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2022 DIGILAW 28 (UTT)

Pitamber Thawal v. State of Uttarakhand

2022-03-03

R.C.KHULBE, S.K.MISHRA

body2022
JUDGMENT : SANJAYA KUMAR MISHRA, J. This is a case of uxoricide. 2. The appellant-convict assails his conviction under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to ‘Penal Code’ for brevity) recorded by the learned Sessions Judge, Pithoragarh in S.T. No.37 of 2008, State v. Pitamber Thawal, and sentenced him to undergo imprisonment for life along with payment of fine of Rs.5,000/-, and in default of payment of fine, to further undergo simple imprisonment of six months. 3. The case of the prosecution is that on 2.7.2008 at 6:15 AM, one Prakash Joshi, Block Pramukh, Jajardeval, informed about the death of deceased. On receiving this information, S.I. J.C. Tiwari reached the spot and conducted the inquest proceedings and prepared the inquest report. On the same day, he recovered the slippers, pair of shoes and also took up the clothes of accused. After four days, on 5.7.2008, he arrested the accused. Upon completion of investigation, he submitted the charge-sheet against the convict-appellant. The defence took the plea of simple denial and false accusation on account of previous enmity. 4. The prosecution, in order to prove its case, examined 10 witnesses and led several documents and material objects into evidence. 5. PW1 Basant Ballabh is the informant of the case who happens to be the brother of deceased; PW3 Geeta Thawal is a witness who states about recording the routine adopted by the appellant and the deceased, and also she happens to be the sister in law of deceased; PW6 Girish Chandra Oli and PW2 Suresh Chandra Chausali are the persons who have been examined to prove the extra judicial confession component of the evidence of prosecution; PW5 Kirti Ballabh, the father of deceased, has stated about the relations between his daughter and the accused; PW4 Dr. Lalit Mohan Joshi has conducted post-mortem on the body of deceased; PW8 Dr. B.S. Yadav has examined the accused on police requisition. Rest of the witnesses are formal in nature i.e., PW7 S.I. Prakash Chandra Punetha, and PW9 S.I. Jagdisch Chandra Tiwari who are the I.Os. of the case while PW10 Inspector Vipin Chandra is the SHO of the Police Station. 6. The defence on the other hand has examined one witness i.e. DW1 namely Mamta Thawal, the daughter of deceased to state about the defence case that there was no strained relations between the accused and the deceased. 7. of the case while PW10 Inspector Vipin Chandra is the SHO of the Police Station. 6. The defence on the other hand has examined one witness i.e. DW1 namely Mamta Thawal, the daughter of deceased to state about the defence case that there was no strained relations between the accused and the deceased. 7. Admittedly, the case is based entirely on the circumstantial evidence. The circumstances relied upon by the learned Sessions Judge holding that they have been established cogently and firmly are as follows:- a. On the fateful night, the deceased and the accused were the only occupants of the house where the dead body was recovered in the morning of 2.7.2008; b. The fact that the relations between the deceased and the accused were estranged and accused suspected the deceased; c. There were burn injuries on the body of deceased; d. The confession of the accused to PW6 Girish Chandra Oli about commission of crime and; e. Failure of accused to explain the circumstances, which led to the killing of deceased in the night in a house where he and deceased were staying alone. 8. The Hon’ble Supreme Court in the case of “Sharad Birdhichand Sarda vs State of Maharashtra” reported in 1984 (4) SCC 116 has laid down five golden principles of appreciation of evidence in a case based only on circumstantial evidence. They are as follows: - a. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; b. 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; c. the circumstances should be of a conclusive nature and tendency; d. they should exclude every possible hypothesis except the one to be proved; and e. 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. 9. The most important aspect of circumstantial evidence is that the circumstance from which the conclusion of guilt is to be drawn, should be fully established. 9. The most important aspect of circumstantial evidence is that the circumstance from which the conclusion of guilt is to be drawn, should be fully established. The Supreme Court has further held that the circumstance concerned ‘must or should’ and ‘not’ ‘may be’ established. In other words, the prosecution, in a case based entirely on circumstantial evidence, must establish the circumstance conclusively. 10. Now, the first circumstance that has been taken to have been proved by the learned Sessions Judge in this case is that on the fateful night, the deceased and the appellant were the ‘only occupants’ of the house where the dead body was recovered in the morning of 2.7.2008. 11. To establish this important circumstance, the evidence of PW3 Geeta Thawal, PW5 Kirti Ballabh and DW1 Mamta Thawal are relevant in order to arrive at a just and proper conclusion. It is appropriate to re-assess the evidence of these three witnesses. 12. PW3 Geeta Thawal has stated on oath that the deceased was her sister-in-law (JETHANI) and her name was Savitri Devi. The name of her husband is Pitamber Thawal. They were residing in their house situated at Jajardeval. On 1.7.2008, in the night, the deceased took the food and went from Basul Katya to the shop of deceased situated in Jajardeval and stayed there. She further stated that the deceased was residing with her husband and was taking food from Basul Katya daily. She used to return in the morning. The children of the couple were residing at Basul Katya. The distance between Basul Katya and Jajardeval is 20-25 minutes on foot. On 2.7.2008, the police came to the Village Basul Katya and found the burnt body of deceased inside the shop of appellant. This witness also saw the dead body having burn injuries. In cross-examination she stated that the deceased and the appellant were pulling on well and were also treating each other well; there was no dispute or quarrel between them; the accused was not habituated to drink; one or two days prior to the occurrence, there was no dispute or quarrel between the accused and the deceased. She has also stated that she believes that the deceased was not burnt by her husband since there were cordial relations between them. 13. The second witness i.e. PW5 Kirti Ballabh happens to be the father of deceased. She has also stated that she believes that the deceased was not burnt by her husband since there were cordial relations between them. 13. The second witness i.e. PW5 Kirti Ballabh happens to be the father of deceased. He has stated that he was a retired government employee. The marriage of his daughter Savitri was solemnized with the appellant Pitamber Thawal in the year 1989 as per Hindu rites and customs. He stated that whenever his daughter would come to meet him, she used to complain against the accused but he was not paying any attention to it as they both had to stay together, and further that, small occurrences do take place in married life. He further states that looking to the hardship faced by his daughter, he had given Rs.1.00 lakh to his daughter by way of a cheque. He further states that on 2.7.2008, he was informed by Basant Ballabh that his daughter has died due to burn injuries. He saw the dead body lying in the house of appellant. In cross-examination, he has stated that his daughter never made any complaint to him directly but stated that there were small disputes between the husband and wife. 14. The third witness who has been relied upon by the prosecution is the daughter of deceased and appellant i.e., DW1 Mamta Thawal. She has stated that there were cordial relations between the accused and the deceased. Her father never assaulted her mother. One day prior to incident, her father went to the house of one Kharak Singh of Village Sujai. She has not stated anything about the presence of appellant along with the deceased in the house where the dead body of deceased was lying on the fateful night of 1-2nd July, 2008. 15. So on an analysis of this evidence, it is clear that the learned Sessions Judge has erred in holding that the prosecution has established conclusively and cogently that ‘on the fateful night, the appellant and the deceased were the only occupants of the house where the dead body was recovered in the morning of 2.7.2008’. The finding should have been that the dead body of the deceased was recovered in the morning of 2.7.2008 from the house where the deceased and the appellant were ordinarily residing. The finding should have been that the dead body of the deceased was recovered in the morning of 2.7.2008 from the house where the deceased and the appellant were ordinarily residing. At the risk of repetition, we may further state that there is absolutely no evidence that actually, the appellant and the deceased were staying together in that house in the intervening night of 1-2nd July 2008. So the most important circumstance, from which another circumstance is drawn i.e. circumstance No.6, the failure to explain the circumstance which led to the killing of deceased in the night where he and deceased were staying alone, is not established in this case. 16. The learned Deputy Advocate General appearing for the State has relied upon the provision of Section 106 of the Indian Evidence Act and stated that in absence of a valid explanation, a negative inference is to be drawn and the Court was correct in holding that the absence of explanation itself is a circumstance to hold that the prosecution has proved its case beyond reasonable doubt. For the purpose of appreciation, we quote Section 106 hereunder: - “106. Burden of proving fact especially within knowledge- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations- (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.” 17. The provision of Section 106 will come into play whenever it is established by sterling quality of evidence that the accused only had the knowledge about the death of the deceased, or the circumstance which led to the death of the deceased. 18. In this case, as we have already held that there is no evidence on record to establish that on the fateful night, the accused was, in fact, present in the house along with his wife to the exclusion of other individual. On the top of it, the evidence of DW1 Mamta Thawal, whose evidence has not been shaken, suggests that one day prior to the incident, her father had left for village Sujai. 19. On the top of it, the evidence of DW1 Mamta Thawal, whose evidence has not been shaken, suggests that one day prior to the incident, her father had left for village Sujai. 19. In this case, Section 106 of the Evidence Act will not be attracted. Thus, circumstance Nos.1 and 6 are held not to have been established cogently and firmly. 20. We have examined the evidence of the sister in law, father and that of the daughter of deceased. From their evidence, it is not established beyond reasonable doubt that the relations between the deceased and the appellant were strained or that the accused suspected the deceased. 21. PW1 Basant Ballabh, informant, has stated that the incident took place on 1-2nd July 2008 in the night. On 2.7.2008 at about 7 to 7:15 AM, the appellant came to their village Uroli and informed that the deceased died due to burn injuries. His father went to the spot. He has stated that the appellant was residing in Village Jajardeval where he was running a shop. He further stated that his sister i.e. deceased Savitri used to take food from their house from Basul Katya after cooking the same for the appellant. The distance between the two villages is 20-25 minutes by walk. This witness has not stated that he had seen those two persons, the appellant and the deceased were, in fact, in the house in the fateful night. He has also not stated about the alleged strained relationship between the parties. So, we are of the opinion that there is no evidence on record to suggest that the relations between the deceased and the appellant were strained or that the appellant suspected the deceased. In fact, the finding that the accused suspected the deceased is not stated by anyone anywhere and we are unable to gather from where the learned Sessions Judge found this component of evidence. 22. The extrajudicial confession component evidence has been stated by PW6 Girish Chandra Oli. PW6 in his statement has stated that he knows the appellant and the deceased. They were staying together at Basul Katya and Jajardeval, and the appellant was running a shop in Jajardeval. On 3.7.2008, from Bunga Cheena, Suresh Chandra Chausali (PW2) and the witness were coming to Pithoragarh by a jeep. PW6 in his statement has stated that he knows the appellant and the deceased. They were staying together at Basul Katya and Jajardeval, and the appellant was running a shop in Jajardeval. On 3.7.2008, from Bunga Cheena, Suresh Chandra Chausali (PW2) and the witness were coming to Pithoragarh by a jeep. When they reached Jajardeval, appellant met him and caught hold the hand of Suresh Chandra Chausali and took him towards Basul Katya. At a desolate place, appellant put his hand on the shoulder of PW2 Suresh Chandra Chausali and started crying. He disclosed before the witness Suresh Chandra Chausali that he committed a blunder; he further stated that he throttled his wife Savitri Devi, made her unconscious, then poured kerosene oil on her body, and set her at fire; and so he killed her. He further stated that the appellant requested that his father in law Kirti Ballabh should be made to understand, otherwise his family would be ruined and his children would become orphan. On hearing this, they became worried and went back to their own village Bunga Cheena. In cross-examination, the witness stated that on 16.7.2008, he was examined by the police. He further stated that he was again examined on 16.8.2008. He further stated in cross-examination that the brother of deceased called him to the police station. He also told him what is to be stated before the police. He admitted that he stated before the police on the instructions of deceased’s brother. 23. PW2 Suresh Chandra Chausali has turned hostile to the prosecution story. He has been cross-examined with reference towards the statement recorded under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”, for brevity). However, he denied to have stated before the Magistrate under Section 164 of the Code that the accused made any extrajudicial confession before him in presence of PW6 Girish Chandra Oli. Thus, this being the evidence, it is clear that the prosecution has not established that the appellant had a kind of relationship with the witnesses to repose trust on them. Thus, this being the evidence, it is clear that the prosecution has not established that the appellant had a kind of relationship with the witnesses to repose trust on them. Section 24 of the Evidence Act provides that a confession made by an accused is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Thus, the confession made to a person is admissible and can be fully relied upon if it is made to a person who is confidant of the person making the confession and that the person making the confession believes that he will have an advantage of temporal nature if he confesses his guilt to that person. 24. Though, in this case, it is alleged by the prosecution that the appellant made confession before PW2 Suresh Chandra Chausali and PW6 Girish Chandra Oli to make his father in law understand otherwise their family would be ruined, it cannot be taken as an advantage of temporal nature or to avoid any evil, because it is the very case of the prosecution that the confession has been made on 3.7.2008, whereas the dead body had been recovered on 2.7.2008. By then the dead body was already found and police had arrived at the spot. 25. There is also another important aspect of the matter that some witnesses have stated that the accused was arrested on 2.7.2008 but the prosecution case is that he was arrested on 5.7.2008. There is also unexplained delay of about four days in lodging of the FIR. The witness PW6 Girish Chandra Oli was also examined almost after fifteen days of the incident. So, this witness cannot be held to have proved the extrajudicial confession, and in the present case, it is not corroborated from any other attending circumstance to make it more reliable. In that view of the matter, the extrajudicial confession component of the evidence is also not established in this case. 26. So, this witness cannot be held to have proved the extrajudicial confession, and in the present case, it is not corroborated from any other attending circumstance to make it more reliable. In that view of the matter, the extrajudicial confession component of the evidence is also not established in this case. 26. In view of the aforesaid discussion, circumstance Nos.1, 2, 4 and 5 are not established conclusively in this case. Now, it remains the circumstance of finding of burn injury on the body of deceased and the homicidal nature of the death of deceased due to burn injuries. The finding of burn injury on the person of the accused is also suspected, as he was examined after five days of the incident. These circumstances, too, do not form complete the chain of circumstance pointing out towards the guilt of the appellant. In that view of the matter, we are of the opinion that there is a reasonable doubt in the case of the prosecution and it is not proper or just to uphold the conviction of the appellant on the basis of aforesaid evidence. 27. In the result, the appeal is allowed. The conviction of the appellant as recorded by the Trial Court under Section 302 IPC is hereby set aside. The sentence awarded to the appellant for that offence is also set aside. The appellant is acquitted of the offence. He is on bail. He needs not to surrender. His bail bonds are cancelled and sureties are discharged of their liability. 28. Let a copy of this judgment and order along with the TCR be transmitted to the Court concerned forthwith.