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2019 DIGILAW 447 (ALL)

Sita Devi v. State of U. P.

2019-02-20

PANKAJ NAQVI, UMESH KUMAR

body2019
JUDGMENT : Pankaj Naqvi, J. 1. This criminal appeal assails the judgment and order dated 8.7.2005 passed by Addl. District & Sessions Judge, Court No. 14, Allahabad in S.T. No. 907 of 2003, convicting the appellant under Section 302 IPC to life imprisonment with fine of Rs. 10,000/- and a default sentence of 1 year and under Section 201 IPC to 2 years R.I. with fine of Rs. 1000/- and a default sentence of one month. Both the sentences were to run concurrently. The prosecution case unfolds as under:- The daughter of PW-1 (informant), aged about 4 years went missing on 16.6.2003, while playing near the house of the accused Sita Devi. PW-1 along with his family members made frantic searches for the daughter but without any success. PW-1 alleged that the accused Sita Devi is a woman of easy virtues, in relationship with co-accused Sant Lal, the daughter of PW-1 while playing at the house of accused-Sita Devi, picked up a quarrel with her daughter. On suspicion of involvement of both the accused, PW-1 along with co-villagers including Shiv Mangal (PW-4 the scribe) and Ramraj (PW-3) went to the house of accused Sita Devi to find a tin canister, containing the body of the deceased daughter in boiled state at around 7 on 18.6.2003 at around 7 A.M. while accused Sita Devi was present in her house. She confessed that she along with co-accused Sant Lal strangulated the victim to death and were in the process of disposing the body. PW-1 alleged that right from day one, needle of suspicion was on Sita Devi, who was brought to the police station. 2. On above allegations, a written report (Exbt. Ka-1) dated 18.6.2003, scribed by PW-4, came to be lodged which generated an FIR on the same day as Case Crime No. 182 of 2003, under Sections 302, 201 IPC at 10:30 P.M. 3. PW-9 the I.O. on 18.6.2006 recorded the statement of the informant, the accused, inspected the scene and directed PW-8 to conduct the inquest of the body of the deceased, found in the house of accused in a tin canister in a boiling state with Mahua extract (a fruit source for country-made liquor) over an earthen stove. PW-9 authenticated the site-plan (Exbt. Ka-13). PW-9 authenticated the site-plan (Exbt. Ka-13). He carried out other investigational formalities including the preparation of a recovery memo of the despatch of the tin canister and submission of a charge sheet against Sita Devi and Santu @ Sant Lal. 4. PW-8 the S.H.O. prepared the inquest (Exbt. Ka-2) in presence of witnesses, which commenced on 18.6.2003 at 11:30 A.M., and concluded at 12:30 P.M. The inquest indicated the condition of the body of the victim, English translation (by us) as under:- Body Inspection:- The body of the victim Km. Mohini was found in a tin canister in a boiled state with folded knees and neck. The body had been boiled in water. The body was taken out from the canister, which revealed that the soles and palms were disjointed. Neck/head was twisted, skin over right clavicle region had been peeled off. Eyes were closed but mouth was open. The left wrist had 8 bangles and right 4 bangles. Victim wore a light blue colour underwear, posterior region of the head was hairless, while anterior had hair. Features:- On account of body in a boiled state, colour of the body was not discernible, both the soles and palms were disjointed. Victim was around 4 years. Injuries:- Both the soles and palms were disjointed, neck hanging. On account of boiling of the body, chest and cheeks were wounded, skin over right clavicle region had been peeled off, autopsy be carried out to ascertain the cause of death. Clothes:- One light blue colour undergarment and one light Katthai (brown) colour vest. The right wrist had 4 bangles and the left 8 bangles. Opinion of Panch:- The Panch opined that after killing the victim, she was put in the canister, which contained Mahua, then the canister put over an earthen stove. Let autopsy be carried out to ascertain the real cause of death. PW-8 opined that the victim aged about 4 years was either strangulated or put to death by other means, thereafter the body was put in a tin canister and boiled. The body was taken out, identified by parents (PW-1 and 2). 5. Let autopsy be carried out to ascertain the real cause of death. PW-8 opined that the victim aged about 4 years was either strangulated or put to death by other means, thereafter the body was put in a tin canister and boiled. The body was taken out, identified by parents (PW-1 and 2). 5. The trial court convicted/sentenced the appellant on the ground that recovery of the body of the victim in an incriminating state from the house of accused-Sita Devi is authenticated and she failed to explain the recovery of the same from her house, but acquitted co-accused Santu @ Sant Lal on the premise that he was neither present at the time of the recovery, whose name surfaced only in the confessional statement of accused-Sita Devi and merely because he happens to be in a relationship with accused-Sita Devi could not be a ground in itself to convict him. No appeal/revision against acquittal of co-accused Santu @ Sant Lal was brought to our notice. 6. Heard Sri Imran Ullah, the learned Amicus and Sri A.N. Mulla, the learned A.G.A. 7. The learned Amicus made the following submissions- (i) The victim went missing on 16th, whose body came to be recovered on 18th from the house of accused-Sita Devi even though the prosecution witnesses repeatedly visited her house, conducted search but did not come across the body of the victim, dents the recovery as highly suspicious and motivated. (ii) The prosecution failed to establish motive, which is of immense importance in a case of circumstantial evidence. (iii) Extra judicial confession of the accused to PW-1 is highly suspicious, as the accused alleged that she along with co-accused Santu @ Sant Lal strangulated the victim to death and were about to dispose the body, but intercepted, whereas the medical evidence indicated otherwise. (iv) The learned Amicus placed before the court a tin canister of the shape and size alleged by the prosecution to demonstrate that it is impossible to put a mutilated body of the victim (4 year girl) in a canister. (iv) The learned Amicus placed before the court a tin canister of the shape and size alleged by the prosecution to demonstrate that it is impossible to put a mutilated body of the victim (4 year girl) in a canister. (v) The appellant is alleged to be a woman of easy virtue, was convicted by co-villagers in collaboration with the local police on 17.6.2003 itself, when she was summoned by the police, followed by visit of the police officials to her house, but upon manipulated recovery of the dead body of the victim on 18.6.2003, she was implicated in a pre-determined and calculated manner. 8. The learned A.G.A. opposed the submission primarily on the ground that motive is established, pre and post FIR developments are not any indication to suspect prosecution case, where body of the victim (in boiled condition) had been recovered from the room of accused-Sita Devi, which she failed to explain, all connecting links in the chain of circumstances are not only established but also rule out the hypothesis that it was none other than the accused-Sita Devi, who committed the murder of the victim. This is a case based on circumstantial evidence as there are no eye witness. The Apex Court in a recent decision i.e. Criminal Appeal No. 1193 of 2011 Chandru @ Chandrasekaran vs. State Rep. by Deputy Superintendent of Police CB CID and Another decided on 12.2.2019 summarised the law on circumstantial evidence as under: "The law with regard to appreciation of circumstantial evidence has been clearly enunciated in the case of Hanumant vs. State of Madhya Pradesh, AIR 1952 SC 343 , wherein this Court held as follows: "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 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. 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." 10. This law has been consistently followed and has been repeated in catena of authorities. It is not necessary to refer to all the authorities. However, we may refer to Sir Alfred Wills book Wills on Circumstantial Evidence (Chapter VI) Butterworths, Seventh Edition, Pp 296-329, in which he has laid down the following Rules specially to be observed in the case of circumstantial evidence: "RULE 1 - The facts alleged as the basis of any legal inference must be clearly proved, and beyond reasonable doubt connected with the factum probandum............ RULE 2 - The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability................ RULE 3. - In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits......... RULE 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.............. RULE 5 - If there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." 11. The law can be summarised in the following terms: 1. The circumstances relied upon by the prosecution which lead to an inference to the guilt of the accused must be proved beyond doubt. 2. The circumstances should unerringly point towards the guilt of the accused. 3. The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused. 4. That there should be no probability of the crime having been committed by a person other than the accused. 12. 3. The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused. 4. That there should be no probability of the crime having been committed by a person other than the accused. 12. It is in the light of the aforesaid law that we have to consider the evidence and the circumstances relied upon by the courts below. 13. In a case based on circumstantial evidence it is always better for the courts to deal with each circumstance separately and then link the circumstances which have been proved to arrive at a conclusion." 9. The daughter (aged 4 years) of PW-1 and 2 went missing in the morning of 16.6.2003, while she was playing with the daughter of accused Sita Devi in front of her house. PW-1 visited the house of Sita Devi both on 16th and 17th to ascertain her whereabouts, but Sita Devi feigned ignorance. PW-1 admitted that he did not lodge any report same day, i.e., 16th as he believed that she could be at the house of one of the acquaintances. He also did not lodge any report on 17th as he was engaged in search at the house of relatives. On an information given by co-villagers to the police concerned the latter summoned accused-Sita Devi on 17th, but subsequently let her off. Meanwhile foul odour started emanating from the side of house of Sita Devi on 18.6.2003 in the morning. PW-1 along with others went to the house of Sita Devi to find a tin canister over an earthen stove containing the mutilated body of the victim in a boiling state, to which Sita Devi present at the scene confessed that she along with co-accused Sant Lal scripted the murder by strangulating the victim, were about to dispose of after it had been boiled in water with Mahua extract, but could not succeed as there was a constant vigil by co-villagers. 10. PW-2, mother of the victim also supported the case of prosecution both on motive as well as on recovery of the mutilated body parts of the daughter (boiled in water and Mahua) from the house of accused-Sita Devi. 10. PW-2, mother of the victim also supported the case of prosecution both on motive as well as on recovery of the mutilated body parts of the daughter (boiled in water and Mahua) from the house of accused-Sita Devi. She admitted that although needle of suspicion right from day one was on Sita Devi for which she along with others including PW-1 visited the house of Sita Devi twice, but no internal search of the house of Sita Devi was carried out. She also admitted like PW-1 that it was only when foul odour started emanating from the western side that she along with others including PW-1 searched the house of Sita Devi to find dead body of her daughter in a tin canister in a mutilated state. 11. There may be contradictions between PW-1 and 2 both pre & post lodging of the FIR, but as they are rustic, having no sense of timeline and were traumatised over barbaric killing of their young girl child. Yet they did explain as to why the FIR was not lodged on 16th itself when the victim went missing. Both these witnesses alleged that as none of them entered the house of accused Sita Devi. Thus the body of their daughter went unnoticed inside the house. These witnesses were in a state of fix, as on one hand they suspected Sita Devi to have committed some mischief, but were also optimist that the victim would be alive and would be eventually traced. 12. PW-3 is an uncle of the accused Sita Devi. He too supported the prosecution case that he along with PWs. 1, 2 and others upon foul odour entered the house of accused-Sita Devi and found a mutilated body in a boiled state in a tin canister with frock and undergarment. Accused-Sita Devi confessed before him that as PW-2 picked up a quarrel and had humiliated her, Sita Devi along with co-accused strangulated the victim inside her house. However, PW-3 not only altered the motive, but also alleged that he along with others entered the house of accused-Sita Devi twice or thrice, on a single day. We do not find PW-3 to be wholly reliable. 13. PW-4 is the scribe, a close relative of the victim. However, PW-3 not only altered the motive, but also alleged that he along with others entered the house of accused-Sita Devi twice or thrice, on a single day. We do not find PW-3 to be wholly reliable. 13. PW-4 is the scribe, a close relative of the victim. He also supported the prosecution case including the fact that it was only upon foul odour, he along with others on 18.6.2003 visited the house of accused Sita Devi and noticed a mutilated body boiled in water with Mahua extract in a tin canister over an earthen stove. 14. PW-5 is the husband of the then Gram Pradhan, a witness to the recovery and the inquest. He ruled out any tampering in the seal of the tin, in which the mutilated body of the victim was recovered from the house of accused-Sita Devi. 15. Motive alleged that as the child of the informant picked up a quarrel with the daughter of the accused-Sita Devi, triggered the commission of the overt is supported both by PW-1 and PW-2. However, said motive appears to have been altered by PW-3, an uncle of the accused-Sita Devi, when he stated that accused-Sita Devi had confessed before him that PW-2 had humiliated her, then she along with acquitted co-accused Sant Lal strangulated the victim inside her house. We are of the view that whether motive was altered or not is not of much significance as the fact that the recovery of the mutilated body in a contraption in a boiled state from the house of accused-Sita Devi remained unexplained, coupled with the alleged recoveries which are duly authenticated by independent witnesses. The alleged motive may be flimsy but once recoveries are duly authenticated, for which no explanation is coming forward, motive becomes too personal for accused-Sita Devi. 16. It is not the case of prosecution that incriminating recoveries were made at the pointing out of accused-Sita Devi as no confession whatsoever is alleged to have been made either on 16th or 17th. The alleged confession was made only on 18th, but after the recoveries were made from the house of accused-Sita Devi. Thus it cannot be alleged that the alleged confession was an outcome of coercion or undue influence by co-villagers or police personnel's. 17. During the arguments, the learned Amicus produced a tin canister of the standard size involved in the case. Thus it cannot be alleged that the alleged confession was an outcome of coercion or undue influence by co-villagers or police personnel's. 17. During the arguments, the learned Amicus produced a tin canister of the standard size involved in the case. The canister (15 kg), a cuboid. Based on its dimension, a contention was raised by the learned Amicus that a body of a girl child aged about 4 years cannot fit into, thus, the entire prosecution case comes under a serious clout. Shri Mulla, the learned A.G.A. rightly countered that unless the body size and contours of the victim are known, the contention would only remain in a realm speculation. Admittedly, neither the body features nor the weight of the victim is on record. 18. PW-8 is the author of the inquest (Exbt. Ka-2). He after examining the body was opining that the death could either be due to strangulation or for any other reason. We lest not forget that the body has been recovered in a boiled state after two days of the death of the victim. Thus, the testimony of PW-8 cannot be faultered merely on the ground that he was unable to give the precise cause of death. In the same sequence, we have examined the autopsy of the victim aged 4 years carried out by PW-7, the doctor on 20.6.2003 at about 5.10 PM, which indicated following condition of the body "Head detached from neck whole body deeply burnt. Body carred and seen in multiple pieces. All burn injuries are post-mortem in nature. All long bones found separate from their respective joint. Muscles and vessels of skull bone burnt and skull exposed. Incised wound on neck at the level of.....and skull. Bone cut....no line of redness seen. Patches on area of limbs, where no muscles and tendons are present." PW-7 opined that first the head of the victim was severed, thereafter same was boiled and burnt. We are of the view that the mutilation of the body of the victim is to such an extent that a lay person cannot form a definite opinion as regards the cause of death. The plea of defence that autopsy was carried out on an unidentified body deserves to be rejected for more than one reason. Firstly PW-1 and 2 parents of the victim had identified the body of their daughter. The plea of defence that autopsy was carried out on an unidentified body deserves to be rejected for more than one reason. Firstly PW-1 and 2 parents of the victim had identified the body of their daughter. Secondly, PW-7 the doctor, who carried out the autopsy, found the body in a sealed condition, as alleged by PW-8 coupled with PW-7 was completely ruling out the possibility that the autopsy was performed on an unidentified body. 19. To recapitulate, the case of the prosecution is that right from day one accused Sita Devi was a prime suspect. All visits to her house had proved futile. The suspicion turned true when on the 18th, i.e. the 3rd day, a foul odour started emanating from the side of the house of accused-Sita Devi, when witnesses recovered the mutilated body from her house. PW-3 admitted at page-44 of the Paper-Book that upon recovery of the body, while the police was informed, she had been nabbed by the ladies, tied to a neem tree wherein after the police arrived after half an hour. Considering the recovery of the mutilated body of the girl child from the house of accused-Sita Devi, a hostile reaction is understandable, thus, the contention of the defence that she was first convicted (without recovery) and the recovery planted is not made out. 20. The site plan (Exbt. Ka-13) indicates that the house of accused-Sita Devi comprises of 3 rooms. Point 'A' is the place, where a tin canister over an earthen store containing the mutilated body of the victim in a boiled state was found. PW-1 indicated that accused-Sita Devi is a widow, residing with her father, mother along with 2 unmarried daughters, all residing together with a common kitchen but having separate rooms for sleeping. Thus the probability of the accused sharing a room to herself along with a common kitchen cannot be ruled out. The learned Amicus argued that if the accused and her family members were sharing a common kitchen, it was very unlikely that the entire operation would go unnoticed. Thus the probability of the accused sharing a room to herself along with a common kitchen cannot be ruled out. The learned Amicus argued that if the accused and her family members were sharing a common kitchen, it was very unlikely that the entire operation would go unnoticed. The said contention is liable to be rejected on the sole ground that no suggestion was made to PW-1 or PW-2 that at the time of recovery apart from the presence of accused-Sita Devi other inmates of the house were also present, so as to rule out that accused-Sita Devi cannot be deemed of having special knowledge as to how the recoveries were effected from her house. She in her statement feigned complete ignorance. We find useful to quote the following paragraphs of the judgment of the Apex Court in Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 :- "If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. Stirland vs. Director of Public Prosecution, 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh, (2003) 11 SCC 271 . The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: (b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him." 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." "21. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. State of Tamil Nadu vs. Rajendran, (1999) 8 SCC 679 (Para 6), State of U.P. vs. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 (Para 40), State of Maharashtra vs. Suresh, (2000) 1 SCC 471 (Para 27), Ganesh Lal vs. State of Rajasthan, (2002) 1 SCC 731 (Para 15) and Gulab Chand vs. State of M.P. (1995) 3 SCC 574 (Para 4)." 21. Ravindra Prakash Mittal, AIR 1992 SC 2045 (Para 40), State of Maharashtra vs. Suresh, (2000) 1 SCC 471 (Para 27), Ganesh Lal vs. State of Rajasthan, (2002) 1 SCC 731 (Para 15) and Gulab Chand vs. State of M.P. (1995) 3 SCC 574 (Para 4)." 21. Applying the aforesaid dicta in the present case, we find that failure to explain recoveries from the house of accused, becomes an additional link in the chain of circumstances to make it complete. 22. We after evaluating the evidence on record are of the view that the prosecution has established the following links in the chain of circumstances:- (i) The victim went missing on 16th while playing with the daughter of accused-Sita Devi at the doors of Sita Devi. (ii) The prosecution witnesses did not lodge any report either on 16th or 17th as they bona fidely believed that the victim would be traced somewhere as search was on including interrogation of Sita Devi to which she feigned ignorance, as she was a suspect right from day one. (iii) The origin of foul odour from the side of the house of accused Sita Devi on 18th compelled the prosecution witnesses to proceed towards the source of origin of odour, i.e. the house of accused Sita Devi. (iv) Recovery of a tin canister from the house of accused-Sita Devi containing mutilated body of the victim in a boiled state, identified by PW-1 and 2, i.e. the parents of the victim in the presence of accused Sita Devi. (v) Inquest was conducted at the house of accused-Sita Devi. (vi) Autopsy is compatible both with the oral account and the inquest. (vii) Absence of any explanation from the accused-Sita Devi as regards the recovery from her house. 23. The above links in the chain of circumstances completely rule out the hypothesis of guilt of any other person except that of the accused-appellant. 24. The appeal is dismissed. The appellant is in jail. 25. Let a copy of this judgment along with record be sent to the learned Sessions Judge, concerned for ensuring compliance under the intimation to this Court. 26. The court places on record the valuable assistance rendered by the Learned Amicus. The Registrar General is directed to ensure a payment of Rs. 15,000/- to the learned Amicus, for services rendered.