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2022 DIGILAW 341 (UTT)

Narendra Arya v. State of Uttarakhand

2022-10-11

ALOK KUMAR VERMA, SANJAYA KUMAR MISHRA

body2022
JUDGMENT : Sri S.K.Mishra, J. By preferring this appeal, the appellant assails his conviction under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the Penal Code for brevity) by learned Additional Sessions Judge, Haldwani, District Nainital in Session Trial No. 56 of 2012, as per the judgment dated 31.10.2013. He has been sentenced to undergo imprisonment of life and to pay fine of Rs. 5,000/-, in default, to undergo rigorous imprisonment for six months. 2. The case of the prosecution, in short, is that the appellant happens to be the son-in-law of PW1 Smt. Deepa Devi, the informant. Deepa Devi solemnized the marriage of the appellant with her daughter, namely, Poonam who was about 19 years of age about eight months prior to the occurrence. The appellant was not doing any work and was not earning anything. He was indulged in consumption of intoxicants like liquor, charas etc., and because of such behaviour of the appellant there was always quarrel between the deceased (Poonam) and the appellant. On 01.02.2012, at about 7:00 pm., the appellant came back to their house after six days remaining outside. The deceased asked him why he is not doing any job and loitering here and there. There was altercation between both the appellant and his wife. The complainant pacified them. At about 9 pm., in the night, all of them took their meals and appellant and his wife went inside their room (vanj okys dejs esa) to take rest for the night. The complainant went to sleep in the outer room. Next day, at about 6 am., when the door was not opened, she knocked at the door but nobody opened the door then she gave push on the door. She found that her daughter is lying dead on the bed and a scarf was tied to her neck, therefore, she presumed that Narendra Arya-appellant had committed murder of her daughter and escaped through the window. She informed others and went to Lalkuan Police Station and on 02.02.2012 at 7:30 am., she submitted a written report. On such information FIR No. 14 of 2012 was registered at Lalkuan Police Station and the investigating officer took up the investigation of the case. She informed others and went to Lalkuan Police Station and on 02.02.2012 at 7:30 am., she submitted a written report. On such information FIR No. 14 of 2012 was registered at Lalkuan Police Station and the investigating officer took up the investigation of the case. In course of the investigation, the investigating officer held inquest on the dead body of the deceased, examined the complainant and other witnesses, dispatched the dead body for post mortem examination, after post mortem examination the Doctor submitted the report and after completion of investigation the investigating officer submitted the charge sheet, against the appellant, under Section 302 of the Penal Code. 3. In order to prove its case, the prosecution examined seven witnesses, viz., PW1 Smt. Deepa Devi is the complainant, PW2 Jeevan Lal, PW3 Pramod Kumar, PW4 Head Constable Narendra Singh, PW5 Raza Abbas, Tehsildar, PW6 Dr. Sanjeev Prakash and PW7 Vipin Chandra Pant, investigating officer and led into evidence of 12 exhibits. 4. The accused took the plea that he has been falsely implicated in this case and that he was not present in the house at that time. No evidence was led on behalf of the defence. 5. The learned Additional Session Judge took into consideration the fact that the appellant and the deceased were last seen by the complainant in the night of 01.02.2012 and that on the next day the dead body of the deceased was found inside the room and the appellant was absent. The learned Judge further held that the defence could not explain the death of the deceased hence, inference under Section 106 of the Indian Evidence Act should be drawn. The learned Addl. Session Judge held that the presence of the appellant and his wife inside the room and during the night death of the deceased due to asphyxia, absence of the appellant in that room in the next morning and failure to explain the cause of death of the deceased would be sufficient to prove the case of the prosecution. Therefore, basing on the circumstantial evidence, he convicted the appellant as stated above. 6. The learned counsel for the appellant would submit that the circumstances in this case are not complete. The circumstances are not forming a complete chain of events. Therefore, basing on the circumstantial evidence, he convicted the appellant as stated above. 6. The learned counsel for the appellant would submit that the circumstances in this case are not complete. The circumstances are not forming a complete chain of events. He would further submit that the presumption of innocence of the accused has not been rebutted by the prosecution, hence, the appeal should be allowed. The learned Dy. Advocate General, on the other hand, would submit that the prosecution has proved its case beyond reasonable doubt. 7. The Doctor in this case is Dr. Sanjeev Prakash. He has stated that on 02.02.2012, he conducted post mortem examination of the dead body of the deceased and found that the deceased was 19 years old. There was rigor mortis on her body. On external examination, he found the following injuries:- (i) abrasions on the front of the neck towards left side. There was blue colour swelling around the abrasions. (ii) He also, after post mortem examination found that the internal organs were congested and heart was filled with blood. Stomach contained half digested food. Stomach was also filled with gas feceal remains. He came to the conclusion that the death of the deceased was due to throttling resulting in asphyxia because of ante mortem injuries on the neck. Thus, it is clear that death of the deceased was homicidal and due to asphyxia due to throttling. 8. The only other material that is available on record is that there was altercation between the deceased and the appellant and that they went to sleep inside room of the house after dinner. Next morning he was found absent and the deceased was found dead. The examination of the statement of PW1 reveals that the deceased and the appellant went inside their room to sleep after meals. However, on the next morning the door was forced opened by her and deceased was lying dead. The appellant was absent. Thus, this is a circumstance proved against the prosecution and the examination of the evidence of this witness reveals that there is no apparent contradiction in her evidence. However, the last seen theory has been propounded only by one witness in this case. 9. The appellant was absent. Thus, this is a circumstance proved against the prosecution and the examination of the evidence of this witness reveals that there is no apparent contradiction in her evidence. However, the last seen theory has been propounded only by one witness in this case. 9. In the case of Vedivelu Thevar vs. The State of Madras, 1957 AIR 614, the Hon’ble Supreme Court has held that the evidence of solitary witness may also be relied to prove the case of the prosecution. However, the Supreme Court further held that generally the witnesses are classified into three categories (1) wholly reliable (ii) wholly unreliable and, (iii) neither wholly reliable nor wholly unreliable. 10. As far as the witnesses of the first two categories are concerned, this Court does not have any problem in coming to its decision. If witness is wholly reliable then his/her evidence can be taken into consideration and in the absence of any other corroborating circumstance also the prosecution can be said to have proved its case. Similar this situation is with respect to wholly unreliable witness. In that case, the Court simply discards his/her evidence giving its finding accordingly. The real lis arises when the witness is neither wholly reliable nor wholly unreliable. Most of the witnesses come in third category. When the evidence of the witness is of such sterling quality the Court has to consider her evidence to be wholly reliable. In cases where the Court considers the witness to be neither wholly reliable not wholly unreliable then it should seek some independent corroboration not necessarily by direct evidence. Attending circumstances, which has been objectively determined by the investigating agency, can also to be taken into consideration to come to a conclusion about the acceptability of the evidence of a witness. 11. The site plan prepared by the investigating officer reveals that PW2 Jeevan Lal was in occupation of two rooms and two rooms were in occupation of the appellant. All the four rooms were in one building. The statement of PW2 reveals that there was discord ( eu eqVko ) between the deceased and the appellant. On 01.02.2012, in the evening, the appellant came after a weak by staying outside. At that time, his mother-in-law was also present in that house. The witness further stated that on that evening there was no altercation between the appellant and the deceased. On 01.02.2012, in the evening, the appellant came after a weak by staying outside. At that time, his mother-in-law was also present in that house. The witness further stated that on that evening there was no altercation between the appellant and the deceased. After taking food, the appellant and his wife (deceased) went to their room, PW1 went to her room and PW2 went to his room along with his wife for the night rest. He further stated that he did not hear any altercation between the deceased and the appellant that night. It is also borne out from the evidence of PW2 that he was not pulling on well with the appellant. His statement regarding the absence of any altercation between husband and wife, i.e., appellant and the deceased runs contrary to the evidence of PW1. Though, Section 134 of the Indian Evidence Act 1872 (hereinafter referred to as the Evidence Act for brevity) provides that no particular number of witnesses is required to be examined to prove a fact. This Court is of the opinion that PW1 has a motive to implicate the appellant, as it is apparent from her statement that she was not happy with the appellant and that the occurrence took place inside a house where the appellant along with his wife, PW1, PW2 and his family were residing together, so in that situation, evidence of a very sterling quality is required to draw any adverse presumption against the appellant. 12. It is settled principle of law that the accused has a right to remain silent. A person arraigned as an accused in a case is presumed to be innocent until proven guilty. The burden is always on the prosecution to prove the guilt of the accused beyond all reasonable doubt. The burden never shifts to the defence. However, in cases where the appellant takes a specific defence plea like alibi or right of private defence etc., onus of proving the same shifts to the defence. The burden always lies on the prosecution to prove its case beyond reasonable doubt. In a case, entirely based on circumstantial evidence, the prosecution has to establish all the circumstances conclusively and none of the circumstance should be consistent with hypothesis of the innocence of the accused. The burden always lies on the prosecution to prove its case beyond reasonable doubt. In a case, entirely based on circumstantial evidence, the prosecution has to establish all the circumstances conclusively and none of the circumstance should be consistent with hypothesis of the innocence of the accused. We take note of the oft quoted judgment of the Sharad Birdhi Chand Sarda vs. State of Maharashtra, 1984 AIR 1622, wherein five golden principles on circumstantial evidence has been laid down, which reads as follows:- (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. (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, 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. 13. Thus, it is clear from the aforesaid observations of the Hon’ble Supreme Court that cases based on circumstantial evidence requires a conclusive proof of each and every circumstance and all the circumstances must form the chain of events so complete that there is no other escape to come to a conclusion that accused is guilty of the offence alleged by the prosecution. In this case, two circumstances that has been said to have been proved is that the appellant and the deceased were inside the room where the dead body of the deceased was found on the next day and the death of the deceased was due to asphyxia. The learned Addl. Session Judge has taken into consideration provision of Section 106 of the Evidence Act and has held that in the absence of any explanation by the appellant, the prosecution case has to be considered to be proved. 14. In our considered opinion such an approach is not proper. The learned Addl. Session Judge has taken into consideration provision of Section 106 of the Evidence Act and has held that in the absence of any explanation by the appellant, the prosecution case has to be considered to be proved. 14. In our considered opinion such an approach is not proper. Only two circumstances has been proved in this case and the last seen theory propounded by PW1 appears to be a bit shaky in the sense that she has stated about the quarrel between the appellant and the deceased, whereas PW2 has not stated about any such quarrel. PW1 has all the reasons to be unhappy with the appellant, and, therefore, there may be motive on her part to implicate the appellant in commission of the crime. Therefore, it will not be very safe to rely upon the solitary statement of PW1 about the last seen theory. PW2 has also not specifically stated about his seing the appellant and deceased going to room and closing the door for taking rest for the night. 15. The Hon’ble Supreme Court in the case of State of Uttar Pradesh vs. Kishanpal and others, (2008) 16 SCC 73 , examined the importance of motive in case of circumstantial evidence. At paragraph 38, the Hon’ble Supreme Court has held 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 prompted or excited them to commit the particular crime. In para 39 the Hon’ble Supreme Court has further held that 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. The Hon’ble Supreme Court further held that the motive loses all its importance in a case where direct evidence of eyewitnesses is available. 16. Moreover, in the case of Pannayar vs. State of Tamil Nadu, (2009) 9 SCC 153, the Hon’ble Supreme Court has held that absence of motive in a case which depended upon circumstantial evidence weighs in favour of the accused. 17. 16. Moreover, in the case of Pannayar vs. State of Tamil Nadu, (2009) 9 SCC 153, the Hon’ble Supreme Court has held that absence of motive in a case which depended upon circumstantial evidence weighs in favour of the accused. 17. In the case of Shivaji Chintappa Patil vs. The State of Maharashtra, (2021) 5 SCC 626 , it was held by the Hon’ble Supreme Court that though in a case of direct evidence motive would not be relevant, in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances. 18. In this case, the prosecution has not established the motive behind the crime. As discussed earlier, the evidence of PW1 and PW2 appears to be contradictory in particular aspect and also cannot be held wholly reliable. There being no other attending circumstance supporting the case of the prosecution. The absence of motive in this case will definitely weigh in favour of the appellant. The two witnesses, who were inmates of the house contradicting each other about the quarrelling and altercation between the appellant and the deceased in the night of occurrence. Moreover, small dispute between husband and wife cannot be held to be a strong motive. PW2, being inmate of the house is unable to state that there was any dispute between them and that though there was some discord ( eu eqVko ). Such marital discord is a normal happening and it cannot be held to be a motive for committing the offence like murder. 19. Hence, this Court is of the opinion that there is reasonable doubt regarding the complicity of the appellant in the commission of the crime. Shifting of burden on the appellant by the learned Addl. Sessions Judge was not proper in the facts of this case. 20. In the result the appeal is allowed. The judgment of conviction and order of sentence under Section 302 of the Penal Code are hereby set aside. The appellant is not found guilty of the offence under Section 302 of the Penal Code, and, therefore, he is acquitted of the same. The appellant is directed to appear before the learned Addl. Session Judge, Haldwani, District Nainital for the purpose of executing bond in terms of Section 437-A of the Code of Criminal Procedure, 1973, as per the instructions of the learned Addl. Session Judge. 21. The appellant is directed to appear before the learned Addl. Session Judge, Haldwani, District Nainital for the purpose of executing bond in terms of Section 437-A of the Code of Criminal Procedure, 1973, as per the instructions of the learned Addl. Session Judge. 21. Trial court records be sent back forthwith.