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2019 DIGILAW 2143 (ALL)

Sita @ Satish v. State Of U. P.

2019-09-16

PRITINKER DIWAKER, RAJ BEER SINGH

body2019
JUDGMENT : Pritinker Diwaker, J 1. This appeal arises out of impugned judgment and order dated 10.02.1984 passed by Additional Sessions Judge, Ballia in Sessions Trial No. 164 of 1982 (State Vs. Sita @ Satish and Others), convicting accused-appellant no. 1 Sita @ Satish under Section 302 read with Section 201 of I.P.C. and sentencing him to undergo imprisonment for life and seven years rigorous imprisonment and convicting accused-appellant no. 2 Samarajia under Sections 302/34 of IPC and sentencing her to undergo imprisonment for life with a direction that all the sentences to run concurrently. 2. In the present case, name of deceased is Smt. Salavi, wife of accused-appellant no. 1 Sita @ Satish. Appellant no. 2 Samarajia is a mother-in-law of the deceased. Marriage of accused no. 1 was solemnized with the deceased about 20 years back and she died on 11.05.1980 at about 12.00 noon after suffering burn injuries. Postmortem of the deceased could not be conducted as she was cremated without there being any report to the police. On the basis of written report Ex.Ka-1 dated 14.05.1980, lodged by Jai Karan (PW-1), father of the deceased, after the intervention of Dy.S.P., on 04.08.1980, FIR Ex.Ka-7 was registered against the appellants and two other acquitted accused persons under Sections 302 and 201 of I.P.C. Further case of the prosecution is that immediately after the marriage, the appellant had deserted his wife for which, legal proceedings were initiated against him and ultimately compromise was arrived at between the appellant no. 1 Sita @ Satish and his wife Salavi and then the appellant no. 1 had taken her to his house. It is further said that at the time of death of the deceased, she was carrying pregnancy. In the Court, the prosecution has come up with a story that after being burnt, the deceased was taken out from the room and then she made oral dying declaration before Deo Saran Verma (PW-2), Hausala Devi (PW-3) and Badaruddin (PW-4) that she was burnt by the accused persons. 3. While framing charge, the trial Judge has framed charge against all the accused-appellants under Sections 302/34 and 201 of I.P.C. 4. So as to hold accused appellants guilty, prosecution has examined six witnesses whereas three defence witnesses have also been examined. Statements of accused-appellants were also recorded under Section 313 of Cr.P.C. in which they pleaded their innocence and false implication. 5. So as to hold accused appellants guilty, prosecution has examined six witnesses whereas three defence witnesses have also been examined. Statements of accused-appellants were also recorded under Section 313 of Cr.P.C. in which they pleaded their innocence and false implication. 5. By the impugned judgment, the trial Judge has acquitted accused no. 2 Jotia and accused no. 3 Smt. Tileshwari but has convicted accused-appellant no. 1 Sita @ Satish and accused-appellant no. 4 Smt. Samarajia as mentioned in paragraph no. 1 of this judgment. Hence this appeal. 6. Learned counsel for the appellants submits: (i) that there is no eye witness account to the incident and the appellants have been convicted solely on the basis of weak circumstantial evidence. (ii) that the evidence of so called oral dying declaration made by the deceased is very weak and it is not clear as to whether she was in a fit state of mind to make such statement. (iii) that affidavits of Deo Saran Verma (PW-2), Hausala Devi (PW-3) and Badaruddin (PW-4) were recorded by the police on 20.09.1980 and thus, there is inordinate delay of more than five months in recording the same. It has been argued that had there been any oral dying declaration made by the deceased before the villagers, a prompt report ought to have been lodged and responsible person of the village like village 'Chaukidar' or other important witnesses could have been examined by the Court. (iv) that no incriminating article has been seized from the place of occurrence. (v) that homicidal death of the deceased has not been proved by the prosecution. (vi) that defence witnesses have categorically stated that the deceased died accidental death. (vii) that incident occurred about 39 years back and throughout the accused-persons were on bail and no useful purpose would be served in sending them behind the bar on the basis of weak circumstantial evidence collected by the prosecution. 7. On the other hand, supporting the impugned judgment, it has been argued by the State counsel that the conviction of the appellants is in accordance with law and there is no infirmity in the same. He submits that conduct of the appellants becomes very important where instead of informing the police about the burn incident and the death of the deceased, the appellants decided to cremate her body and thus evidence has been destroyed by them. He submits that conduct of the appellants becomes very important where instead of informing the police about the burn incident and the death of the deceased, the appellants decided to cremate her body and thus evidence has been destroyed by them. Even on the basis of oral dying declaration made by the deceased, appellants can be convicted. 8. We have heard learned counsel for the parties and perused the record. 9. Jai Karan (PW-1) is a father of the deceased, who lodged the written report Ex.Ka.-1 on 14.05.1980. He has stated that about 20 years back marriage of the deceased was solemnized with appellant no.1 Sita @ Satish and after five years of the marriage, 'Gauna' ceremony was performed. The deceased was suffering from scrofula for which she was treated by him and thereafter she was treated by the accused persons. He states that accused-appellant no.1 had sent the deceased back to her house by saying that he would perform second marriage and a letter to this effect, was also sent by him (however, no such letter is on record). He further states that he came to know about the death of the deceased on 12.05.1980 that the deceased died after suffering burn injury on 11.05.1980. When he reached to the village of the accused persons, he came to know that deceased was burnt by the accused persons and when the police did not register his report, he approached the concerned Dy.S.P. and accordingly, the FIR was registered. He states that there was no enmity between the two families and whenever he visited the house of accused persons, he was treated well. He further states that there was no previous complaint by the deceased against any of the accused-person. He further states that on 12.05.1980, somebody had informed him that his daughter was burnt but he is not aware about the name of the said person. 10. Dev Saran Verma (PW-2) is a resident of the same village where the accused persons were residing. He states that marriage of the deceased was solemnized with accused no.1 Sita @ Satish about 23-24 years back and that on the date of incident, he saw smoke coming out from the house of the appellants and number of villagers reached there. While the deceased was being taken out from the room, she informed Hausala Devi (PW-3) that she was burnt by the accused persons. While the deceased was being taken out from the room, she informed Hausala Devi (PW-3) that she was burnt by the accused persons. He states that thereafter deceased was cremated by the accused persons. He further states that he was never questioned by the Investigating Officer and if any such statement is recorded that may be by the police himself. He has clarified that he had merely given an affidavit to the police. It is relevant to mention here that affidavit given by this witness is dated 20.09.1980 wherein he mentions about the so called oral dying declaration made by the deceased before PW-3 and other villagers. He has further clarified that during this period, he never met any police though they used to visit the village. 11. Hausala Devi (PW-3) is also a resident of appellants' village. She states that along with other villagers, she also reached to the house of accused persons, the door of the house was opened, the deceased was brought outside the room and then she informed that after tying her up, she was burnt by the accused persons. In paragraph no.8, she has stated that she was not having good relation with the accused persons and they were not in talking terms. She also states that before the date of her affidavit i.e. dated 20.09.1980, she never made any complaint to any of the police officer. 12. Badaruddin (PW-4) is also a witness of so called oral dying declaration made by the deceased before Hausala Devi (PW-3), his statement was also recorded on 20.09.1980. 13. Dina Nath Mishra (PW-5) is an Investigating Officer of the case. Sunil Kumar Ojha (PW-6) is a police constable, who assisted during investigation. 14. Awadhesh Singh (DW-1) is a resident of the same village where the accused persons were residing. He states that deceased was taken out from the room where she suffered burn injury but she had not made any such dying declaration. He states that after about 2-4 days of the incident, accused-appellant no.1 Sita @ Satish came to him and informed about the illegal demand made by the police and the threat extended to him for implicating in a false case. DW-1 has further stated that after hearing the cries of accused Samarajia, the villagers reached there, extinguished the fire and noticed that the place where the incident had taken place, was a kitchen. 15. DW-1 has further stated that after hearing the cries of accused Samarajia, the villagers reached there, extinguished the fire and noticed that the place where the incident had taken place, was a kitchen. 15. Radha Singh (DW-2) has also stated that no such oral dying declaration was made by the deceased. Parmanand (DW-3) has not stated anything specific. 16. Close scrutiny of the evidence makes it clear that marriage of deceased was solemnized with accused no.1 Sita @ Satish about 20 years back prior to date of incident i.e. 11.05.1980. The deceased died after suffering burn injury, however, her postmortem could not be done and she was cremated prior to that. True it is that this conduct of the accused persons goes against them but merely on this basis they cannot be convicted unless there is cogent and admissible evidence available against them. 17. The main piece of evidence against the accused persons are the so called oral dying declaration made by the deceased before Hausala Devi (PW3), which was heard by Deo Saran Verma (PW-2) and Badaruddin (PW-4). Deo Saran Verma (PW-2), Hausala Devi (PW-3) and Badaruddin (PW-4) kept quite till 20.09.1980 and only on 20.09.1980 they gave affidavit before the police about the so called oral dying declaration made by the deceased. They admit that before they gave their affidavit, the police used to visit the village but why they kept quite for about four months, has not been answered by the prosecution. It is the case of the prosecution that after the intervention of the superior officer, the FIR was registered but there is no explanation as to any attempt was made by the witnesses to record their statements before the police. Merely on the basis of so called oral dying declaration made by the deceased, considering the facts and circumstances of the present case, it will not be safe for this Court to uphold the conviction of the accused persons. No incriminating article has been seized by the prosecution and there is no other evidence supporting the so called oral dying declaration of the deceased. One of the witnesses of oral dying declaration Hausala Devi (PW-3), has admitted that she was not having talking terms with the accused-persons. No incriminating article has been seized by the prosecution and there is no other evidence supporting the so called oral dying declaration of the deceased. One of the witnesses of oral dying declaration Hausala Devi (PW-3), has admitted that she was not having talking terms with the accused-persons. Further as per defence witnesses, deceased was not in a position to make any statement and thus, it is difficult to hold that she could have made any oral dying declaration before the villagers. 18. Circumstantial evidence available on record is not good enough to hold the conviction of the accused-appellants. Law in respect of circumstantial evidence is very clear. 19. In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 3 SCC 210 , the Supreme Court, while dealing with circumstantial evidence, observed as under: “11. In Hanumant Govind Nargundkar v. State of M.P. [ AIR 1952 SC 343 ], which is one of the earliest decisions on the subject, this court observed as under: “10. …... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 12. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 12. In Padala Veera Reddy v. State of AP [(1989) Supp (2) SCC 706], this court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: “(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.” 13. In Sharad Birdhichand Sarda v. State of Maharashtra [ (1984) 4 SCC 116 ], it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) 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; (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.” 20. In S. Govindaraju v State of Karnataka, (2013) 15 SCC 315 the Apex Court, while dealing with circumstantial evidence, observed as under: “29. In S. Govindaraju v State of Karnataka, (2013) 15 SCC 315 the Apex Court, while dealing with circumstantial evidence, observed as under: “29. It is obligatory on the part of the accused while being examined under Section 313 of Cr PC to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide: Munish Mabar v. State of Haryana, AIR 2013 SC 912 ). 31. The prosecution successfully proved its case and, therefore, provisions of Section 113 of the Evidence Act, 1872 come into play. The appellant/accused did not make any attempt, whatsoever, to rebut the said presumption contained therein. More so, Shanthi, deceased died in the house of the appellant. He did not disclose as where he had been at the time of incident. In such a fact situation, the provisions of Section 106 of the Evidence Act may also be made applicable as the appellant/accused had special knowledge regarding such facts, though he failed to furnish any explanation thus, the court could draw an adverse inference against him.” 21. Recently, in Devi Lal vs. State of Rajasthan, Criminal Appeal No.148 of 2010, decided on 08.01.2019 the Supreme Court, while dealing with circumstantial evidence, observed as under: 14. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116 . The relevant excerpts from para 153 of the decision is assuredly apposite: 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The relevant excerpts from para 153 of the decision is assuredly apposite: 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra [ (1973) 2 SCC 793 where the observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) 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, (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." 22. It has further been considered by Apex Court in Sujit Biswas Vs. State of Assam 2013(12) SCC 406 and Raja alias Rajinder Vs. State of Haryana 2015(11) SCC 43 that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused." 23. Considering all the aspects of the case and taking the cumulative effect of the evidence, we are of the view that the prosecution has failed to prove its case against the accused-appellants beyond reasonable doubt and of course it is the accused-appellants, who are entitled to get benefit of doubt. 24. Resultantly, the appeal is allowed. Appellants are reported to be on bail, therefore, no further order is required.