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2020 DIGILAW 647 (GAU)

Mahendra Yadav v. State Of Assam

2020-08-28

KALYAN RAI SURANA, MIR ALFAZ ALI

body2020
JUDGMENT K.R. Surana, J. - Heard Mr. T. Deuri, learned counsel for the appellant as well as Mr. M. Phukan, learned A.P.P. for the State. 2. At the time of hearing of the connection application under section 389 Cr.P.C., the learned counsel for the appellant had submitted on 11.08.2020 that on the basis of his submissions in support of the said application, the Court may also consider hearing this appeal on merit, as such, we had permitted the learned counsel for the appellant to submit the written synopsis of his argument with an advance copy to the learned A.P.P., which was accordingly filed. Hence, with consent from both sides, the matter was heard on 19.08.2020. 3. This appeal under section 274(2) of the Criminal Procedure Code is directed against the judgment, order and sentence dated 30.03.2019, passed by the learned Additional Sessions Judge (FTC) No.2, Tinsukia in Sessions Case No. 114(T)/2011, thereby convicting the appellant under sections 302 and 201 I.P.C. The appellant was sentenced for life imprisonment and fine of Rs.10,000/- under section 302 IPC and for 3 years and fine of Rs.10,000/- under section 201 IPC. In his default to pay fine, the appellant was ordered to suffer rigorous imprisonment for another 1 year. The sentence was ordered to run concurrently. 4. In this case, the prosecution was initiated by Jhalku Yadav (PW-1), who lodged an FIR (Ext.1) before Makum P.S. on 07.05.2008, inter-alia, alleging that his daughterin- law, Manju Devi, wife of Mahendra Yadav (appellant herein), was not seen at her residence at Chandmari Bongaligaon since 30.04.2008 and when asked, the appellant told that she was sent to Bihar. Yet he searched for her with the help of V.D.P. and on 07.05.2008, he found her dead body wrapped with red sari from a newly dug earth in drain in Hukanpukhuri Tea Garden and immediately informed the police. The Makum Police along with B.D.O. Hapjan came and disinterred the dead body, which he identified to be of Manju Devi (hereinafter referred to as victim ). It was also stated that in the meanwhile, the appellant fled away with Durgawati Devi, daughter of Triloki Chouhan. It was further stated that on 30.04.2008 itself, Mahendra Yadav, Triloki Chouhan, Anariya Devi and Durgawati Devi had hatched a conspiracy and after murdering the victim kept her buried in Hukanpukhuri Tea Garden to escape from being caught. It was also stated that in the meanwhile, the appellant fled away with Durgawati Devi, daughter of Triloki Chouhan. It was further stated that on 30.04.2008 itself, Mahendra Yadav, Triloki Chouhan, Anariya Devi and Durgawati Devi had hatched a conspiracy and after murdering the victim kept her buried in Hukanpukhuri Tea Garden to escape from being caught. Accordingly, Makum P.S. Case No. 39/2008 under section 302/201 IPC was registered. On completion of investigation, charge-sheet was filed against Mahendra Yadav, Triloki Chouhan, Anariya Devi, Durgawati Devi, Sugrim Chouhan and Ram Naresh. 5. During trial, the prosecution had examined 13 PWs, namely, Jhalku Yadav (PW-1), Birendra Yadav (PW.2), Dr. Sanat Kr. Dutta (PW-3), Kartik Bhumij (PW-4), Satyendra Yadav (PW-5), Lal Chai Yadav (PW-6), Ram Daras Yadav (PW-7), Sikandar Rai (PW-8), Bijoy Munda (PW-9), Tarachand Bhagat (PW-10), Amarjyoti Bailung (PW-11), Bipul Chakraborty (PW-12) and Deepak Tamuli (Inspector) (PW-13). The prosecution had exhibited the following documents, viz., FIR (Ext.1), Inquest report (Ext.2), Post- mortem report (Ext.3), Command Certificate (Ext.4), Forwarding (Ext.5), Dead body challan (Ext.6), Seizure list (Ext.7), Sketchmap (Ext.8), charge-sheet (Ext.9). 6. The learned trial Court had formulated the following two points of determination:- wxyz i. Whether the accused in furtherance of their common intention on 30.04.08 at village Chanmai (sic.) Bongali Gaon under Makum P.S in the district of Tinsukia had committed murder by intentionally (or knowingly) caused death to Smt. Manju Devi, W/o. Sri Mahendra Yadav and the daughter in law of the informant Sri Jhalku Yadav, as alleged? zyxw wxyz ii. Whether the accused in furtherance of their common intention on the same day, time and place knowing that murder of Smt. Manju Yadav punishable with capital punishment and imprisonment of life has been committed did cause certain evidence of the said offence to disappear with the intention of screening yourself from legal punishment? zyxw 7. It is seen that in the judgment, the learned trial Court had observed that from the material evidence on record, it is crystal clear that there is no direct evidence of committing the offence of killing the victim and hiding her dead body. After discussing the evidence on record, the learned trial Court was of the view that the appellant herein had taken a plea of alibi and, as such, the burden was on him to prove the plea of alibi. After discussing the evidence on record, the learned trial Court was of the view that the appellant herein had taken a plea of alibi and, as such, the burden was on him to prove the plea of alibi. According to the learned trial Court, the evidence of the witnesses and the circumstantial evidence conclusively established and proved the guilt of the appellant. The said finding was arrived at by drawing conclusion that (a) there was nobody except the appellant who could commit such gruesome act as he had love affair with Durgawati Devi and eloped with her; (b) it was proved that at the time when the victim went missing, the appellant was at the place of occurrence; (c) when villagers had began to enquire of whereabouts of the victim, the appellant tried to mislead them by saying that the victim went to Bihar; (d) while the villagers were vigorously searching for the victim, the appellant had eloped with Durgawati Devi; (e) the medical evidence had opined that the cause of death of the victim was due to comma resulting from head injury and other injury was found on the body of the victim and that the dead body was kept buried for about 7-10 days, as such, (f) the learned trial Court concluded that the murder of the victim was pre-planned. Accordingly, while all other co-accused were acquitted, the appellant was found guilty and convicted as indicated herein before. 8. At the outset, it may be mentioned that as the conviction is based on circumstantial evidence, the learned counsel for the appellant has not raised any serious dispute regarding the site from where the dead body was recovered, as such, there appears to be no necessity of discussing PWs whose evidence was recorded for the purpose of proving the documentary evidence i.e. Exts. no. 1 to 9. 9. Evidence about date since when the victim went missing: PW-1 had stated in his FIR that the victim was missing since 30.04.2008. In their examination- in- chief, the PW-1 and PW-2 had mentioned that the victim was missing since few days before the incident. PW-10 had stated in his examination- in- chief that at the time of incident, the villagers were talking that the victim had been missing. Thus, PW-1, PW-2 and PW-10 are the three witnesses who had deposed regarding the time since when the victim had been missing. 10. PW-10 had stated in his examination- in- chief that at the time of incident, the villagers were talking that the victim had been missing. Thus, PW-1, PW-2 and PW-10 are the three witnesses who had deposed regarding the time since when the victim had been missing. 10. Evidence about presence of the appellant when the murder of the victim was committed: In his cross- examination, the PW-1 had stated that at the time of the incident, the appellant was in U.P. He had stated that he was a member of Panchayat, therefore, he knew that 20-25 days prior to the date of incident the appellant had gone to U.P. The PW-2, in his cross- examination, had stated that the appellant had gone to U.P. prior to 20-25 days of the incident and came back one month after the incident. From the LCR (lower Court record), it is seen that on 23.05.2006, the appellant had surrendered before the Court at Tinsukia. 11. Evidence about murder committed by the appellant: In his examination- in- chief, the I/O (PW-12) had stated that during investigation the appellant had confessed his guilt, shown the place of occurrence and on being shown, he had seized the brick used for the offence vide seizure-list (Ext.7). In Ext.&, the three witnesses mentioned were (i) Ram Darash Yadav (PW-7), Sikandar Rai (PW-8), and Bijoy Munda (PW-9). However, in his evidence, the PW-7 did not state that the appellant had shown the brick by which he had murdered the victim. After the PW-8 was declared hostile, and thereafter he had stated as follows It is not a fact that I stated before the police that the accused Mahendra Yadav caused the death of his wife in the house alongwith others and he showed the piece of brick which was used in causing the death of his wife and police seized the same in the presence of witnesses and prepared seizure- list and I put my signature thereon as witness. Ext.7(2) is my signature. It is not a fact that I deposed today falsely for the sake of the accused persons. Ext.7(2) is my signature. It is not a fact that I deposed today falsely for the sake of the accused persons. The PW-9 was also declared hostile and thereafter he stated in his evidence that It is not a fact that I stated before the police that on 03.07.08 the police brought accused Mahendra Yadav to our village who committed murder of his wife and that he stated before us that he along with Trailokya Chouhan and his wife and his daughter committed murder of Anju Devi and that Mahendra Yadav also produced a piece of brick used in committing the crime. It is not a fact that police seized the brick and prepared seizure- list and I put his signature thereon as witness. It is not a fact that Ext.7 is the seizure- list, Ext.7(3) is his signature. It is seen that the brick purportedly used to murder the victim was not sent for forensic examination to ascertain whether it contained any strain of blood of the victim. It may be mentioned that the previous I/O (PW-11) had stated in his crossexamination that in the inquest report (Ext.2), he did not mention about any injury. Thus, there is no circumstantial evidence to show that the brick used for committing crime was recovered at the instance of the appellant or that the appellant had committed murder of the victim by assaulting her with a brick. 12. Whether the evidence on record leads to an inference about presence of the appellant at the place of incident at the proximity of time of murder: The PW-3 had stated in his examination- in- chief that he had conducted the postmortem on 07.05.2008 and he has given the approximate time of death before 7 to 10 days. Therefore, we can infer that as per medical opinion, the approximate date of death would be 27.04.2008. The PW-1 has stated in his cross- examination that the dead body of the victim was discovered on 07.05.2008. However, we find that the PW-1 and 2 have stated in their cross- examination that the appellant had gone to U.P. 20-25 days prior to the date of incident, as such, going by the said statement, the approximate date when the appellant had left for U.P. would be on any day between 12.04.2008 to 17.04.2008. However, we find that the PW-1 and 2 have stated in their cross- examination that the appellant had gone to U.P. 20-25 days prior to the date of incident, as such, going by the said statement, the approximate date when the appellant had left for U.P. would be on any day between 12.04.2008 to 17.04.2008. Thus, from the evidence discussed above, the prosecution could not prove the presence of the appellant at the date and place of the incident, i.e. approximate date when the victim was murdered. Hence, from the evidence on record, we are unable to draw an inference that the appellant was present at the place of incident at the proximity of time of murder. 13. Whether the prosecution could prove motive of the appellant to commit murder of his wife: It is seen that after PW-10 was declared hostile, on being accosted with a suggestion, he had denied that the appellant had love affair with one married woman, Durgawati Devi (co-accused) and in spite of being told by the victim not to maintain such relation, the appellant had continued to do so. The PW-10 had also denied having stated before the police that on 30.04.2008, after he did not see the victim, he enquired from the appellant about her and the appellant had stated that the victim was sent to Bihar. Although the learned A.P.P. has meticulously read the evidence of all 13 PWs, but he could not show us any particular statement of any of the PWs from which the prosecution was able to prove the motive of the appellant to commit the crime of murdering his wife, i.e. the victim. Although the case projected by the prosecution is that the appellant had eloped with Durgawati Devi, but none of the witnesses have stated having seen both of them together on any date proximate to the date of death of the victim, as such, there is total absence of any circumstantial evidence from which we can infer that there was a love affair between the appellant and the co-accused, namely, Durgawati Devi or to draw a conclusion that the appellant had eloped with the said lady. 14. Whether the appellant had taken a plea of alibi and proved it: We have perused all the 17 questions put by the learned trial Court to the appellant in course of his examination under section 313 CrPC. 14. Whether the appellant had taken a plea of alibi and proved it: We have perused all the 17 questions put by the learned trial Court to the appellant in course of his examination under section 313 CrPC. Although the learned trial Court had held that the appellant had taken the plea of alibi, we do not find any such plea taken by the appellant. The statement of the appellant under section 313 CrPC was recorded on 27.11.2018, and it is seen that neither in the order passed on 27.11.2018, nor in his section 313 CrPC statement, the learned trial Court had recorded that the appellant had refused to lead defence evidence, and the next date of the case was fixed for argument. Thus, when the appellant is not found to have taken the plea of alibi, the finding recorded by the learned trial Court that the appellant did not prove his alibi is not found sustainable as because in the absence of such plea, we find no necessity for the appellant to prove his alibi. The evidence on record is that PW-1 and PW-2 had given evidence to the effect that the appellant had gone to U.P. 20-25 days prior to the incident. The learned trial Court had held that although the appellant had taken the plea of alibi that he had gone to U.P. prior to 20-25 days of the alleged incident, but he could not prove that he went to U.P. 20-25 days prior to the alleged incident, further holding that Manju Devi was appellant s wife and it was his duty to inform the police if she was missing at that time, however, the said finding is found to be de hors the evidence on record as it is nobody s case that the victim was missing 20-25 days prior to the date of recovery of dead body of victim. Thus, we are constrained to hold that the learned trial Court had incorrectly appreciated the evidence on record to hold that the appellant had taken a plea of alibi and, as such, it was his burden to prove it and that part of the finding is held to be not sustainable on facts and in law. 15. Thus, we are constrained to hold that the learned trial Court had incorrectly appreciated the evidence on record to hold that the appellant had taken a plea of alibi and, as such, it was his burden to prove it and that part of the finding is held to be not sustainable on facts and in law. 15. On the point of existence of circumstantial evidence: On a perusal of the impugned judgment, it appears that the learned trial Court had culled out the following circumstantial evidence against the appellant, viz., (a) that the appellant was aware that the victim was missing prior to 20-25 days from the 07.05.2008, the date when post-mortem examination of the dead body of the victim was conducted; (b) the defence could not prove that the victim had any animosity with any other people; (c) the conduct and silence of the appellant had created a doubt; (e) the allegation of elopement of appellant with Durgawati Devi fortified the suspicion against the appellant; (e) the appellant could not prove his plea of alibi. 16. It would be pertinent to mention herein that the learned trial Court had relied on the essential ingredients of circumstantial evidence as laid down in the case of State of U.P. Vs. State of Ravindra Prakash Mittal, (1992) AIR SC 2045 , which are as follows:- wxyz i. The circumstances from which the conclusion is drawn should be fully proved. zyxw wxyz ii. The circumstances should be conclusive is (sic) nature. zyxw wxyz iii. All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence. zyxw wxyz iv. The circumstances should to a moral certainly exclude the possibility of guilt of any person other than the accused. zyxw 17. The learned trial Court has also referred to the basic principles of relying on circumstantial evidence as laid down in the case of Sharad Birdhichand Sarada vs. State of Maharashtra, (1984) AIR SC 1622 , which are as follows:- wxyz i. The circumstances from which the conclusion of guilt is to be drawn should be fully established. zyxw wxyz ii. 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. zyxw wxyz iii. zyxw wxyz ii. 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. zyxw wxyz iii. The circumstances should be of a conclusive nature and tendency. zyxw wxyz iv. They should exclude every possible hypothesis except the one to be proved. zyxw wxyz v. There must be a chain of evidence so compete 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. zyxw 18. In light of the discussions above and upon testing the evidence available on record with the ratio laid down in the above referred cited cases of Ravindra Prasad Mittal (supra) and Sharad Birdhichand Sarada (supra), we fail to find the existence of any incriminating circumstantial evidence against the appellant. Firstly, the prosecution could not prove the presence of the appellant on 30.04.2008, i.e. the date given in the FIR when the victim went missing; secondly, the prosecution could not prove that the appellant was present at the place and time when the victim was murdered; thirdly, the prosecution could not lead any evidence which can translate into circumstantial evidence from which it can be inferred that only the appellant could have committed murder of the victim; fourthly, the prosecution did not prove that the appellant had eloped with Durgawati Devi, the co-accused; fifthly, the prosecution could not prove the motive of the appellant to commit the crime; sixthly, the appellant had not taken the plea of alibi and, as such, it was not required of the appellant to prove alibi. 19. Moreover, from the examination of appellant- accused under section 313 CrPC, we fail to find that the appellant was confronted with any evidence from which it can be inferred that he was present at his house in or around the proximity of the time of death of the victim. 19. Moreover, from the examination of appellant- accused under section 313 CrPC, we fail to find that the appellant was confronted with any evidence from which it can be inferred that he was present at his house in or around the proximity of the time of death of the victim. He was also not confronted with any circumstantial evidence leading to an inference that only the appellant could have concealed the dead body of the victim before leaving his village for going to U.P. Hence, we are of the considered opinion that circumstances, which were neither proved nor put to the appellant while examining him under section 313 CrPC, cannot be used against him and have to be excluded from consideration. 20. For the reasons and discussions above, we are constrained to hold that the finding of circumstantial evidence against the appellant, as recorded by the learned trial Court is not found sustainable. Therefore, the conviction of the appellant for commission of offence under section 302/201 of the Indian Penal Code is also not sustainable on facts and in law. Accordingly, we hold that the appellant Mahendra Yadav is entitled to be acquitted of all the charges. Therefore, we direct that the appellant be released forthwith, if not required in any other case. 21. Criminal Appeal No. 113/2020 stands allowed. Return back the LCR.