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2019 DIGILAW 1207 (ALL)

Urmla v. State of U. P.

2019-05-06

B.K.NARAYANA, GHANDIKOTA SRI DEVI

body2019
JUDGMENT : B.K. Narayana, J. 1. Heard Sri I.K. Chaturvedi, learned counsel for the appellant No. 1, Sri Rishikesh Tripathi, learned counsel for the appellant No. 2 and Sri Indrapal Singh Rajput, learned A.G.A. for the State assisted by Sri Rajnish Pandey, State Law Officer. 2. This criminal has been preferred by Smt. Urmila (A1) and Durjan (A2) against the judgment and order dated 28.4.1989 passed by Sessions Judge, Banda in S.T. No. 150 of 1988, "State v. Smt. Urmila and another", by which the appellants have been convicted and sentenced to imprisonment for life under Section 302/34 I.P.C. and three years rigorous imprisonment under Section 201 I.P.C. Both the sentences were directed to run concurrently. 3. Briefly stated the facts of this case are that Avadh Lal Verma, resident of village-Lohra used to run his own school in village-Pachokhar. He resided in a house as a tenant situate in Mohalla Naraini Road Atarra alongwith his wife Smt. Urmila (A1) and four children, the eldest of whom was P.W. I Ritesh Kumar aged about 10 years. Durjan (A2) who was a student of M.Sc. in Atarra college, also lived in a room in this house. According to the prosecution story, Smt. Urmila (A1) developed illicit relation with Durjan (A2). Avadh Lal Verma got angry after knowing about this relationship. In March 1988, Smt. Urmila (A1) was appearing in High School Examination. In the intervening night of 14/15.3.1988, Avadh Lal Verma slept in his room. To the south of his room was the room of Durjan's (A2). The doors of his room opened towards east in the Courtyard. Smt. Urmila (A1) and her children were sleeping on separate cots in this Courtyard. In the morning on 15.3.1988 when the room of Avadh Lal Verma was found bolted from inside and nobody responded to the knocks, neighbours came and tried to get the house opened. Meanwhile some students of Avadh Lal Verma arrived. One of them inserted his hand in the crevice between the two door leaves and removed the chain. It was found that the dead body of Avadh Lal Verma was hanging from the roof with his neck tied with a saree. His dead body was then brought down and it was ascertained that he was dead. Thereafter Smt. Urmila (A1) dictated the written report (Ext. It was found that the dead body of Avadh Lal Verma was hanging from the roof with his neck tied with a saree. His dead body was then brought down and it was ascertained that he was dead. Thereafter Smt. Urmila (A1) dictated the written report (Ext. Ka.1) to P.W. 3 Kamlesh Kumar Dixit and lodged it at P.S. Atarra, District-Banda at 11 a.m. on 15.3.1988. In the F.I.R., it was alleged that Avadh Lal Verma had committed suicide because of financial trouble and he died at about 6.30 a.m. when Smt. Urmila (A1) was preparing to leave for examination. 4. P.W. 11 S.I. Raj Narain Tiwari, the Investigating Officer of the case, visited the place of occurrence and conducted inquest on the body of Avadh Lal Verma. He also proved the inquest report, letter addressed to C.M.O., letter addressed to R.I., challan lash, sample seal and photo lash as (Exts. Ka.2 to Ka. 10). He after recording the statements of the witnesses, inspected the place of occurrence and prepared its site plan (Ext. Ka.12). He then got the dead body sealed and dispatched for postmortem examination alongwith necessary papers. 5. P.W. 10 Constable Ram Hari Lal deposed that he had got the dead body of Avadh Lal Verma in a sealed state from P.W. 11 S.I. Raj Narain Tiwari on 15.3.1988 at Naraini Road alongwith papers at 12 noon which he had brought to Banda alongwith home-guard and delivered it to the doctor on 16.3.1988 safely. 6. Postmortem on the body of Avadh Lal Verma was conducted by P.W. 6 Dr. Ashok Upadhyay at 12 p.m. on 16.3.1988. Following ante-mortem injuries were noted by him on the person of Avadh Lal Verma: (1) Ligature mark at level of thyroid cartilage measuring 32 x 1 cm, 6 cms. below right ear and 5 1/2 cms. below left ear encircling the neck horizontally and completely. The base of groove is reddish with ecchymosed margins and extravasation of blood in sub-cutaneous tissue under notch. Larynx and trachea congested. Rings of trachea fractured. Cornu of hyoid bone (both) fractured. Internal cord of carotid arteries ruptured. (2) Linear abrasion 2 cms. x 0.1 cm. on left hand dorsum aspect obliquely placed 2 cms. below root of index finger. (3) Contusion on tips of all fingers of both hands. (excluding thumb) measuring 2 cms. x 1 1/2 cms. on each finger. Rings of trachea fractured. Cornu of hyoid bone (both) fractured. Internal cord of carotid arteries ruptured. (2) Linear abrasion 2 cms. x 0.1 cm. on left hand dorsum aspect obliquely placed 2 cms. below root of index finger. (3) Contusion on tips of all fingers of both hands. (excluding thumb) measuring 2 cms. x 1 1/2 cms. on each finger. (4) No injury/abrasion/contusion on both feet or leg. 7. According to P.W. 6 Dr. Ashok Upadhyay, the cause of death of Avadh Lal Verma was asphyxia as a result of strangulation. 8. After completion of the investigation, the Investigating Officer submitted charge-sheet against both the accused before the Chief Judicial Magistrate, Banda which was filed by S.O. Mahima Rai as (Ext. Ka.13). 9. Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Banda committed the accused for trial to the Court of Sessions Judge, Banda where Case Crime No. 53 of 1988 was registered as S.T. No. 150 of 1988, "State v. Smt. Urmila and another", and made over for trial from there to the Court of Sessions Judge, Banda who on the basis of material collected during the investigation and after hearing the prosecution as well as the accused on the point of charge, framed charge under Section 302/34 & 201 I.P.C. against both the accused-appellants who abjured the charges framed against them and claimed trial. 10. The prosecution in order to prove its case against the accused-appellants examined as many as eleven witnesses out of whom P.W. 1 Ritesh Kumar, son of the deceased Avadh Lal Verma, P.W. 2 Tungnath, son-in-law of brother of deceased, P.W. 3 Kamlesh Kumar Dixit, scribe of the F.I.R., P.W. 4 Mohan Lal, next door neighbour of accused and deceased, P.W. 5 Shri Pal, student of the deceased, P.W. 7 Santosh Kumar, another student of the deceased and P.W. 8 Radha Krishna whose son was taught by the deceased, were examined as witnesses of fact while P.W. 6 Dr. Ashok Upadhyay, who had conducted postmortem on the body of Avadh Lal Verma and prepared the postmortem report (Ext. Ashok Upadhyay, who had conducted postmortem on the body of Avadh Lal Verma and prepared the postmortem report (Ext. Ka.4), P.W. 10 Constable Ram Hari Lal who had taken the body of deceased from the place of occurrence after the inquest and handed it over to the doctor for postmortem examination on 16.3.1988 and P.W. 11 S.I. Raj Narain Tiwari, the Investigating Officer of the case, who proved the check F.I.R. and G.D. Entry of Case Crime No. 53 of 1988 as (Exts. Ka.1 and Ka.5), inquest report, letters addressed to C.M.O. and R.I., challan lash, specimen seal and photo lash as (Exts. Ka.2 to Ka.10), recovery memo of one saree seized and sealed from the place of occurrence as (Ext. Ka.3), G.D. No. 14 as (Ext. Ka.11), site plan of the place of occurrence as (Ext. Ka.12) and charge-sheet as (Ext. ka.13), were produced as formal witnesses. 11. The accused-appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution case and alleged false implication due to previous enmity. 12. Learned Sessions Judge, Banda, after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted both the appellants and awarded aforesaid sentences to them. 13. Hence, this appeal. 14. It is contended by Sri I.K. Chaturvedi, learned counsel for the appellants that the instant case is based upon circumstantial evidence and the circumstances which have been relied upon by the prosecution do not establish the guilt of the appellants and the same are not of conclusive nature and do not exclude all possible hypothesis except that of the guilt of the appellants. In the instant case, the chain of evidence is not so complete so as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. The hearsay last seen evidence of P.W. 1 Ritesh Kumar is not at all sufficient to link the appellants with the crime in question. He further submitted that the prosecution has miserably failed to prove the motive for the appellants to commit the murder of the deceased which assumes considerable relevance in a case based upon circumstantial evidence. Neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and are liable to be set-aside. 15. He further submitted that the prosecution has miserably failed to prove the motive for the appellants to commit the murder of the deceased which assumes considerable relevance in a case based upon circumstantial evidence. Neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and are liable to be set-aside. 15. Per contra Sri Indrapal Singh Rajput, learned A.G.A. appearing for the State submitted that it is proved from the facts and circumstances of the case and the evidence on record that the deceased was strangulated to death by the appellants who were having an illicit affair, and then hanged and locked him in his room by them. The postmortem report of the deceased does not corroborate the prosecution theory of suicide. This appeal lacks merit and is liable to be dismissed. 16. There is no dispute about the fact that the instant case is based upon circumstantial evidence as P.W. 1 Ritesh, the only eye-witness of the occurrence had turned hostile during the trial and failed to support the prosecution case. 17. The Apex Court in the case of Reena Hazarika v. State of Assam, 2018 Law Suit (SC) 1108, in paragraph 8 has indicated how the case based upon circumstantial evidence should be dealt with. The said paragraph is being reproduced here in below: "The essentials of circumstantial evidence stand well established by precedents and we do not consider it necessary to reiterate the same and burden the order un-necessarily. Suffice it to observe that in a case of circumstantial evidence, the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given." 18. We now proceed to evaluate the evidence on record on the touchstone of the aforesaid principles. 19. Record shows that the police had come up with a case that in the morning on the date of the occurrence, the deceased had got up and after attending natural calls and having his bath, he was taking tea with the appellants when all of a sudden, the appellants attacked Avadh Lal Verma and committed his murder by strangulating him. Record further shows that during investigation, P.W. 1 Ritesh and his younger brother were examined as eye-witnesses of the occurrence and that Smt. Urmila (A1) had allegedly confessed having committed the murder of deceased before Tungnath and P.W. 8 Radha Krishna. 20. Record further shows that these witnesses did not support the aforesaid version of the police. As a result, the aforesaid witnesses were declared hostile and the D.G.C. (Criminal) cross-examined them, confronting them with their statements recorded under Section 161 Cr.P.C. in which they had supported the version of the occurrence put forth by the police. 21. There is absolutely no dispute about the factual position that the room in which the deceased had committed suicide or was murdered was locked from inside and the latch of the door could be opened from outside only with the help of small kid whose palms with great difficulty went through the crevice of the two doors and when the door of the room was opened, the deceased was found dead hanging from the roof of the room with a saree wrapped around his neck. His toes touched the floor of the room. 22. His toes touched the floor of the room. 22. P.W. 1 Ritesh Kumar, son of the deceased Avadh Lal Verma and Smt. Urmila (A1) was examined by the prosecution as eye-witnesses of the incident but he failed to support the prosecution case in his examination-in-chief itself and was declared hostile. When he was contradicted with his statement recorded under Section 161 Cr.P.C. in which he had stated that "on the date of the incident, he was present in his home with his family; in the morning when his father got up, after taking his bath, brushed his hair and asked his mother Smt. Urmila (A1) to bring a cup of tea for him, Durjan (A2) pressed the neck of his father while his mother Smt. Urmila (A1) mounted on his chest. Durjan (A2), his father deceased Avadh Lal Verma and his mother Smt. Urmila (A1) were sitting and taking tea together, later leaving his father and closing the door of the room from the outside, she sent him to neighbour's house. His mother used to eat with Durjan (A2) and go to cinema hall with him. His father did not approve of the aforesaid activities; he was locked somewhere else and due to fear, he did not make any noise", he denied having given such statement to the Investigating Officer. He denied that his mother and Durjan (A2) had strangulated his father to death and he was giving false evidence at the instance of his maternal uncle to save his mother. He further deposed that when he woke up in the morning, his mother was present in the house while Durjan (A2) had gone to study. 23. As far as P.W. 2 Tungnath who is the son-in-law of Gulzari Lal, real brother of deceased is concerned, he stated that "he had gone to visit the house of Avadh Lal Verma on 14.3.1988 at 8 p.m. At that time, Avadh Lal Verma and his wife were quarrelling over some matter. She was insisting to go to her paternal home while Avadh Lal Verma was against it. He further stated that the two used to quarrel often. She was insisting to go to her paternal home while Avadh Lal Verma was against it. He further stated that the two used to quarrel often. He further stated that on 15.3.1988 on 6 a.m., Durjan (A2) had come to his house and told him that Smt. Urmila (A1) had called him and when he enquired about the reason why Smt. Urmila (A1) had called him, he said that he did not know. He went to the house of Avadh Lal Verma with Durjan (A2). When he reached there, he found that although Smt. Urmila (A1) was present in her house but the children were not present there. When he asked Smt. Urmila (A1) why she had called him, she told him that his uncle was missing on which he said that did she want him to search him and whether they had quarrelled. Smt. Urmila (A1) kept quiet for sometime and then told him that the bedroom of deceased was locked from inside and when he and Durjan (A2) tried to open it, they could not succeed. In the meantime, some children came and one of them unlatched the door by shoving his hand between the narrow crevice of the doors. The children belonged to Pachokhar and they had come to enquire where was their teacher (Avadh Lal Verma) on which Smt. Urmila (A1) had told them that he was not there. As soon as he entered the room, he saw the dead body of (Avadh Lal Verma) hanging from the roof of the room with a saree tied around his neck. His legs were half bent and touching the ground. The dead body was not hanging in the air. When he enquired from Smt. Urmila (A1) what was the matter, she fell on his toes and requested him not to tell anybody as it was the question of her life and death. Apart from that, she did not tell him anything else." Upon being confronted in his cross-examination by the D.G.C. (Criminal) with his statement recorded under Section 161 Cr.P.C. in which he had stated that Smt. Urmila (A1) had confessed before him about committing the murder of (Avadh Lal Verma) at the behest of Durjan (A2), he denied having made any such statement before the Investigating Officer. 24. P.W. 3 Kamlesh Kumar Dixit who was the scribe of the F.I.R., proved the same as (Ext. Ka.1). 24. P.W. 3 Kamlesh Kumar Dixit who was the scribe of the F.I.R., proved the same as (Ext. Ka.1). He also proved the recovery memo of the saree as (Ext. Ka.3) with which the deceased had been hanged. 25. P.W. 4 Mohan Lal stated before the trial Court that on the date preceding the date of occurrence, he had heard Avadh Lal Verma and Smt. Urmila (A1) quarrelling with each other over Smt. Urmila's (A1) insisting to go to her matrimonial home in the presence of P.W. 2 Tungnath, had pacified them. On the next morning, the dead body of Avadh Lal Verma was found lying in his room. He had himself not seen the dead body. 26. P.W. 5 Shri Pal deposed that when he had come to the house of Avadh Lal Verma to enquire why he had not gone to' school on 15.3.1988, he had met both the appellants. Smt. Urmila (A1) had told him that "Master Sahab was not in the house and had gone somewhere and had asked Radha Krishna to come to her house. He had conveyed the message of Smt. Urmila (A1) to Radha Krishna." 27. P.W. 6 Dr. Ashok Upadhyaya who had conducted the postmortem on the body of the deceased, prepared and proved her postmortem report as (Ext. Ka.4). In his statement recorded during the trial, he deposed that he had conducted the postmortem on the body of deceased on 16.3.1988 at 12 p.m. According to him, the deceased had died as a result of asphyxia due to strangulation. In his cross-examination, he deposed that if someone commits suicide, in that case, hyoid bone cannot be fractured except in case of judicial orders and fracture of hyoid bone is not possible in any other case of hanging. 28. Santosh Kumar, student of deceased Avadh Lal Verma who had opened the room from which the dead body of deceased was recovered by putting his hand through the crevice of the two leaves of the door, was examined as P.W. 7. He in his evidence proved the aforesaid fact. In his cross-examination, he denied having seen the incident: 29. P.W. 8 Radha Krishna deposed that he knew Avadh Lal Verma because he belonged to Pachokhar and imparted tuition to his son. He in his evidence proved the aforesaid fact. In his cross-examination, he denied having seen the incident: 29. P.W. 8 Radha Krishna deposed that he knew Avadh Lal Verma because he belonged to Pachokhar and imparted tuition to his son. He stated that he was called by Smt. Urmila (A1) and P.W. 5 Shri Pal and on reaching the house of deceased, he had found Smt. Urmila (A1) weeping. Smt. Urmila (A1) showed the dead body to him and when he advised her to lodge the F.I.R., she simply complained about herself and her sons being unnecessarily involved and requested him to help her. He denied that Smt. Urmila (A1) had made any confession to him. He also stated that when he had reached the place of occurrence, the dead body had already been brought down and was lying on the floor. 30. Although it is proved from the medical evidence on record that in all likelihood the death of deceased was homicidal and not suicidal but the moot question which arises is whether his murder was committed by the appellants. There is no eye-witness of murder. P.W. 1 Ritesh Kumar, son of the deceased and Smt. Urmila (A1), who was produced as eye-witness of the occurrence had failed to support the prosecution case and was declared hostile. Similarly, P.W. 2 Tungnath and P.W. 4 Mohan Lal who were examined by the prosecution to prove that Smt. Urmila (A1) had made an extra-judicial confession before them to the effect that she had at the instigation of Durjan (A2), committed the murder of her husband, also failed to support the prosecution case and were declared hostile. They were contradicted by the D.G.C. (Criminal) in their cross-examination with their statement recorded under Section 161 Cr.P.C. in which they had supported the prosecution case. They however, denied having made any such statement before the Investigating Officer. Strangely, the Investigating Officer was not confronted with the statements of P.W. I Ritesh Kumar, P.W. 2 Tungnath and P.W. 8 Radha Krishna recorded during the trial in which they had denied having made any such statement before the Investigating Officer supporting the prosecution story. Their statements recorded under Section 161 Cr.P.C. were not proved. 31. Strangely, the Investigating Officer was not confronted with the statements of P.W. I Ritesh Kumar, P.W. 2 Tungnath and P.W. 8 Radha Krishna recorded during the trial in which they had denied having made any such statement before the Investigating Officer supporting the prosecution story. Their statements recorded under Section 161 Cr.P.C. were not proved. 31. Upon a careful scrutiny of the testimony of the witnesses of fact produced by the prosecution during the trial, it is merely proved that on the evening preceding the date of occurrence, some quarrel between the deceased and his wife had taken place which was straightened with the intervention of neighbours. This was however, not an isolated occasion and both husband and wife were often seen arguing. 32. It is also established from the evidence of P.W. 2 Tungnath and P.W. 8 Radha Krishna that Smt. Urmila (A1) had broken down before them and requested them to help her and her children. The aforesaid facts in our opinion, are not sufficient to establish the guilt of the appellants. From the evidence of P.W. 2 Tungnath, it is also proved that he could not open the latch of the room from outside and the latch of the doors could be removed only with the help of P.W. 7 Santosh Kumar who on the date of the incident was aged about 14 years. Looking at the facts and circumstances of the case and the evidence on record in its totality, we find that although the medical evidence on record does not establish that the deceased had committed suicide but at the same time, it is also proved that the room in which the body of the deceased was found hanging from the roof with a saree tied around his neck was latched from inside. The evidence adduced by the prosecution during the trial is not at all sufficient to fasten the guilt of the murder of deceased on accused-appellants. The prosecution has also failed to prove the motive for the appellants to commit the murder of Avadh Lal Verma. 33. We have also very carefully perused the site plan of the place of incident which has been brought on record and proved as (Ext. Ka.13). The prosecution has also failed to prove the motive for the appellants to commit the murder of Avadh Lal Verma. 33. We have also very carefully perused the site plan of the place of incident which has been brought on record and proved as (Ext. Ka.13). We find that the topography of the house of the deceased is not such so as to totally rule out the accessibility of the deceased's house in the night to a stranger. 34. Thus, in view of the foregoing discussion, we are satisfied that the links in the chain of circumstances in this case based on circumstantial evidence cannot be said to have been established leading to the inescapable conclusion that the appellants were the authors of the crime, incompatible with any possibility of innocence of the appellants. The possibility of the occurrence having taken place in some other manner, cannot be completely ruled out. The appellants are therefore held entitled to acquittal on the benefit of doubt. 35. The appeal accordingly succeeds and is allowed. 36. Smt. Urmila (A1) and Durjan (A2) are on bail. They heed not surrender. Their bail bonds are cancelled and their sureties discharged. However, they shall comply with the provisions of Section 437-A of Cr.P.C. There shall however, be no order as to costs.