Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 595 (ALL)

Sunil Kumar v. State of U. P.

2022-04-21

MANOJ MISRA, SAMEER JAIN

body2022
JUDGMENT : 1. This appeal has been filed against the judgement and order dated 2.11.1999 passed by Additional Sessions Judge/Special Judge, Gangsters Act, Court No. 5, Etah in S.T. No. 70 of 2018, whereby, though the appellant Sunil Kumar, co-accused Gajraj Singh and Nirmala Devi have been acquitted of the charge of offences punishable under Sections 498A, 304B IPC and ¾ Dowry Prohibition Act but, the appellant -Sunil Kumar has been convicted under Section 302 IPC and sentenced to imprisonment for life whereas, the co-accused Gajraj Singh and Nirmala Devi have been acquitted of the charge of offence punishable under Section 302 read with Section 34 IPC. While admitting this appeal, vide order dated 7.12.2019, lower court record was summoned and office was directed to prepare the paper book of the appeal. Paper book of the appeal is ready therefore, with the consent of Sri Sanjeev Kumar Pandey, learned counsel for the appellant, and Sri Amit Sinha, learned AGA for the State, this appeal has been heard and is being decided finally by this order. Introductory facts 2. The wife of the appellant-Sunil Kumar, namely, Sangeeta was married to the appellant on 20.2.2015. She died in her matrimonial house on 24.3.2017 of which a first information report (vide written report-Ex. Ka-1) was lodged by PW-1 (Jamuna Prasad) father of the deceased. In the first information report, it is alleged that the accused, namely, Sunil Kumar (husband); Gajraj Singh (father-in-law); Sudhir and Yogendra (Devars) and Nirmala Devi (mother in law) were not happy with the dowry provided in the marriage and were pressing for a three wheeler and Rs. Fifty thousand in cash. It was alleged that in connection with the said demand, the deceased was being harassed and assaulted by the accused. It is also alleged that in connection with that, several times panchayats were organised but the accused did not relent and as the demand was not met, the accused killed Sangeeta. This FIR was registered at police station Mirhachi, District -Etah on 24.3.2007 at 16.25 hrs. of which a Chik FIR (Ex. Ka-3) and G.D. Entry (Ex. Ka-4) was prepared/made by PW-10. Inquest was conducted at 18.25 hrs on 24.3.2017 at deceased's matrimonial house in the presence of her family members of which inquest report (Ex. Ka-10) was prepared. 3. Autopsy of the body of the deceased was conducted by PW-9 on 25.3.2017 at about 2:50 pm. Ka-3) and G.D. Entry (Ex. Ka-4) was prepared/made by PW-10. Inquest was conducted at 18.25 hrs on 24.3.2017 at deceased's matrimonial house in the presence of her family members of which inquest report (Ex. Ka-10) was prepared. 3. Autopsy of the body of the deceased was conducted by PW-9 on 25.3.2017 at about 2:50 pm. The autopsy report (Ex. Ka-2) revealed three ante mortem injuries: (i) Abrasion size 3 cm X 1 cm left size of neck below left mandibular angle placed obliquely. (ii) Abrasion front of trachea size 2 cm X 1 cm front of neck above thyroid cartilage placed horizontally. (iii) Abrasion 5 cm X 1 cm back of neck (right side) placed obliquely. On dissection under injury No.1 clotted blood with rupture of muscles was noted. The cause of death was ascertained to be due to asphyxia as a result of ante mortem throttling. The estimated time of death was about a day before. 4. After investigation, a charge sheet (Ext. Ka-5) was submitted against three persons, namely, Sunil Kumar (appellant), Gajraj Singh and Smt. Nirmala Devi. 5. After taking cognizance on the charge sheet and committal to the court of session, the trial court framed charges against the said three accused for the offences punishable under Sections 498-A, 304-B IPC and ¾ Dowry Prohibition Act with an alternative charge of an offence punishable under Section 302 read with Section 34 IPC. Prosecution Evidence 6. During the course of trial, the prosecution examined eleven witnesses, out of which six, namely, PW-1 (father of the deceased); PW-2 (scribe of the written report); PW-3 (mother of the deceased); PW-4 also a relative of the informant; PW-5 another relative of the informant; PW-6 (brother of the informant) were witnesses of fact. All of them except PW-6 were declared hostile. Notably, PW-6, though, he might not have been declared hostile but he did not support the prosecution case, in his cross examination. What is important is that all the witnesses of fact in unison have denied harassment of the deceased in connection with demand of dowry and have not supported the prosecution case in respect of alleged demand of dowry. Rather, they disclosed that the goods of the house were strewn all over as if there was robbery/ theft in the house. What is important is that all the witnesses of fact in unison have denied harassment of the deceased in connection with demand of dowry and have not supported the prosecution case in respect of alleged demand of dowry. Rather, they disclosed that the goods of the house were strewn all over as if there was robbery/ theft in the house. They also admitted that the father in law and mother in law of the deceased were in Delhi at the time of the incident. It be noticed that PW-6 though, in his examination-in-chief, sought to support the prosecution case in respect of demand of dowry but in his cross-examination he did not support the allegation in respect of demand of dowry. What is most important is that none of the prosecution witnesses of fact have deposed with regard to the presence of the appellant in the house on or about the probable time of the incident. 7. PW-7 and PW-8 who are witnesses of the inquest proceeding have stated that at the spot they noticed that the goods were strewn all over the house and it appeared that a robber or thief had killed the deceased. 8. PW-9 (autopsy surgeon) proved the autopsy report prepared by him and stated that he conducted the autopsy between 2.20 and 2.50 pm on 25.3.2017 and according to him the deceased might have died a day before the autopsy. 9. PW-10, Head Moharrir posted at the police station concerned proved the registration of the FIR and G.D. entry thereof. 10. PW-11 (the Investigating Officer) proved the various stages of investigation. Investigating Officer, however, did not support the theory of there being theft or robbery in the house as he did not notice anything unusual at the spot, at the time of inspection. He stated that he submitted charge-sheet on the basis of material collected by him during the course of investigation and on the basis of statements recorded under Section 161 Cr.P.C. 11. Incriminating circumstances appearing in the prosecution evidence were put to the accused. As this appeal is filed by the appellant-Sunil Kumar, we propose to notice, in brief, the statement of Sunil Kumar recorded under Section 313 Cr.P.C. In his statement recorded under Section 313 Cr.P.C., the accused appellant denied the allegation in respect of demand of three wheeler and Rs. Incriminating circumstances appearing in the prosecution evidence were put to the accused. As this appeal is filed by the appellant-Sunil Kumar, we propose to notice, in brief, the statement of Sunil Kumar recorded under Section 313 Cr.P.C. In his statement recorded under Section 313 Cr.P.C., the accused appellant denied the allegation in respect of demand of three wheeler and Rs. 50,000/-in connection with dowry and also denied the allegation of harassment of the deceased in connection therewith. Notably, the statement of accused-appellant Sunil Kumar, under Section 313 Cr.P.C., was recorded twice. One on 30.11.2018 and the other on 17.10.2019. In both the statements, the specific stand is that at the time of the incident he was at Etah Bazar, his father and mother were in Delhi and his brother was at his shop when some miscreants looted the house and killed his wife Sangeeta. In the statement recorded on 30.11.2018, he specifically stated that at the time of the incident, nobody else other than the deceased was in the house. The accused also led evidence by examining two defence witnesses. They also supported the stand taken by the accused-appellant in his statement under section 313 CrPC. Trial Court Findings 12. The trial court upon noticing that there was no evidence forthcoming in respect of demand of dowry and harassment of the deceased by the accused, acquitted the accused of the charge of offences punishable under Sections 498A, 304B IPC and Section ¾ Dowry Prohibition Act. The court, however, drew adverse inference against the present appellant on the basis of circumstance that according to the accused i.e. statement under Section 313 Cr.P.C. he came to know about the incident at 12:30 hours in the day but the report was lodged at 4:30 PM not by him but by the father of the deceased, which suggests that true facts were being hidden. Secondly, the I.O. had not noticed anything significant at the spot to suggest possibility of a theft or robbery in the house. Consequently, by taking into account that the deceased died a homicidal death and she died in her matrimonial home where she resided with her husband by taking the aid of Section 106 of the Evidence Act and placing the burden on the accused-appellant to explain the circumstances in which the deceased had suffered the injuries, upon finding that there was no acceptable explanation, recorded conviction. Submissions on behalf of the appellant 13. Learned counsel for the appellant has 'questioned' the judgment and order of the trial court on the ground that the prosecution evidence would suggest that the incident occurred during day time. There is no evidence whatsoever that the accused-appellant was in the house at the time of the incident whereas there is an explanation of accused-appellant that he was elsewhere, therefore, placing the burden on the accused-appellant to explain the circumstances in which the deceased had suffered those injuries, as a result of which she expired, the court committed manifest error of law. Hence, the conviction recorded is liable to be set aside. 14. Learned counsel for the appellant has placed reliance on a recent three-judge Bench decision of the Supreme Court in the case of Shivaji Chintappa Patil Vs. State of Maharashtra 2021 (5) SCC 626 , wherein, in paragraph no. 23, the Apex Court has observed as follows :- “It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused.” In paragraph no. 25 of that decision (supra) it has also been observed that “it is well-settled principle of law, that false explanation or non-explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leaving to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain.” 15. By relying upon the aforesaid exposition of law, learned counsel for the appellant submitted that even if the appellant was guilty of not promptly lodging the FIR on getting information with regard to the death of his wife, it cannot be taken as a conclusive circumstance reflecting a guilty mind. By relying upon the aforesaid exposition of law, learned counsel for the appellant submitted that even if the appellant was guilty of not promptly lodging the FIR on getting information with regard to the death of his wife, it cannot be taken as a conclusive circumstance reflecting a guilty mind. The burden was on the prosecution to first establish that the appellant was present in the house at the time the deceased was killed. Had the prosecution established that fact, then the burden would have shifted on to the accused-appellant, by virtue of Section 106 of the Evidence Act, to explain the circumstances in which the deceased had suffered those injuries on account of which she died. But as the prosecution has completely failed to discharge its initial burden with regard to the presence of the appellant in the house when the deceased died, conviction of the appellant, only on the ground that he did not lodge the FIR and had failed to explain the circumstances in which the deceased died, is not at all sustainable in law. Submissions on behalf of the State 16. Per contra, Sri Amit Sinha, learned AGA submitted that the appellant being the husband of the deceased would in ordinary course be presumed to be residing with the deceased and as no cogent evidence has been led by the appellant as to where else he was present at the time when the incident occurred, the trial court rightly placed the burden on the appellant to record conviction with the aid of Section 106 of the Evidence Act. Moreso, when the factum of robbery/theft was not confirmed by the testimony of the investigating officer. Analysis 17. Having considered the rival submissions and having noticed the prosecution evidence, it is not in dispute that the motive set out for the crime, which is demand of dowry and harassment in connection therewith, has not been proved and the trial court has specifically recorded its finding in that regard and all the accused including accused-appellant who were put to trial on that charge, have been acquitted. Once that is the position the benefit of legal presumption, which the prosecution could get under section 113-B of the Evidence Act, is not available. Hence, the burden would squarely fall on the prosecution to prove the charge of murder either by direct evidence or circumstantial evidence. Admittedly, there is no direct evidence. Once that is the position the benefit of legal presumption, which the prosecution could get under section 113-B of the Evidence Act, is not available. Hence, the burden would squarely fall on the prosecution to prove the charge of murder either by direct evidence or circumstantial evidence. Admittedly, there is no direct evidence. The law for conviction on the basis of circumstantial evidence has been well settled. In one of the recent decisions of the Apex Court, in Vijay Shankar V. State of Haryana, (2015) 12 SCC 644 , following its earlier decisions in Sharad Birdhichand Sarda V. State of Maharashtra, (1984) 4 SCC 116 and Bablu V. State of Rajasthan, (2006) 13 SCC 116, in respect of a case based on circumstantial evidence, it was held that “the normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence”. Further (vide paragraph 153 in Sharad Birdhichand Sarda's case), it is settled, the circumstances from which the conclusion of guilt is to be drawn should be fully established meaning thereby they 'must or should' and not 'may be' established. 18. In addition to above, we must bear in mind that the most fundamental principle of criminal jurisprudence is 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 (vide Shivaji Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793 ). 19. These settled legal principles have again been reiterated in a three-judge Bench decision of the Supreme Court in Devi Lal v. State of Rajasthan, (2019) 19 SCC 447 wherein, in paragraphs 18 and 19 of the judgment, it was held as follows:- “18. 19. These settled legal principles have again been reiterated in a three-judge Bench decision of the Supreme Court in Devi Lal v. State of Rajasthan, (2019) 19 SCC 447 wherein, in paragraphs 18 and 19 of the judgment, it was held as follows:- “18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof. 19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same.” (Emphasis Supplied) 20. In the instant case, we do not find any evidence on record to demonstrate that at the time of the incident, the accused-appellant was seen in the house with the deceased. The incident, as per prosecution case including the autopsy surgeon, was of day time. During day time, it cannot be presumed that all members of the house, particularly, male member, would be at home because they might be away to attend to their daily chores. Specific case has been taken by the appellant that he was at Etah Bazar when the information came to him, at about 12:30 hours, with regard to the incident. There is no evidence that on or about the probable time of incident, the appellant was noticed in the house or around or was seen exiting the house. Specific case has been taken by the appellant that he was at Etah Bazar when the information came to him, at about 12:30 hours, with regard to the incident. There is no evidence that on or about the probable time of incident, the appellant was noticed in the house or around or was seen exiting the house. In these circumstances, the prosecution has miserably failed to discharge the initial burden placed upon it to prove that the appellant was in the house or in all probability would have been in the house, at the time when the incident occurred. The circumstance that the accused-appellant did not immediately inform the police of the occurrence in our view is not so clinching or conclusive in its tendency as to hold the appellant guilty. No doubt, conduct of the accused does assume importance in a given facts of the case. But, here, the delay in lodging the FIR is barely of 4 hours. Notably, the information was received by the appellant, as is his case, at 12.30 hours, while he was in the Bazaar. The in-laws of the appellant lodged report at 16.25 hours on that very day, therefore, there was hardly time enough for the appellant to respond to enable an adverse inference from his conduct. Once this is the position, keeping in mind the decision of the Apex Court in Shivaji Chintappa Patil (supra), in our considered view, the trial court misled itself by recording conviction with the aid of Section 106 of Evidence Act. 21. That apart, there is another important feature of the prosecution case, which is, that all prosecution witnesses of fact including witnesses of inquest have consistently deposed with regard to the goods strewn all over the house suggestive of a robbery or theft in the house. As this circumstance is noticeable in the prosecution evidence there was all the more reason to accept the explanation offered by the appellant. In our view, therefore, the judgment and the order of conviction recorded by the trial court cannot be sustained. 22. The appeal is allowed. The judgment and order dated 2.11.2019 passed by Additional Sessions Judge/Special Judge, Gangsters Act, Court No. 5, Etah is set aside to the extent it convicts and sentences the appellant. The appellant is acquitted of the charge of the offence of murder for which he has been convicted. 22. The appeal is allowed. The judgment and order dated 2.11.2019 passed by Additional Sessions Judge/Special Judge, Gangsters Act, Court No. 5, Etah is set aside to the extent it convicts and sentences the appellant. The appellant is acquitted of the charge of the offence of murder for which he has been convicted. The appellant is reported to be in jail, he shall be released forthwith subject to compliance of provisions of Section 437-A Cr.P.C. to the satisfaction of the trial court. 23. Let a copy of this order/judgment and the original record of the lower court be transmitted to the trial court concerned forthwith for necessary information and compliance. The office is further directed to enter the judgment in compliance register maintained for the purpose of the Court.