkhauda, district Meerut), is partly modified to the extent that the appellant is convicted under Section 304 Part-I and 201 IPC and awarded sentence of ten years rigorous imprisonment under Section 304 IPC and sentence Section 201 IPC is upheld. As the sentence is already undergone by the appellant, the appellant is set at liberty forthwith.