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2022 DIGILAW 2028 (ALL)

Sandhya Singh v. State of U. P.

2022-12-22

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT Ajai Tyagi, J. This appeal has been preferred against the judgment and order dated 6.8.2018, passed by the learned Additional District and Sessions Judge-V, Banda, in Session Trail No. 204 of 2010 (State ofUttar Pradesh v. Km.Sandhya Singh and others) arising out of Case Crime No. 119 of 2010 under Sections 364/34, 302/34, 201/34 IPC, Police Station-Baberu, District-Banda, whereby the appellants are convicted and sentenced for the offences under Section 364/34, 302/34 and 201/34 IPC for life imprisonment with a fine of Rs. 5,000/- and in default of payment of fine, further imprisonment for one month. 2. Heard Shri Vishwadeep Patel, learned counsel for the appellants, Shri Birendra Singh, learned counsel for the informant, Shri Patanjali Mishra, learned AGA for the State and perused the record. 3. The brief facts of the case are that son of the informant, Namely, Kishan aged about 2-1/2 years went missing on 24.4.2010. Next day, on 25.4.2010 a missing report was lodged by informant at Police Station-Baberu, District-Banda. On 18.5.2010, the dead-body of the missing son was found in the well situated in the housing campus of accused-Prakashveer. In the meantime, on 1.5.2010, First Information Report (Ex.ka1) was lodged by informant with the averment that his son Kishan was playing in front of the gate of the house on 24.4.2010 at about 6:15 pm. and some unknown persons have kidnapped him. 4. After recovering the dead-body on 18.5.2010, another report (Ex.ka3) was given at Police Station-Baberu, District-Banda in which it is averred by informant that on 24.4.2010, his son Kishan went missing from the gate of accused-Prakashveer. On that date, he had gone to the pond with his mother. On coming back, he was following his mother and started playing near the gate of Prakashveer. At that time, Prakashveer, Sandhya (daughter of Prakashveer), Mukut, Gulab and Rakesh were present inside the house. At the same time, Shankar and Jaikaran @ Fakku were going towards the house of Shankar from the shop of Mattu. They saw that Kishan was playing inside the gate of the Prakashveer and all the aforesaid persons were standing inside the gate. He had belief that aforesaid persons have murdered his son and had thrown the body in the well with the help of Dinesh and Deshraj. 5. During the course of investigation, the Investigating Officer recorded the statement of witnesses under Section 161 Cr.P.C. Search-memo was prepared. He had belief that aforesaid persons have murdered his son and had thrown the body in the well with the help of Dinesh and Deshraj. 5. During the course of investigation, the Investigating Officer recorded the statement of witnesses under Section 161 Cr.P.C. Search-memo was prepared. On recovery of the dead-body, inquest proceedings were conducted and the body was sent for postmortem. Concerned doctor conducted the postmortem on the body of the deceased and prepared the postmortem report. After completion of investigation, the IO has submitted charge-sheet against the accused, namely, Kumari Sandhya, Prakashveer @ Malkhan, Gulab and Mukut under Section 364, 302 and 201 IPC. 6. The case, being triable exclusively by the Court of Session, was committed by Magistrate to the Court of Session. Learned trial-Court framed charges against the appellants under Sections 364, 302 IPC read with Section 34 IPC and Section 201 IPC. Accused-appellant denied the charges and claimed to be tried. 7. Prosecution examined following witnesses: 1. Virendra Singh PW1 2. Shankar PW2 3. Pinki @ Sandhya PW3 4. Jai Karan PW4 5. Sangita Devi PW5 6. Dr.P.S. Sagar PW6 7. Rakesh Kumar Mishra PW7 8. Ashok Dhar Pandey PW8 8. Apart from aforesaid witnesses, prosecution submitted following documentary evidence, which was proved by leading the evidence: 1. Written Report Ex.ka1 2. Recovery memo of body Ex.ka2 3. Application Ex.ka3 4. Search Memo of Well and House and Recovery of Skull Ex.ka4 5. Affidavit of Shankar Singh Ex.ka5 6. Affidavit of Jai Karan Singh Ex.ka6 7. P.M. Report Ex.ka8 8. Site Plan with Index Ex.ka9 9. Panchayatnama Ex.ka10 10. Site Plan with Index Ex.ka16 11. Site plan with Index Ex.ka18 12. Charge-Sheet (Mool) Ex.ka19 9. After completion of prosecution evidence, the statements of accused persons were recorded under Section 313 Cr.P.C. in which they told that they have been falsely implicated in this case and false evidence is led against them. They were implicated only on the basis of enmity. Accused persons have examined two witnesses in their defence. Learned Trial Court after hearing both the sides convicted all the accused persons, namely, Km.Sandhya Singh, Prakashveer @ Malkhan, Gulab Singh and Mukut @ Tarun Singh for the offences under Sections 364 read with Section 34, Section 302 read with Section 34 and 201 read with Section 34 IPC and sentenced them for life imprisonment and fine. Hence, this appeal. 10. Hence, this appeal. 10. Learned counsel for the appellants submitted this is a case of circumstantial evidence because as per prosecution case nobody has seen the ill-fate of the deceased child. There is no eye-witness in this case. Learned counsel submitted that detailed First Information Report was lodged by the informant after one week of the recovery of the dead-body of the deceased, in which, he has first of all, disclosed the names of the appellants, that too, on the basis of suspicion. 11. Further submission of learned counsel for the appellants is that in case of circumstantial evidence, motive assumes a great importance while in this case, no motive is established by the prosecution. There is nothing on record as to why the appellants committed murder of the deceased-child. The mother of the deceased-child, namely, Pinki @ Sandhya had first time in her deposition disclosed that accused Sandhya was falsely allegating the informant that he had molestated her. This is not such motive on the basis of which a crime like murder of the child could be committed. 12. Learned counsel for the appellants further submitted that the prosecution has developed the theory of 'last-seen' for which Shankar-PW2, Jai Karan-PW4 were examined. Both these witnesses have deposed that they had seen the deceased-child in the company of appellants on 24.4.2010 and they were taking him towards the well from which the dead-body was recovered. Learned counsel strongly contended that both the above witnesses have disclosed this fact to the family-members of the deceased-child after the recovery of the dead-body, which is quite unbelievable because if such type of incident occurs in any village, nobody would keep silent for a period of 25 days, when the search of the missing-boy was on. It shows that both PW2 and PW4 are planted witnesses. Last-seen theory by prosecution is not proved at all. 13. It is next submitted by learned counsel for the appellants that there is evidence of extra-judicial confession also in this case, which is falsely created by the prosecution. It is said that Sangita Devi-PW5 is the bua of the deceased-child and accused Km.Sandhya Singh had gone to her and confessed that on 24.4.2010, she allured the deceased-child Kishan and taken him inside her house where all other accused persons were present. They all murdered Kishan and threw his body into the well. It is said that Sangita Devi-PW5 is the bua of the deceased-child and accused Km.Sandhya Singh had gone to her and confessed that on 24.4.2010, she allured the deceased-child Kishan and taken him inside her house where all other accused persons were present. They all murdered Kishan and threw his body into the well. It was also told that her family was in pain because she was molested by the father of the deceased. Learned counsel submitted that this witness was also planted. It was not possible for PW5 to keep silent till the recovery of the dead-body of the child if the accused Km.Sandhya Singh has confessed before her because PW5 is bua of the deceased-child. 14. Learned counsel for the appellants also submitted that as per the statement of I.O., somebody had given clue to I.O. that the body would be found in the well of Prakashveer, then the police recovered the dead-body, but it is nowhere in the prosecution evidence as to who had given the clue. That important link is missing because the dead-body was not recovered at the behest of any of the appellants. Learned counsel for the appellants relied on the judgment of Apex Court in Shivaji Chintappa Patil v. State of Marashtra delivered on 2.3.2021 in Criminal Appeal No. 1348 of 2013 and submitted that in the aforesaid pronouncement, it is held by Hon'ble Apex Court that if two views are possible on the basis of prosecution evidence, one favouring the accused and other against the accused, the view favouring the accused is to be adopted. Hence, the learned trial Court has fallen in grave error by convicting the appellants without any evidence against them and the impugned judgment is liable to be set aside and accused be set free. 15. Shri Birendra Singh, learned counsel for the informant, submitted on behalf of prosecution that the well from which the dead-body of the deceased-child was recovered is situated in the compound of house of the appellants, which is fortified by a boundary wall and the well in question is not in access of general public. It is also submitted that this crime appears to be a crime of sacrifice where the deceased child was sacrificed by the appellants for some superstitious rituals. It is also submitted that this crime appears to be a crime of sacrifice where the deceased child was sacrificed by the appellants for some superstitious rituals. With regard to the fact of last-seen evidence, learned counsel submits that PW2 and PW4 might not have told the fact of last-seen of the child with the appellants so that they may not create enmity with the appellants. It is next submitted that extra-judicial confession is made by appellant, Km.Sandhya Singh before PW5-Sangita and she also might not have told this fact to the family members of the child due to fear of enmity with the appellants. 16. Learned AGA opposed the submissions made by learned counsel for the appellants and contended that all the circumstances in this case clearly indicate towards the appellants and proved that the offence is committed by the appellants only. It is submitted that if the informant wanted to implicate the appellants falsely then in that case, he should have lodged FIR against them on the same day when his son went missing, but he did not do so and lodged a missing report in police station in which nobody was named. Learned AGA next submitted that PW2-Shankar, PW4-Jai Karan are independent witnesses, who have deposed that they had seen the deceased-boy in the company of the appellants inside their house and thereafter the deceased-boy was never seen alive with anybody else. There is no contradiction in their statements. With regard to the testimony of PW5-Sangita Devi, learned AGA submitted that she is the lady before whom the accused-Km.Sandhya Singh has confessed. PW5 did not disclose the aforesaid facts before anybody as she was in faith with accused Sandhya Singh, but after recovery of dead-body of the deceased-child, she could not stop herself and disclosed the extra-judicial confession was made by accused Sandhya Singh before her. This is not unusual. Moreover, Investigating Officer has also proved the fact of recovery of the dead-body from the well, which is situated in the housing campus of the appellants. This well was not in the approach of any other persons. This circumstance also indicates towards the guilt of the appellants. Hence, prosecution case is well proved beyond reasonable doubt on the basis of circumstantial evidence and there is no illegality in the impugned judgment, which calls for any interference by this Court. 17. This well was not in the approach of any other persons. This circumstance also indicates towards the guilt of the appellants. Hence, prosecution case is well proved beyond reasonable doubt on the basis of circumstantial evidence and there is no illegality in the impugned judgment, which calls for any interference by this Court. 17. This is a case of circumstantial evidence as nobody has seen the murder of the deceased-child. Prosecution has mainly based its case on the basis of evidence of 'last-seen' by PW2, PW4 and on the basis of extra-judicial confession made by one of the appellants, namely, Km.Sandhya Singh before PW5. 18. Regarding the law of circumstantial evidence, Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , has held as under: 153. A cost 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 circumstance 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 v. State of Maharashtra, (1973) 2 SCC 793 , where the observations were made: [SCC para 19, p.807 : SCC (Cri) p.1047] ''19. ...Certainly, it is 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 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 excuse 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. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.'' 19. Prosecution has examined informant-Virendra Singh as PW1, who has formally proved the missing report and First Information Report. The deposition with regard to the facts, leading to the death of the child, are narrated by PW1 in his evidence, but it was only hear-say. He has deposed that appellants had taken his son Kishan towards the well and they threw him into the well after murder. This witness has specifically deposed that this aforesaid fact was told to him by Shankar and Jai Karan after recovery of dead-body. Hence, the evidence of PW1 is hear-say evidence and is not admissible. 20. Prosecution has examined PW2-Shankar and PW4-Jai Karan as witnesses of 'last-seen'. They both have deposed that on 24.4.2010, they had seen that the deceased-boy was playing inside the gate of appellants where all other appellants were present. They all took away the boy towards the well. PW4-Shankar has gone further and said that he saw that accused Km.Sandhya Singh came out with biscuit in her hand and took the boy inside her house by showing the biscuit where all other appellants were sitting on the cot. It is admitted fact of position that this fact of 'last-seen' was disclosed by PW2 and PW4 after 25 days of the said occurrence when the dead-body of the child was recovered. PW2-Shankar has admitted in cross-examination that he did not tell to I.O the fact that appellant-Km. Sandhya Singh had enticed away the child by showing the biscuit. Hence, this is the improvement in his evidence made by PW2. Further in his cross-examination, PW2 has admitted that since 24.4.2010 till the recovery of dead-body of the deceased-Kishan, he continuously remained in the village and used to met the family members of the deceased. In such a situation, it is very strange why PW2 did not disclose the fact of 'last-seen', as narrated above. No such explanation is given by the witness in his testimony as to why he kept silent for a period of 25 days, if he had seen the deceased-child in the company of appellants on 24.4.2010. The same goes with PW4-Jai Karan. He also did not disclose the fact of 'last-seen' to anybody during this period of 25 days. No such explanation is given by the witness in his testimony as to why he kept silent for a period of 25 days, if he had seen the deceased-child in the company of appellants on 24.4.2010. The same goes with PW4-Jai Karan. He also did not disclose the fact of 'last-seen' to anybody during this period of 25 days. He also spoke out after dead-body was recovered. He has admitted in his testimony that he did not tell anybody that accused Sandhya had taken away the deceased-Kishan and no explanation is given by this witness as to why he also kept silent for 25 days and disclosed the fact of last seen for the very first time after recovery of the dead-body. Hence, in our considered view, the testimony of PW2 and PW4 is not reliable and it does not inspire confidence. So the important link of the chain of circumstances breaks here. 21. In a case of circumstantial evidence, motive carries a strong weight. The Apex Court in State ofUttar Pradesh v. Kishanpal, (2008) 16 SCC 73 , has observed that the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eye-witnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye-witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eye-witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction. It is further held in Pannayar v. State of Tamilnadu, (2009) 9 SCC 152 , that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. 22. It is further held in Pannayar v. State of Tamilnadu, (2009) 9 SCC 152 , that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. 22. In the case in hand, the testimony of PW2 and PW4, who are said to be witnesses of last-seen, is not found reliable by us. Hence, it was incumbent upon prosecution to prove the motive behind the crime. Although, the FIR is not encyclopedia because motive is not told by informant yet PW3, the mother of the deceased, has first time disclosed the motive in her testimony that appellant-Km.Sandhya Singh used to falsely allegate her husband for molesting her. This motive could not be proved by prosecution by way of any evidence. Moreover, in our opinion, this is not a strong motive, which prompted the appellants to commit the murder of small child and the argument of prosecution cannot be accepted that it appears a case of sacrifice because no evidence in this regard i s on record and nobody has said it. Hence, another link of chain of circumstances breaks. 23. The testimony of PW5-Sangita Devi also cannot be relied by us. She has deposed that appellant-Km.Sandhya Singh made extra-judicial confession before her. We cannot believe her testimony for the reason because if it was so it was not expected from her to remain silent till the recovery of dead-body of the boy because she was his aunt (bua). Moreover, this is settled law with regard to extra-judicial confession that it should be made before a person, who is in position to save or help the accused making confession. In this case, the aunt of deceased-child was not in a position to save or help the appellants so there was no question for any of the appellants to confess before PW5. 24. In the case in hand, prosecution has measurably failed to prove the motive behind the crime as well as the fact of 'last-seen' evidence. The testimony of PW5-Sangita Devi does not also inspire confidence with regard to the fact of extra-judicial confession. Hence, the prosecution has failed to prove the circumstances of the case. There is no circumstantial evidence in this case, which can exclude every possible hypothesis and can prove that the offence is committed only by appellants and none else. The testimony of PW5-Sangita Devi does not also inspire confidence with regard to the fact of extra-judicial confession. Hence, the prosecution has failed to prove the circumstances of the case. There is no circumstantial evidence in this case, which can exclude every possible hypothesis and can prove that the offence is committed only by appellants and none else. Hence, the chain of circumstantial evidence is not complete so as to point out that these are the appellants only who have committed the offence. Hence, the evidence produced by prosecution cannot be used as a link to complete the chain, because the chain of evidence is broken on the point of motive, theory of last-seen and extra-judicial confession. Moreover, it is settled law that if two views are possible on the evidence adduced by the prosecution in the case; one pointing to the guilt of the accused and the other to his innocence, the view favouring the accused should be adopted. This principle has become more relevant where the prosecution seeks to establish the guilt of the accused by circumstantial evidence. 25. In the present case, we are of the considered view that let alone establishing chain of events which are so interwoven to each other leading to no other conclusion that the guilt of the accused, the prosecution has failed even to prove a single incriminating circumstance beyond reasonable doubt. As such, the appellants are given the benefit of doubt and the appeal is liable to be allowed. 26. The appeal is allowed and the conviction and sentence passed by the trial Court is set aside. The appellants are acquitted of all the charges and they are directed to be released forthwith if not required in any other case.