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2022 DIGILAW 1590 (ALL)

Manoj Kumar v. State of U. P.

2022-09-29

ASHWANI KUMAR MISHRA, SHIV SHANKER PRASAD

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JUDGMENT : ASHWANI KUMAR MISHRA, J. 1. This Criminal Appeal has been filed by the accused appellant Manoj Kumar challenging his conviction and sentences vide judgment and order dated 25.4.2006 under Section 302 read with Section 201 I.P.C. in Session Trial No. 122 of 2001 whereby he has been sentenced to life imprisonment and a fine of Rs. 50,000/-. 2. It transpires that the mother of the deceased Smt. Ganga Devi, who is the first informant (PW-1) gave a written report on 18.1.2000 alleging therein that her daughter Pushpa Devi aged about 25 years was married about six years back to the accused appellant and she had spent Rs. 50,000/- towards dowry and marriage expenses. The accused appellant and his family members apparently were not happy with the dowry and used to torture the deceased for demand of more dowry. She was not provided with food, cloths and harassed in different ways. The deceased complained to her mother about the demand of dowry and the accused appellant and his family members were counselled and requested not to do so. However, they did not agree to such request and used to beat her and would often throw her out of the house. On 11.12.1996 the father of the accused appellant and other family members forced the deceased out of the house whereafter a complaint was made and later a compromise was arrived at. However, the deceased was again harassed. The accused appellant allegedly developed relations with another lady and had also solemnized marriage but on being confronted with such accusation, the accused appellant denied having contracted a second marriage. About four months prior to the date of the said incident the accused appellant took the deceased to his house on an assurance that he would keep the deceased happily. The first informant with an intention to ascertain well being of her daughter visited the in-laws place of the deceased about 14 days back and was informed by the family members that the accused appellant had taken her to Pilibhit. The first informant, however, did not find the deceased even at Pilibhit. Despite best endeavours, the deceased could not be traced. The first informant, therefore, made the report stating that the accused appellant along with his family members have kidnapped the deceased and killed her. The first informant, however, did not find the deceased even at Pilibhit. Despite best endeavours, the deceased could not be traced. The first informant, therefore, made the report stating that the accused appellant along with his family members have kidnapped the deceased and killed her. On such a written report dated 18.1.2000 an FIR was registered as Case Crime No. 92 of 2000 under Section 364 I.P.C. on 3.2.2000 at 12.40 P.M. 3. Despite best efforts, the deceased could not be located. It appears that a letter dated 26.2.2000 was received in the office of the Superintendent of Police on 1.3.2000 intimating that the accused appellant has killed his wife and her dead body has been dumped beneath a culvert near a Foam Factory. This letter is not a part of the record and has not been proved. Investigation however, proceeded on the basis of the letter sent by unknown person and from the place specified in the letter, a recovery has been made by the investigating officer. The recovery included a saree and other woman garments, a pant and shirt, chadar and five bones. The recovery memo thus prepared is marked as Ex.Ka.2. The first informant and her family members were also asked to come and inspect the recovery. The first informant and her family members identified the cloths, hairs and the bones belonging to the deceased. After recovery of bones and clothes the case was converted into Section 302 read with Section 201 I.P.C. It was also noticed that in the interregnum period Section 304B I.P.C. was also added but later on this Section was dropped while submitting the charge-sheet. During investigation, a Tape Recorder has also been recovered, which is marked as Ex.Ka.15, as per which the accused appellant had admitted his guilt with regard to commissioning of the offence. The investigating officer also collected blood stained earth and plain earth from the official quarter of the accused appellant. Five bones recovered after 01.03.2000 were presented for post-mortem examination. The Doctor observed as under: “Total (5) bones presented for P.M. Examination. (I) Two tibia bones of different sides are present which has been eaten at both ends partially. Both bones are 26 cm. long at present. (II) One radius bone is present which has been eaten at both ends. This bone is 24 cms. long at present (This is human bone). (I) Two tibia bones of different sides are present which has been eaten at both ends partially. Both bones are 26 cm. long at present. (II) One radius bone is present which has been eaten at both ends. This bone is 24 cms. long at present (This is human bone). (III) Two long bones which are unidentifiable are present which have been taken away. The length of these bones are 27 cms. and 17.5 cms. Long. (IV) No mark of cut could be found on any bone. (V) No soft tissue is present.” 4. Dr. S.P. Sharma who conducted the autopsy clearly opined that from the postmortem of bones no definite opinion can be given about them being of male or female. The report of the Forensic Laboratory has also been obtained in which human blood has been found on the blood stained earth and plain earth. However, no definite opinion has been returned on items no. 1 to 3 and 5 to 10 sent for forensic examination as it is found disintegrated. The investigation however culminated in submission of a charge-sheet against the accused appellant. 5. The Magistrate took cognizance of the charge-sheet and committed the case to the Court of Sessions where the proceedings were registered as S.T. No. 122 of 2001. Charge was framed against the accused appellant under section 302, 201 and 34 IPC. The accused appellant denied the charge and claimed trial. 6. Apart from documentary evidence in the form of FIR (Ex.Ka.4), Written Report (Ex.Ka.1), Recovery Memo of cloth (Ex.Ka.2), Recovery memo of Tape Recorder (Ex.Ka.15), Recovery memo of blood stained and plain earth (Ex.Ka.16), Postmortem report (Ex.Ka.3 and Report of Vidhi Vigyan Prayogshala (Ex.Ka.20), the prosecution has examined oral testimony of PW-1 Smt. Ganga Devi, who is the first informant and mother of the deceased, PW-2 who is the father of the deceased, PW-3 who is the witness to identification of cloths, PW-4 Dr. S.P. Sharma who has conducted autopsy and examined the bones, PW-5 Sohan Singh who is an independent witness to the recovery of blood stained earth on the wall of the house of the accused appellant, but he has turned hostile during trial, PW-6 and PW-7 namely, Durbasha Yadav and Ganga Singh, who are the independent witnesses and alleged neighbours of the accused appellant, are also ‘Bandi Rakshak’ and supported the prosecution story that the accused appellant had killed his wife have also turned hostile, PW-8 who is the Head Constable and has verified the ‘Chik FIR’ and PW-9 who is the investigating officer. Jai Narayan Tiwari and R.K. Trivedi, who are the Sub Inspectors and were associated with the conduct of the investigation, have been summoned by the court as court witnesses. 7. On the basis of evidence so adduced, the trial court has come to a conclusion that the prosecution has established the guilt of the accused appellant beyond reasonable doubt with regard to commissioning of the offence under Section 302 read with Section 201 I.P.C. The trial court has found that the deceased was strangulated and thereafter, inflicted stab wounds and her dead body was subsequently dumped near the house of the accused appellant on Kanakpur Road so as to destroy the evidence against him. The trial court, however, found the co-accused Nanne Babu to be innocent but the accused appellant has been convicted. 8. Sri Abhishek Sharma, learned Amicus Curiae as well as Sri Rajendra Kumar Tripathi, Advocate representing the present appellant have argued the appeal at length and taken the Court through the evidences which have been brought on record. 9. Learned counsel for the appellant has foremost invited our attention to the statement of Dr. S.P. Sharma who has opined that no definite opinion can be expressed as to whether the bones are of a male or female. He submits that the recovered bones, therefore, cannot be authoritatively said to be that of the deceased and the prosecution case cannot be accepted on such evidence. He further submits that the disclosures about existence of bones and certain cloths of the deceased are based on a letter sent by unknown person who had informed the police about the existence of such material. He further submits that the disclosures about existence of bones and certain cloths of the deceased are based on a letter sent by unknown person who had informed the police about the existence of such material. He submits that sending of this letter by unknown person clearly shows that someone else was also involved in the commissioning of the offence, who was aware about existence of certain bones and cloths of the deceased at a specified place. This unknown person may have conspired by keeping the articles of deceased so as to implicate the accused appellant. It is further stated that the witnesses of fact i.e. PW-6 and PW-7, who supported the prosecution case about strangulation and stabbing of the deceased by the accused appellant, turned hostile, therefore, there exists no evidence to convict the accused appellant in the present case. Learned counsel for the appellant further submits that blood stained earth and plain earth were collected almost six months after actual commissioning of the offence and since in the Forensic Report also, it has been found disintegrated, therefore, such recovery cannot be relied upon against the accused appellant. Learned counsel for the appellant further submits that this is a case of circumstantial evidence in which chain of events is incomplete. Learned counsel for the appellant also submits that in the statement under Section 313 Cr.P.C. the accused appellant had clearly stated that his wife had left for Bareilly and he himself had dropped her at the railway station and therefore, the mere fact that certain bones were allegedly recovered alleging as that of the deceased after a month, would otherwise be a weak evidence in a case where the prosecution claims to have established the guilt relying upon the circumstantial evidence. He also submits that the accused appellant has no previous criminal history and is languishing in jail for last 22 years. 10. Per contra, learned AGA submits that the deceased was subjected to harassment for demand of dowry and relation between the accused appellant and the deceased was strained and the deceased was lastly seen in the company of the accused appellant, who has failed to explain disappearance of his wife. 10. Per contra, learned AGA submits that the deceased was subjected to harassment for demand of dowry and relation between the accused appellant and the deceased was strained and the deceased was lastly seen in the company of the accused appellant, who has failed to explain disappearance of his wife. It is also stated that identification of the deceased based upon her cloths is clearly permissible in law and as the appellant otherwise has not explained as to how his wife has disappeared the onus would be upon him to explain the circumstances of her disappearance. 11. We have heard learned counsel for the parties and perused the materials brought on record. 12. The accused appellant is charged of strangulating his wife (the deceased) at 09.30 PM on 20.12.1999 within the jail premises at Pilibhit in the official quarter of accused appellant and stabbing her on her neck and thereby killing her. The second charge is that with an intent to destroy evidence the dead body was concealed/hidden near culvert at Tanakpur Road. 13. So far as the main charge of strangulating the deceased at 09.30 PM on 20.12.1999 at the official quarter of accused appellant in the jail premises is concerned, the prosecution had relied upon the evidence of Sohan Singh PW-5 and Durwasa Yadav PW-6, both of whom had supported the prosecution story in their statement under Section 161 Cr.P.C. However, at the time of their deposition in court they have turned hostile and have not supported the prosecution version. The allegation that the deceased was strangulated by accused appellant and thereafter inflicted knife blows on her neck has, therefore, not been supported by any of the prosecution witnesses of fact at the stage of trial. There is no other witness who has seen the incident. There is thus no direct evidence to implicate the accused appellant of strangulating the deceased or inflicting knife blows on her. 14. The only other evidence placed by the prosecution is the bloodstain collected from the wall and earth of the house of accused appellant. The bloodstains have been collected by the Investigating Officer on 13.06.2000, which is nearly six months after the alleged incident. 14. The only other evidence placed by the prosecution is the bloodstain collected from the wall and earth of the house of accused appellant. The bloodstains have been collected by the Investigating Officer on 13.06.2000, which is nearly six months after the alleged incident. Although in the forensic report human blood has been found but considering the long passage of time and no other corroborative piece of evidence in that regard it would not be safe to hold that merely on account of bloodstains found on the wall at the house of accused appellant his culpability could be established. 15. The only other material relied upon by learned A.G.A. is the audio tape which is Exhibit Ka-15 in which the accused appellant is stated to have explained the manner in which he planned the conspiracy to eliminate the deceased and executed it. 16. The tape record contains the conversation allegedly made by the accused appellant on phone which is at best a statement under section 161 Cr.P.C. which cannot be treated to be substantive piece of evidence. This statement has otherwise not lead to any recovery of incriminating material from accused appellant and, therefore, by virtue of section 25 of the Evidence Act such material cannot be read or relied upon against the accused appellant. 17. In view of the above discussion we find that the charge levelled against the accused appellant of strangulating his wife and stabbing her neck is not established by the prosecution by adducing any direct evidence. 18. This takes us next to the circumstantial evidence adduced by the prosecution against the accused appellant to prove the charge. The circumstantial evidence to implicate the accused appellant is the recovery of five bones and some hair and clothes on 05.3.2000 namely Saree, Red Colour Cloth, Green Colour Cloth, Brasserie, Kathari, Thread, Black Shirt, White Shirt, Paint and Hairs. These recoveries have been made vide recovery memo Exhibit Ka-2. The forensic report is on record as per which no blood is found on thread and paint; hairs were of human; no definite result has been found on Brasserie; no blood is found on black shirt and white shirt; on Saree, Green Colour Cloth, Red Colour Cloth, Kathari and Hairs the stain was found disintegrated. 19. The forensic report is on record as per which no blood is found on thread and paint; hairs were of human; no definite result has been found on Brasserie; no blood is found on black shirt and white shirt; on Saree, Green Colour Cloth, Red Colour Cloth, Kathari and Hairs the stain was found disintegrated. 19. Before proceeding to examine the evidentiary value of the recovered items it would be necessary to examine the circumstance in which these articles have been recovered. The deceased was allegedly killed on 20.12.1999. It is after two months that a letter dated 26.02.2000 was received in the office of Superintendent of Police on 01.03.2000 informing about the accused appellant having killed his wife and her dead body alongwith recovered items dumped beneath a culvert near Foam Factory. This letter was marked to the Investigating Officer who found the dead body alongwith the recovered items. The dead body which consisted of certain bones was sent for postmortem and other recovered items (Exhibit Ka.2) were sent for forensic report. This letter dated 26.02.2000 has not been produced during the course of trial. The author of this letter is unknown. It is not known as to how the author of letter became aware that these clothes and human bones were of the deceased. Even if the clothes have been identified to be of the deceased, by her family members, yet it would not lead to a definite inference that the accused appellant had done this act as it, at best, creates a suspicion against the accused appellant. The possibility of someone else having done the incident and having known that clothes and hairs of deceased were dumped near Foam Factory informed the police cannot be ruled out. 20. Even the bones which have been recovered cannot be connected to the deceased with any certainty. Dr. S.P. Sharma, who has conducted the autopsy, has explained that the skeleton examined by him consisted of two tibia bones eaten by insects from both ends and three other bones recovered were partially eaten by insects. In his opinion although these bones were human bones but he could not say with any certainty whether theses bones are of a man or woman. 21. In his opinion although these bones were human bones but he could not say with any certainty whether theses bones are of a man or woman. 21. The recovery of such bones almost after two months of the incident would not be of much help to the prosecution case as it cannot be said that these bones were of the deceased. Similarly, even if it was accepted that the recovered items like clothes etc. were of the deceased yet it would not inculpate the accused appellant since it is not known as to who had kept it there. This is so as some other person was aware about such material lying there and role of this unknown person would remain suspect. 22. Law with regard to the principles to be followed for conviction in a case of circumstantial evidence has been summed up by the Supreme Court in Sharad Birdichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 . The judgment has been followed recently by the Supreme Court in Nagendra Shah vs. State of Bihar, (2021) 10 SCC 725 while applying the five golden principles to observe as under in paragraph 17 of the judgment: “17. As the entire case is based on circumstantial evidence, we may make a useful reference to a leading decision of this Court on the subject. In Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487, in Para 153, this Court has laid down five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Para 153 reads thus: (SCC p. 185) “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. 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 vs. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 wherein the following observations were made: (SCC p. 807, Para 19) “19......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. (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.” 23. On evaluation of abovenoted circumstantial evidence in light of the law settled, we find that the guilt of accused appellant cannot be treated to have been established. Hypothesis of guilt pointing exclusively to accused appellant is not established in the facts of the present case. The possibility of an alternative hypothesis cannot be ruled out. 24. The trial court has taken into consideration the above material to come to a contrary conclusion so as to implicate the accused appellant. The court below appears to have been persuaded by the prosecution version and the evidence has not been subjected to careful scrutiny in light of the law settled. The court below has proceeded to accept the prosecution version without carefully subjecting the evidence to the law settled. The court below has not taken into consideration the fact that an unknown person was guiding the prosecution and the line of reasoning suggested by him has been blindly followed. The court below has proceeded to accept the prosecution version without carefully subjecting the evidence to the law settled. The court below has not taken into consideration the fact that an unknown person was guiding the prosecution and the line of reasoning suggested by him has been blindly followed. The unknown author of this letter or the role which he may have played in either commissioning of the crime or in placing the recovered articles near the culvert has not been examined. If someone was aware that for the last one and a half month the dead body was lying at a particular place and that the murder was committed by the accused appellant why did he not inform the police earlier or why he suppressed his identity remains unexplained. No direct evidence of the complicity of accused appellant is otherwise available. These are crucial aspects and the involvement of any other undisclosed person in commissioning of the offence cannot be ruled out. An alternative hypothesis therefore does exist to implicate someone other than the accused appellant. 25. This takes us to the last aspect of this case i.e. the obligation on part of the accused appellant to explain whereabouts of his wife. The accused appellant in his statement under section 313 Cr.P.C. has stated that he left his wife at the railway station for catching train to Bareilly. Her alleged dead body has been located in a mysterious manner after about two months from a public place. The presumption in law on part of the accused appellant of explaining the whereabouts of deceased cannot be pressed so as to obviate the prosecution of its responsibility to prove the guilt of the accused appellant by adducing cogent evidence. Such presumption could only have been pressed as corroborative piece of evidence and not as a substantive piece of evidence. We, moreover, find that no incriminating material has been put to the accused appellant by the prosecution under section 313 Cr.P.C. with regard to presumption in law on part of accused appellant of explaining the whereabouts of his wife and, therefore, this aspect also cannot be pressed against the appellant. 26. For the reasons recorded above, we are of the view that the prosecution has failed to establish the guilt of the accused appellant beyond reasonable doubt and, therefore, he is entitled to benefit of doubt in the matter. 26. For the reasons recorded above, we are of the view that the prosecution has failed to establish the guilt of the accused appellant beyond reasonable doubt and, therefore, he is entitled to benefit of doubt in the matter. The judgment and order of conviction and sentence dated 25.04.2006 in Session Trial No. 122 of 2001 is, thus, set aside. Since the accused appellant is in jail for the last 22 years, he shall be released forthwith, subject to compliance of section 437A of Criminal Procedure Code. 27. We record our appreciation for the assistance rendered to the Court by Amicus Curiae Sri Abhishek Sharma in deciding the appeal and he shall be paid his fee by the High court Legal Services Authority.